MR. KUNDAN KUMAR KUMAI
Brief facts of the Appellant’s Case are that, the Respondent no.1 for her personal use had purchased a four-wheeler, being no. WB-64T-4551, with financial help from the Appellant and the vehicle had been insured by the Respondent no.2, under Policy No.3311/00186499/000/00 valid from 30/10/18 to 29/10/21. The vehicle being driven by the Respondent no.1, had met with an accident on 30/12/18, within the jurisdiction of Ghoksadanga, P.S., Dist. Coochbehar and a complaint had been lodged before O.C., Ghoksadanga P.S. The Respondent no.1, also claimed insurance from the Respondent no.2, in respect of the damage and after necessary investigation the damage, had been assessed at Rs.1,50,000/-. The Respondent no.2 had then sent a letter dated 26/02/19 to the Appellant for the loan account NEFT details, of the Respondent no.1, but the Appellant till date failed to supply the NEFT loan account details of the Respondent no.1. The Respondent no.1 had regularly paid the loan EMI to the Appellant bank. The Respondent no.1, inspite of visiting the Offices of the Appellant bank and the Respondent no.2, on many occasions was not re-imbursed by the insurance claim amount. On 29/05/19 the Respondent no.1, wrote a written petition to the Respondent no.2, but the Respondent no.2 refused to receive, following which she had sent the said letter by registered post on the same day, requesting to disburse the insurance amount.
On 29/5/19 the Respondent no.1 had also written a letter to the Appellant bank by registered post, requesting for NEFT details of the loan account, but till date the same had not been supplied. This attitude of the Respondent no.2 and the Appellant bank, tantamounted to gross negligence as well as deficiency in service for which reason the Respondent no.1, had to pay heavy interest in the loan account.
Finding no alternative, she filed the instant case with necessary prayers.
The Appellant contested the case by filing written version wherein the main defence, raised by the Appellant bank is with regard to the necessity of the NEFT details of the loan account as the Respondent no.2, was well within their rights to disburse the claim amount to the Respondent no.1, claimant. It was further mentioned that sharing the NEFT details of the loan account would not be of any justification as no extra transaction could be done with, in such account and in any case, the loan amount had been neutralized and therefore the loan account had no claim. It further prayed that the instant case be dismissed against the Appellant.
The Respondent no.2 also appeared and filed the written version, wherein they have mentioned that, the provisions of the Insurance Act and IRDA norms made it mandatory, that in the case of hypothecation, the claim should be disbursed in favour of the financier and in the alternative to the claimant’s bank, only on receipt of the NOC/Form 35. In the instance case the above had not been received for which the delay occurred due to no fault of theirs and during the pendency of the case the amount had been disbursed in favour of the Claimant, Respondent no.1.
After hearing the parties and ongoing through the evidence on record, the Ld. DCDRF, Coochbehar, had passed the impugned order allowing the case with cost of Rs.10,000/- and with the direction to the Appellant to pay Rs.55,000/- and the Respondent no.2 to pay Rs.5,000/- within 30 days from the date of passing of the order, failing which interest @ 6% per annum would be attracted from the date of realization.
Being aggrieved by the above order, the Appellant preferred this instant appeal on the ground that the Ld. DCDRF, Coochbehar had erred in law and facts while passing the impugned judgement.
Decision with reasons
Ld. Advocate for the Appellant, at the time of final hearing had assailed the impugned judgement, by submitting that the Appellant was penalized for something which the Appellant was not legally bound to do. He had clarified that the question of providing the NEFT of any loan account would not have been of any usage to any one as because the loan account was merely to deduct the EMI of the Respondent no. 1 and there had been no default on her part and, in any case, no amount could have been deposited in the said loan account. Hence prayed for allowing the Appeal and setting aside the impugned order as far as the directions against the Appellant is concerned.
None appeared on behalf of the Respondent no.1 and as such the case had been heard ex-parte against her.
Ld. Advocate for the Respondent no.2, had submitted at the time of final hearing that in view of the directions, one letter had been sent to the Appellant bank for providing NEFT details of the loan account of the Respondent no.1/Complainant or in the alternative NOC in the Form 35 be provided which the Appellant bank failed to do so and was rightfully penalized by the Ld. DCDRC, Cooch Behar vide the impugned judgement and prayed for dismissing the Appeal.
Therefore, from the above submissions as well as the facts and the impugned judgement, it transpires that the entire defence case, hinges on the fact as to the existence of the mandatory IRDA directions, as the impugned judgement had laid much reliance on the above-mentioned directions. In this regard, neither of the Parties have been able to enlighten the existence of the mandatory directions of the IRDA by producing the same. In the absence of any such IRDA directions before this Commission it can be safely concluded that such directions were non-existent.
In any case, relying upon the above mandatory directions a letter dated 26/2/19 had been issued to the Appellant bank for NEFT details and surprisingly there was no mention of the NOC/Form 35. With the explanation provided from the Appellant’s side with regard to the NEFT details the same appearing to be reasonable and just, is thus accepted and therefore the Appellant bank had no obligation to comply with the request mentioned in the letter 26/2/19.
In this regard, a specimen agreement for auto loan of the Appellant bank has been provided and the clauses 10.6 and 10.8 have been highlighted wherein it is mentioned that “in order to the safeguard the security of the dues and to ensure that bank’s lien is marked on the insurance done on behalf of the borrower by being a facilator……… the first claim on any insurance process shall be that of the bank with respect to insurance policy and its renewal and as stipulated from time to time and shall pay Rs.250/- or such other amount has made to specify by the bank from time to time as nominal compensation for the services rendered by the bank for facilitating the above mentioned arrangement with the insurance company and ensuring that the bank’s name is marked under insurance. The compensation mentioned above is subject to change at the discretion of the bank”.
“The bank at its option will have the right to appropriate any moneys received from the insurance towards the borrower’s obligation to the bank”.
But in this case, there was no demand made by the appellant/bank to demand the insurance amount, due to failure to repay, on the part of the respondent No.1, therefore there was no need on the part of the respondent No.2, to insist compliance. In any case without any compliance, the respondent No.2, not only made the insurance charges payment but also paid the decretal amount, in favour of the respondent No.1/claimant.
In other words, it simply means that the Respondent no.2/insurance company by practicing abundant caution caused the delay in making payment to the Respondent no.1/Complainant. Therefore, the Appellant bank has to be absolved of any of the liabilities imposed upon, vide the impugned order which needs to be set aside.
It is therefore
ORDERED
That the instant Appeal be and the same is allowed on contest but without cost.
The directions imposed vide the impugned order against the Appellant bank is hereby set aside.
Copy of the order be sent to the Parties free of cost.
Copy of the order be sent to the Ld. DCDRC, Cooch Behar for necessary information.
