JUDGMENT

            The complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service in not settling the policy claim amount of Rs.1,40,000/-.  Hence prays for the remaining policy amount of Rs.37,380/- along with Rs.25,000/- for deficiency in service and Rs.25,000/- for physical and mental agony and Rs.5,000/- for litigation expenses and miscellaneous charges.

             2. Brief averments of the Complaint are as under;

            That the complainant’s husband during his life time had taken the vehicle loan from OP No.1.  The loan account number is Koppal 206020001.  For the above said loan the OP No.1 has made a policy with OP No.2 in the name of the complainant’s husband as insurer and the said policy number is GN 011100000313, SLIC, serial number : SLIC 1206012742 and its customer ID number is S0082311.  The total amount of the policy is Rs.1,40,000/- and its premium amount is of Rs.902/-.  The commencement of the policy was started on 02-06-2012 and its maturity date was 01-06-2015.  The complainant further alleged that total policy claim will be reducing every month.  The details are shown in the policy bond itself.  The complainant further alleged that if the loan holder dies within the loan period, there is a provision to
waived-off the loan. 

            The complainant further alleged that her husband died on
22-05-2013.  During the time of his death, the remaining loan amount was Rs.30,000/- and at present the loan amount is Rs.67,380/-,  The OPs should have deducted the loan amount of Rs.67,380/- from the policy amount and the remaining amount of Rs.37,380/- must be given to the complainant.  The complainant went to the office of OP’s to talk about this matter but the OPs’ did not respond to her properly.

            The complainant further alleged that she has issued a legal notice through her counsel on 09-03-2015 and the said notice is served on him and reply notice was not given.  Hence prays for settling the remaining balance amount of Rs.37,380/- along with compensation of Rs.25,000/- for deficiency in service; Rs.25,000/- for physical and mental agony and Rs.5,000/- for litigation and miscellaneous charges along with interest of 12% to the claim amount as prayed above.

            3.  This Forum after admitting the complaint, the notice was issued to the opponents and the notice was served upon them.  The opponents appeared before the Forum along with their counsel and filed vakalt and written version to the main petition.

            4.  The Objections of the opponent No.1 are as under;

Preliminary Objections:

That the OP No.1 denied the facts of the complainant in toto.  The OP submitted that the complainant is not a consumer u/sec. 2(1)(d) and OP No.1 has not committed any deficiency in service.

The OP further submitted that as per para – 2 of the complaint is that during the life time of the complainant’s husband a policy was issued.  It is false to say the above said policy with OP No.2 was attached to the said vehicle loan and there is no agreement between them stating that the loan will be waived-off.  The OP’s institution is a financial institution and the complainant has filed a false against OP’s.

The OP further submitted that the content of the para – 3 is partly true.  It is false to say that after the death of the policyholder during the existence of the policy, the loan availed will be waived off.  The complainant has lied upon and created false story with an intention to get rid of liabilities towards the payment of the remaining loan amount.

The OP further submitted that the contentions mentioned in para – 4 is denied in toto that the complainant’s husband died on 22-05-2013 and during that the loan amount was only Rs.30,000/- and the loan amount may be deducted in the policy claim amount of Rs.67,380/- and remaining Rs.37,380/- to be given back to the complainant. 

The OP further submitted that the contentions in the para – 5 is false and a reply notice is given to them.

The OP further submitted that at the time of availing loan for the vehicle NO. KA-37/3084 from OP No.1, the complainant’s husband has made a policy with OP No.2.  According to the policy terms and condition, during the existence of policy if the policy holder dies, the amount tobe paid to them after his death is clearly mentioned in the schedule of the policy backside.  It is also submitted that the complainant has a false impression that after the death of the loan holder, the loan will be waived off and due to this impression the complainant has filed a false case against OP No.1.

The OP further submitted that the complainant in her complaint in para – 4 has clearly mentioned that the death of her husband had occurred on 22-05-2013.  According to the policy claim and schedule No.12, i.e., on 02-05-2013 to 01-06-2013 the deceased will get the claim amount of Rs.59,436/- and said claim amount is deposited to the loan account of the complainant’s husband.

The OP further submitted that as per the details if the loan account of the complainant’s husband to the OP No.1 is Rs.94,939/- and after deducting the deposited claim amount of Rs.59,436/-, the remaining balance amount of the loan is Rs.47,850/- and the same has been told to the complainant and also related papers to the loan is given to her.  The OP further submitted that it is intimated to the complainant to repay the loan amount completely and take the documents of the vehicle and get the ownership transferred and use the vehicle.  Inspite of several intimations the complainant did not responded to it and even now it is not transferred and the H.P. is still in the name of the OP No.1.

The OP further submitted that as per the vehicle loan amount details upto 04-04-2015 of the complainant’s husband is Rs.88,984/- and this amount is due to the OP No.1 institution.  Instead of clearing the loan, the complainant has filed false complaint against OP No.1 and there is no deficiency of service and hence prays for the dismissal of the complaint along with compensatory cost.

The Objections of the opponent No.2 are as under;

            That the OP No.2 submitted that the complaint filed by the complainant against the respondent is false, frivolous and vexatious and far away from the truth and the same is not maintainable either in law or on facts.  Hence, the same is fit to be dismissed.

            The OP further submitted that, in the contents of para No.2 it is true that the respondent No.1 had made policy during the lifetime of complainant’s husband, which is the Master policy with the respondent No.2 under the plan Shriram Credit Shield, bearing policy number is GN011100000313, SLIC Serial No. SLIC 1206012742, Customer ID No. S0082311, for sum assured of Rs.1,40,000/-.  It is further true that, the commencement of the policy begins from 02-06-2012.   The rest of the contents is not against this opposite party hence no comments.

            The OP further submitted that, the contents of para No.3 of the petition are true and correct and hence they are admitted.  It is true that, the expiry of the policy is on 01-06-2015 and it is true that, the claim amount will be reduced every month.  Other contents of the para No.3 are well within the knowledge of the complainant.

            The OP further submitted that, the contents of Para No.4 it is true that the complainant’s husband expired on 22-05-2013 and it is false to state that the policy claim amount is Rs.67,380/-.  It is submitted that as on the date of death of the policy holder the claim amount is Rs.59,436/.  The “Claim Amount Payable Schedule” on the back side of the policy mentions the detailed claim amount payable after reduction every month till the tenure.  As on the date of death of the complainant, the claim amount payable was Rs.59,436/- mentioned in the “Claim Amount Payable Schedule” at Sr.No. 12 From 02-05-2013 to 01-06-2013.  It is pertinent to mention here that on intimation of the death claim the opposite party pays the claim to the Master Policy holder i.e., the First Opposite Party.  Likewise in the instant death claim the respondent No.2 has paid the claim amount of Rs.59,436/- to the respondent No.1 vide cheque No. 8286 dated 07-11-2013 drawn on HDFC Bank.  The rest of the allegations are against the Opposite Party No.1 hence no comment.  Hence, the respondent No.2 is not a necessary party to this case and hence, the complaint is fit to be dismissed as against this respondent.

The OP further submitted that, the contents of para No.5 of the complaint are false and baseless and hence, they are denied.  It is false to state that, the complainant has issued legal notice to this respondent.  Hence, the complainant is put to strict proof of the same.

The OP further submitted that, the contents of para No.6 is formal paragraph and requires no reply.

TRUE FACTS OF THE CASE.

The OP further submitted that, it is true that, the husband of the complainant had taken a life insurance policy with this respondent No.2 through the Respondent No.1 Master policy number is GN011100000313 under the plan Shriram Credit Shield, SLIC Serial No. SLIC 1206012742, Customer ID No. 50082311.

The OP further submitted that, thereafter the respondent No.1 has raised claim before the respondent No.2 in respect of the death of the husband of the complainant and as per the said claim this respondent No.2 company has paid the claim amount of Rs.53,436/- to the respondent No.1 Shriram Transport Finance Company Ltd., vide cheque bearing No. 8286 dated: 07-11-2013 drawn on HDFC Bank Ltd., Hence, the respondent No.2 has already paid the claim involved in this case.  Hence, there is no deficiency in service on the part of the respondent No.2

The OP further submitted that, there is no contract between the husband of complainant and respondent No.2 or complainant and respondent No.2.  The policy is taken by the respondent No.1 finance with the respondent No.2 and the respondent No.1 has already received an amount of Rs.53,436/- with respect of the claim involved in this case from the respondent No.2 under cheque No. 8286 on 07-11-2013.  Hence, the respondent No.2 is not a necessary or proper party to this case and as he has already paid the amount insured to the respondent No.1 as the respondent No.1 has insured the life of husband of complainant.  Hence, on this count also, the complaint is fit to be dismissed.

            5.  On the basis of the above pleadings, the following points have been framed;

POINTS

1.  Whether the complainant is a consumer and the complaint as brought is maintainable?
2. Whether there is deficiency of service in not settling the claim?
3. Whether the complainant is entitled for the relief sought for?

4. What order?

6.  To prove the case of the complainant, the complainant herself examined as PW1 and she has got marked documents as per Ex.A.1 to Ex.A.5 and closed their side of evidence.  The OP/respondent No.1 and 2 themselves examined as RW1 and RW2 and got marked documents as per Ex.B.1 to Ex.B.3 and closed their side evidence.

7.  Heard the arguments of both counsel and perused the records.

8.  Our findings on the above points are as under;

Point No. 1 :   In Affirmative

Point No. 2 :   In Negative

                  Point No. 3 :  In Negative

                 Point No.  4 : As per final Order for the following

REASONS

 POINT No. 1:  

            9.  Section 2(1)(d) of the Consumer Protection Act – 1986 defines ‘Consumer’ means;  

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

[Explanation. – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]

10.  On going through the pleadings of the instant complaint and the claim of the complainant is concerned that the complainant’s husband during his lifetime had taken the vehicle loan from OP No.1.  The loan account No. Koppal 206020001.  For the above said loan the OP No.1 has made a policy with OP No.2 in her husband’s name as insurer and the said policy no. is GN11100000313, SLIC serial number: SLIC 1206012742 and its customer ID No. is S0082311.  The total amount of the policy is Rs.1,40,000/- and its premium amount is of Rs.902/-.  The commencement of the policy begins from dated: 02-06-2012 and its maturity date was 01-06-2015.  The complainant further averred that her husband died on 22-05-2013.  So soon after the death of her husband, she being the LRs of the deceased policy holder has filed the complaint against the OPs’ for deficiency of service in not settling the policy claim amount.  As per the specific defence taken by the respondent in their written version contending that the complaint is not maintainable and she is not a consumer contending that the complainant is not the policy holder nor the nominee in the policy so she has no right to file the complaint against the respondents soon after the death of the complainant’s husband.  The counsel for the OP NO.1 himself has issued an Arbitration notice dated: 22-01-2015 to the complainant in the capacity of the borrower.  Therefore, on perusal of Ex.B.5 which has been produced by the OP, clearly states that since she is the legal heir of deceased borrower and she is aware that the complainant’s husband has availed loan facility.  It is admitted by the OP itself that for recovery of loan Rs. 47,850/- LR’s (legal heirs) are impleaded.

11.  The counsel for the complainant has relied upon the citation reported in III (2010) CPJ 384 (NC) – Magma Fincorp Limited (Formerly Magma Leasing Finance Ltd.,) V/s. Ashok Kumar Gupta.

12.  We have gone through the rulings, they are not applicable to the facts of the case in hand.

13.  The counsel for the respondent has relied upon the citation reported in 1995 (3) CPR 93 has held the Hon’ble Karnataka State Consumer Disputes Redressal Commission that –

“Consumer Protection Act, 1986 – Sections 12 & 17 – Complainant borrowed a loan & mortgaged property and hypothecated the stock properties put to auction Sale towards recovery of loan in the proceedings initiated u/s 31 of State Finance Corporation Act – Claim for compensation on allegation that properties were sold for a paltry sum – Relationship between complainant and Opp-Party is only that of borrower & creditor – Complainant is not a consumer & Complaint is untenable.”

IMPORTANT POINT

Where relation between complainant & opp.party is that of borrower & creditor, complainant cannot be said to be a consumer in respect of loan transaction & cannot maintain complaint before consumer forum.

14.  The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different.  Because here the complaint is filed by LRs of the deceased policy holder not by a creditor.  She being the wife of the deceased policy holder she has right to all the activities done by her husband.  This has been admitted by the OP themselves and hence impleaded her in the arbitration proceedings as per Ex.B.5 in the Arbitration notice.  Therefore, the present complaint filed by the complainant is maintainable.  Hence the said citation is not applicable to the case in hand.

15.  When the LRs are impleaded and when the arbitration proceedings are initiated against the complainant for recovery of loan, therefore it can be presumed that the complainant has every right and capacity to file a complaint against OPs’ for other proceedings, this itself clearly goes to show that the complainant is a consumer and the present complaint is maintainable.  Therefore the contention which has been taken by the respondent is vague one and therefore the said defence set up by the respondents is not justifiable one.

16.  Hence in the light of above observations, we constrained to hold issue No. 1 in the affirmative.

17.  POINT No.2 :-  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is no dispute regarding vehicle loan and the policy with R-2 under the plan Shriram Credit Shield bearing policy number is GN11100000313, SLIC serial number: SLIC 1206012742 and its customer ID No. is S0082311 for sum assured of Rs.1,40,000/-.  It is also admitted by the complainant and OP that the said policy amount to be credited to loan account and then remaining amount to be given back to the complainant. 

18.  To prove the case of the complainant, the PW-1 has reiterated the complaint averments in her examination in chief and in support of her case.  She has produced the documents pertains to the death certificate, which is marked as Ex.A.4.  Whereas Ex.A.1 reveals the legal notice issued to the OP No.1 and 2 regarding the claim settlement dated: 09-03-2015.  Ex.A.2 and Ex.A.3 are the courier receipts/acknowledgment, which had been sent to the OPs’.  PW1 has averred and deposed that the husband of the complainant during his life time had made a master policy in the name of OP-1, i.e. Ex.A.5.  Ex.A.5 clearly reveals that, the name of the policyholder is OP No.1 and the complainant’s husband was the insured member.  It is admitted by the complainant and OP that as per the policy conditions the claim amount will be reduced every month and to substantiate the same as per the Ex.A.4 the death certificate, it clearly reveals that the husband of the complainant died on 22-05-2013 and as per the schedule 12 of the policy claim amount payable to the deceased husband for the period
 02-05-2013 to 01-06-2013 is Rs. 59,436/-.  It is also admitted by OP-1 that OP2 has deposited a vide cheque No. 8286 dated: 07-11-2013 drawn on HDFC Bank of Rs.59,436/- towards the death claim of the complainant’s husband and the said amount is adjusted to the loan account on 12-11-2013.

19.  Further with respect to the delay in issuing the claim amount by OP No.2 is not mentioned.  The OP No.1 has deposed as per there specific defence setup in their written version that according to the vehicle loan amount, the loan amount is Rs.94,939/- and the claim amount of Rs.59,436/- is deducted and after the said deduction the remaining amount is Rs.47,850/- has to be paid and the said fact is known to the complainant.  PW-1 has denied the averments made by the counsel of OP1.  To substantiate the same, the OP has produced the documents pertains to the loan amount ledger statement, i.e., Ex.B.1.  Ex.B.1 clearly reveals that the arrears as on 04-06-2013 is Rs.38,251/-, i.e., soon after the death of the complainant’s husband.  From 04-06-2013 onwards till 05-11-2013 the arrears in total is shown as Rs.94,929/- after calculating the interest.  The RW-1 further averred that the RW-2 had issued a cheque of Rs.59,436/- towards the death claim to OP-1 vide cheque No. 8286 dated: 07-11-2013 drawn on HDFC Bank.  It is admitted by OP-1 and has adjusted the said insurance claim amount to the loan account of the husband of the complainant on 12-11-2013 and remaining balance of Rs.47,850/- is to be paid by the complainant. 

20.  The PW1 in her complaint or in her chief examination not at all specifically stated on which date she has claimed the insurance and when it is settled.  No documents have been produced by the complainant.  The counsel for the complainant at the stage of arguments produced a document stating that on 26-05-2013 an intimation letter was given to OP NO.1 regarding the death of the complainant’s husband.  Looking to the letter, there is no acknowledgment shown that OP-1 has received this letter.  But to substantiate the same, the said letter has been given on that particular date, the complainant has not produced any other cogent and corroborative evidence except the letter addressed to the OP-1.  The said letter does not contain any official signature of the OP-1 or the seal to show that the respondents have received it and the said suggestions have been categorically denied by the respondents.  So the complainant has informed the OP-1 and OP-2 regarding the insurance claim amount in time is not believable.  Believing her version regarding the legal notice is issued on 09-03-2015, i.e., Ex.A.1 is not justifiable one.  The OP-1 has averred that reply notice is given to the complainant and to substantiate the same the respondent No.1 has produced the reply notice, which is marked as Ex.B.2.  Such being the fact, these factors are taken into consideration definitely it goes to cut the very root of the complainant’s case. 

21.  On the contrary as per the oral evidence coupled with the documentary evidence, the complainant fails to prove that by way of filing the present complaint, the respondents have not settled the policy claim amount and have committed deficiency of service or unfair trade practice on the part of OPs, the complainant has alleged in this complaint.  The said allegation has been not proved by them by adducing cogent and corroborative evidence.  Hence in the light of above observations the complainant is not entitled any relief as prayed for.   Accordingly, we constrained to hold issue No. 2 in Negative.

22.  Point No.3 : In the light of observations made by us on point No.1,2 and 3, since the complainant has filed this complaint for the relief of not settling the claim amount of the policy with respect to the insurance policy claiming their remaining policy amount of Rs.37,380/-.  In the light of observations made by us while answering the point No. 1 in affirmative and 2 in negative and the present complainant is not entitle for any relief as prayed for.  Accordingly, we constrained to hold issue No.3 in the Negative. 

23.  POINT No. 4:- Hence, in the result, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby dismissed.
2. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 22^nd day of February 2016.              

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.