IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/58/2014.
Date of Filing: Date of Admission: Date of Disposal:
26.05.14 21.08.14 12.12.19
Complainant: 1. Akbar Dewan,
2. Sagir Dewan,
3. Jakir Dewan,
all are S/O- Late Goni Dewan,
Chandanbati, P.O.- Asheripara,
P.S.- Sagardighi,
4. Momtaz Bewa W/O- Late Goni Dewan, Chandanbati,
P.O.- Asheripara, P.S.- Sagardighi,
5. Fatema Bibi, W/o Naser Ali
Vill. Taragram, PO-Panchgram, PS-Nabagram,
Dist-Murshidabad
-Vs-
Opposite Party: 1.The Branch Manager
Bank Of Boroda, Sukhi Branch,
Sukhi, Murshidabad
2.The Divisional Manager
United India Insurance Co. Ltd.
38-B, Chowringhee Road, Himalaya House,
Kol- 71
3.The Insurance General
Ombudsman, 29,N.S.Road,
3rd Floor.
Kol- 71
Agent/Advocate for the Complainants : Sri. Swapan Mukherjee
Agent/Advocate for the Opposite Party no.1 : Sri. Sankha nath Mukherjee
Agent/Advocate for the Opposite Party no.2 : Sri. S. S. Dhar
Present: Sri Asish Kumar Senapati………………….......President.
Sri Subir Sinha Ray …………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
One Akbar Dewan and Others (here in after referred to as the Complainants) filed the case against the Branch Manager, Bank of Baroda, Sukhi Branch and Others (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainants are the legal heirs of Goni Dewan who was a consumer of OP Nos.1 and 2. The said Goni Dewan took a house building loan of Rs.2,00,000/- from the OP No.1 and it was covered under insurance policy of OP No.2. The said Goni Dewan died on 22.11.07 by a road accident and he was regular in making payment of EMI. The legal heirs of Goni Dewan got the death certificate on 14.01.08 and applied for relinquishment of house building loan amount as per terms and conditions of the insurance policy but the OP No.1 refused to pay any heed to the request of the Complainants and the OP No.1 demanded the unpaid loan amount along with interest. After that the legal heirs of Goni Dewan instructed their advocate, Swapan Mukherjee to serve notice upon OP Nos. 1 and 3 by registered post and OP Nos. 1 and 3 received the notice on 16.08.13. The OP No.3 is the entrusted person to adjudicate the matter relating to insurance policy. In spite of that the OPs did not settle the claim of the Complainants. Hence, the Complainants have filed the case praying for a direction upon the OPs to pay Rs.2,00,000/- to the Complainants and Rs.20,000/- as compensation for mental agony and harassment.
The OP No.1 filed written version on 23.07.15 contending that the case is not maintainable and the Complainants have no cause of action to file the case and the case is barred by law of limitation. It is the specific case of the OP No. 1 that Goni Dewan took a house building loan of Rs. 2,00,000/- from the OP No.1 on assurance of paying EMI but he failed to pay the installments and became a defaulter. On 27.11.08 the Complainant Nos. 1 to 4 informed the Bank by a letter that Goni Dewan died by a road accident on 22.11.07 and wanted to know the latest position of loan amount. On that date the loan amount became NPA as Goni Dewan or his legal heirs were defaulters. The Complainants informed the fact of death when the Bank authority visited their home as loan became NPA. The loan was insured under Uni Home Care Policy under United India Insurance Co. ltd. When the Complainants supplied the xerox copy of death certificate of Goni Dewan, the OP No. 1 sent a letter on 10.02.09 intimating the insurance company about the death of Goni Dewan along with the copy of receipt of insurance policy and the copy of death certificate. The outstanding balance as on 22.11.07 was Rs.2,04,113/-. The Bank authority informed the OP No.2 that the delay in informing the fact of death of Goni Dewan was due to receiving the information of death of Goni Dewan on 27.11.08 by a letter dated 09.04.09 The O.P. No.2 informed the bank that the conditions regarding immediate notification of loss has been violated and by a letter dated 12.05.09 the insurance company repudiated the claim for delay information about the death of Goni Dewan. There is no deficiency in service on the part of the OP No. 1. So, the Complainant is liable to be rejected.
The OP No.2 contested the case by filing written version on 23.07.15 contending that the case is not maintainable as the Complainant has no cause of action and the case is barred by law of limitation. The Complainants are not consumers under the OP No.2 and there is no deficiency in service on the part of the OP No.2 as the OP No.2 repudiated the claim of the Complainants on valid grounds. The OP No.2 has admitted that a policy being No. 030200/46/049/01682 was valid from 08.02.05 to 07.02.15 and Bank of Baroda was the insured. The OP No. 2 got information about the fact of death of Goni Dewan from the OP No.1 on 22.11.07 that Goni Dewan died on 22.11.07. Therefore, the claim was made after one year half months from the date of death of Goni Dewan. The policy includes a special condition that the loss must be informed immediately but the Complainants violated the said condition. So, the insurance company is bound to recall the claim as it was inadmissible. The insurance company rejected the claim on 02.05.09 and the case has been filed on 2014. So, the case is barred by law of limitation. There is no deficiency in service on the part of the OP No.2.
The O.P. No. 3 did not turn up in spite of service of notice.
On the basis of the above version the following points are framed for proper adjudication of the case :
Points for consideration
- Is the Complaint maintainable under the provisions of the CP Act, 1986?
- Is the case barred by law of limitation ?
3. Have the OPs any deficiency in service, as alleged?
4. Is the Complainant entitled to get any relief, as prayed for?
Point no.1&2.
The Ld. Advocate for the Complainants submits that the Complainants are legal heirs and representatives of late Goni Dewan who hired services of the OPs for consideration.
The Ld. Advocate for the Complainant also submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum. It is urged that the cause of action arose on16.08.13 as the O.P. Nos. 1 & 3 did not pay any heed to the lawyer’s Notice for resolving the issue. He contends that the fact of repudiation of claim by the O.P. No.2 in 2014, as alleged was not known to the Complainants.
In reply, the Ld. Advocates for the O.P. Nos. 1&2 submit that GoniDewan was not a consumer as he never hired any services of the OPs for consideration. It is urged that the premium for insurance was paid by the O.P. No.1 and it was a free property insurance and free personal accident cover to housing loan customers of Bank of Baroda. They argue that the O.P. No.2 repudiated the claim on 12.05.2009 but the case has not been filed within two years for which the case is hopelessly barred by law of limitation.
We have gone through the materials on record and considered the submission of both sides. It appears from the documents filed by the O.P. No. 1 that the O.P. No. 2 repudiated the claim by issuing a letter dated 12.05.2009 addressed to the O.P. No. 1 but there is no proof that the said fact was intimated to the legal heirs of Goni Dewan. The O.P. Nos. 1 &3 received the lawyer’s letter on 16.08.2013 but did not think it necessary to give any reply intimating the fact of repudiation of the claim by the O.P. No.2. In our considered opinion, Goni Dewan took housing loan from the O.P. No. 1 along withfree insurance coverage. It is not important who paid premium for insurance but it can not be denied that free insurance coveragewas a part to attract the customers to take housing loan from the Bank of Baroda . Therefore, we hold that Goni Dewan was a consumer of the O.P. Nos 1&2 and after his death his legal heirs/legal representativeshave right to file Complaint case. We also, hold that cause of action also arose on 16.08.13 when the O.P. nos. 173 did not respond to the notice in spite of receiving the same.
Therefore, it is held that the case is maintainable and the case is not barred by law of limitation.
Point Nos.3&4.
The Ld. Advocate for the Complainants submits that Goni Dewan, predecessor of the Complainants took house building loan of Rs.2,00,000/- from the OP No.1 and the same was covered under Insurance Policy of the United India Insurance Co. Ltd. It is argued that Goni Dewad died on 22.11.07 by a road accident and the legal heirs of Goni Dewan informed the OP No.1 after receiving the death certificate of Goni Dewan with a request for relinquishment of the house loan but the OP No.1 did not pay any heed to it, as a result, Shri. Swapan Mukherjee, Advocate for the Complainants served notice upon the OP Nos. 1 and 3 by registered post requesting them to resolve the issue and the said notice was served upon them on 16.08.13 in spite of that the OPs did not resolve the issue, for which the Complainants filed the case praying relinquishment of the loan amount of Rs.2,00,000/- and compensation of Rs.20,000/- for mental agony and harassment. It is contended that the OPs have deficiency in service and the Complainants are entitled to get the reliefs, as prayed for.
In reply, the Ld. Advocate for the OP No.1 submits that the Complainants Nos. 1-4 by a letter dated 27.11.08 informed for the first time that Goni Dewan died on 22.11.07 by a road accident and they wanted to know the latest position of the loan account. It is urged that the loan account became NPA as Goni Dewan or his legal heirs became defaulters in payment of loan and the Complainants informed the fact of death when the Bank authority visited the home of Goni Dewan as the loan became NPA. He submits that the loan was insured under Uni Home Care Policy under the United India Insurance Co. Ltd. and the Bank sent a letter dated 10.02.09 intimating the insurance company about the death of Goni Dewan along with copy of insurance policy and death certificate and the outstanding balance as on 22.11.07 was Rs.2,04,113/- exclusive of interest. He further argues that the OP No.2 asked the OP No.1 about the delay in filing of the claim and the OP No.1 informed the insurance company by a letter dated 09.04.09 that delay in lodging complaint was due to late intimation by the Complainants and the insurance company ultimately repudiated the claim on 12.05.09 for delay information about the death of Goni Dewan. He argues that the OP No.1 has no deficiency in service.
The Ld. Advocate for the OP No.2 submits that it is true that there was a policy named as Uni Home Care Policy being No. 030200/46/049/01682 valid from 08.02.05 to 07.02.15 in the name of Goni Dewas against his house building loan and the OP No.2 came to know the fact of death of Goni Dewas by a letter dated 10.02.09 and Goni Dewan died on 22.11.07. He argues that the OP No.2 vide a letter dated 09.04.09 wanted to know from the Bank about the delay in lodging the claim and the Bank authority informed the insurance company that it came to know the death of Goni Dewan on 27.11.08 and the Complainant submitted the death certificate and disposal of the certificate on 09.03.09. He further argues that the claim of loss was lodged after 1 year 3 ½ months from the happening of loss in violation of condition No. 1 under the head “conditions applicable of section-II” and insurance company rejected the claim on 12.05.09 as the claim was filed at a belated stage. It is further argues that the case has been filed beyond the period of limitation and there is no deficiency in service on the part of the OP No.2. He prays for dismissal of the complaint with cost.
We have gone through the materials on record. We have also considered the submission of both sides. Admittedly, Goni Dewan took a house building loan amounting Rs. 2,00,000/- from the OP No.1 being loan account No. 22880600000043 and the loan was covered under Uni Home Care Policy vide policy No. 030200/46/04/016882 under the OP No.2 and Goni Dewan died on 22.11.07 due to a road accident within the validity period of the insurance policy. It is apparent from the documents filed by the OP No.1 that the outstanding balance in the loan account of Goni Dewan as on 30.11.07 was Rs.2,04,113/-. It appears from the letter dated 12.05.09 issued by the OP No.2 to the OP No.1 that the OP No.2 repudiated the claim but there is no document on record to establish that the fact of repudiation was informed to the Complainants by the OP No.1. It is the submission of the Ld. Advocate for the Complainant that the OP No.1 was silent for a long period after submission of death certificate of Goni Dewan by the Complainants and Advocate’s letter dated 12.08.13 was sent to the OP Nos. 1 and 3 by registered post with AD but the OP Nos. 1 and 3 did not pay any heed to it in spite of receiving the said letter on 16.08.13.
On a careful consideration, we find that Goni Dewan died on 22.11.07 and the Complainants Nos. 1-4 informed the fact of death of Goni Dewan to the OP No.1 on 27.11.08. It is true that the legal heirs of Goni Dewan informed the fact of death of Goni Dewan after lapse of about 1 year. The Ld. Advocate for the OP No.1 has urged that Goni Dewan was a habitual defaulter and he paid only a few installments out of 31 installments. On perusal of the loan account statement of Goni Dewan we find that Goni Dewan paid only amounts for 19 installments out of 31 installments and Goni Dewan started to pay installments on 05.12.05 after about 7 months from the date of starting of first installments as per agreement. The Complainants have not assigned any reason for non-payment of regular installments of loan by Goni Dewan. We find that the OP No.2 repudiated the claim on the ground of lodging the claim of loss at belated stage. The fact remains that Goni Dewan died on 22.11.07 and the Complainants Nos. 1-4 intimated the fact of death of Goni Dewan to the OP No.1 on 27.11.08. It can be safely said that the legal heirs of Goni Dewan were not sincere for which they did not inform the fact of death of Goni Dewan to the OP No.1 just after death of Goni Dewan but the said fact does not change the situation. On going through the policy details of free insurance of house property finance of the direct house loan scheme and personal accident insurance of house loan of bank of Baroda, we find that
- “The liability of National Insurance Company Ltd. will be restricted to the least of the following ( for property)amount outstanding as on the date of loss oractual loss assessed orsum insured whichever is the least.
- For the purpose of amount outstanding the amount that ought to have been outstanding on the date of loss/accident, if the repayment schedule is adhered to, has to be reckoned (excluding default amount).’’
In the present case the outstanding dues as on 22.11.07 was a bit less than Rs.2,04,113/- but it also includes default amount. We have already observed that Goni Dewan defaulted in payment of 12 monthly installments up to his death. It also appears from the loan account statement that Goni Dewan was defaulted in payment of installments since May,2005. On calculation, we find that Goni Dewan defaulted in payment of 12 monthly installments out of 31 monthly installments @Rs. 2480/- per month amounting default of Rs.29,760/-. Goni Dewan was also liable to pay interest on each and every default.
In our considered opinion, the default amount including interest is about Rs.40,000/-. The liability of the insurance company is Rs.2,00,000/- i.e. loan amount -default amount including interest is Rs.40,000/-. Therefore, amount outstanding as on 27.11.07 is Rs.1,60,000/- and the OP No.2 is liable to pay the said amount to the OP No.1 against the outstanding dues of Goni Dewan.
The OP No.1 has not informed the Complainants about the repudiation of claim by the OP No.2. Hence, we are of the view that the OP No.1 has deficiency in service.
We think that the O.P. No 2 has deficiency in service as the repudiation of claim on the ground of delayonly is not sustainable .
In our considered opinion the Complainants are entitled to get exemption of Rs.1,60,000/- out of outstanding dues as on this day. As the complainants are not sincere about their duties to inform the fact of death to the O.P. No. 1 , we are of the view that the legal heirs of Goni Dewan are liable to pay the outstanding dues excluding Rs. 1,60,000/-.
The OP No.1 may be directed to calculate the outstanding dues of loan of Goni Dewan and the OP No.2 may be directed to pay Rs.1,60,000/- to the OP No.1 for liquidation of the loan amount in terms of Uni Home Care Policy.
Reasons for delay
The Case was filed on 26.05.14 and admitted on 21.08.14. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the complaint case succeeds in part.
Hence, it is
ORDERED
that the Consumer Complaint Case No. CC/58/2014 be and the same is here by allowed on contest against the OP Nos. 1 and 2 without cost and decreed ex-parte against the OP No.3 without cost.
The OP Nos.1&3 are directed to calculate the outstanding dues as on this day by sixty days from the date of this order and the O.P. No. 2 is directed to pay Rs.1,60,000/- out of outstanding dues of Goni Dewan to the OP No.1 by ninety days from the date of this order. The OP Nos.1&3 are at liberty to proceed for realisation of rest amount of outstanding dues of housing loan of Goni Dewan in accordance with rules and procedure.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
