COMPLAINT FILED ON:03/04/2019

DISPOSED ON:24/03/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

C.C.NO:311/2019

DATED: 24^th March 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER        

  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER       

:: ORDER ::

By Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER.

        This is a complaint filed by the complainant U/s 35 of the Consumer Protection Act 2019 seeking relief against the OP to direct OPs to handover the original title deeds, to issue clearance certificate by closing the loan account and to return other documents pertaining to complainant award compensation of Rs.3,00,000/- for mental agony and for such other relief as this commission deems fit.

The Brief facts of the complaint is as follows:

        Complainant and her husband fayaz Pasha have approached OP No.1 for financial assistance to start business for self-employment to carryout  livelihood for that OP 1 has approached complainant and her husband and explained the financial facilities for the scheme of lending finance and during the time OP 1 explained that OPs would purchased life insurance policy in the name of complainant and also in the name of her husband.  As per that assurance of OP1 complainant and her husband agreed to obtained loan from OPs after verifying all relevant documents.  After which OP 1 advised complainant to become applicant and her husband to become co-applicant so that loan can be sanctioned easily.  As per the advice of OP1 complainant and her husband became applicant and co-applicant respectively after which complainants have availed the facility of loan of Rs.3,00,000/- jointly from the opposite parties with the repayment schedule for the duration of 60 monthly installments to the tune of Rs.8630/-. After sanctioning the loan OPs have forwarded the loan amount of Rs.2,89,897/-.  On 02/12/2020 through NEFT to the complainant husband bank account after deductions. Thereafter complainant and her husband was regularly repaying the installments to the OPs bank at accurate time and day without any default through complainants husbands account till his death.  Only two installments of two previous months was not paid till the filling of this complaint, due to the reasons beyond complainant control as her husband who paid installments regularly died on 03/10/2018 after the death of complainants husband complainant was not able to get any income to repay the installments as such complainant have not paid the installments from past 8 months.

       2. Complainant for the purpose of her husband treatment spent huge sum of money and obtained hand loans from friends well-wishers, relatives but though treatment was given to complainant husband he was not able to recover and died on 03/10/2018.  After the death of complainant husband complainant had suffered from mental shock pain and agony and was unable to carry out her livelihood as the complainant husband was the only earning member of the family. After the death of the complainant husband no one was there to look after entire family of the complainant after the death of her husband lost everything at this juncture instead of assisting complainant the OPs with help of rowdy elements made attempts to recover the loan amount even though OPs got option to recover the loan amount by way of life insurance but instead of doing so OPs is continuously harassing the complainant even though OPs have purchased insurance policy which covers the life of applicant, co-applicant, borrowers and co-borrower.  When such being the case OPs are entitle to recover the loan amount by claiming the insurance on behalf of complainant instead of doing so opposite party are harassing the complainant such act of the OPs officials show that they have not followed any provisions and procedures provided by the law.  Hence alleging deficiency in-service on the part of the OPs complainant have filed this present complaint.

       3. After issuance of notice to OPs, OPs appeared through their counsels and have filed version contending complaint is not maintainable either in law are on facts.  Further OPs contended that complainant have availed loan facility after the husband of the complainant was died the loans availed by the complainant is still due.  And complainant has not paid intentionally the loan amount for one reason are the other.

       4. The complainant is due of Rs.2,47,369/- as on 06/05/2019 and complainant is also due of interest and further interest and cost to the OP.  Moreover the loan availed by the complainant is for commercial purpose and hence complainant is not a consumer to the opposite parties therefore Hon'ble Commission is not having jurisdiction to try the matter.  Complainant is also not entitled to get the relief from this commission.   And also complainant has not approached this commission with clean hands.  OPs further denies all other allegations made in the complaint and prays for dismissal of the complaint with examplory cost.

       5. Affidavit evidence of complainant is filed and got marked documents from Ex.P-1 to P-7 and closed their side. Affidavit evidence of OPs is filed and got marked documents from Ex.R-1 to R-3 and closed their side.

       6. Written arguments of both the sides were filed heard the argument of the OPs and arguments of complainant was taken as nil.

7. The points that arise for our consideration is as follows:

1. Whether complainant prove deficiency in-service on the part of the OP?
2. Whether complainant is entitle for the relies as sought in the complainant?
3. What Order?

8.  Our answers to the above points are as follows:

1. Negative
2. Negative
3. As per final Order

:: REASONS ::

        9. It is admitted by both the parties that complainant and her husband approached OP1 for financial assistance to start business for self employment to carryout livelihood.  After hearing the complainant OP1 came forward to grant the loan and also explained about financial facilities of the scheme of lending financial assistance.  Complainant and her husband agreed to obtained loan from OPs after verifying all the relevant documents. Complainant became applicant and her husband became co-applicant and a loan was sanctioned by OPs to the tune of Rs.3,00,000/- with repayment schedule for the duration of 60 months and installments for a sum of Rs.8630/- per month after sanctioning loan OP1 forwarded loan amount of Rs.2,89,897/- on 02/12/2020 through NEFT to complainant husband bank account after deductions.

        10. Thereafter complainants and her husband were repaying the installments to the OP bank without any default through complainant husbands accounts till his death.  After which complainant was not able to pay the regular installment after the death of her husband i,e., after 03/10/2018.  As complainant have spent huge money by obtaining loan from friends well-wishers relatives for the treatment of her husband and hence complainant was not able to repay the loan installments she was unable to carryout her livelihood as complainant husband was the only earning member of the family.  After default OP took action to recover the loan amount after default of the loan installments from the complainant.  But now the complainant is stating that OP have purchased insurance policy which covers life of applicant co-applicant borrowers and co-borrowers when such being the case now the complainant is insting the OPs to recover the loan amount from the insurance and to hand over the original title deeds and to issue clearance certificate by closing the loan amount.

        11. Now the crux of matter is that whether OP have purchased insurance policy in the name of the complainant and whether that insurance covers the life of applicant and co-applicant.  On perusal of the version OPs it reveals that OP had never committed that the insurance policy shall be purchased for both applicant and co-applicant the OPs being a non banking financial corporation duly approved by reserve bank of India focused on providing inclusive finance to the self-employed borrower who have no access to funding from banks wherein the complainants had approached the OPs for the loan for business expansion for running kirana shop. Wherein the complainant is the proprietor of business had applied the loan in her name along with her husband as co-applicant. Further it is admitted by the OP that the insurance was purchased in the name of the complainant for the sum of Rs.3,00,000/- but the insurance is not covered to the co-applicant i,e., deceased husband.  As the insurance shall only be purchased in the name of the proprietor of business to whom the loan has been funded.  Hence insurance was purchased in the name of the complainant which was also conveyed  and also was provided with the copy of the same.  But the complainants have not produced the copy of the insurance policy Kotak Group Assure to ascertain whether the insurance policy is covered to applicant as well as to co-applicant without which this commission cannot come to conclusion to recover the loan amount claimed by the complainant from the insurance company.  Without any basis to show that complainant was regularly paying the installments to the OP but the OP in their version of Para-5 states that monthly installments were not paid in time by the complainant and the installments were irregular.  To show the same the OP have produced statement of accounts  as per Exhibit-R-1.  OP have also produced loan agreement and certificate of insurance which is marked as Exhibit-2 and R-3 which reveals who is the applicant and co borrower.

But in the present case the insurance policy is obtained in the name of complainant and the nominee is non other than her husband of the complainant.  The said insurance policy is a group insurance cover designed for the members of the OP company i.e, "vertise finance Pvt Ltd"., as per Exhibit R-2 it is seen that complainant is the member of the OP and hence insurance policy was obtained in the name of the complainant who being the member and the nominee was one Mr.Fayaz Ahamed.G. who being the husband of the complainant and if any claim is made shall be paid to the member himself or to naming legalheir as the case may be. The name shown in the S.B. account as Fayaz Ahamed G. but as per Exhibit R-2 and R-3 the name of the complainant husband is mentioned as Fayaza Hamed G. there is a variation in the name of the complaint husband as per Exhibit R-1, R-2, P-4, P-5 when there is a variation in the name of the complainant husband there shall be confusion in the mind of the insurance company complainant have also not disclosed the original name at the time of taking the loan and also while entering into loan agreement with the OP.  Keeping latches the complainant cannot allege deficiency on the part of the OP and more over policy have been obtained in the name of the complainant and her husband is co-obligant and nominee.  But in instant case the policy holder is the complainant and nominee have expired but the policy holder is still alive, and the claim is made by the nominee and not by the policy holder.  If policy holder died then the nominee is entitled for the claim of the said insurance amount, the same  will be paid to the nominee / leagalheir as the case may be.  Complainant have to produce the documents that is death Claim Intimation form, age proof, FIR, Doctor Certificate, and Hospital papers etc. but the complainant has misconceived that insurance policy is obtained and co-obligant is also covered under the said policy and also without any basis to show that complainant was regularly paying the installments to the OP but the OP in his version of Para-5 states that monthly installments were not paid in time by the complainant and the installments were irregular to show the same the complainant have not produced detail statement of accounts paid to the OP.  But OPs have produced detail statements of accounts which is marked as Ex.R-1 and which depicts that complainant have not paid the installments properly to the OP.  And also OP states that complainant is still due of Rs.2,47,369/- as on 06/05/2019 and also complainant is due of further interest to the OPs without making the proper installments when the amount still due to OPs the complainant cannot seek relief from the OPs to hand over original title deeds.  Without making the entire payment the complainant cannot seek to issue clearance certificate without closing the loan account of the OPs.

        12. When the complainant have misconceived the insurance policy which covers only the member and if something happens to the member i.e., the complainant then the insurance company will indemnify the nominee of the policy holder.  Here in instant case the complainant is the policy holder and nothing has happened to the policy holder i.e., complainant and the nominee has expired and hence the insurance is not covered to the nominee who is the co-obligant in the instant case.

        13. Without any basis and application of mind the complainant  have misconceive and is seeking relief from the OPs and also insurance company is also not made as party to the proceedings.  As they are necessary party to the proceedings without which insurance company cannot compensate loan amount to the OPs. Which is not valid in the eye of law.  And hence complainants have failed to produce any documents that the insurance policy will cover co-obligant and also have failed to produced any documents regarding the repayment of the loan and hence complainant have utterly failed to prove deficiency in service on the part of the OP, and hence we answers point No.1 and 2 in the negative.

3. For the foregoing reasons while answering point 1 and 2 we proceed to pass the following order.

:: ORDER ::

        The complaint filed by complainant Under Section. 12 of the Consumer Protection Act 1986 is hereby dismissed. No order as to cost.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and

then pronounced in the open commission by us on 24^th March 2023.)

                  Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1: S Smt. Yasmeen Parveen W/o Late Fayaz Pasha, by way of affidavit evidence.

Witness examined on behalf of Opponent:

DW-1: B.Annappa Nayaka S/o Balajinaik

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

                  Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT