Sri.Aswini Kumar Patra, President .

1. The complainant Benudhar Sahu has filed this consumer complaint alleging deficiency in service & unfair trade practice on the part of the Op/Kotak Mahindra Bank Ltd .
2. The Complaint has  prayed  for an order directing the Op (a) to close the loan amount obtained by Late Tulasi Sahu (borrower) in respect of tractor/trailer,(b)  not to send any demand notice to the complainant as he has not availed the loan,(c) to hold that the life insurance policy issued in the name of the complainant is deliberate wrong and direct the Op to adjust the insurance matured amount in the loan,(d) to held that the Op is liable for unfair trade practice and deficient in service,(e) direct  the Op to pay a compensation of Rs.50,000/- towards mental & physical agony of the complainant and to pay Rs.10,000/- towards litigation expenses (f) and any other relief/reliefs the Hon’ble Commission deem fit and proper.
3. During hearing of the matter the complaint fails to appear. However, this Consumer Complaint is taken up to decide on merits in view of the of Section 38(3) (c) of C.P. Act 2019 .
4. Peruse the material available on record .Heard the learned counsel for the OP/Bank. We have our thoughtful consideration on the submission of the learned counsel for the OP/Bank.
5. The facts of the complaint in brief are that, the father of the complainant Tulasi Sahu availed a loan to purchase a tractor (TAFE) from the OP/Bank vide loan A/c No.5778816 for an amount of Rs.5,06,924/- repayable in quarterly installments. The installment to be paid by the borrower Tulsi Sahu started from 5^th May 2018 to 5^th Feb. 2020 @ fixed  EMI of  Rs.38750/- quarterly and next 12 quarterly installment from 5^th Sept 2020 to 5^th Aug 2023 i.e. total repayable amount  along with interest pattern comes to Rs.7,75,000/- . The Bank authority has taken signature of the father and also the signature of   the complainant who had appended their signature in good faith without being informed in respect of the contents of the same. It is further contended that, for securing the loan the Op/Bank obtained the Life Insurance Policy covering death benefit of Rs.5,00,000/- only from the Kotak Life Insurance Ltd. and according to the policy condition, in case of death of the loanee, the insurance amount will be transferred to the OP/ Bank accordingly insurance premium of Rs.3,669/- was paid which is to be included in the loan amount. It alleged that, the father of the complainant was never supplied with any document like loan agreement, insurance detail and other documents related to the loan transaction. The borrower Tulsi Sahu was paying the fixed installment but unfortunately he died on 18.09.2019 due to illness which was informed to the OP /Bank to settle the loan amount by adjusting insurance amount but instead of settling the outstanding loan, the Bank Op issued loan recall notice dt.15.02.2019 and dt.15.09.2020 demanding repayment of loan dues of Rs.4,29,276.51 and Rs.5,02,726.64 respectively whereupon, the complainant could know for the first time that, without his knowledge the Op/Bank scrupulously with ulterior motive have shown him as co-borrower along with his deceased father/borrower. It is further contended that, to his surprise, when he obtained insurance particular, he could found that, the life insurance policy have been issued in his name as loanee and late Tulasi Sahu i.e the borrower has been shown as nominee there in the insurance policy though, the policy was purchased by the borrower late Tulsi Sahu as it is clear from the insurance payment confirmation slip. It is alleged that the OP/ Bank has fraudulently & with an evil intention made the complainant as co-borrower , so also manipulated the life insurance policy issued by their own Company, which clearly prove the  Unfair Trade Practice &  Deficient Service of the OP/ Bank being a service provider. It is the contention of the complainant that, as per the account statement, as on 11.03.2021 the closing balance due  on 21.03.2021 is shown as Rs.1,81,890.74 on further principal receivable Rs.3,08,093.99. The OP/Bank  should have declared the loan as NPA from the death of the loanee but instead served recall/demand notice recall notice dt.15.02.2019 and dt.15.09.2020 . It is further contended that, taking into consideration the down payment of Rs 2,60,000/-,interest paid, the life insurance policy and more particularly complainant  being made co-borrower without his consent and knowledge the OP/ Bank is not entitle to get any outstanding dues from the complainant.
6. Being notice, the Opposite party appeared and filed their written version resisting the contention of the complainant.
7. The material fact relating to advancement of loan to the father of the complainant for an amount of Rs.5,06,924/- vide loan A/c No.TFE-5778816 for purchase of vehicle is admitted by the Op Bank.
8. The OP/Bank submitted that, the complainant being the co-applicant to the said agreement undertook to repay the entire loan as per the term & condition of the loan agreement executed by the borrower Tulsi Sahu and himself Benudhar Sahu as co-borrower. The op/ Bank denied the facts that, the complainant along with his father has put their signature in the loan documents without being informed about the contents of the document and further clarified that, the complainant himself executed the loan documents being a co-borrower to the said loan along with his late father. The complaint averments that, “the borrower become the life insurance holder of Kodak Life Insurance and insurance premium was added there with the finance amount” is denied being a false allegation. It is further submitted that, since the present complaint looks after the vehicle and as per their wish they preferred to make the life insurance policy in the name of the present complainant much before the death of the borrower(here the father of the complainant)  which is duly signed, accepted & acknowledged by the complainant. The learned counsel for the OP/Bank urge  that ,there  is no deficiency in service or unfair trade practice on the part of the Op/ Bank and hence claimed made by the complainant is not maintainable liable to be rejected with exemplary cost against the Op/ Bank.
9. Evidently, Tulasi Sahu, the father of the complainant being the borrower and Benudhar Sahu(here the complainant) being the co-borrower have   entered into a loan agreement vide TFE No.5778816 dt.30.01.2018. Accordingly ,the OP Bank has disbursed the sanctioned loan amount of Rs.5,06,924/- to the borrowers for purchasing of tractor & firm equipments repayable in 60 months of quarterly installment patters started from 5^th May 2018 to 5^th Feb,2020 i.e. 8 numbers of  installments @ EMI of Rs.38,750/- and the rest 12 numbers of  quarterly installments would have started from 5^th November,2020 to 5^thAugust,2023 @ EMI Rs.38,750/-.
10.  It is ascertained from the  account statement of the said loan account No.TFE -5778816 with the OP/ Bank placed in the record that, the borrowers have been repaying the loan but as on date of issue of said loan account statement i.e.as on dt.  8.04.2021 the total loan amount payable is Rs.4,89,984.73 which includes the principal receivable amount of Rs.3,08,693.99 .
11. The OP /Bank in its demand notice dt 25.02.20 call upon the borrowers to pay the outstanding amount of Rs 4,29,276.31 and vide notice on  15^th Sept,2020 call upon the borrowers to pay the outstanding amount of Rs.5,02,076.64 as per the terms of the loan agreement and threatened to take legal proceeding (Civil as well Criminal) viz. DRT/SARFAESI proceedings against the borrowers/complainant.
12. The Op/Bank has not placed on record any material or documents whatsoever that to establish that, the term & condition of the loan agreement as it is filed along with the written version in this case is provided to the complainant either at the time of execution of agreement  or any time subsequently
13. It is found from the true copy of alleged Loan- cum -Guaranty Agreement paper placed on the record by the OP/ Bank that, those are  nothing but a standard form of contract whereon the signature  of borrower (here the father of the complainant) and signature of the Benudhar Sahu/Co-borrower(here the complainant) is found on the space specified for borrower and co-borrower respectively. So also their signature are found in many place where there is marked ”v” for borrower and marked “x” for co-borrower is given. It is seen that, many part of the agreement paper so also the demand promissory note,( true copy of which is  placed in the record by the OP/ Bank ), have   contained many dotted line not yet filled up though signature of Tulsi Sahu has been taken over the space meant for the signature of the borrower. The true copy of the power of attorney placed in the record by the OP Bank is not yet filled up but it content signature of Tulasi Sahu in odia  on the space marked “v “ and signature Benudhar Sahu on the space marked as “x” which clearly shows the unfair conduct of the Op /bank. We found no material available on record to established  that, the terms of the alleged Loan Agreement has ever been explained to the borrower & co-borrower/complainant rather in the facts and circumstances ,as noted above ,we have no hesitation to hold that, there is truthness on the averment of the complainant contended in the complaint petition supported by affidavit of the complainant that:-“ the bank authority took signature in many documents and so also some signature of the complainant who has appended their signature in good faith without being informed in respect of the contents of the same.” Accordingly, we are of our opinion that, the complainant is not bound by the terms & conditions of the alleged loan agreement.
14. Learned Counsel for the OP/ Bank submits that, since the complainant looks after the financed vehicle, hence as per their wish they preferred to take the life insurance policy in the name of the present complainant much before the death of the borrower/father of the complainant. However, on being asked the OP /Bank has failed to produce any copy of the later of the confirmation on the payment of insurance premium etc. duly signed by the complainant/ co-borrower rather, both parties have filed the copy of letter address to the Kotak Mahindra Bank Ltd which contents as follows:-

        “Dear Sir,

          Reg:-Confirmation on the payment of insurance premium etc.

          I hereby confirmed that the insurance premium of Rs.3369/- including statutory levy, taxes, charges, etc.,will form part of the loan agreement executed by me and the amount of EMI repayable is inclusive of the amount as indicated above.

          Thank you,

          Yours faithfully,

          (Tualsi Sahu)

          SD/(in Odia)

          Borrower”

      This document placed in record has not been  disputing by both the parties which clearly proved that, borrower Tulasi Sahu has instructed the OP/ Bank for his insurance but the OP/ Bank has not acted upon and failed to insured the life of borrower Tulasi Sahu is clear negligence, imperfection, shortcomings, inadequacy and deficient service on the part of OP /Bank which no doubt caused financial loss & mental harassment to the borrower as well as co-borrower/complainant.

15. The Op/Bank has not  placed on record any reason  whatsoever as to which circumstances they have ignored the letter of  Confirmation on the payment of insurance premium etc being executed by the deceased borrower Tulasi Sahu (as it is placed on record by the OP/Bank along with the written version in this case) and such negligence act is  bonafied in nature so also it is not the case of the OP/Bank  that, the deceased borrower lost his insurable right when  the co-borrower /the complainant has availed the benefit of his life insured under Kotak Complete Cover Group Plan(Product UIM:107N018V04).
16. The true copy of certificate of insurance placed in the  record by the OP/ Bank obtained in the name of complainant Benudhar Sahu/co-borrower vide policy certificate No.CC000014­_TFE5778816_260169445 relating to loan ID:TFE5778816 under Kotak Complete Cover Group Plan(Product UIM:107N018V04) shows that, premium amount paid is Rs.3668.79 (Round up Rs.3669/-)  is the same amount  as it contained in the aforesaid confirmation letter duly signed by the borrower deceased Tulasi Sahu addressing the OP/Bank. This insurance certificate covered commencement dtate 30^th Jan,2018 and termination dt.29.01.2023 which covered amount at inception Rs.5,00,000/- . As such we may hold no doubt in our mind that, could the Op/Bank authority have acted upon by the instruction of Tulasi Sahu/borrower and would have obtained such life insurance policy in the name of Tulasi Sahu/deceased borrower as it has obtained the insurance policy in the name of co-borrower complainant then the complainant would not have to pay the outstanding loan amount as claimed by the OP Bank under the demand notice dt 28.02.2020 and 15^th Sept,2020 with respect to loan agreement No.5778816.  Hence, demand notice notice dt 28.02.2020 and 15^th Sept,2020 issued by the OP Bank in the name of borrower Tulasi Sahu( here the father of the complainant) and in name of the co borrower(here the complainant) is not ;sustainable.

16. Based on the fact and circumstances as discussed above, we are of our opinion that, the Op bank is deficient in service and playing unfair trade practice causing financial burden upon the complainant to repay the loan outstanding amount of Rs.5,02,726.64 & mental harassment .As such the OP Bank is liable to compensate the complainant . Hence, it is ordered.

                                                ORDER

              This consumer complaint is allowed in part on contest against the Op Bank with the following direction. The OP /bank is hereby directed to pay Rs.5,00,000/- to the complainant towards financial loss & mental harassment which shall be  set up against the said  loan due under the loan agreement vide No.5778816 as it was on the date of death of the borrower Tulasi Sahu i.e. dt.18.09.2019. The OP/Bank is further directed not to issue any demand notice to the complaint asking any due on the TFE -5778816 and not to repeat Unfair Trade Practice & deficient Service .No order as to litigation cost. Pending application if any disposed of accordingly.

              This order is to be complied within four weeks of receiving of this order failing which the above awarded amount will carry interest @ 12% per annum and the Chief Executing Officer of the Op shall be liable to prosecute under penal provisions of the C.P.Act,2019.­­  

        Dictated and corrected by me.

        President

        I   agree.

                        Member                                      President

       Pronounced in open Commission today on this16th November, 2022 under the seal    and signature of this Commission.

Copy of this judgment be provided to the parties free of cost .The judgment be uploaded  on the website of the Commission for the perusal of the parties.

        Order accordingly.

        President

        I   agree

                         Member                                     President