Karnataka

Gadag

CC/100/2019

Ramesh D.Yadavad - Complainant(s)

Versus

Laxmi Vilas Bank Gadag by its Manager, Gadag and another - Opp.Party(s)

Smt. Shobha R. Umachagi

06 Jun 2020

ORDER

-::O R D E R::-

 

BY: SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT.

 

1.       The complainant has filed this complaint claiming direction to the OPs to pay cheque amount of Rs.4,80,000/- with interest at the rate of 18% P.A and such other relief.

-::Brief facts of the case are as under::-

2.      The case of the complainant is that, complainant is having his Account bearing No.0286301000016392 and doing his business transactions in Bank without any obstacles.  It is further submitted that, one Sri. Shankar S/o Rudrappa is a customer of OP No.2 who is having account bearing No,0177000100983426.  In view of money transactions between said Shankar and the complainant, for the discharge of his loan liability with the complainant, said Shankar issued a cheque for Rs.4,80,000/- in favour of complainant under Cheque No.721883belongs to OP No.2 dated 11.01.2019 and the same has been presented by the complainant for collection through OP No.1 on 10.04.2019.  It is further submitted that, OP No.2 returned the same with an endorsement as “instrument out dated”.  Thereafter, complainant personally approached the OPs and made an enquiry about this and requested them to change endorsement so as to enable him to proceed against the said Shankar, but the OPs showed its enableness in changing the endorsement as it is a “system generated” and unable to change the endorsement.  After getting such reply from the Bank, complainant has issued legal notice to the OPs calling them to make payment of cheque amount within 15 days, but the OPs have given evasive reply and not made any payment by the OPs, which shows the negligent in giving their services and deficiency in service.  The cause of action arose to file this complaint on the date when the complainant got an endorsement as the instrument out dated from the OP No.2 even though the cheque was presented well in time.   Hence, the OPs are liable to pay an amount of Rs.4,80,000/- with interest at the rate of 18% p.a and such other relief.

3.      Registered the complaint and notice was ordered, as such OPs present before the Forum and filed written version, the contents are as follows.

Written Version of the OP No.1

1.       The OP No.1 contended that, the complaint is not maintainable either in law or on facts and the contents of complaint are not true and correct and are denied as false.  It is true that, the complainant is a customer of OP No.1 having SB Account and one S.R. Kamatar is the customer of OP No.2.  OP No.1 has no knowledge about the money transactions between the complainant and said S.R. Kamatar, for the discharge of his loan liability about issuance of cheque for Rs.4,80,000/- in favour of complainant.  Complainant has not stated true facts with regard to cheque No.721883 dated 11.01.2019 and he has concealed the true facts of the case and put-forth the false complaint before this Forum.  It is further submitted that, prior to presentation of the cheque dated 11.01.2019, on 10.04.2019 complainant presented the said cheque to OP No.1 for collection, the same has been sent to OP No.2 immediately on the same day, but the same has been returned on 14.01.2019 to OP No.1 with an endorsement that, “funds insufficient” from OP No.2, the said fact is not mentioned in the complaint.  The complainant has kept quite without taking any action against the drawer till the last date of validity of the said cheque.  The cheque in question was presented in the National Clearing through CTS.  Out of 11964 cheques presented only1570 cheques could be successfully processed.  Due to technical glitch in internet services, the remaining cheques were not processed which was beyond the control of OP No.1, the said cheque in the batch which could not be processed and hence the cheque which was presented on the next day.  OP No.1 has done its duty and prompt service was given to the complainant and there is absolutely no deficiency of service on the part of OP No.1.  The OP No.1 has given properly reply to the notice issued by complainant.  The complainant has not at all made any enquiry with the OP No.1 so far.  The complainant should have initiated the action against S.R. Kamatar for cheque bounce when the cheque is returned on 14.01.2019 with an endorsement that “funds insufficient” and there is a gross negligence on the part of complainant.  Therefore, there is no deficiency of service on the part of OP No.1 and prayed for dismissal of the complaint.

            Written Version of the OP No.2

The OP No.1 contended that, the complaint is not true and correct and the same is tenable either in law or on facts.  The entire averments of the complaint is false, frivolous and vexatious in nature and as such they are denied in toto.  The OP No.2 is not negligent in discharging its liability and the burden is on the complainant to prove his case.  It may be true that, complainant is a customer of OP No.1 having an account with it and this OP has no knowledge about the monetary transactions between the complainant and one Shankar Kamatar.  It may be true that, complainant presented the cheque in question on 10.04.2019 for collection through OP No.1 and after presentation of the cheque, the same was reached to the National Clearing through CTS, it was outdated and as such it was not honored.  Since, it was reached on the 91 days from the date of issuance of the cheque, automatically it was rejected for the said reason which is beyond the limits of OP No.2 and therefore, there is no deficiency of service on the part of this OP and hence prayed for dismissal of the complaint.

4.      The complainant has filed his affidavit evidence and filed 05 documents.  The respective Manager of OP No.1 and 2 filed their affidavit evidence and no documents have been produced.

COMPLAINANT FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
C-1	Original cheque No.721883
C-2	Receipt for having deposit of cheque
C-3	CTS return Memo
C-4	Letter by OP No.2 to complainant
C-5	Reply to Legal Notice

 

5.     On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudication which are as follows:

1.       Whether the Complainant proves that, the OPs have committed deficiency of service?

2.       Whether the Complainant proves that, he is entitled for the relief?  

3.       What order?

6.      Our Answer to the above points are:-

1.  

                     

2.  

 

3. As per the final order.

REASONS

7.      Point No-1 & 2:- Since both the points are identical and interlinked with each other and hence, we proceed both together.   

8.      The complainant has filed this complaint against the OPs stating that, the OP had not settled the death claim of deceased Basavaraj Hugar on the ground that, non-disclosure of material information and non-disclosure of other insurance policy.  The said deceased insured his life with OP under the name and fame of policy SBI life Shubh Nivesh endowment option on 03.08.2017 for Rs.10,00,000/- and further complainant submits that, he had paid six installments.  On 29.11.2017, husband of the complainant died due to heart attack.  Complainant approached the OP, OP repudiated the same as supra. 

9.  On the other hand, OP submits that, the complainant’s husband suppressed the material information, the insurance is a fatal to the contract which is based on the principle of utmost good faith.   Complainant failed to prevail pre-existing disease and existing life insurance details with other insurance Company. 

10.     On going through the complaint and written version and documents placed before the Forum, it is an undisputed fact that, husband of the complainant insured his life with OP.  The important point has to be discussed and clarified is that, whether husband of the complainant had suppressed the information which has prevailed during the purchase of the policy.  OP produced the document pertaining to the policy i.e., Ex.OP-4, the investigation report filed by the OPs Company.  That the visitor visited on 01.03.2018 and he had collected some information about the deceased.  As per the investigation report, in page No.11, Point No.5, it has been mentioned that, there is an ambiguity to the date of death is different from the date of death certificate produced before the OP. While investigating about the deceased, he had died in the month of June 2017, but the Death Certificate speaks that, he died on 29.11.2017.  If so, the OP had not filed any single document to substantiate the same.  If the deceased died in the month of June 2017, how can the OP issued/insured the life of a deceased as per Ex.OP-1.  Ex.OP-1 speaks that, complainant insured his life on 29.07.2017, if so, how the agent of OP insured the life of a deceased. Anyhow, to this extent also, the OP is vicariously liable for the act of his agent.  But, complainant produced the Death Certificate issued by the competent authority, which has been produced by the complainant before the Forum, it says that, the husband of the complainant had died on 29.11.2017.  Anyhow, as stated supra in page No.11, the reporter of OP, report that, one Dr. Chandrakanth stated that, he was admitted as an inpatient in his Hospital before two days of complainant’s husband death and he was suffering from Hepatitis.  Such being the fact, how the OP came to the conclusion that, he had a pre-existing disease abdominal related illness and chronic alcohol and smoker.  Without filing proper document to prove their case and without any evidence of a Doctor OP cannot say that, he had a chronic disease before purchase of the said policy.

11.     Prior to the another contention taken by the OP is that, the husband of the complainant was insured his life with the other insurance Company also, if so, why OP had not filed the document pertaining to the other policy as per their defence.   Hence, we cannot rely upon the report filed the OPs agent himself since the policy has been issued by OP through the agent of his own, but they denied the date of death that means when they denied the same which has been mediated by his agent only, how can we accept the report of his agent without proper document.  Hence, Forum comes to the conclusion that, OP is liable to pay the claim amount.  Hence, we answer point No.1 is in Affirmative and Point No.2 in partly Affirmative.

12.    Point No.3:-        For the reasons and discussion made above we proceed to pass the following:-

6698606.  

1.       The complaint filed by the complainant is partly allowed.

2.       OP is directed to pay the sum assured amount of Rs.10,00,000/- along with interest @ 6% from the date of filing this complaint within one month.  Further Op is directed to pay an amount of Rs.5,000/- towards mental agony and harassment, deficiency of service and Rs.1,000/- towards litigation charges.

3.       Further OP is directed to comply this order within one month, failing which OP is liable to pay interest @ 12% on the sum assured from the date of repudiation till realization.    

4.       Send a copy of this order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 6^th day of June-2020)

 

 

 (Shri B.S.Keri)                                        (Smt.C.H.Samiunnisa Abrar)

       MEMBER                                                      PRESIDENT