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 claim of the policy amount of Rs.8,00,000/-. Hence, prays for relief to settle the policy claim of Rs.8,00,000/- along with compensation for physical and mental agony of Rs.1,00,000/-, deficiency in service of Rs.50,000/- and litigation and miscellaneous charges of Rs.10,000/-.

             Brief averments of the Complaint are;

            2.   That the complainant father Renukacharya S/o Mahantaswamy Hiremath had made a housing loan during his life time in the year 2007 for construction of a home from OP No.2 and the said OP No.2 suggested the complainant father to make a policy in his name with OP No.1. The details of the said policy is policy numbers 240204/4607/9000000032. The complainant further alleged that the policy was issued on 24.04.2007 and its maturity date was 23.04.2017. The total sum assured of the policy amount is Rs.8,00,000/- and it had premium of Rs.3,600/-. This policy had sum assured of Rs.8,00,000/- even when the policy holder dies due to burn injuries and if any personal accident. The complainant did not had the knowledge of the policy because it was OP No.2 had made this policy with OP No.1 and the said policy bond was kept in loan account papers and was kept in bank.

            3.         The complainant further alleged that the complainant father expired in two wheeler accident on 19.05.2007 near Karatagi Gangavathi Road. Due to this accident, the complainant father was seriously injured and the said accident was registered in the concerned police station.

            4.         The complainant further alleged that his father was not recovered and he died on 29.07.2008. The complainant had died due to the serious injuries in the accident. The LRs of the deceased policy holder filed an application before the Motor vehicle Tribunal, Gangavathi for the claim in MVC No.451/2007 and the said case was decided on 28.09.2012. The order was passed in the favour of the complainant family and Rs.7,03,000/- was ordered to pay for the complainant.

            5.         The complainant further alleged that the complainant repaid the loan amount and took all the related documents of the loan from the bank. In that document, the policy bond was available and then only the complainant came to know that a policy bond was made in the name of his father with OP No1. The complainant further alleged that after enquiring with the bank and then requested for claim form. Along with the claim form and the other related documents was submitted to OP No.1. The OP No.1 blamed the complainant and his family for the reasons for delay in not filing the claim in time and they have given explanation for this delay.

            6.         The OP No.2 had sent a letter to OP No.1 on dated: 25.05.2013. The content of the letter is as follow. That the Insurance premium has been paid by the bank by debiting to housing loan account during 2007 of Mr. Renukacharya Hiremath who died of accidents and insurance policy was with the bank with loan paper and hence the legal heirs was not aware of the insurance made by the bank.

            7.         This insurance made by the bank came to light only when the legal heirs came to the branch to take delivery of the original sale deeds/documents deposited by the deceased with the bank while availing housing loan.  Hence, this claim now we request you to kindly condone the delay and consider this as special case and oblige. At this juncture, we wish to inform you that we have been giving business to you to the tune of around 12 lakh premium per annum.

            8.         The complainant further alleged that in this way the OP No.2 had sent a letter to OP No.1 on dated: 30.10.2013.

            9.         That the insurance premium has been paid by the bank by debiting to housing loan amount during 2007 of Mr.Renukacharya Hiremath who died of accident and insurance policy was with the bank with loan papers and hence the legal heirs were not having knowledge about the policy.

            10.       The complainant further alleged that the OP No.1 had submitted that the said claim cannot be given for that reasons i.e. there was delay in intimating about the policy claim and P.M. Report was not given of the deceased person who died in an accident. The OP No.1 has also given reasons stating that the bank is responsible for this delay and the second reason is that when the complainant’s father had died due to grievous injuries in accident, he must have got the compensation under the Motor Vehicle Act from the competent court. For these two reasons, the OP No.1 has rejected the policy claim. The complainant further alleged that the reasons given by the OP No.1 is not satisfied. Hence, filed this complaint praying for settling the policy claim amount of Rs.8,00,000/- along with compensation of Rs.1,00,000/- for mental and physical agony and Rs.50,000/- for deficiency in service along with Rs.10,000/- towards litigation and other miscellaneous expenses as prayed above.    

            11.       The Forum after admitting the complaint, a notice was issued by the Forum to the OP and the said notice is served upon the OP’s. The OP’s appeared before the Forum through their counsels and filed Vakalath and main objections/Written Version to the main petition.

            12.       On the objections of the OPs are as under:-

                        Objections of OP No.1.

                        The OP submitted that the complaint are all false and frivolous and they are concocted by the complainant to claim the compensation from this Insurance Company. Hence they are all specifically denied and the complainant is put to the strict proof of the same.

            13.       The OP No.1 further submitted that said Renukacharya S/o Mahanteshswami Hiremath has taken with home care insurance policy through Canara Bank, Karatagi, from this Insurance Company Branch Office is Gangavathi under Policy No.240204/46/07/90/00000032 w.e.f. 14:17 hrs of 24.04.2007 to Midnight of 23.04.2008 covering the risk of personal accident benefits, subject to terms and conditions. But it is patently false to allege that the said policy was with the OP No.2 Canara Bank and the complainant has no knowledge about the said policy. Hence, contents of Para No.2 of the complaint are totally false and baseless and tainted with malafides.

            14.       The OP No.1 further respectfully submitted that the contents of Para No.3 early of the complaint are all false and concocted by the complaint just to suit the claim petition and mandatory requirements of the insurance policy. Hence, they are vehemently denied and the complainant is put to the strict proof of the same. The OP further submitted that it is patently false to allege that said Reukacharya S/o Mahantaswami Hiremath had met with an accident on 19.05.2007 on Karatagi Gangavathi Road. It is further false to allege that he had sustained grievous injuries and succumbed to injuries on 29.07.2008. The complainant has not at all produced any material documents like post mortem report which is the only and material document to prove the death caused due to accidental injuries. Hence, all these allegations are vehemently denied by this OP and the complainant is put to the strict proof of the same.

            15.       The OP No.1 further respectfully submitted that the contents of Para No.5 and 6 are out of ken of the knowledge of this OP. It is respectfully submitted that this OP is not a party to the said claim petition MVC No.451/2007 MACT, Gangavathi. As such, any findings of the Hon’ble Tribunal are not binding on this OP. Moreover, it is further submitted that the Judgement and Award of the Hon’ble Tribunal is challenged by the Bajaj Allianz General Insurance Co. Ltd., before the Hon’ble High Court of Karnataka, Circuit Bench, Dharwad in MFA No.20070/2013 which is still pending for decision.

            16.       The OP No.1 further submitted that there is absolutely no documentary evidence i.e. Post Mortem Report to prove the nexus between the alleged injuries and resulting death of said Renukacharya Hiremath insured borrower. Hence, the claim of the complainant is repudiation by this OP and as such there is no deficiency of service on the part of the OP.

            17.       The OP further submits that without admitting any liability, it is submitted that as per the Terms and Conditions of the above said policy, Section II Personal Accident “If at any time during the currently of this policy, the insured’s borrower shall sustain bodily injury resulting solely and directly from accident cause by external viotine and visible means, then the company shall pay to the insured of the borrower’s legal representative (s) as the case may be the sum here in after set forth, that is to say if such injury shall within (12) calendar monthly of its occurrence be the sole and direct cause of the death of the insured’s borrower the capital sum insured stated in the Schedule here to. The OP further submitted that in this case, the alleged accident was occurred on 19.05.2007 and as per the case of the complainant, date of death of said Renukacharya Hiremath is 29.07.2008 that means time gap between date of accident and date of death of Renukacharya is more than 12 calendar months. Hence, the claim of the complainant is repudiated.  

            18.       The OP further submits that without admitting any liability, it is submitted that either complainant nor the bank have informed this Insurance Company about the alleged death of Renukacharya witin one calendar month of the date of his death. Thus, there is violation of conditions applicable to Sec. II of the Policy which reads as “upon happening of any event which may give rise to claim under this policy. Written notice with full particulars must be given to the Company immediately. In case of death, written notice also of the death must, unless reasonable cause is to be shown either before internment/cremation and in any case within one month after the death.” Whereas in this case, the claim was intimated to the United India Insurance Co. after more than 4 years of the alleged date of death of insurance Renukacharya Hiremath. Hence, the claim of the complainant was repudiated by the OP on the ground of delayed information while is against the mandatory conditions of this policy and prays for dismissal of the complaint.

            19.       That the complaint filed by the complainant is not maintainable either in law or on admitted facts of the case. Hence, the same is liable to bed is missed with cost.

            Objections of OP No.2:-

            20.       That this OP No.2 is either a party to the policy nor responsible for delayed claim, as such this complaint is liable to be dismissed for miss joinder of parties.

            21.       That the OP further submitted that this complaint is filed beyond period of limitation, as such on this court also this complaint is liable to be dismissed with exemplary cost. Cause of action arose on 19.05.2007, when Sri.Renukacharya expired. Hence present complaint is barred by limitation.

            22.       That the OP further submitted that OP No.2 has rightly retained the copy of the policy and kept with other loan papers since policy is obtained to secure the repayment of loan amount if the borrow is expired. Generally in such cases policy will be retained by the bank only. There is no any mala fide intention. The bank has followed the procedure.

            23.       That the OP further submitted that the contents of Para No.3 of the complaint are false and misleading. The Bajaj General Insurance Company has disputed accident and also claim.

            24.       That the contents of Para No.4 and 5 of the complaint are partly false. Though MACT Gangavathi has partly allowed the claim petition, the same has been challenged by the said insurance company by filing appeal before Hon’ble Court of Karnataka Dharwad Bench. So, the matter has not yet attained finality. Hence, passing award by MACT Gangavathi cannot be a ground to file this complaint. Sri.Renukacharya died because of his age related health problems but not because of so called accident. Hence, the complainant be put to strict to proof of the same.

            25.       That the OP further submitted that this complainant has not communicated the death of Sri.Renukacharya to OP No.2 bank for the reasons best known to him. Hence, question of deficiency in service does not arise. Only to help the complaint and settle the claim amicably this OP has used his good office by writing a letter to OP NO.1 that to at the request of this complainant. Hence, the said letter cannot be used against this OP. So this OP neither responsible for delay in claiming the insurance amount nor liable to pay any amount to the complainant. Hence, this complaint is liable to be dismissed against OP NO.2 with cost.

            26.       That the OP further submitted that OP bank has issued recall notice to Sri.Renukacharya, since his death has not been informed by the complainant. Hence, complaint cannot blame any OPs he himself is responsible for this situation. The complaint ought to have communicated the death of Sri.Renukacharya to this OP. Hence, complaint cannot raise his finger against this OP now.

            27.       That the OP further submitted that the contents of Para No.7 of the complaint are all false, this OP is no way responsible for delayed claim, as such there is no any deficiency of service. That if Bajaj Allianz General Insurance Co. already paid the award, passed in MVC No.251/2007, this complaint does not survive, since the said award also includes loss of further earning of Sri.Renukacharya.

            28.       That the OP further submitted that this complainant has not filed any petition for condonation of delay as such this Hon’ble Court ought not to have registered this complaint. The cause of action in this case is the date of de3ath of Sri.Renukacharya i.e. 19.05.2007 and not 03.02.2015 as claimed. Hence, the complaint is barred by limitation.

29.       On the basis of the above pleadings, the following points that arise for our consideration are:

POINTS

1.  Whether the complainant proves that there is deficiency in service in not settling the policy claim amount of his deceased father?

2. Whether the complainant is entitled for any relief sought for?

3. What order?

     30.      To prove the case of the complainant, the complainant himself examined as PW-1 and he has got marked the documents as per Ex. A1 to Ex. A-7 and closed their side of evidence. The OP themselves examined as RW-1 and RW2 and no documents were produced and closed their side of evidence.  

    31.         Heard the arguments of the complainant’s counsel and OPs and perused the records.

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

Point No. 1 :  In Negative,

Point No. 2 :  In Negative

Point No. 3:   As per final Order for the following.

REASONS

33.  POINT No. 1and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

            34.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record.  There is no dispute regarding that the complainant father Sri.Renukacharya during his life time had obtained a policy plan by name UNI HOME CARE Policy with a policy No.240204/4607/9000000032 which commences from 24.04.2007 and its maturity is on 23.04.2017 with a premium amount of Rs.3,600/- and the  sum assured amount is Rs.8,00,000/- There is also no dispute that the premium towards the policy is not paid. The complainant’s father on 19.05.2007 had met with an accident on a two wheeler near Karatagi Road Gangavathi and had sustained grievous injuries and on 29.07.2008 the complainant father died due to the grievous injuries caused in the accident leaving the complainant as legal heirs. Being a beneficiary in the policy, the complainant after getting the knowledge of the policy approached and claimed for assured amount and submitted the claim form necessary documents. But the OP rejected the claim and has not settled. Hence, the complainant alleges deficiency in service.

            35.       To prove the case of the complainant, the PW-1 has reiterated the complainant averments in his examination in Chief and in support of his case he has produced the documents pertains to the Insurance i.e. Policy, Repudiation letter, he has further averred that he has filed his complaint only after getting the knowledge of the policy which was in the custody of the OP No.2. It is also admitted by OP No.2 that at the time of availing housing loan by the complainant father, he has rightly retained the copy of the policy and kept with other loan papers since policy is obtained to secure the repayment of loan amount, if the borrower is expired. The complainant further averred thereafter repaying the housing loan amount completely and when he received the original documents of the property along with that document. This policy document was known to them. Till then the complainant had no idea regarding the policy of his father i.e. EX A3 and EX A4 and EX A5, EX A3 and EX A4 clearly reveals that the complainant had issued a letter for the OP No.2 and OP No.1 for asking to the settlement of the Policy.

            36.       The counsel for the OP No.2 has produced the housing loan agreement of the deceased Renukacharya. On the perusal of the documents, it reveals that this housing loan agreement is made between the deceased Renukacharya S/o Mahantayyaswamy Hiremath and Swaprakash S/o R.A. Hiremath as the borrower, the 2^nd one Swaprakash is none other than the complainant who is also the borrower in the housing loan. From this, it is clear that the complainant being the 2^nd borrower in the housing loan has full knowledge about the details of the loan its Terms and Conditions. The Complainant has averred and deposed that when the housing loan amount was closed and at the time of taking original documents of house property, the policy bond was in that document as it was retained with OP No.2 to secure the repayment of loan amount. The complainant being the 2^nd borrower in the housing loan, it is crystal clear that after informing to both the borrowers, the policy is made. It can be presumed that the complainant had earlier knowledge regarding the policy being the borrower in that particular loan, he cannot deny stating that he did not had the knowledge of the policy. The complainant has nowhere mentioned in the complaint that he was the borrower in the above said loan. Infact, it clearly shows that he has suppressed the fact that he was also one of the borrower. Further, it is true that the complainant himself is the nominee in the said policy and he cannot take the contention that the complainant did not had the knowledge of the policy at all. As far as the EX A5 i.e. the letter given by the Branch Manager of OP 2. On perusal of the EX A5, it is clear that legal heirs were not aware of the insurance made by the bank. The complainant himself is the borrower and the legal heirs of the deceased policyholder. In the capacity of the borrower, the said complainant is having the knowledge of this policy and therefore it can be presumed that the complainant had knowledge of the policy and he cannot take the help of EX A5. The suppression of the fact in his examination in chief and the complainant that he is borrower and nowhere he has whispered about this, the said fact clearly shows that his intentions was not fair. So believing his the version with respect to the policy that he did not had knowledge of the policy is not justifiable one.

            37.       Further, during the course of argument advanced by the counsel for the OP No.2, they have much argued that the present complaint is barred by limitation. Sri.Renukacharya i.e. father of the complainant died on 29.07.2008, but this complaint is filed on 25.04.2015 and in that context they argued that the complainant has not at all informed the death of the deceased Renukacharya to the OP No.2, the reasons best known to the complainant, he being the borrower in that loan and to avoid the payment of the installment of housing loan they might have suppressed their fact to OP No.2. The counsel for the OP No.2 has argued that till 2013, the complainant and his family members have suppressed the fact of the death of the deceased Renukacharya and only on 15.02.2013, the death intimation was send to them. The counsel for the complainant has argued that they did not find any reason/necessity to inform the death of the Renukacharya to the bank and so they did not inform them.

            38.       When Swaprakash (i.e. the complainant) is the borrower in the housing loan then it is clear that the complainant is having the knowledge of the policy because the said policy is issued after the availing of the house loan to the borrower. A letter was issued by the complainant regarding the death of the deceased Renukacharya i.e. EX. A-3 clearly reveals that a letter was sent to the bank regarding death intimation after the death of 4 years. When the final/recall notice i.e. EX. B1 was issued to the complainant and his deceased father and the guarantor, the said notice is sent to all the borrowers and guarantor i.e. EX. B2. On perusal of EX B2, the postal receipt clearly reveals that notice is insured to all the three of them. EX B3 is the statement of the housing document of the deceased Renukachary. So after the notice is served on them the complainant has settled the loan account, then the complainant settled the housing loan amount and then collected the original documents of the house property.

            39.       The counsel of OP No.1 has argued averred and deposed that neither the complainant nor the bank have informed this insurance company about the alleged death of Renukacharya within one calendar month of the date of his death. Thus there is violation of conditions applicable to Section II of the policy which reads as “upon happening of any event which may give rise to claim under this policy. Written notice with full particulars must be given to the Company immediately. In case of death, written notice also of the death must, unless reasonable cause is to be shown either before internment/cremation and in any case within one month after the death”. Whereas here the claim was intimated to OP No.1 only after more than 4 years of the alleged date of death of the insured and the claim of the complainant was repudiated by the OP No.1 on the ground of delayed information which is against the mandatory conditions of the policy. The complainant being the borrower in the said housing loan and even after having the knowledge of the policy did not made efforts to inform OP No.1 and has violated the said conditions.

            40.       Further, with respect to the RW1 he has deposed as per this specific defence set up in this Written Version that the complainant father had not met with an accident on 19.05.2007 on Karatagi, Gangavathi road and he had also not sustained grievous injuries and summed to injuries on 29.07.2008. Further RW1 has also deposed that there is no nexus between the accidental injuries and his death and the complainant has not at all produced any material documents like, Post Mortem Report to prove the death caused due to accidental injuries.

            41.       PW-1 has denied the suggestion made by the counsel for OPs. Therefore, on perusal of the EX A7, the Certified Xerox Judgement copy in MVC No.451/2007 which has been passed by the Hon’ble Court of Fast Tract, Koppal sitting at Gangavathi clearly goes to show that the said complainant’s father has sustained with grievous injuries and later on nearly after 13 months of the injuries sustained in the accident are causes for death. This specific defence is no way helpful to the OP NO.2 regarding the House Care Policy. Therefore, the contention taken by OP is vague and therefore the said set up by the OP No.1 is not justifiable.

            42.       The counsel for the complainant has relied upon the citation reported in III (2011) CPJ 282 in Tamilnadu State Consumer Disputes Reddressal Commission, Chennai. United India Insurance Co. Ltd. – Appellant V/s Vysya Bank Ltd., & Another,

            “Consumer Protection Act, 1986 – Sections 2 (1) (g), 15 – Insurance – Group Insurance Policy – Death – Snake bite – Documents not submitted – Claim not filed on time – Claim repudiated – Complainant’s son assured died of snake bite – Deceased insured through OP2 bank – Claim filed after 14 months of death – Claim repudiated – Claim be filed within 90 days and documents not produced – Alleged deficiency in service – District Forum allowed complaint – Hence appeal – Period of 90 days is procedure prescribing limit of submitting claim – Cannot be said terms and conditions violated – Procedure not followed cannot extinguish complainant’s right – No documents required in case of death due to snake bite – Deficiency in service proved – Order of Fora below modified”.

            The said citation is not applicable to the case in hand.

            43.       On the contrary, as per the oral evidence coupled with the documentary evidence, the complainant failed to prove that he did not had the knowledge of the policy at the time of the loan. He bears the borrowers in the above said loan cannot delay that he did not had the knowledge. Infact, the borrowers of the housing loan will have the knowledge of the loan and others related Terms and Conditions and documents. The said fact has been clearly discussed in the loan agreement where he is the borrower and which have been already discussed supra.

44.       Hence, in the light of the above observations the complainant has failed to prove that he had got the knowledge of the policy only at the time of availing the original documents and thereby these deficiency of service on part of OP No.1 when the complainant has violated the mandatory conditions by not informing about the death of Renukacharya and policy in time, the question of deficiency of service does not arise at all. Hence, in the light of above observations, we constrained to hold Point No.1 and 2 in the negative.

45.  POINT No. 3 :- In view of above discussion and findings we proceed to pass the following;

O R D E R

1. The complaint is hereby dismissed.
2. The complainant is directed to pay the compensatory cost of Rs.5,000/- (Rupees five thousand) to the OP No.1 along with Rs.2,000/- (Rupees two thousand) fine to be paid to the Consumer legal Aid account from the date of receipt of this order, failing which, 09% interest will be charged from the date of filing, till realization.

3. 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 Fora on 22^nd day of March, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.