BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.207 of 2023
Date of Instt. 29.05.2023
Date of Decision: 05.01.2024
Sh. Madan Lal aged about 74 years S/o Sh. Mela Ram R/o House No.736, Rishi Nagar, Income Tax Colony, Jalandhar.
..........Complainant
Versus
1. The Assistance Operation Manager, DHFL Pramercia Life Insurance, Building No. 88, 5th Floor, Kunal Tower, Mall Road, Ludhiana (Punjab) also at Pramerica Life Insurance Ltd., 4th Floor, Building no.9, Tower-B, Cyber City, DLF City Phase- 111, Gurgaon-22002 (Haryana).
2. The Authorized Officer/Signatory, Indusind Bank, Feroz Gandhi Market, Phakowal Road, Ludhiana (Punjab)
3. The Authorized Officer/Signatory, Divisional Manager, Indusind Bank, Regd. Office 2401 Gen, Thimmaya Road, Pune 411001 Also at: PNA House Office, 1st Floor, No. 57 Street No.17, MIDC, Andheri (E), Mumbai- 400 093 Also at Indusind Bank, C-Wing, Business, Anheri, Kurla Road, Andheri (E) Mumbai- 400 093.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. K. K. Arora, Adv. Counsel for Complainant.
Mrs. Amandeep Kaur, Adv. Counsel for OP No.1.
Sh. N. S. Kohli, Adv. Counsel for OPs No.2 & 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that Rajeev Sharma the son of the complainant had purchased insurance policy bearing No.GC000027013790 from OP No.1. Under the said policy, the loan A/c No.PJC00037N of Rs.23,22,112/- taken by Rajiv Sharma son of complainant from the OP No2, was secured. Rajiv Sharma son of complainant used to regularly pay the installments of loan till his death i.e. 15.09.2022 and no default was committed, even during the period of COVID-19. However, at the time of sanctioning the loan another policy no.2157/00051852/000/00 of Cholamandalam MS General Insurance Company Ltd, for five years starting from 01.09.2017 to 31.08.2022 and premium of Rs.5324/- was debited from loan account of son of complainant. Unfortunately, Rajiv Sharma son of complainant expired on 15.09.2022 and in this regard the complainant sent email to opposite parties and moved claim application for the said insurance policy. The complainant received a letter Ref. VSA/INDUS/23/01/8 from OP No.3 for the loan account of Rajiv Sharma son of the complainant which wrongly and arbitrarily declared NPA. The complainant replied the said letter vide reply dated 13.02.2023 through registered post. Thereafter, the complainant requested for supply of the statement of loan account which revealed that the insurance claim was not duly and properly adjusted in the loan account of Rajiv Sharma son of complainant and only a sum of Rs.5,10,955/- was accounted for that too one on 01.02.2023 and the amount in this regard which was made outstanding was actually not outstanding or payable. In this way, OPs particularly OPs No.2 and 3 framed incorrect record/account statement and the record of the account statement was not properly entered and maintained and a false liability was fastened in this regard whereas the insurance claim was to be adjusted from the principal amount and not towards the installments. The OP No.1 i.e. Insurance Company has not given the due and proper claim and whenever the OP No.1 was contacted in this regard, the complainant was told to contact the bank i.e. OPs no. 2 and 3. At the time of sanction of the loan OPs No.2 and 3 got issued another policy amounting to Rs.16,35,500/- from M/s Cholamandalam MS General Insurance Company Ltd. for five years starting from 01.09.2017 to 31.08.2022 and premium of Rs.5324/- was being paid from the account of Rajiv Sharma deceased. The policy was liable to be extended but the OPs No.2 and 3 has not done so and since the said policy was not extended due to the fault of OPs No.2 and 3, therefore, the complainant is not liable to make any payment in this regard as his son Rajiv Sharma has expired and benefit of the second policy for an amount of Rs.16,35,500/- could not be availed due to the fault and default on the part of OPs No.2 and 3. The insurance policies even were taken by OPs No.2 and 3 for period of 6 years instead of the whole term of loan which was of a period of ten years and in this way OPs No.2 and 3 have also been negligent. The OPs were got served with a legal notice dated 20.03.2023 and the complainant received the false and frivolous reply dated 24.04.2023 sent by the OP No.1. In the whole episode, OPs have rendered the deficient services and also indulged in unfair trade practice by concealing the facts and the record from the account holder, insurer as well as even from complainant being the father of deceased, even after death of Sh. Rajiv Sharma son of complainant whenever he contacted OPs in this regard. The act and conduct committed by OPs, the complainant has suffered inconvenience, harassment and mental and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.15,01,368/- i.e. the amount of the sum assured in respect of death of Rajiv Sharma son of the complainant alongwith interest @ 12% per annum from the date of filing of the claim with the OPs till its realization. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment to the complainant and Rs.22,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that from perusal of the instant complaint, it would be observed that the averments made therein are vague, baseless and with malafide intent. The complainant had made misconceived and baseless allegations of deficiency in service and unlawful trade practices without any documentary evidence in support of his allegations made in the complaint. It is further averred that the complainant has failed to set up a nexus between the damages claimed in the present complaint and the damage suffered by him. The damages claimed are arbitrary, without basis and is an abuse of the process of law. It is further averred that damages are not being debt are liable to be proved by cogent and reliable evidence by the complainant, hence the damages cannot be granted merely on asking of the complainant, hence the prayer clause of the complainant for damages etc. being not supported by any cogent is liable to be dismissed. It is further averred that the answering OP has not acted as per its whims and fancies but has strictly abided by the regulations of IRDAI, which is the regulatory authority over looking the business of the company. Thus, the complainant is not entitled for any relief. On merits, the factum with regard to purchasing the policy by Rajiv Sharma son of the complainant from OP No.1 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OPs No.2 & 3 filed their separate joint written reply and contested the complaint by taking preliminary objections that the instant complaint filed by the complainant is a gross misuse of the process of law and as such merits rejections with costs. This complaint is false, frivolous, and unsustainable both in law and on facts. It is further averred that no cause of action has arisen in favour of the complainant against the OPs No 2 and 3 and therefore present complaint is liable to be dismissed for want of cause of action. It is further averred that there is no privity of contract between husband of the Complainant and OPs No 2 and 3 and therefore the present complaint is liable to be dismissed. It is further averred that the son of complainant obtained two policies one of which was with the OP No.1 for the coverage of the loan in the event of the death of the borrower/customer. The second policy was taken from M/s Chola Mandalam MS General Insurance Company for the coverage of the risk of the property against the natural acts fire, flood etc. The entire process of applying for the Insurance policy was done between the son of the complainant and opposite party no.1 and M/s CholaMandalam MS General Insurance Company and the OPs No. 2 and 3 has only acted as intermediary for reference of son of the Complainant to the insurance company. So, the entire complaint is based on false allegations and fabricated facts and is liable to be dismissed. It is further averred that there is no negligence or deficiency on the part of the OPs No 2 and 3 in rendering services to the complainant and therefore the present complaint is liable to be dismissed. It is further averred that the complainant has not come to the Forum with clean hands and have suppressed material facts pertaining to the case from this Forum. As such the present compliant is liable to be dismissed. The dispute in the present complaint is civil in nature and requires detailed evidence for proper adjudication by this Forum, therefore, this Forum has no jurisdiction to entertain in the present complaint. It is further averred that the complainant has got no locus-standi to file the present complaint against the answering OPs. On merits, the factum with regard to purchasing the policy by Rajiv Sharma son of the complainant from OP No.1 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. .
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs No.2 & 3 very minutely.
7. It is admitted fact that Rajiv Sharma son of the complainant had purchased insurance policy from OP No.1 which is evident from Ex.C-1, in order to secure the loan account No.PJC00037N. The son of the complainant had taken another policy from Cholamandalam which was against the fire of the property, the same has been proved by the complainant Ex.C-2. The son of the complainant died on 15.09.2022, death certificate has been proved as Ex.C-3. The claim form was submitted by the complainant and as per the record and submission of the complainant, only sum of Rs.5,10,955/- was credited on 01.02.2023. The complainant has alleged that the terms and conditions and schedule alleged by the OP was never supplied to the complainant nor the same was in the knowledge of the complainant. More so, due to deficiency in service on the part of the OP No.1, the insurance was done for six years only and not till the loan is completed.
8. Perusal of Ex.C-1 shows that the sum assured was Rs.23,22,112/- and the coverage period was from 30.08.2017 to 29.08.2023. Ex.C-6 is the statement of account from 31.08.2017 onwards. Perusal of this document shows that the deceased has been making the payment of installments regularly till 01.02.2023 when the death claim of Rs.5,10,955/- was deposited. As per Ex.C-4, the OPs No.2 and 3 have written a letter to the deceased on 30.01.2023 that on account of continuous default for more than 90 days in payment of interest/installments, they have classified the account as NPA on 05.01.2023. Perusal of the document Ex.C-3 shows that Rajiv Sharma has died on 27.10.2022. He was not alive on 30.01.2023. The bank and the insurance company was informed by the complainant about the death of his son Rajiv Sharma, but even then the amount of installment was wrongly deducted from the account of the complainant’s son. Perusal of Ex.C-6 shows that there was no default in payment of installment for 90 days as alleged by the OPs in Ex.C-6. Amount of Rs.30,361/- were credited on 07.11.2022, 08.12.2022 and 07.01.2023, even after the death of son of the complainant, meaning thereby that there was no default in payment of installment as alleged by the OPs. The OP No.2 has wrongly written a letter to the complainant without verifying the facts. The complainant has given reply to the letter that the payment of installment was regularly being paid by the deceased son of the complainant and there is no default. Legal notice was sent to the OPs for declaring the account NPA wrongly and arbitrarily, but to no effect, though the reply to the notice was also given by the OPs.
9. The OP has relied upon the letter Ex.OP-4 and submitted that as per schedule the amount of Rs.5,10,955/- was credited in the loan account of the deceased, but perusal of this document shows that as per terms and conditions and benefits of the policy in case of death of insured member, the benefit will be payable to the respective claimant and under the column of payment condition. It has been mentioned that upon the happening of insured event, it is condition precedent to liability of the insurer to make payment of any benefit under the master policy upon information of happening of the event to the insurance. In this document relied upon by the OP No.1, there is no reference of the fact that payment is to be made by the OP No.1 as per the benefit schedule in case of the death. The benefit schedule has been given, which has been relied upon by the OP No.1, but the same is not applicable in the present case as no such condition was ever brought to the notice of the complainant nor any document has been produced on record by the OP to prove that this benefit schedule and other terms and conditions of the insurance were brought to the notice of the deceased or he was supplied the terms and conditions. It has been held in a case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that ‘the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge’. It has been held in a case titled as “National Insurance Co. Ltd. & Ors Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC) that ‘it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions.’ As per Ex.OP-6, the amount of Rs.5,10,955/- has been paid to the Master Policy holder as per the schedule of the policy, but as discussed above, there is no mention of any such schedule in the terms and conditions relied upon by the OPs. The payment of installment has been made regular till 07.01.2023 after 15.09.2022 when Rajiv Sharma expired. Few installments were left at the time of death of the son of the complainant. After the death of the insured, it became the duty of the insurance company to deposit the entire balance amount of loan for which the policy was taken and not to put burden on the shoulder of family member of deceased.
10. In such circumstances, there is deficiency in service by the OPs by issuing a letter declaring the account of the deceased NPA wrongly and arbitrarily, when the complainant has been making the payment of installments regularly without any default and not paying the balance amount of loan which is covered under the insurance policy. There is deficiency in service and unfair trade practice on the part of the OP No.1. Thus, the complainant is entitled for the relief.
11. In view of the above detailed discussion, the complaint of the complainant is partly allowed. The sum assured was Rs.23,22,112/-. Since the insurance was taken by the deceased in order to secure the loan, therefore, the OP No.1 is directed to clear the outstanding amount of loan at the time of the death of Rajiv Sharma, the insured, excluding the amount of Rs.5,01,955/- (already paid by the OPs) out of the sum assured. The OPs are further directed to return the amount of installments deducted from 07.10.2022 onward i.e. after the death of the deceased to the complainant. Further, OPs are jointly and severally directed to pay a compensation of Rs.25,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
05.01.2024 Member Member President
