D.O.F:27/10/2021

                                                                                                         D.O.O:15/05/2023

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD

        CC.No.187/2021

Dated this, the 15^th day of May 2023

PRESENT:

SRI.KRISHNAN.K                        :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                        : MEMBER

Sudheesh.K,

Madavalappil (H),                                                                : Complainant

Kalichanadukkam (P.O),

Parappa,

Kasaragod- 671314

(Adv. P.Mohanan)

                              And

1. Mahindra Home Finance,
2. kanhangad
2. Main Road

Main Road,

Kanhangad- 671315

(Adv. Suresh.K.P)

: Opposite Parties

2. Mahindra Home Finance,

Vellarikkund- 671314

3. Mahindra Rural Housing F.L,

Sadhana House,

2^nd floor 570

P.B. Marg, Worli,

Mumbai- 400018

ORDER

SMT.BEENA.K.G  : MEMBER

          The brief facts in this case is that the Complainant availed a loan of Rs.1,30,000/- for extension of house from Opposite Party No.1 in 2014.  Out of the total amount Opposite Party deducted Rs.9,000/- as insurance premium and the house was insured with Cholamandalam Insurance Company.  As per the insurance policy, if any damage caused to the house due to natural calamity the same will be compensated by insurance company.  The Complainant had repaid the loan installments till 2016 March.  On 17/07/2016 due to heavy wind and rainfall the aforesaid house got damaged, and became unsuitable for residence.  As the house was insured with Cholamandalam Insurance Company through Opposite Party No.1, the complainant submitted claim application with photos of damaged house to insurance company. The Opposite Party informed the Complainant that the amount will be credited to the account of Opposite Party.  So he did not paid the balance loan amount.  In the meanwhile the Opposite Party No.1 has sent a registered notice to the Complainant to pay Rs.51,399/- to close the loan.  The Complainant is alleging deficiency of service on the part of Opposite Party No.1 in connection with the non processing of the insurance claim entrusted to them by Complainant.  The complainant submitted all documents with Opposite Party No.1 for processing the claim.  The adamant steps taken by Opposite Party No.1 against the Complainant to close the loan caused severe mental agony and loss to the Complainant.  Hence, he is seeking a compensation of Rs.1,00,000/- from Opposite party No.1 for the loss and mental agony.

          The Opposite Party No.1 filed the version admitting the loan taken by the complainant and the existence of insurance policy.  According to Opposite Party the complaint is not maintainable before the Commission since the housing loan agreement executed between the Complainant and Opposite Parties contains an arbitration clause and jurisdiction is confirmed to the Courts in Mumbai only.  The Complainant had availed the loan for the extension of his house, where the transaction is in the nature of a commercial one, which this Honorable Commission is not having jurisdiction to adjudicate the matter.  Due to heavy wind and rainfall the house was damaged on 17/07/2016 and the Complainant was residing in the house at the time of incident even though the Complainant paid the loan up to last march, the Opposite Party had taken Coercive steps against the Complainant to close the loan.   As per the direction of Opposite Party, Complainant reconstructed the house.   The Opposite Party No.1 tried to settle the matter by directing the Complainant to pay Rs.51,399/- and all the transaction between the insurance Company is done though the first Opposite Party and all the documents demanded by the insurance companies furnished,  but the claim is not processed.  Hence the complainant lost money and also suffered mental agony are false and denied by Opposite Party.  For the payment of insurance premium the Opposite party deducted Rs.9,000/- from the loan amount and the amount is stated by the Opposite Party is due and the complainant is eligible for loss of Rs. 1,00,000/- are also false and denied by Opposite Party.  The Complainant obtained the insurance from Cholmandalam finance Company and this Opposite Party is not liable for any default from the said insurance Company.  One Mrs. Laksmi is the borrowers and the complainant and Mr. Gangadharan are co borrowers has availed said loan of Rs. 1,30,000/- on 20/03/2014 for construction by deposit through equitable mortgage for land property in RS.No-593/1 of and extant of 10.12 acres in Parapa village Vellarikund thaluk and executed the loan agreement.  The said loan is repayable in 90 monthly installmentsof Rs.3,028/-each.  One Mr. Narayanan was the guarantor to the said loan.  There is no physical inconvenience, mental agony monetary losscaused to the Complainant.  So there is no cause of action.  The Opposite Party has wide range of business and clients all over India.  There is no merit of bonafide in the complaint it is filed as an experimental one.  There is bad motive in filing this case, hence Opposite Parties entitled for compensatory cost.

          The Complainant filed proof affidavit in lieu of chief examination.  Ext.A1 to Ext.A4 marked.  Ext. A1 is the Photo of the damaged house.  Ext.A2 is the paper cutting contains the news and photographs of the damaged house in heavy wind and rain.  Ext.A3 is the estimate prepared by Mastro Metals Pvt. ltd.  Ext.A4 is the registered notice sent by Opposite Party No.1 to the complainant. The Complainant is cross examined as PW1.  Ext. B1 is marked from the side of Opposite Party.  It is the letter to renew the policy.  The main question raised for consideration are-

1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service or unfair trade practice on the part of Opposite Party.?
3. Whether the Complainant is entitled for relief?
4. If so what is the relief?

For convenience issues No.1 to 4 can be discussed together.

          It is true that the Housing loan agreement executed between the Complainant and Opposite Party contains an arbitration clause.  But as per the Consumer Protection Act, the Complainant is at liberty to approach proper Commission raising service deficiency and unfair trade practice.  Hence, the Complaint is maintainable.

          The case of the Complainant is that due to heavy wind and rainfall his house damaged on 17/07/2016, when he was residing in the same house.  As per the direction of the Opposite Party the Complainant reconstructed the house with the help of Mastro Metals as per the direction of Opposite Party No.1.  The damaged house had insurance policy at the time of incident.  The insurance payments has been made through Opposite Party and Rs.9,000/- was the premium.  So the complainant submitted claim application with necessary documents to Opposite Party.  But the same is not processed.  In his cross examination the Complainant states that Ext.A4 notice sent by Opposite Party demanding the Complainant to pay Rs.51,399/- which is the due amount as on 05/09/2021.  The total loan amount was 1,35,000/-.  The Complainant had not sent any reply to Ext.A4 notice and the amount is not paid till then the Complainant believed that the loan was closed with the insurance amount.  In the reexamination the Complainant further states that the Opposite Party has done all arrangements in connection with the insurance premium payment of Rs.9,000/- was also accepted by Opposite Party.  At the time of occurring damage to the house the insurance policy was in existence. When the Complainant approached the office of Opposite Party it is informed that insurance amount will be credited to the account of the Opposite Party.  Thereafter loan amount is not paid.  On the basis of his deposition it is clear that the Complainant, a poor cooli worker trusted Opposite Party and submitted the claim form with all documents to them, believing that they will do needful.  But, Opposite Party No.1cleverly kept silent about the claim application. Thereafter, The Opposite Party informed the Complainant that the amount will be credited to the account of Opposite Party so he did not pay the balance loan amount and after a short while sent a registered notice to the Complainant demanding to pay Rs.51,399/- Ext.A4.  Ext.A1 to A4 proves that the act of Opposite Party amounts to unfair trade practice and deficiency of service and this illegal act of Opposite Party caused severe mental pain and loss to the Complainant.  The Complainant is entitled for relief.  The claim of the complainant is for Rs.1,00,000/- is without any basis.  On the basis of the circumstances of this case and the documents produced by the Complainant, this commission holds that Opposite Party has no right to insist the Complainant to pay any further amount to the loan and they are directed to pay an amount of Rs.10,000/- to the Complainant as compensation. Opposite Party is hereby directed to avail the insurance benefits to the Complainant at the earliest and thereby set of the loan account. 

          Therefore the complaint is allowed directing Opposite Party to avail the insurance benefits to the Complainant and thereby set off the loan and to pay compensation of Rs.10,000/- (Rupees Ten Thousand only) and cost of RS.3,000/- (Rupees Three Thousand only) to the complainant.

The time for compliance is 30 days from the receipt of copy of this order.

MEMBER                                              MEMBER                          PRESIDENT

Exhibit

A1:  Photo of damaged house

A2:  Copy of newspaper cutting

A3:  Estimates prepared by Mastro metals

A4:  Registered Notice

B1:  Renewal of policy

Witness Cross examined

PW1:  Sudheesh.K

MEMBER                                    MEMBER                          PRESIDENT