By Smt. Bindu. R,  President:

CC No.31/2021

          This  complaint is filed by Khadeeja, Aged 44,  W/o. Ibrahim,  Parakkal House, Mundery,  Kalpetta Municipality,  Kalpetta-673 121 against  H.D.F.C Bank Limited,  Simax Tower, Kunnur Road, Nadakkavu, Kozhikode- 673 011,  Represented by  its Manager and  another alleging deficiency of service and unfair trade practice from the side  of  Opposite Parties.

          2. The Complainant states that  Muhammed Abu, S/o  the Complainant is the RC owner of 2019 model Nissan Motor Car bearing No.KL 12N 1245 which  was purchased from EVM Nizan, Parambil Tower, Kakkavayal (P.O) which is the  authorised dealer of Nizan Motors.  The son of the Complainant was in need of financial  assistance for purchasing the vehicle,  the  employees of the Opposite Party suggested  and  induced to avail loan from  1^st  Opposite Party and  as per the request of the employees, the Complainant’s  son signed all the blank papers  and submitted the documents as requested by them.  Thus 1^st  Opposite Party paid the balance  amount after deducting the amount paid by the son of the Complainant to the dealer of the vehicle.  The Complainant states that  at the time of taking  the loan Complainant’s son was asked to join in the  insurance  policy to settle the liability in case of any accident happened to the RC owner.  The Opposite Parties assured  that in case of loss of job, death or any disability due to any accident happens or if insurer is affected by  any deadly diseases different insurance amounts including Rs.5,00,000/-  as credit shield shall be provided.  The Opposite Parties  made to believe that the insurance is to be taken to avoid the difficulties in the repayment of loan if the above said contingencies happens in the instant case.  The Complainant  further states that  Covid  Pandamic started  after 10 days of the purchase of the vehicle and hence the  son of   the Complainant was not in a position to generate income. Even  though the Opposite Parties informed the Complainant that the  1^st   instalment will become due on 15.04.2020,  the  Complainant states that the Opposite Parties had not  provided loan chart or agreement to the  son of the Complainant.  Due to covid, the  government  declared  moratorium for the repayment of loans during that period.  While so on 27.08.2020,  the  son of the Complainant died in an accident near Lakkidi Oriental College.  Thereafter the 1^st  Opposite Party issued notice to the Complainant for repayment of the loan amount.  On receiving the same,  the Complainant approached the 1^st  Opposite Party and asked about loan shield insurance and they had given the claim form to the Complainant.   When the Complainant approached  HDFC Bank, Kalpetta which is  branch office of  1^st and 2^nd  Opposite Parties,  they were not ready to accept the claim form and documents from  the Complainant.  Hence  the Complainant sent the claim form and  the records to  the 2^nd  Opposite Party on 09.10.2020 by registered post which was received by 2^nd  Opposite Party on 13.10.2020.  The Complainant states that  without settling the claim the agent of 1^st  Opposite Party threatened the Complainant saying that her house and properties will be attached if the loan amount is not paid.  The Complainant states that  the  1^st Opposite Party is duty bound to close the loan availed by the  son of  the Complainant by adjusting the amount of insurance claim towards the loan liability but  the  1^st  Opposite Party is reluctant in doing that and compelling the Complainant to pay the amount which  amounts to deficiency  of service and unfair trade practice.  Hence  the Complainant approached this Commission  praying for issuing  a direction  to the Opposite Party to  pay compensation of Rs.1,00,000/-  to the Complainant and for other reliefs.

          3. Upon notice both the Opposite parties entered in to  appearance.  But only  2^nd  Opposite Party filed version.  1^st  Opposite Party  was  set exparte since  no version  has been filed.

          4.  2^nd  Opposite party in their version contented that the complaint is an abuse of process of law and the petition is filed  with unclean hands.  The Complainant’s son  Muhammed Abu Thahir. P had taken a private Car policy vide policy No.2311 2033 4445 7700 001 for the period from  04.03.2020 to 03.03.2023 for the vehicle bearing  registration  No.KL 12 N 1245 of  Datsun Go plus.  He had  also taken a  Sarv Suraksha Policy from the 2^nd  Opposite Party vide  policy No.2950 2033 3644 2000 000 having  validity from 05.03.2020 to 04.03.2023.  Insurance policy was taken in the name of the deceased making the Complainant as the nominee.  The son of the Complainant was driving the  car at  the time of accident.   According  to the  Opposite Party  the Complainant’s son  was not having a valid  licence to drive a light motor vehicle at the time of accident.  The  accident occurred  only due to the wilful omission  and negligence in driving the vehicle without a driving licence.  According to the Opposite Party the insured was only having a licence to drive a motor cycle with gear and not for light motor vehicle.  As per  Section 3(1) of Motor Vehicle Act.  “No person shall  drive a motor vehicle in any public place unless he holds a valid driving licence issued  to him authorising him to drive  the vehicle under section 149(2)(a) of Motor Vehicle Act 1988 breach of the said  condition absolves the insurer of any liability”.  Hence  the insurer is not  liable to  compensate.  The accident occurred  only due to the omission  of the insured and  in this case the Complainant did not submit any documents even after  repeated requests.  The allegation of deficiency of service and unfair trade practice from the  side of Opposite Parties are denied and as per  policy condition,  the Complainant is not entitled for Rs.10,00,000/-  the insurance amount and also for the Compensation claimed.  It is stated by the Opposite Party that as per the  credit shield policy conditions, in the event of accidental death, “the  company will pay the balance  outstanding  loan amount to the legal heirs  of  the insured or to the  named insured subject to the maximum sum  insured specified in the schedule”.   According to the Opposite Party “the outstanding  loan amount would not include any arrear due from borrower due to any reason what so ever”.  The Opposite Party contented  that as per the various decision of the Hon’ble High Court the policy terms  and condition have to be strictly construed and hence the  petitioners are bound by the terms and conditions of the policy.  According to the section on personal  accident “the Company will pay the sum  insured in the event of accidental  bodily injury causing the insured’s  death within  12 months of the accidental  bodily injury being sustained, where after this policy shall  expire”.  According to the Opposite Party the Complainant is not entitled to the benefit under  both credit shield insurance  and personal accident as there has been violation of the terms and condition of the policy and the statutory provision of Motor Vehicle  Act  as the vehicle was driven by the insured without a valid driving  licence and hence prayed for dismissal of the complaint with costs.

CC No.33/2021

          5. This complaint is also filed by the same Complainant against the Manager,  HDFC  ERGO General Insurance Co. Ltd.,  5^th floor,  Leela Business Park, Anthery Kurla Road, Anthery East Mumbai -400 059 who is the  2^nd  Opposite Party in the other  complaint alleging  deficiency of service  and unfair trade practice.

          6. In the present  complaint, the allegation is that  Muhammed Abu Thahir,  son of the Complainant is the   RC owner of Nissan Motor Car of  2019 model bearing No.KL 12 N 1245  which is purchased  from   EVM Nissan,  Parambil Tower,  Kakkavayal Post- 673 122 who is the authorised dealer of Nissan Motor who are having business  tieup.  As per the suggestion  and inducement of the employees of  Opposite Party  son of the Complainant took  insurance  from the Opposite Party and thereby the vehicle was insured as per policy No.2311203344457700000 from  04.03.2020 to 03.03.2021  as own damage policy and from  04.03.2020 to 03.03.2021 as liability policy.  During the period of policy on 27.08.2020,  son of  the Complainant while driving the vehicle met with an accident near Lakkidi  Oriental College and  the son of the Complainant was died.  The vehicle was also damaged. The accident was intimated to the Opposite Party and the vehicle was given for repair  in the workshop of the Opposite Party at Kozhikode.  The Complainant was made to understand from the workshop authorities that the surveyor appointed from the side of  Opposite Party was inspected the vehicle.  According to the Complainant the appointment of the surveyor or the date of inspection was not intimated to the Complainant.  Even though the Complainant being the legal heir  and nominee of RC owner approached the branch  office  of Opposite Party at Wayanad for getting  the own  damage coverage and personal accident coverage for the RC owner,  the Opposite Party had not even accepted the claim form and hence the same was sent to the Opposite Party on 09.10.2020.  The Opposite Party had not taken any steps in the claim  petition even after receiving  the claim form.  The same has not honoured or repudiated by the Opposite Party which amounts to deficiency of service and unfair trade practice from the side of the Opposite Party.  Hence  the Complainant  prays for a direction to the Opposite Party to compensate for the difficulties  caused  to the Complainant by the act of  Opposite party and for other reliefs.

          7. Upon notice the Opposite Party entered into appearance and filed version stating that the complaint is not maintainable  and is filed with  unclean hands.  Contract of insurance  being a contract based on policy,  parties are liable to the policy conditions.  The taking of the policy and the death of the insured is admitted by the Opposite Party.   Case of the  Opposite party is that the deceased was not having  valid licence to drive the car where as the policy condition specifically says in the limitation as to use that “ Any person including the insured,  provided that a person driving  holds an effective driving licence at the time of the accident and is not disqualified from holding  or obtaining such a license”.  Since the vehicle was driven by the insured without licence,  the Opposite Party  is not liable to compensate the Complainant.  The breach of insured in driving is a fundamental  breach and  is guilty of  negligence and has failed to exercise reasonable  care in  fulfilling the condition of the policy registered  use of the vehicle.  It is contented by the Opposite Party that even according to the provisions of the Motor Vehicle Act,  the Opposite Party is not liable for the compensation for such  incidents as in the instant case.  The allegation that the branch office of Opposite Party at Wayanad refused to accept the claim form etc are denied  by the Opposite Party.  The contention taken by the Opposite Party is that there is no deficiency of service or unfair trade practice from  the side of the Opposite Party and hence  they are not liable for any  compensation to the Complainant and prayed for dismissal of the complaint with cost of the Opposite Party.

          8. In CC 31/2021 the Complainant filed IA 482/2023 for joint trial of                 CC 31/2021 and CC 33/2021 which was allowed and both the cases are considered together.

          9. Evidence taken in CC 31/2021 consists of the oral testimony of PW1 and Ext.A1 to A3  from the side of the Complainant and Ext.B1 to B6 series from the side of the Opposite Party.

                10. The following are the  point to be analysed in the case to reach in to a fair derivation of the facts.

1. Whether the Complainant had sustained to any deficiency  of service or unfair trade practice from the side of the Opposite Party?
2. If so,  the compensation and costs for which the Complainant is entitled to get?

11. Heard both sides and perused the records.

12. The Complainant’s son had availed a loan from  1^st  Opposite Party which was having an insurance coverage under Surv Suraksha Policy issued by  2^nd  Opposite Party the nominee of  which was the Complainant.  In the instant case normally  if  the death or other contingencies happened to the insurer,  who will be the RC owner, there was a coverage offer of insurance amount and a credit shield insurance was also offered  by the Opposite Party.  Subsequently son of  the Complainant while  driving the vehicle on 27.08.2020 met with an accident in which  son of the Complainant died.  Obviously  the Opposite parties are duty bound to compensate the loan amount outstanding from the Complainant  by adjusting  the insurance amount the Complainant  is supposed to get.  The Opposite Party had produced the policy conditions and refused to  adjust  the amount of loan from the policy stating that the Complainant had violated policy conditions  and therefore became  ineligible to get the policy amount.

          13. The Commission upon making  a thorough  perusal  into the records produced from either side and also on verification of Ext.B1 produced by the Opposite Party and taking into  account the deposition and other records reached into the inference that the deceased   insured  was not having  a licence to drive  a four wheeler at the time of accident or that has not been produced by the Complainant to defeat the argument of Opposite Party.  In the absence of which the benefit if any for which the insured is subjected to, cannot be granted as per the Rules.  In the above circumstances the argument of the Complainant do not  have any  merit and therefore the point No.1 is  found against the Complainant and hence point No.2 is not considered  by the Commission.

          Hence  both Consumer Cases  are dismissed without costs.

          Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the  12^th  day of  November  2024.

Date of filing:-  CC No.31/2021  -  11.02.2021.

                         CC No.33/2021  -  15.02.2021

                                                                                 PRESIDENT:  Sd/-

                                                                              MEMBER   :  Sd/-

APPENDIX.

Witness for the Complainant:

PW1.           Kadeeja. P                                Complainant. 

Witness for the Opposite Parties:

Nil.   

Exhibits for the Complainant:

A1.      Copy of Certificate of Insurance.

A2.      Copy of Notice.

A3 series(5 Nos.) Copy of Claim form.

Exhibits for the Opposite Parties:

B1.              Copy of Driving Licence.

B2.    Copy Certificate of Insurance cum Policy Schedule.

B3.    Copy Certificate of Insurance cum Policy Schedule.

B4.    Copy of Letter.                                   dt:05.03.2020.

B5 Series  Claim Reminder Letter.              dt:17.10.2020.

B6.    Copy of Driving Licence.

                                                                                                PRESIDENT:  Sd/-                                                                                                                                                                                              MEMBER   :   Sd/-