Sri. Apurba Kr. Ghosh          ……….President

The Complainant has filed this case against the O.P. and praying for the following order / reliefs :-

1. Direction against the Principal OP’s to repay a sum of Rs. 17,00,000/- to the complainant along with interest @ 18% from the date of surrendering the LIC Insurance Policy till realization.
2. Direction against the Principal OP’s  to pay a sum 1,50,000/- to the complainant for causing mental pain, agony and harassment to the complainant.
3. Direction against the Principal OP’s to pay a sum of Rs. 1,00,000/- to the complainant on account of punitive damages.
4. Direction against the Principal Op’s to pay a sum of Rs. 40,000/- to the complainant as cost of legal proceedings.
5. Any further relief/reliefs complainant is legally entitled.

BRIEF FACT OF THE COMPLAINT.

1. That the Complainant is a consumer is a peace loving and law abiding citizen of India/she is sole Proprietor of Sulekha and Co, having her place of business within the jurisdiction of Siliguri Police Station.
2. That the OP no. 1 is a Bank and OP no. 2 is the Senior Office of the said Bank and OP no. 2 is liable  and responsible for the day to day work of the OP no. 1 Bank/the OP no. 3 is the Divisional Manager of the LICI for the Divisional Office situated in the District of Jalpaiguri.
3. That in the year 2012 the pro-forma OP no. 4 invited tenders from the intending parties for their necessity of vehicle  for the purpose of clearing of wastes and the complainant was the interested bidder for the said tender, he submitted the tender forms as per rules/norms of the said tender and the proforma OP no. 4 selected the complainant as successful Bidder against the said tender of the pro-OP no. 4.
4. That, after declaring the successful bidder the Pro-OP no. 4 issued one work order being in No. 930/SMC/VS/2012-2013 dt. 22.01.2013 and vide that work order the complainant had placed her vehicle bearing Registration no. WB 73/C-6222 on 11.02.2013 by writing a letter and the said letter was duly received in the office of the Pro-OP no. 4.
5. That, through the work order the profroma OP no. 4 requested the complainant to execute an agreement with them and accordingly on 17.04.2013  an agreement was executed in between the proforma OP no. 4 in one part and complainant in other of the the said agreement on the basis of the work order being in No. 930/SMC/VS/2012-2013 dated 22.01.2013.
6. That, against the work order and agreement the principal OP’s have agreed to provide loan facility to the complainant and considering the documents of the complainant the principal OP’s have sanctioned and granted Business Loan amounting to Rs. 3,14,740/- to the complainant by opening one Loan Account in the name of the complainant being in No. 319600JG 00000055 and the complainant deposited on LIC policy No. 452592784, schedule maturity date on 28.12.2026, lying in the name of Sri Kiran Routh, against the said loan.
7. That, the said LIC policy being in No. 452592784 was non revival policy under the scheme JIVAN SHREE and at the time of maturity of the policy the maturity amount would be near about 26,00,000/- and the said fact was informed to the principal OP’s and the principal OP No. 2 promised  the complainant that if the situation will demand for surrendering the said LIC policy then the principal OP’s would be intimated in writing to the complainant prior to surrender of that LIC policy as per norms, rules and guidelines of the Reserve Bank of India/the complainant never promised to repay the loan on monthly installment basis by earning through plying the cesspool vehicle.
8. That, the proforma-OP No. 4 continuously failed and neglected  to clear the bill amount of the complainant for plying of the cesspool vehicle against the work order dated 22.01.2013 and due to continuous failure of payment of the bill amount the complainant was not able to pay the monthly installment amount to the principal OP’s on regular basis.
9. That, the complainant informed the OP No. 2 that immediately on getting payment from the pro-OP No. 4 he will pay the monthly installments.
10. That, the Ops have declared NPA of the Loan Account of the complainant without giving notice u/s 13(2) of the Sarfaesi Act.
11. That, subsequently the OP no. 2 intimate the said fact of the NPA to the complainant by issuing notice for the first time and also informed that the OP no. 2 had already surrendered the LIC policy and after encashment of the LICI policy OP’s had meet up the loan amount. That the OP’s had surrender the LICI policy without giving any information to the complainant and without giving any opportunity to pay the loan amount and they committed illegal act which is nothing but deficiency in service as well as restrictive trade practice.
12. That, after getting information the complainant went to the OP no. 2 and expressed that she will pay the entire loan amount and requested to take initiative for revival of the LICI policy.
13. That, the OP no. 2 on 03.10.2017 issued one letter to the pro-OP No. 4 requesting to revive the surrendered insurance policy but the pro-OP no. 3 disclosed that, they could not be able to revive the insurance policy as the principal nature & character of the said policy was non-revival.
14. That, on 04.01.2018 the complainant sent demand notice to the OP no. 2 and receiving that notice the OP no. 2 sent reply admitting the allegation of the complainant.
15. That, the cause of action of this case arose on and from several dates and lastly in the month of May 2017 when the OP no. 2 surrendered and encashed the LICI policy and the same is continuing.

In support of the complaint the complainant filed the following documents:

1. Photocopy of certificate of enlistment, issued by the Siliguri Municipal Corporation, standing in the name of the Complainant;
2. Photocopy of Tax Invoice cum delivery challan, dated 21.07.2012 (2page)
3. Photocopy of Work order being no. 17/SMC/VS/17-18 dated 23.06.2017 issued by the  Siliguri Municipal Corporation;
4. Photocopy of letter dated 11.02.2013, issued by the Complainant to the Commissioner, Siliguri Municipal Corporation;
5. Photocopy of Agreement dated 17.04.2013;
6. Photocopy of letter dated 08.10.2012, issued  by the Siliguri Municipal Corporation to the complainant for supply of another 2 (two) nos hired Cesspoll (6000 Lts.);
7. Photocopy of letter dated 24.03.2012, issued by the Siliguri Municipal Corporation to the complainant for supply of 1 (one) nos hired Cesspoll (6000 Lts.);
8. Photocopy of Letter dated 28.09.2016, issued by the Siliguri Municipal Corporation to the Complainant for Renewal Agreement for extension of hire Cesspoll work;
9. Photocopy of Letter dated 20.07.2012 issued by Branch Manager/Senior Manager, Punjab National Bank, Sevoke Road Banch, Siliguri intimating the Complainant for sanctioning of Term Loan against quotation  dated 20.04.2012;
10. Photocopy Deed of LIC policy being No. 452592784 in the name of the Shri Kiran Routh;
11. Photocopy of Letter dated 23.05.2017 along with bank account statement, issued by the Principal OP No. 2 to the complainant (2 pages);
12. Photocopy of Letter dated 07.03.2016 issued by the Punjab National Bank to the Branch Manager, Life Insurance Corporation of India for maturity of claim of LIC policy being No. 452298831;
13. Photocopy of Letter dated 03.10.2017 issued by the Punjab National Bank to the Proforma OP No. 3 for reviving of Insurance Policy;
14. Photocopy of Lawyer’s Notice dated 04.01.2018 along with Postal receipt, issued by Sri Kaushik Goswami, advocate, Siliguri to the Principal OP. No. 2;
15. Photocopy of Reply Lawyer’s Notice dated 19.01.2018 issued by the Sri Asim Majumdar, Advocate, Siliguri to Sri Kaushik Goswami, Advocate, Siliguri.

Notice was issued from this commission and on receipt of notice the OP no. 1 & 2 appears before this commission through Vokalatnama, filed written version, denied all the material allegations of the  complainant. In the W/V the OP’ No. 1 & 2 have stated that, the instant case is not maintainable in law as well as fact/the case is not maintainable due to non joinder & mis joinder of necessary parties/ the case is barred by law of limitation/there was no lapses and negligence or any deficiency in service on  the part of the OP no. 1 & 2 /the OP no. 2 sanctioned vehicle loan of Rs. 5,50,000/- to the complainant on the basis of her application, she executed several documents in favour of the OP no. 1 Bank/the husband of the complainant stood as guarantor of the said loan by execution agreement of guarantor and as security of the loan the guarantor Kiron Routh assigned his LIC policy benign  in No.  452592784 in favour of the OP no. 1 Bank and the OP no. 3 registered the said assignment of LIC policy in favour of the OP no. 1 and informed the OP no. 1 & the husband of the complainant vide letter dated 17.07.2012 and thereafter  the husband of the complainant  executed one declaration and declared that he was transferring all the right, title, interest in the LICI policy, all money including bonus  in favour of the OP no. 1. In support of the W/V the OP’s No. 1  & 2 filed the following documents:-

1. Photocopy of sanctioned letter dated 23.07.2012 (Annexure-A)
2. Priority Sector term Loan Agreement (Annexure-B)
3. Letter of Hypothecation (Annexure-C)
4. Agreement of guarantee (Annexure-D)
5. Notice of Assignment of  LIC policy dated 05.07.2012 written by Kiran Routh in favour of Divisional Manager LICI ( Annexure-E)
6. LIC policy being No. 452592784 (Annexure-F)
7. Letter dated 05.07.2012 issued by the OP no. 2 in favour of the Branch Manager LICI (Annexure-G)
8. Letter dated 17.07.2012 issued by LICI (Annexure-H)
9. Declaration ( Annexure-I).

The OP’s No. 1 & 2 have also stated in the W/V that, the complainant availed loan from the OP no. 1 but did not repay the dues of the said loan and thereby the loan turned into NPA on 19.07.2014 and thereafter for the 2^nd time when the complainant failed to make payment the loan account again turned into NPA and finding no other alternative the OP no. 2 surrendered the LIC policy to adjust the loan account and on payment of Rs. 20,000/- by the complainant. The OP no. 1 adjusted the another LIC policy which was also assigned to them and thereafter the account again become performing Asset/again the account  classified as NPA on 14.07.2016 as the complainant did not repay the dues of the loan account as per terms of sanction and become habitual defaulter of the loan account/ the OP no. 2 over phone informed the complainant to repay the loan otherwise they will have no alternative than to surrender the LIC policy which was the only security of loan account but the complainant did not pay the loan amount. And thereby the OP no. 2  being the assignee of the LIC policy surrendered the policy and fetched a sum of Rs. 5,12,057/- and after adjusted the total dues of loan account the OP no. 2 returned the residue amount of Rs. 1,73,994/- to the complainant vide pay order no. UPX420064 dt. 23.05.2017 along with letter dated 23.05.2017 which was received by the complainant.

The OP’s No. 1 & 2 have also annexed the following documents:-

1. Statement of account (Annexure-J)
2. Photocopy of letter dated 23.05.2017 written by the OP no. 2 to the complainant (Annexure-K)
3. Photocopy of pay order No. UPX420064 dated 23.05.2017 (Annexure-L).
4. Photocopy of letter written by the husband of the complainant in favour of the OP no. 2 (Annexure- M).
5. Photocopy of letter written by OP no. 2 to the OP no. 3 (Annexure-N).

By filing the written version the OP no. 1  and 2 praying for dismissal of this case.

On receipt of notice the Pro-OP No. 3 appears before this Commission through vokalatnama, filed written version, denied all the material allegations of the complainant and has stated that, the case is not maintainable against them in law as well as on facts/The complainant has no locus standi to file this case against them/complaint is barred by principles of estoppels, waiver and acquiescence/ there was no cause of action for the complainant to file this case/this commission has no locus standi to entertain this case/complainant is guilty of suppression of material facts/complainant is not a consumer/ the policy no. 452595784 was absolutely assigned in favour of the OP no. 1 on 17.07.2012 after receipt of all the necessary papers for registering the assignment, notice from the PNB, Siliguri Branch dated 05.02.2012, notice from the policy holder/ the assignee OP no. 1 vide their letter dated 23.03.2017 asked for surrender value of the LIC policy and submitted discharge voucher, Bank Account Number, Original Policy documents for cancellation required for surrender payment and then the Pro-OP No. 3 made payment of Rs. 5,12,057/- as surrender value on 12.04.2017 as per Rules of LICI/ as per central office circular vide ref: co/crm/766/23 dt. 09.12.2009 the re-investment of surrendered policy under guaranteed addition plan is not permissible. By filing written version the Pro-OP no. 3 praying for dismissal of this case.

Despite receiving notice the pro-OP no. 4  did not turned up to contest this case.  Accordingly case is proceeding ex-parte against the pro-OP No. 4.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version of the parties, documents of both the sides the following points are taken to be considered.

POINTS FOR CONSIDERARTION 

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of her Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the complainant has filed written deposition in the form of an affidavit and she corroborated the contents of the complaint. In the written evidence the complainant has stated on which day loan was sanctioned, on which day loan amount was disbursed, on which day she came to know that the LICI policy had been surrendered by the OP no. 2. In the written evidence the complainant has stated that without giving prior intimation the OP no. 2 surrendered her LICI policy.

At the time of argument Ld. Advocate of the complainant argued that they have already filed the written notes of argument and stated everything. He also argued that, the complainant has been able to prove the case against the OP no. 1 & 2 and she is entitled to get the relief as prayed for. It is further argument of the Ld. Advocate of the complainant that, without giving any intimation to them the OP no. 2  surrendered the LIC policy as a result of which the complainant sustained huge monetary loss and the acts of the OP’s No. 1 & 2 are clear deficiency in service  as well restrictive trade practice on the part of the OP no. 1 & 2 and as a result of which the complainant suffered huge mental pain, agony and the OP’s No. 1 & 2 are jointly and severally liable to pay compensation to the complainant.

Ld. Advocate of the OP’s No. 1 & 2 during argument submits that, they have also filed written notes of argument and stated that they have been able to falsify the case of the complainant. During argument Ld. Advocate of the OP’s No. 1 & 2 submits that, by suppressing the actual fact the complainant has filed this case on some false allegations. It is also argument of the OP’s that the complainant was habitual defaulter of payment of loan amount and on several occasion the OP’ No. 2 requested the complainant to pay the installment amount within time but she neglected to pay the same and for which due to non payment of installment the loan account initially turned into NPA on 19.07.2014, again on 30.01.2016, on 14.07.2016. He further argued that when the loan account turned into NPA the OP no. 2 informed  the complainant  requested her to make payment of the due loan amount but the complainant did not pay the same and that’s why the OP’ No. 2 was compelled to surrender the LIC policy which was the only security of the said loan account to adjust the said loan account. It is also argument of the OP’s that, after adjustment of the balance dues the OP no. 2 returned the residue amount of Rs. 1,73,994/- to the complainant and there was no deficiency in service on their part.

In support of the defence the Ld. Advocate of the OP no. 1 and 2 referred decisions of Hon’ble Apex Court in Indian Bank –versus- M/s Blue Jaggers Estates Ltd. and others passed on 09.08.2010 and decision of NCDRC in Branch Manager, State Bank of India –Versus- Shantilal Maganlal  Pater Passed on 05.04.2017.

Having heard the Ld. Advocate  of both the sides and on perusal of the evidence of the parties, written notes of argument, documents filed by the parties it reveals that, the disbursement of loan is admitted by them. It is also admitted fact that, the husband of the complainant namely Kiran Routh was the guarantor who deposited LIC policy to the OP no. 1 Bank at the time of sanction of loan. Only dispute in this case whether the OP no. 2 surrendered the LICI policy to the Pro-OP No. 3 without giving any intimation to the complainant or not.

Let us see how far the complainant has been able to prove the case against the contested OP’s No. 1 and 2  or not. In the case in hand it is admitted fact that due to non payment of installments by the complainant the loan account turned into NPA on several occasions. It is also not disputed that the complainant since the date of inception of taking loan failed/neglected to pay the installment to the OP No. 1 Bank on regular basis.

From the record it reveals that, the complainant did not produce any evidence either oral or documentary to prove the fact that she paid monthly installments to the OP no. 1 on regular basis. But it was her duty to pay the said installment to the OP no. 1 as per the terms/conditions of the loan agreement. It further reveals from the record that the OP no. 2 surrendered the LICI policy of the complainant in the year 2017 for fetching money from the pro-OP No. 3 as their claim was due to non payment of installments by the complainant on regular basis. But to falsify the said claim of the OP no. 2 the complainant did not produce any documents/receipts to the effect that till 2017 she was paying installments. On the other hand the complainant herself in her complaint, written evidence has stated that she was not able to pay the installments to the OP No. 1 Bank. From the documents of the OP no. 1 & 2 it reveals that, the Bank authority on several occasions requested the complainant by sending letter for making payment of the loan amount but the complainant neglected to pay the same within time on regular basis.

It is needless to mentioned here that, the “Bank is a trustee of public funds, it cannot compromise the public interest for benefitting private individuals and those who take loan and avail financial facilities from the Bank are duty bound to repay the amount strictly in accordance with the terms of the contract and any lapse in such matter has to be viewed seriously and Bank is not only entitled but duty bound to recover the amount by adopting all legally permissible methods” (SC).

 In the instant case it is very much established that the complainant was the habitual defaulter in making payment of the installments. It is also established that, on several occasion the loan amount of the complainant was turned into NPA but the complainant did not bother to pay the entire dues within time by making payment of installments.

Considering all we are of the view that the complainant has not been able to  prove her case against the OPs.

Hence,

O R D E R E D,

That, the instant consumer case being no.33/2018 is hereby dismissed on contest but without any cost.

Let a copy of this order be given to the complainant free of cost.