DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 20th Day of January 2012 Present : Smt.Seena H, President : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member Date of filing: 26/04/2008 (C.C.No.64/2008) Baby C.S. W/o. Mani (Late) Choorakode Puliyankad House Cheraya, Kongad Palakkad . - Complainant ( Adv.Nisha.S ) V/s 1. Mahindra & Mahindra Financial Services Ltd Rep. By Managing Director Sadhana House, 2nd Floor Behind Mahindra Towers 570 P.B, Marg Work, Mumbai (Adv. Tony Jose.K.) 2. Branch Manager Mahindra & Mahindra Financial Services Ltd 2nd Floor, T M Complex Chandra Nagar Palakkad. (Adv. Tony Jose.K.) 3. Branch Manager Mahindra & Mahindra FinancialServices Ltd Cochin (Adv. Tony Jose.K.) 4. Deputy Chief Manager Claims Department Kotak Mahindra Old Mutual Life Insurance Ltd 9th Floor, Godres Coliseum Behind Everard Nagar Sian (E), Mumbai - Opposite parties (Adv.R.Baluraj) O R D E R By Smt.PREETHA.G.NAIR, MEMBER Case of the complainant is as follows. The complainant is a widow aged 50 years . Her husband Mani was working as a Commission Agent for Tractor owners and he used to arrange work for tractor owners. On 2nd week of February 2007, Executives from the 1st Opposite party company approached him and told him that the company is arranging financial services for purchasing a tractor and there is an attractive policy named as Mahindra Loan Suraksha. As per this policy every loan taking from the 1st Opposite party company will be protected through Group Life Insurance Policy arrangement. Mahindra finance will provide this loan suraksha to their customers through the help of Kotak Mahindra old mutual Life Insurance Ltd (Kotak Life Insurance) and the borrower will get a life insurance cover. The main attraction of this scheme is that in the event of death of an insured borrower during the tenure of the loan, there will be no burden of paying outstanding loan on such borrower’s family. The above said life insurance cover will start from the date of disbursement of the loan to the borrower by the 1st opposite party. The executives from the 1st opposite party company induced the complainant to purchase a tractor. 2nd opposite party was arranged the finance from the company. The complainant's husband agreed to purchase a tractor from the 1st opposite party company. On 27/02/2007, he has made the initial payment of Rs.17,900/- to the 1st opposite party company towards the hypothecation of the vehicle. In the initial payment, Rs.2,999/- was charged towards Mahindra Loan Suraksha Insurance Scheme. Complainant's husband was compelled to sign so many papers and agreements as part of the loan from the 2nd opposite party. On 28/02/2007, a 2007 model Mahindra 475, D I tractor Engine No.NCNW 9877 was delivered to complainant's house. Registration Certificate Book was hypothecated to 1st opposite party company's Cochin Branch. Later on the tractor was issued Registration Number as KL9V 834. Loan agreement number was 585914, amount was Rs.4,32,601/-. In that Rs.3,00,000/- was the value of the vehicle and Rs.1,32,601/- was finance charges. Loan period was for 48 months and the monthly instalment was Rs.9,075/-. Mahindra Loan Suraksha was for one year (28/02/2007 to 27/02/2008) and the certificate number is 296840. No original documents were furnished to complainant's husband including the 1st instalment receipt and certificate of cover of Mahindra Loan suraksha. Complainant's husband has made two monthly instalments from his Bank Account. After that he was not well for some days. On 14/04/2007 he died of Jaundice. After the death of complainant's husband, she approached 2nd opposite party for the benefit of MLS Scheme. As per the instruction of 2nd opposite party, complainant submitted application to 2nd opposite party. But there was no reply. 2nd opposite party told the complainant that 4th opposite party is sanctioning the claim and it will take sometime, believing the words the complainant has paid 6 monthly instalments for Rs.54,450/-. On 20/04/2008 complainant approached the 2nd opposite party and asked about the claim. Then he informed that 4th opposite party has rejected the claim . This amounts to clear deficiency in service on the part of opposite parties. Hence the complaint. The complainant prays an order directing (1) the 1st opposite party to cancel the loan amount of Rs.4,32,601/- taken by the complainant's husband and (2) 1st opposite party to return the amount of Rs.54,450/- collected from the complainant illegally as monthly instalments and directing (3) the 4th opposite party to reimburse the said loan amount of Rs.4,32,601/- and (4) directing the opposite parties to pay Rs.1,00,000/- as compensation to the complainant. Opposite parties filed version stating the following contentions. Opposite parties 1 to 3 admitted that the complainant's husband availed the financial assistance after agreeing with the terms of the agreement. The opposite parties 1 to 3 stated that the complainant's husband Mr. Mani was a commission agent for tractors and that he used to arrange works for tractor owners are unaware of the facts and denied. Further the opposite parties 1 to 3 stated that the opposite parties induced the complainant's husband to purchase the tractor is absolutely false and denied. The say of the complainant that she was regularly repaying the loan amount and the claim form submitted by the complainant was without any reason rejected is absolutely incorrect and hence denied by opposite parties 1 to 3. The averments in the complaint that the officials from the company is threatening the complainant to initiate legal actions and that she has paid 6 instalments amounting to Rs.54,450/- are incorrect and hence denied by opposite parties 1 to 3. All the averments in the complaint are denied by 4th opposite party . Hence opposite parties prayed that dismiss the complaint with cost.
Complainant filed chief affidavit and documents. Exhibit A1 to A7 marked on the side of the complainant. Opposite parties filed affidavit and document. Exhibit B1 marked with objection. Dr. Viswanath, was examined on the side of the 4th opposite party. Matter was heard. The complaint allowed. Then opposite parties 1 – 3 as well as 4th opposite party had filed appeals before the Hon’ble State Commission. The Hon’ble State Commission remanded back the case to adduce further evidence if any and dispose of the case on merits. Ext.B2 to B8 marked. Complainant filed questionnaire. Opposite parties filed answers. Matter was heard. Issues to be considered are 1) Whether there is any deficiency in service on the part of opposite parties ? 2) If so, what is the relief and cost ? Issues 1 & 2 The complainant raised objection to marking of Ext.B2 to B8 except B7. The complainant argued that the handwriting in the Annexure R2 shows different and a small tick mark was given in the column of liver failure. The complainant has not filed application to call for original documents from opposite parties. Ext.B8 is the policy certificate of the insurance coverage. So as per the terms and conditions of the policy the coverage of the loan suraksha can only be given by the 4th opposite party. Ext.B7 is the repudiation letter of 4th opposite party. The back side of Ext.A6 certificate of the cover is missing. The back side of the certificate of the cover will show the terms and conditions of the policy as revealed by Ext.B8. The opposite party 1 – 3 stated that the back side of the certificate of cover was deliberately kept away by the complainant to mislead. The 1st opposite party has collected good health certificate from the husband of the complainant at the time of availing loan under clause 4 (b) of the terms and conditions of the policy contract. No contradictory evidence produced by complainant. In Ext.B3 the copy of Declaration of Good Health of the Borrower shows difference in handwriting of “Mani.C” But the complainant stated that complainant’s husband is an illiterate person. Also the complainant has not produced documents to verify the signature of husband. In the questionnaire the complainant has not clearly asked about the difference of signature in Ext.B3. The complainant has not produced evidence to show that liver failure is not liver cirrhosis. DW1 the doctor of the Mother Hospital wherein the deceased was under treatment at the time of his death, has deposed that the deceased was suffering from cirrhosis of liver since November 2004. In Ext.B1 the original of medical questionnaire the doctor mentioned that the immediate cause of death was cirrhosis liver and hepatonenal syndrome. In Ext.B2 policy document 3. Cover : The cover for each member is subject to the following:- Where the age at entry is greater than 50 years participation in this policy will be subject to evidence of health and such further terms and conditions as may be stipulated by the company. The 4th opposite party has answered the 3rd question that the member had however provided a duly signed declaration of Good Health at the time of taking the cover under the policy wherein he had clearly declared about his good health. Ext.B8 document shows that the life insurance cover is provided through 4th opposite party. The original policy document was not produced by complainant. Also in question No.5, the 4th opposite party has answered that the life insured (Mr.Mani) was not medically checked as he had not declared any adversity regarding his health status in the declaration of Good Health. In question No.15 the complainant stated that the documents submitted along with the affidavit will not reveal that the policy holder was having liver failure at the time of issuing the policy ? The 4th opposite party has answered that certificates and discharge summaries issued by Sai Nursing Home the life insured was suffering from cirrhosis of the liver prior to the date of signing the declaration of good health. The complainant has not produced documents to show that the deceased has no liver failure at the time of issuing the policy. Cirrhosis is a serious disease of the liver caused especially by drinking too much alcohol. The complainant stated that no original documents related to the loan was furnished to the husband, all documents were kept in the custody of 2nd opposite party. But the complainant has not taken steps to call for the original loan documents from the custody of 2nd opposite party. In these circumstances we can not attribute deficiency in service on the part of opposite parties. In view of the above discussions we are of the view that complainant miserably failed to prove her case. In the result complaint dismissed. Order in I.A. stands vacated. Pronounced in the open court on this the 20th day of January 2012 Sd/- Seena.H President Sd/- Preetha G Nair Member Sd/- Bhanumathi.A.K. Member APPENDIX Witness examined on the side of Complainant Nil Witness examined on the side of Opposite party DW1 – Dr. Viswanath Exhibits marked on the side of the complainant 1.Ext. A1 series – Cash receipt dated 27/06/07 of Mahindra Finance for Rs.9075/- 2. Ext. A2 – Cash receipt dated 27/03/08 for Rs.9,100/- 3. Ext. A3 – Retail Invoice dated 04/04/07 4. Ext. A4 - Copy of certificate of registration 5. Ext. A5 – Copy of cash receipt of Mahindra Finance dated 27/02/07 for Rs.17,900/- 6. Ext. A6 – Copy of Certificate of Cover No.296810 7. Ext. A7 – Repayment schedule Exhibits marked on the side of the Opposite Party 1.Ext. B1 - Medical Questionnaire of Kotak Life Insurance. 2..Ext.B2 – Copy of Policy Document 3.Ext.B3 – Copy of Declaration of Good Health of the Borrower 4.Ext.B4 – Copy of Death claim intimation letter dated 10/8/07 5.Ext.B5 - Copy of letter dated 13/09/07 1st opposite party to 4th opposite party 6.Ext.B6 – Copy of Certificate issued by Sai Nursing Home 7.Ext,B7 – Letter dated 13/3/08 sent by 4th opposite party to 1st opposite party 8.Ext.B8 – Copy of Certificate of Cover issued by opposite party Forums Exhibits Nil Costs No cost Allowed DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 13th day of July 2010 .
Present : Smt. H. Seena, President : Smt. Preetha G. Nair, Member : Smt. Bhanumathi.A.K, Member
C.C.No.64/2008
Baby C.S. W/o. Mani (Late) Choorakode Puliyankad House Cheraya, Kongad Palakkad . - Complainant ( Adv.Nisha.S ) V/s
1. Mahindra & Mahindra Financial Services Ltd Rep. By Managing Director Sadhana House, 2nd Floor Behind Mahindra Towers 570 P.B, Marg Work, Mumbai (Adv. Tony Jose.K.) 2. Branch Manager Mahindra & Mahindra Financial Services Ltd 2nd Floor, T M Complex Chandra Nagar Palakkad. (Adv. Tony Jose.K.) 3. Branch Manager Mahindra & Mahindra FinancialServices Ltd Cochin (Adv. Tony Jose.K.) 4. Deputy Chief Manager Claims Department Kotak Mahindra Old Mutual Life Insurance Ltd 9th Floor, Godres Coliseum Behind Everard Nagar Sian (E), Mumbai - Opposite parties (Adv.Unni Thomas) O R D E R By Smt. Preetha.G. Nair, Member. Case of the complainant is as follows. - 2 - The complainant is a widow aged 50 years . Her husband Mani was working as a Commission Agent for Tractor owners and he used to arrange work for tractor owners. On 2nd week of February 2007, Executives from the 1st Opposite party company approached him and told him that the company is arranging financial services for purchasing a tractor and there is an attractive policy named as Mahindra Loan Suraksha. As per this policy every loan taking from the 1st Opposite party company will be protected through Group Life Insurance Policy arrangement. Mahindra finance will provide this loan suraksha to their customers through the help of Kotak Mahindra old mutual Life Insurance Ltd (Kotak Life Insurance) and the borrower will get a life insurance cover. The main attraction of this scheme is that in the event of death of an insured borrower during the tenure of the loan, there will be no burden of paying outstanding loan on such borrowers family. The above said life insurance cover will start from the date of disbursement of the loan to the borrower by the 1st opposite party. The executives from the 1st opposite party company induced the complainant to purchase a tractor. 2nd opposite party was arranged the finance from the company. The complainant’s husband agreed to purchase a tractor from the 1st opposite party company. On 27/02/2007, he has made the initial payment of Rs.17,900/- to the 1st opposite party company towards the hypothecation of the vehicle. In the initial payment, Rs.2,999/- was charged towards Mahindra Loan Suraksha Insurance Scheme. Complainant’s husband was compelled to sign so many papers and agreements as part of the loan from the 2nd opposite party. On 28/02/2007, a 2007 model Mahindra 475, D I tractor Engine No.NCNW 9877 was delivered to complainant’s house. Registeration Certificate Book was hypothecated to 1st opposite party company’s Cochin Branch. Later on the tractor was issued Registeration Number as KL9V 834. Loan agreement number was 585914, amount was Rs.4,32,601/-. In that Rs.3,00,000/- was the value of the vehicle and Rs.1,32,601/- was finance charges. Loan period was for 48 months and the monthly instalment was Rs.9,075/-. Mahindra Loan Suraksha was for one year (28/02/2007 to 27/02/2008) and the certificate number is 296840. No original documents were furnished to complainant’s husband including the 1st instalment receipt and certificate of cover of Mahindra Loan suraksha. Complainant’s husband has made two monthly instalments from his Bank Account. After that he was not well for some days. On 14/04/2007 he died of Jaundice. After the death of complainant’s husband, she approached 2nd opposite party for the benefit of MLS Scheme. As per the instruction of 2nd opposite party, complainant submitted application to 2nd opposite party. But there was no reply. 2nd opposite party told the complainant that 4th opposite party is sanctioning the claim and it will take sometime, believing the words the complainant has paid 6 monthly instalments for Rs.54,450/-. On 20/04/2008 complainant approached the 2nd opposite party and asked about the claim. Then he informed that 4th opposite party has rejected the claim . This amounts to clear deficiency in service on the part of opposite parties. Hence the complaint. The complainant prays an order directing (1) the 1st opposite party to cancel the loan amount of Rs.4,32,601/- taken by the complainant’s husband and (2) 1st opposite party to return the amount of Rs.54,450/- collected from the complainant illegally as monthly instalments and directing (3) the 4th opposite party to reimburse the said loan amount of Rs.4,32,601/- and (4) directing the opposite parties to pay Rs.1,00,000/- as compensation to the complainant.
Opposite parties filed version stating the following contentions. Opposite party 1 to 3 admitted that the complainant’s husband availed the financial assistance after agreeing with the terms of the agreement. The opposite parties 1 to 3 stated that the complainant’s husband Mr. Mani was a commission agent for tractors and that he used to arrange works for tractor owners are unaware of the facts and denied. Further the opposite parties 1 to 3 stated that the opposite parties induced the complainant’s husband to purchase the tractor is absolutely false and denied. The say of the complainant that she was regularly repaying the loan amount and the claim form submitted by the complainant was without any reason rejected is absolutely incorrect and hence denied by opposite parties 1 to 3. The averments in the complaint that the officials from the company is threatening the complainant to initiate legal actions and that she has paid 6 instalments amounting to Rs.54,450/- are incorrect and hence denied by opposite parties 1 to 3. All the averments in the complaint are denied by 4th opposite party . Hence opposite parties prayed that dismiss the complaint with cost.
Complainant filed chief affidavit and documents. Exhibit A1 to A7 marked on the side of - 4 - the complainant. Opposite parties filed affidavit and document. Exhibit B1 marked with objection. Dr. Viswanath, was examined on the side of the 4th opposite party. Matter was heard.
Issues to be considered are: Whether there is any deficiency in service on the part of opposite parties? If so, what is the relief entitled to the complainant?
Issues I and II We perused relevant documents on record. 4th Opposite party admitted that the loan agreeement is between the complainant’s husband and opposite party No.1, and Opposite party 4 had entered into group insurance Policy contract with 1st opposite party only. Further 4th opposite party stated that the complainant’s husband signing the declaration confirmed that he was in good health and based on that 4th Opposite party provided insurance cover. Death summary of Mother Hospital shows that the deceased was suffering from Cirrhosis of liver since November 2004. As per clause 3 of the terms and conditions of the policy, contract, the 4th opposite party would not have provided insurance cover to the complainant’s husband. No evidence was produced by 4th opposite party to show that complainant’s husband signed that he was in good health before taking the policy. According to Exhibit A7, 2007 model Mahindra 475D1 Tractor Engine Number NCNW 9877 was hypothicated to 1st opposite party and the total loan amount was Rs.4,32,601/- as per the loan agreement No.585914.As per Exhibit A6 stated that “Mahindra Finance has arranged for your loan to be protected through a group life insurance policy arrangement with Kotak Mahindra old Mutual Life Insurance Ltd that will provide you with a life insurance cover to the extent of the outstanding principal amount of loan taken from Mahindra Finance. Also at the end of the page stated that “Subject to terms and conditions for the said policy contract (see overleaf for the simplified version of some of the terms and conditions”). No terms and conditions of policy contract are stated in the overleaf. No objection was raised by 4th opposite party for marking this document. Also no contrary evidence is produced by 4th opposite party for this aspect. In short 4th opposite party has not produced evidence to prove their case. The main contention raised by 4th opposite party is that the complainant’s husband was suffering from Cirrohosis of liver since November 2004. - 5 - In the chief examination of Dr. Viswanath stated that the complainant’s husband was first seen in November 2004 with Cirrohosis liver and thereafter he came up for follow ups in early 2005. Further Doctor stated that complainant’s husband was admitted in Mother hospital on 10/04/2007 and he died on 14/04/2007. 4th opposite party filed chief affidavit and documents. All documents are photocopies and not marked. Hence the documents are not considered as the part of evidence. Later the opposite party produced the Medical questionnaire and marked as Exhibit B1. No evidence was produced by 4th opposite party to show declaration of the good health by complainant’s husband. Complainant stated that the 4th opposite party has not served the rules and conditions of the Policy to the complainant’s husband. The 4th opposite party has not produced evidence to show that rules and conditions are served to complainant’s husband. No evidence to prove by the Opposite parties that medicines taken repeatedly by complainant’s husband. The opposite parties 1 to 3 have arranged the loan to the complainant’s husband. 4th opposite party admitted that the group insurance contract is between the 1st opposite party and 4th opposite party and the repudiation of the claim was informed to the 1st opposite party on 13/03/2008. But the 1st opposite party has not informed the repudiation of claim to the complainant properly. As per Exhibit A5 dated 27/02/2007 the complainant’s husband paid 17,900/- to the 2nd opposite party and the 2nd opposite party has debited Rs.2,999/- on the account of MLS. No steps were taken by 4th opposite party to call for the records to prove the fact that complainants husband was admitted in Mother hospital for liver disease before the issuance of the policy. 4th opposite party is liable to pay the loan amount to 1st opposite party.
The 2nd opposite party stated that the complainant’s husband availed the financial assistance after agreeing with the terms of agreement. But the 2nd opposite party has not produced evidence to show that terms of the agreement was given to the complainant’s husband. Further 2nd opposite party stated that the opposite parties 1 to 3 have no contact with 4th opposite party. The complainant stated that 2nd opposite party was arranged the finance from the company, believing their words the complainant’s husband agreed to purchase a tractor. But the 2nd opposite party has not produced contrary evidence to this aspect. Suppression of material fact not proved by opposite parties. In the above discussions we hold the view that there is deficiency in service on the part of all opposite - 6 - parties. Hence the complaint allowed.
The complainant’s husband died on 14/04/2007. After the death of husband, the complainant has paid 6 instalments to the 2nd opposite party. So the complainant has paid Rs.54,450/- to 2nd opposite party. Complainant’s husband has taken the Kotak Life Insurance on 27/02/2007. The insurance coverage was for the period 28/02/2007 to 27/02/2008 as per Exhibit A6. So the complainant is not liable to repay the loan amount after 14/04/2007. Hence we direct the opposite parties 1 and 3 jointly and severally liable to return Rs.54,450/- to the complainant with 12% interest from 15/12/2007 (as per Exhibit A1 series) to date of order.
We direct the opposite parties jointly and severally liable to cancel the loan amount of Rs.4,32,601/- taken by the complainant’s husband from 1st opposite party company and direct the opposite parties 1 to 3 jointly and severally to return back the amount of Rs.54,450/- collected from complainant as monthly instalment with 12% interest from 15/12/2007 to date of order and direct the opposite parties jointly and severally pay Rs.2,000/- as cost of the proceedings to the complainant. Order shall be complied within 1 month from the date of receipt of order failing which the whole amount shall carry interest at the rate of 9% per annum from the date of order till realization..
Pronounced in the open court on this the 13th day of July, 2010
PRESIDENT (SD)
MEMBER (SD)
MEMBER (SD) APPENDIX Date of filing: 26/04/2008 Witness examined on the side of Complainant Nil
- 7 -
Witness examined on the side of Opposite party DW1 – Dr. Viswanath Exhibits marked on the side of the complainant Ext. A1 series – Cash receipt dated 27/06/07 of Mahindra Finance for Rs.9075/-
2. Ext. A2 – Cash receipt dated 27/03/08 for Rs.9,100/- 3. Ext. A3 – Retail Invoice dated 04/04/07 4. Ext. A4 - Copy of certificate of registeration 5. Ext. A5 – Copy of cash receipt of Mahindra Finance dated 27/02/07 for Rs.17,900/- 6. Ext. A6 – Copy of Certificate of Cover No.296810 7. Ext. A7 – Repayment schedule Exhibits marked on the side of the Opposite Party 1. Ext. B1 - Copy of Medical Questionnaire of Kotak Life Insurance. Forums Exhibits
Nil Costs Allowed
| 
