Date of filing: 09.4.2012 Date of disposal: 09 .01.2015
Complainant: 1. Rita Mondal, W/o. Late Ashish Mondal.
2. Saptarshi Mondal, S/o. Late Ashish Mondal.
3. Jyotirmoy Mondal, S/o. Late Ashish Mondal, being minor represented through his natural guardian mother, i.e. complainant no. 1.
4. Shanti Rani Mondal, W/o. Late Gopeswar Mondal.
All are resident of Galsi Bazar, Galsi, Burdwan.
-VERSUS-
Opposite Party: 1. The Manager, Kotak Mahindra Bank Ltd., branch office at: 7th Floor, “C” Block, Apeejay House, 15 Park Street, Kolkata – 700 016.
2. The Manager, Kotak Life Insurance Ltd., branch office at: 7th Floor, “C” Block, Apeejay House, 15 Park Street, Kolkata – 700 016.
Present: Hon’ble President: Sri Udayan Mukhopadhyay
Hon’ble Member: Sri Durga Sankar Das
Appeared for the Complainant: Ld. Advocate, Saurav Kumar Mitra.
Appeared for the Opposite Party No. 1: Ld. Advocate, Amit Shaw.
Appeared for the Opposite Party No. 2: Ld. Advocate, Santi Ranjan Hazra.
JUDGEMENT
The case of the complainant in precise is as follows:
The husband of the complainant no. 1, father of complainant no. 2&3 and the son of complainant no. 4, Ashish Mondal, since deceased purchased a truck for earning his livelihood with financial assistance from OP-1 for a sum of Rs. 2, 83,509=00 by way of hypothecation agreement with a monthly installment of Rs. 11,110=00 payable to the OP-1 on 5th day of each month for each succeeding 35 months. As per terms and agreement OP-2 issued a life insurance policy in favour of the Ashish Mondal assured for a sum of Rs. 2, 75,000=00 and was valid up to 05.10.2013. Due to ill luck Ashish Mondal died with sudden heart attack but he paid all the installments to the OP-1 in
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time up to his death. After the death of the insured his legal heirs put in a financial stringency and installments could not be paid at that time. Later they met with the OP-1 and about the formalities of lodging claim before the Op-2. At that time the official of OP-1 assured that as the OP-2 is the sister concern of them so proper intimation will be served by the OP-1 on basis of her letter and some documents. As per direction of OP-1 by addressing a letter to OP-2 wrote an intimation letter and gave the same to the official of OP-1. But neither the OP-1 nor the OP-2 have ever made any endeavor for settling the legitimate claim of the complainant. On the other hand knowing fully well about the sudden death of Ashish Mondal, he OP-1 most illegally seized the vehicle from the custody of the complainant. Such conduct of OP-1 not only an act of deficiency in service and unfair trade practice but also reflects the conduct of inhumanity and should be panelized by way of compensation for such acts. The complainants have prayed for relief as under:
- Directing the Ops to pay compensation for mental pain and suffering Rs. 25,000=00,
- Directing the Ops to pay litigation cost of Rs. 25,000=00 ,
- Directing the Ops to pay Rs. 75,556=00 after deducting the loan amount Rs. 2,83,509 (Rs. 2,75,000=00 + Rs. 84,065=00).
The OP-1 has contested the case by filing written version denying the entire allegation leveled against it. The OP-1 further submits that the basic allegation of the complainant against OP-1 is that the OP-1 has taken forceful possession of the vehicle from the custody of the complainant is totally false. Infact for the purpose of repayment of the statutory dues the bank has repeatedly asked the complainant to pay the outstanding but with an ulterior motive the complainant did not comply the same. The OP-1 further states that the complainant had never informed and/or intimated the OP that the original borrower Ashish Mondal has expired therefore from no source the OP-1 has enable to get the information that Ashish Mondal has expired. The OP-1 has admitted that the vehicle has been insured with the OP-2 but the complainants have never approached and/or intimated and/or claimed the insured amount from the OP-2. Therefore there is no as such deficiency of service on the part of the OP-2. OP-1 further stated that in various judgments the Hon’ble High Court at Calcutta and even Hon’ble supreme Court of India held that on default of making payment the financier has the right to take the possession of the vehicle AIR 2004 SC 2609 and 2000 (1) SCC 417 and even Hon’ble High Court at Calcutta also held that taking possession of the vehicle does not contradict the right as envisage under Article 300A if the Constitution of India (2009) to CAL L T 321 (HC). Therefore, the whole cause
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of action of the instant case has been arisen out of the ambit of the Consumer protection (Amendment) Act, 2002 and for that reason this Ld. Forum has got no jurisdiction to entertain this mater. The OP-1 has prayed for dismissal of the complaint with cost.
OP-2 has contested the case by filing separate written version denying the entire allegations made by the complainant in his petition of complaint. OP-2 submits that the payment of death claim under the subject policy is not automatic and is governed by a defined process. There are rules laid down by IRDA Regulations, 2002 and the OP and the policy holders as well as the complainants are bound by the same. As per the terms and conditions of the policy, the complainants through the policy holders were required to submit claim intimation/form along with relevant documents in support of their claim. However, the OP has not received any claim intimation/death claim from the complainants/policy holders informing about the death of the life assured. In absence of any death intimation claim along with relevant documents as per the terms and conditions of the policy, the OP is not under any position to assess and verify the authenticity of the claim and thereafter pay the claim amount. Therefore the present complaint is misconceived and is liable to be dismissed outrightly.
The complainant and the OP-1&2 have submitted relevant documents like policy documents and loan agreement. The complainant has submitted written notes of argument wherefrom it is learnt that after the death of Ashish Mondal being village house wife and minor sons the complainants were ignorant about the truck, business etc. With the help of near relatives and co-villagers, the complainants met with the OP-1 and ask them for lodging the claim before OP-2. Since death of Ashish Mondal there were some due installments. The OP-1 assured that the OP-2 is their sister concern and for lodging any claim intimation should be given to the OP-1. On verbal instruction of the OP-1 written information was lodged by addressing the OP-2 and it was handed over to the OP-1. As a village lady the complainant did not preserve any office copy of that intimation letter. Neither the OP-1 nor the OP-2 settled the claim of the complainant, on the other hand, the OP-1 seized the vehicle on 30.3.2012 and accordingly the complainant was forced to file the present complaint before this ld. Forum with reliefs.
Decision with reasons:-
From the foregoing statements of complainant and OP-1&2 and written argument submitted by the complainant it is amply clear that the complainant has alleged that she has submitted claim from to OP-2 through OP-1, but there is no
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document. Even a single scrap of paper will not tell that complainants have reported the matter either to the OP-1 or to the OP-2 or submitted any claim form or made any written correspondence for making any payment. OP-1&2 has categorically denied that complainants neither submitted any claim form nor given any intimation to OP-1&2. In absence of any claim form or death intimation, the question of payment does not arise. Even for the sake of argument if it is taken into account that the Ops were aware of the death of Ashish Mondal, but that cannot be a valid point for processing the claim either by OP-1 or by OP-2. Infact without intimation of death or submission of any claim form they cannot be blamed for non-payment or non-settlement of the claim. Question of settlement of claim arise only if there is proper intimation/information to the OP-1 or OP-2 by the complainants. So, the complainants have miserably failed to substantiate their complaint before this Ld. Forum and in absence of any intimation of death to the OP-1 or to the OP-2 by the complainants, there is no deficiency in service on the part of the OPs. Hence, the complaint fails. Accordingly, it is
O r d e r e d
that the petition of complaint filed by the complainant is dismissed on contest. However considering the facts and circumstances of the case there is no order as to costs.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
DCDRF, Burdwan
(Durga Sankar Das)
Member
DCDRF, Burdwan
(Durga Sankar Das)
Member
DCDRF, Burdwan
