FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER.
This is a complaint case u/s 12 of the CP Act, 1986. The brief facts of the case is that the husband of the Complainant Late Tridib Shadhya had applied through OP No1 for a mortgage redemption policy on 23.11.2004 vide proposal No.2085/41Q against the House loan of Rs.12,00,000/-. Tridib Shadhya received the acknowledgement letter from the OP No 2 stating receipt of the payment of Rs.8983/-. Mr. Shadhya wrote letter to the OP No.2 for issuance of the said policy. Tridib Shadhya died on 13.07.2006. During his life time he was not replied by the OP1 as well as the OP2 in respect of his proposal/policy. The complainant wrote letters dated 17.08.2006, 23.08.2006 and 13.11.2006 to the OP1 and OP2 with death intimation of her husband Tridib Shadhya requesting to settle the death claim of the policy under proposal No.2085/41Q. The OP1 wrote to the OP2 vide letter date-09.08.2006 urging to issue the policy certificate immediately. The OP2 vide letter dated.12.12.2006 declared the case as unconcluded contract for non compliance of requirements and full premium. The complainant vide letters dated 10.03.2007 and 26.03.2007 requested the OP2 to settle the death claim of the impugned policy. But the OP2 vide letter dated 21.04.2007 reiterated the earlier decision communicated vide letter dated.12.12.2006 confirming the case as unconcluded contract and requested to keep in touch with the OP1 for refund of the unadjusted amount. The complainant thereafter wrote to the Insurance Ombudsman vide letter dated-28.05.2007 regarding non settlement of the genuine death claim. The matter was also referred to the RTI Authorities vide letter dated.30.08.2012. Meanwhile the complainant received a legal notice demanding the entire outstanding amount of Rs.12,44,000/- of the Home Loan taken by Tridib Shadhya to be paid within 10 days. The Insurance Ombudsman passed an award dated.31.03.2016 whereby it expressed that it does not have any wherewittal to examine the authenticity of the signature of the deceased and did not pass any award in favour of the complainant. Being dissatisfied by the order of the Insurance Ombudsman dated 31.03.2016 the complainant have approached the Commission for getting justice with prayers as detailed in the complaint petition. The OP1 is putting pressure for recovery of the Home loan amount of Rs.12,44,167/- pending against Loan Account No.08370600000102.
The OP1 has contested the case by filing their W/V by submitting that the case is hopelessly barred by limitation. The cause of action arose on 21.04.2017 when the OP2 informed the complainant that the claim stands repudiated as per their letter Ref: 41Q/Claim dated 12.12.2006.Thereafter the complainant lodged complaint with the Insurance Ombudsman vide letter dated 28.05.2007. The last correspondence in the matter is dated 04.10.2007. The complainant took up the matter with the OP1 vide letter dated 30.08.2012 after a lapse of 5 years. As per section 24A of the C.P. Act, 1986 “ The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.” In the instant case, the cause of action arose on 21.04.2007, as stated above, and the instant case has been filed in the month of September,2016 i.e. after a lapse of 9 years. Hence the case is hopelessly barred by limitation and on this ground only the complaint is liable to be dismissed. The husband of the complainant obtained house building loan of Rs.13.02 lacs and not Rs.12.00 lacs. It is denied by the OP1 that the borrower had taken Mortgage Redemption Policy against the house building loan because the borrower signed the proposal for a LIC Policy on 23.11.2004 whereas the loan sanctioned was on 01.10.2003. The loan sanction letter did not stipulate obtaining of Mortgage Redemption Policy. Moreover, the premium of Rs.8,983/- paid by the borrower is not for Mortgage Redemption Policy as alleged by the complainant and the said premium was also provisional and not final as alleged by the complainant which is evident from the letter dated 12.12.2006 of the OP2. The OP1 being a Nationalized Bank sent legal notice to the complainant to recover the dues which is the Public Money but the said step however yielded no result. It is also understood by the OP1 that the claimant signed the Discharge Voucher of Rs.8,983/- for getting the premium amount back and accordingly LICI being the OP2 refunded the amount vide cheque no. 942247 dated 29.06.2007 to the complainant and consequently the claim stands disposed of.
The OP2 has contested the case by filing their W.V. contending interralia that the case is a time barred complaint and the cause of action arose way back on 21.04.2007 and accordingly the same is a stale one. The case is not also maintainable because the proposal sent by the husband of the complainant was never converted into a policy. Accordingly it is a case of unconcluded contract. The OP2 informed the same to the complainant vide their letter dated.12.12.2006 and 21.04.2007. The OP2 being the LIC of India refunded the deposit amount of Rs.8,983/- vide Cheque No. 942247 dated 29.06.2007 and the same was sent to the complainant vide letter dated.29.06.2007.The complainant started proceedings only when the OP1 Bank asked for recovery of the loan availed by her husband. It is further stated that the proposal which her husband submitted before the OP2 through the OP1 was not a complete one and the same is termed as an unconcluded proposal and no policy was issued out of the said proposal. It is also stated that no step was taken either by the petitioner or his agent to find the status of the proposal submitted on 23.11.2004. On 06.06.2006, the OP2 received a representation from the deceased Life assured asking LICI to furnish the status of the proposal and therefore the said complaint is not maintainable against the answering OPs. as the policy was never generated. This answering OP2 further states that the proposal was submitted in the year 2004 and the proposer expired on 13.07.2006.Had the proposal resulted into a policy the question of further payment would have been asked for to keep the policy in force. Since the policy did not exist and the same was an unconcluded contract, the question of settlement does not arise. The proposal was submitted to the OP2 with a view to obtain a policy which would stand as collateral security against the Housing loan offered by the OP1. The policy was not issued and without the coverage of collateral security the housing loan was sanctioned. The OP1 enquired about the fate of the said proposal vide letter dated.09.08.2006 i.e. only after the death of the proposal. Though the proposal was sent in the year 2004 but in the year 2006 a letter was received from the late husband of the complainant wherein the proposer requested that the said policy had not been received by him and requested to handover the policy. It is therefore, stated that after the expiry of almost two years the proposer enquired about the status of the policy. It is for the first time in the year 2006 only that the late proposer enquired with the LICI as to the fate of the proposal. The proposal was sent in the year 2004 and enquires about the fate of the proposal was made in the year 2006. Since the proposal being an unconcluded one was never converted in to a policy and steps were taken to refund the deposit in respect of the said proposal. The husband of the complainant had signed on the receipt for withdrawal of the deposit under the proposal and the said receipt was produced before the Insurance Ombudsman. The allegation of the complainant is that the receipt was not signed by her late husband. The complainant was aware of the status of the proposal. As such the allegation of the complainant is misconceived for which the same should be dismissed..
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Points for Determination
On the pleading of parties the following points have necessarily come up for determination.
- Is the Consumer case barred by limitation ?
- Whether the OPs have got deficiency in service.
- Whether the OPs are indulging unfair trade practice.
- Whether the Complainant is entitled for the relief/reliefs as prayed for.
Decision with Reasons
Points Nos. 1 to 4 :-
All the points are taken up together for the sake of convenience and brevity in discussion.
Complainant and the OPs have tendered their Evidence on Affidavit. Both parties have replied to the questionnaire set forth by their adversaries. Complainant and the OPs have submitted their BNAs also.
We have travelled over the evidence and documents placed on record. Facts remain that the complainant’s husband Tridib Sadhya submitted one proposal for obtaining insurance policy to the OP2 vide proposal No.2085/41Q dated 23.11.2004 along with a remittance of Rs.8,983/- which was acknowledged by the OP2 vide letter dated 24.12.2004. It was written in the said letter that “ Your proposal has been sent by us to our higher office for underwriting decision. We shall revert to you soon in the matter.” There was no communication from either side till 05.06.2006 when the proposer wanted to have his policy document through his letter dated 06.06.2006. The proposer died on 13.07.2006. The OP2 vide letter dated 12.12.2006 informed the complainant that “ the competent authority has declared the case as ‘ Unconcluded contract’ for non compliance with the requirements & full premium. Hence the claim is void abinitio.” On further query the OP2 informed the complainant vide letter dated 21.04.2007 that since the contract is not concluded and not resulted into a policy, question of payment as per policy condition does not arise. We also find that the complainant put her complaint against the OP2 to the Insurance Ombudsman vide letter dated 28.05.2007. The last communication in this regard was made by the complainant vide letter dated 04.10.2007. No award was passed by the office of the Insurance Ombudsman during that period. The proceeding was abruptly dropped and discontinued for the reason not known to us Thereafter we find from the record that the complainant has annexed an award of the Insurance Ombudsman dated 31.03.2016 in the said matter. On careful scrutiny of the award it is observed that date of receipt of the complaint in the office of the Insurance Ombudsman has been mentioned as 11.12.2014 i.e. the complainant was silent with the issue for more than 07 years from the date of last communication with the office of the Insurance Ombudsman. The reason for such long silence on the part of the complainant is also not understood. The recital of the award of the Insurance Ombudsman is also very relevant which speaks as follows.
“ Taking into account the facts and circumstances of the case and the submissions made by both the parties during the course of hearing, it was observed that we do not have the wherewittal to conclude whether the signature of the complainant were genuine in the discharge voucher submitted to the Insurer for getting refund of the paid proposal deposit. The Insurer cannot be directed to book the liability of the death claim, as the proposal was not converted into a policy. In this context, the case is disposed of from our forum. The complainant may approach an appropriate court of law for redressal of the dispute.”
The complainant has filed the present consumer complaint to this Commission on 15.09.2016 against the decision of repudiation of the death claim of the OP2 which was communicated to the complainant vide letter dated 12.12.2006 and 21.04.2007. If we consider the last letter dated 21.4.2007 then the delay in filing the case against repudiation stands 09 years 04 months and 24 days. The OP1 & the OP2 has rightly raised the issue of the law of limitation as per the C. P. Act. As per Section 24A of the C.P.Act, 1986,
“ Limitation period.- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub – section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
The limitation period is absolutely unchanged under section 69 of the present C.P. Act of 2019. As per the said section we do not find any document or any application with proper explanation why such huge delay of filing the case will be condoned by the commission.. Ld. Advocate for the complainant in his argument is silent over the issue why the complainant remained silent for the period from 04.10.2007 to 11.12.2014 before submitting again to the Insurance Ombudsman as already mentioned before. As such, the delay for the period from 21.04.2007 to 14.09.2016 in filing the case in this Commission has not been duly explained by the complainant and also has not been prayed for condonation of delay in the proper manner as per the C.P.Act.
Moreover, the issue of signature of the claimant in the discharge voucher submitted before the OP2 for refund of proposal deposit which was raised in the award of the Ombudsman dated 31.03.2016 has left uncared by the complainant. The complainant has simply denied the signature of her deceased husband in the discharge voucher but has not lodged any formal complaint with the police authority against such alleged denial of signature of her deceased husband. Mere denial will not go in favour of the complainant. In this regard the OP2 has submitted that refund action of the proposal deposit of Rs.8,983/- stands completed vide cheque No. 942247 dated 29.06.2007 and the same was sent to the complainant accordingly.
The Ld. Advocate for theOP2 has cited Judgment of the Hon’ble Supreme Court of India in the matter of Life Insurance Corporation of ….vs Raja Vasireddy Komallavalli… on 27.03.1984. Equivalent citations : 1984 AIR 1014,1984 SCR(3) 350 where in para no.2 the Hon’ble Apex Court has observed the following
“ Though in certain human relationship silence to a proposal might convey acceptance but in the case of insurance proposal, silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as prima facie, acceptance must be communicated to the offer or the general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer.
The judgment of the Hon’ble Supreme Court in the matter of Civil Appeal No.2216 of 2018 D.Srinivas vs SBI Life Insurance Co. Ltd. And Ors. cited by the Ld. Advocate of the complainant is not found relevant in the present case as the OP1 being the UCO Bank has clearly submitted that the LIC policy was not mandatory for sanctioning the Housing loan as the said Loan was sanctioned to the borrower on 01.10.2003 where as the borrower signed the proposal form on 23.11.2004.
In view of the above submissions we are of the opinion that the complainant has failed to establish her case against the OPs. More so, the Complaint case is barred by law of limitation.
Thus all the points under determination are answered accordingly.
In the result, the consumer complaint fails.
Hence,
Ordered
That the Complaint case be and the same is dismissed on contest against the OPs without any costs. The OP2 is directed to refund the proposal deposit of Rs.8,983/- to the complainant being the legal heir of the deceased proposer Tridib Sadhya.
