ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainants against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service against OPs No.1, 2 and 3 in not claiming the insurance in respect of the death of the husband of the complainant No.1 and father of complainant No.2 and adjusting the same towards the balance installmnent of the housing loan and for refund of the 51 EMI’s paid by the complainant’s  amounting to Rs.5,10,000/- and for refund of the same with interest at 18% per annum and, for deficiency in service in not allowing the death claim and repudiating the claim in respect of the husband of the complainant and father of complainant No.2 by OP-4 and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant No.1 Smt. Jayalalskhmi is the wife of late Ramesh Kumar Sindhey the 2^nd complainant Shashank is the son of Late Ramesh Kumar Sindhey. The said Ramesh Kumar Sindhey retired from the service of Vijaya Bank during the year 2016 from T Dasarahalli Branch. The said Vijaya Bank is now merged with Bank of Baroda.  All his service benefits were settled at the time of his retirement and was getting Rs.23,000/- per month as pension benefits. On 20.04.2017, he met with an road traffic accident while travelling in a car from Kanakapura to Bangalore.  In the said accident, he died on the spot and after postmortem, his body was handed over to his relatives. The death of Ramesh Kumar Sindhey, was reported to OP-2 and 3 i.e. the regional manager of Bank of Baroda situated at MG Road, Bangalore and to branch Manager, 8^th mile circle, T Dasarahalli Branch, Nagasandra Post, where his pension being credited. He was also having a housing loan of Rs.10,00,000/- from  the said branch and the same was insured with OP-4 under Uni Home Care Insurance.  The said premium was a one time payment covering the entire housing loan of Rs.10,00,000/- insured by Vijaya bank for the benefit of its employees and the duration of the insurance was for 30 years.

3.     In the event of death of the borrower, the creditor bank was to recover the amount out of the insurance with OP-4.  For the purpose of payment of the EMI’s from the family pension, a joint account was opened in the name of complainant No.1 and her late husband and a pension of Rs.23,000/- was being regularly received in the said account and a sum of Rs.10,000/- per month was being paid towards EMI’s after the death of her husband on 20.04.2017. Complainant No.1 did not commit any default.  She was not aware of the fact that the housing loan obtained by her husband by Vijaya bank was insured with OP-4.  She made request for family pension along with death certificate police report and the accident report to OP-2 and 3.  Even at the time of settling the family pension OP-3 did not reveal regarding the insurance it had with OP-4 in respect of the housing loan.  The entire housing loan has been covered under the insurance obtained from OP-4.  OP-3 deliberately kept silent without claiming the insurance from OP-4.  OP-3 is responsible and duty bound to claim the insurance amount from OP-4, soon after the death of Ramesh Kumar Sindhey the ex-staff of OP-3. OP-2 and 3 deliberately failed to make the claim of the insurance amount with OP-4 in respect of the death of her husband, and it amounts to deliberate negligence and deficiency in service. 

4.     It was the duty of the OP-2 and 3 to make claim with insurance company OP-4  soon after the death of the husband of the 1^st complainant.  Subsequently 1^st complainant was informed by one of the ex-staff and friend of her husband in the month November 2020 that her husband had insured the housing loan.  By the time she came to know the insurance, she had already paid the EMI’s up to September 2021, amounting Rs.5,10,000/-. She is fully depending on the pension and not in a position to pay the EMI’s, and she has to look after her son’s education. She was facing severe financial crisis due to the death of the earning member. OP-2 and 3 did not disclose and made the claim with insurance company (OP-4) in respect of her husband’s death, OP-4 is liable to pay Rs.10,00,000/- being the assured sum of the policy.  She had to write number letters to OP-2, 3 and 4 demanding the payment of the insurance amount. Inspite of due service of notice, OP-2 and 3 did not reply or made any claim with the insurance company.  She had to issue legal notice to the OP’s calling them to pay her the insurance claim.  After receiving the legal notice OP-1, 2 and 3 did not reply the same  nor adjusted the loan amount out of the insurance. Whereas, OP-4 gave an untenable reply stating that the claim is not made within the period of one year from the date of death of the deceased and hence they are not bound to pay the amount. The cause of action for the complaint arose when she came to know the existence of the insurance policy with OP-4 and hence the complaint is within the time limit and also within the jurisdiction of this commission and prayed to allow the complaint.

5.     Upon the service of notice, one P.Uday Shankar Advocate appeared on behalf of OP-1, 2 and 3 whereas one Sri KN Rajan advocate filed power on behalf of OP.4. Version signed by OP-3 has been adopted by OP-1 and 2 and filed before the commission. OP-4 has separately filed its version.

6.     In the version filed by OP-3 on its behalf and on behalf of OP-1 and 2, it is contended that deceased Ramesh Kumar Sindhey the husband of complainant 1 and father of 2^nd complainant was its employee working in T.Dasarahalli Branch, his pension was settled after his retirement and credited to his account standing in the said branch. He availed a housing loan from the said branch which was duly insured with OP-4. During the life time of Ramesh Kumar Sindhey, he was paying installment regularly in respect of Housing loan and after his death, the installment was paid out of the family pension by the complainant.  The existence of the insurance in respect of the housing loan was within the knowledge of the complainants as the 1^st complainant was also coborrower along with her husband. She was aware of the insurance and failed to raise the claim after the death of her husband. Now she cannot contend that OP 1, 2 and 3 ought to have claimed the insurance with OP-4 and hence they are guilty of deficiency in service. 

7.     Complainant also failed to intimate OP-3 to raise the claim on their behalf with insurance company.  It is also the bounden duty of the complainant to furnish and submit the insurance policy along with supporting documents to raise the claim of the insurance. Complainants have failed to raise the claim and have shifted the entire burden on OP-1 to 3 which is not proper under the circumstances.

8.     It is further contended that OP-1, 2 and 3 submitted the claim with OP-4 during March 2021, whereas OP-4 by its letter dated 22.03.2021 rejected the claim on the ground of delay in submitting the documents and claim against which they preferred a complaint before the insurance ombudsman who also rejected the claim on 18.10.2021 as not maintainable. Hence OP-1, 2 and 3 have taken all possible steps to get the claim settled whereas the same was rejected by the insurance company. Hence there is no deficiency individually, jointly or severally and the allegations made are false, frivolous and hence the complaint is not maintainable and prayed the forum to dismiss the complaint.

9.     In the version filed by OP-4 the insurance company, it has denied the allegations made against it in each and every para of the complaint and further pleaded its lack of knowledge regarding the complainant not knowing the insurance obtained by late Ramesh Kumar Sindhey, and further his death in a road traffic accident on 20.04.2017, and further the claim of family pension and payment of the loan installments by the complainant out of the family pension.  It also pleaded its ignorance regarding OP-1 to 3 not claiming the insurance claim with it within the time prescribed.  They deliberately kept silent without claiming the insurance. 

10.   It is contended that Late Ramesh Kumar Sindhey through the bank obtained Uni Home Care Insurance Policy through Vijaya Bank, Dasarahalli branch, A/C Ramesh Kumar Sindhey for the periods 05.02.2016 to 04.02.2031 under the strict terms and conditions mentioned in the insurance policy. It is further contended that on 01.03.2021 it received with a covering letter some documents along with enclosures which was handed over to it by the complainant No.1 informing and claiming the death benefits under the policy.  On perusing of the said documents and coming to know that the husband of the complainant’s death on 20.04.2017, the claim intimation was received by them on 01.03.2021 there was an inordinate delay of 4 years in intimation of the death and claiming the insured amount. 

11.   As per section 2(1) of the Conditions of the policy, the claim is a belated one.  As per the provision “upon happening of any event which may give raise to claim under these policy return 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 if shown be so given before interment cremation and in any case within one calendar month after  the death. In this case they received the intimation on 01.03.2021 and they intimated the OP-1 to 3 that the above claim was not entertainable as there was inordinate delay of 4 years in intimation and making the death claim.”

12.   Hence there is no deficiency on its part in repudiating the claim which is barred by time and in violation of the terms and conditions of the policy issued.  Hence they are not liable to pay Rs.10,00,000/- as compensation to the complainants. Further the claim of the complainants was not payable under the policy as the same is held by the bankers of the complainant’s husband and hence the claim of the complainant and banker is not admissible and the same will not constitute deficiency in service or unfair trade practice. Hence prayed the Commission to dismiss the complaint.

13.   In order to prove the case, both the parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

14.   Our answers to the above points are:-

POINT NO.1: IN THE AFFIRMATIVE.

POINT NO.2: IN THE AFFIRMATIVE.

                        For the following.

REASONS

POINT No.1:-

15.   On perusing the complaint, version, documents, evidence filed by both  parties, it becomes clear that, complainant No.1 is the wife and complainant No.2 is the son of Ramesh Kumar Sindhey who was an employee of OP-1 to 3 and served in OP-3 branch and retired from the said branch.  As per the records, his pension was also settled.  It is also not in dispute that in a road traffic accident, he died on 20.04.2017. It is also not in dispute that he obtained housing loan on 26.11.2015 and was paying the installment regularly till his death. The said loan was insured with OP-4 for a personal accident cover for Rs.10,00,000/- and building loss for Rs.10,00,000/-. 

16.   It is also not in dispute that, OP-3 has settled the family pension upon the death of Ramesh Kumar Sindhey to Complainant No.1. As per the averments complainant No.1 has been paying the EMI’s even after death of her husband even though there was an insurance in respect of the said loan.

17.   It is the specific case of the complainant that, she was not aware of her husband obtaining insurance with OP-4 at the time of obtaining the housing loan, and she was kept dark in that respect and even OP-3 at the time of claiming the family pension and settling the family pension to her, did not reveal the existence of the insurance policy in respect of the housing loan. Had she known the fact of insurance, she would have claimed then and there itself. Further OP-3 also did not inform her availability of the insurance cover an d some exstaff of her husband informed her regarding the insurance and then only she came to know the insurance coverage in respect of her husband’s housing loan and then she made  a claim through OP-1 to 3.

18.   On the other hand, it is the specific case of OP-1 to 3 that complainant No.1 was a coborrower of the housing loan along with her husband, and it was within her knowledge regarding the insurance. She ought to have made the claim and further she ought to have requested OP-1 to 3 to make a claim on her behalf and that she did not provide the insurance certificate to make the claim. 

19.   The stand of OP-4 is clear that, there is a delay of four (4) years in claiming the insurance cover in respect of death of Ramesh Kumar Sindhey and hence they are not liable to pay the any amount in respect of the insurance due to the terms and conditions mentioned in the policy.

20.   On perusing the documents Ex P12, it is the insurance policy issued to Vijaya Bank, Dassarahalli Branch Account Ramesh Kumar Sindhey under Uni Home Care Insurance Policy. The agent name who procured the insurance is Vijaya Bank Dasarahalli Branch.  OP-1, 2 and 3 have not placed any materials to show that complainant No.1 was knowing that there is an insurance cover for the loan. 

21.   It is to be borne in mind that as soon as the death of the husband of the complainant No.1, she made a request for family pension with the branch in which her husband was working and drawing the pension i.e. OP-3 wherein he also obtained insurance coverage from the said branch, which was very well aware of the fact that the loan has been covered with insurance issued by OP-4 and they ought to have made a claim immediately either by OP-3 or through the complainant.  There is no mention of any nominee in the policy whereas the name of the financier has been mentioned as Vijaya Bank now Bank of Baroda. 

22.   As the things stands, we can see deficiency of service and dereliction of duty of OP-3 in not claiming the insurance amount well in time, though it was within in its knowledge the death of the borrower Ramesh Kumar Sindhey and as well as the coverage of the loan with insurance. Hence primarily there is a deficiency and negligence on the part of OP-3. There was no necessity for the complainant to request oP-3 to raise the claim with OP4 as it is the duty of OP-3 to raise the claim upon the death of the borrower as the insurance policy is issued to OP-3 only.  For the reasons best known to it he did not make out any claim with OP-4.

23.   On the other hand, it is the specific case of OP-4 that though it issued insurance to the borrower Ramesh Kumar Sindhey and issued the certificate to Vijaya Bank Dasarahalli Branch i.e. OP.3 the claim was not made within one year from the date of death and hence it is time barred. It has relied on condition number Section-2 personal accident:-

“Section – II Personal accident:

Subject to the terms, exclusions, definitions and conditions contained herein or endorsed or otherwise expressed hereon the company will pay the insured as herein after mentioned.

If at any time during the currency of the this policy the insured’s borrower shall sustain bodily injury resulting solely and directly from accident caused by external violent and visible means , then the company shall pay to the insured or the borrower’s legal personal representative(s) as the case may be, the sum herein after set forth that is to say. If such injury shall within twelve (12) calendar months 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 hereto.

CONDITIONS APPLICABLE TO SECTION –II

1. Upon the happening of any event which may give  raise 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 shown, be so given before interment/ cremation and in any case within one calendar month after the death, and in the event  of loss of sight or amputation of limbs, written notice thereof must also be given within one calendar month after such loss of sight or amputation.”

24.   Though it is mentioned that in the matter of death intimation to be given before interment/cremation and in any case within one calendar month of the death is mentioned, wherein there is no time limit prescribed to make the claim. The one calendar month is fixed for making a written notice in respect of loss of sight and amputation.

25.   Even assuming that there is a limitation of one year, that do not mean that the complainant cannot claim and the insurance company shall not respect the claim.  Further the HON’BLE SUPREME COURT OF INDIA has relied on the decision in 2022(1) CPR 353 (SC) Jaina Construction Company –vs- The oriental insurance company Ltd., in Civil Appeal No.1069/2022 as hereunder;

        “Consumer Protection Act, 1986 – Section 23(Consumer Protection Act, 2019 – section 67) – Insurance – Theft of insured vehicle – Repudiation of claim on the ground of delay in informing the insurance company regarding theft of vehicle – Untraceable report filed by police – There was delay of about five months on part of complainant in informing and lodging its claim before Insurance company, nonetheless, Insurance company has not repudiated claim on the ground that it was not genuine – It has repudiated only on the ground of delay – When complainant had lodged FIR immediately after theft of vehicle and when police after investigation had arrested accused and also filed challan before concerned court and when claim of insured was not found to be not genuine, Insurance company could not have repudiated claim merely on the ground that there was delay in intimating Insurance company about occurrence of theft – NCDRC should not have set aside orders to District Forum and State Commission by holding that repudiation of insurance claim by insurance company was justified – Impugned order being erroneous and against settled position of law, deserves to be set aside, and is set aside, accordingly – Appeal allowed, affirming order of State Commission.”

25.   It has held of course in respect to theft of the motor vehicle wherein the theft report should be made with the police and the insurance company immediately after the event is not a must and in case there is delay, the claim has to be honoured if the claim is genuine otherwise. When such being the case, even in this case also the insured i.e. Ramesh Kumar Sindhey died in the road accident much after obtaining insurance from OP-4 and the validity of the insurance is up to 04.02.2031.  OP-4 is not disputing the death of Ramesh Kumar Sindhey in the road traffic accident. Hence complainant are entitle for the claim upon the death of the said Ramesh Kumar Sindhey under the personal accident for which OP-04 has agreed to pay Rs.10,00,000/- upon the happening of the event.  In view of the decision of the Hon’ble Supreme Court of India in 2022(1) CPR 353 (SC) which has held that the claim of the complainants if genuine, than the strict term of limitation is not applicable. The repudiation of the claim of the complainant and also of the OP-3 by OP-4 amounts to deficiency in service, unfair trade practice for having received one time premium for the whole term of the loan and the policy term covers for a period up to 04.02.2031. Under the circumstances, we hold OP-3 for negligence in not claiming the insurance cover in time and OP-4 deficient in providing the service and repudiating the genuine claim of the complainants. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2.

26.   Complainant has contended that even after death of her husband, she paid the EMI’ s and further she was not aware that her husband had insurance cover for the housing loan he availed from OP-4 through OP-3.  The death of her husband is not in  dispute. The Post mortem report and the death certificate clearly reveal that he died on 20.04.2017 in a road traffic accident within the limits of Harohalli Police jurisdiction the fact of the existence of insurance is also not in dispute.

27.   Upon perusing the insurance document Ex.P12 the personal accident cover for Ramesh Kumar Sindhey is to the extent of Rs.10,00,000/-.  The husband of the complainant borrowed the housing loan from OP-3 a sum of Rs.10,00,000/- on 26.11.2015 and was paying the EMI’s till his death i.e. on 20.04.2017. The liability of OP-4 commences on that day.  Whereas for the reasons best known to the complainants and OP-3, the claim was made in respect of the death of Ramesh Kumar Sindhey only on 01.03.2021.  As we have held that OP-4 is liable to honour the claim of the complainants under the policy, we are of the view that, OP-4 has to be ordered to pay Rs.10,00,000/- with interest at 12% per annum from 01.03.2021 the date of claim till payment of the entire amount. OP-4 is not liable to pay any cost of the litigation whereas OP-3 has to pay the litigation cost which we quantify at Rs.10,000/- and also OP-3 to pay a sum of Rs.50,000/- towards damages for causing mental agony, financial hardship to the complainants due to their negligent act in not claiming the insurance on behalf of the complainant in time.  After receiving Rs.10,00,000/- along with interest from 01.03.2021 complainant is directed to pay the balance of outstanding loan to OP-3 if any and clear the housing loan contracted by her husband. Upon clearing the loan along with interest, OP-3 to issue clearance certificate in respect of the loan. Hence we answer POINT NO.2 IN THE AFFIRMATIVE and  pass the following:

ORDER

1. The complaint is allowed with cost.
2. OP-4 i.e. United India Insurance Company Ltd., represented by its Chief  Manager/Authorized Signatory is hereby ordered to pay Rs.10,00,000/- with interest at 12% per annum from 01.03.2021 the date of claim till payment of the entire amount. After receiving Rs.10,00,000/- along with interest from 01.03.2021, complainants are directed to pay the balance of outstanding loan to OP-3 and clear the housing loan contracted by her husband.  Upon clearing the loan along with interest, OP-3 to issue clearance certificate in respect of the loan.
3. Further OP No.1,2 and 3 are directed to pay Rs.50,000/- towards damages for causing mental agony, physical hardship and financial loss to the complainants and Rs.10,000/- towards the litigation expenses to the complainants.
4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 23^rd day of May 2022)

MEMBER         MEMBER        PRESIDENT

 ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the letter dated 05.06.2021.

Ex P2: Copy of the Legal notice

Ex. P3: Copy of the reply by OP-4

Ex P4: Postal acknowledgement

Ex P5: Copy of the Death Certificate.

Ex P6: Copy of the Account statement in respect of the loan.

Ex P7: Copy of the letter written by complainant.

Ex P8: Copy of the Aadhar card of the complainant and her husband.

Ex P9: Copy of the Marriage certificate.

Ex P10: Copy of the charge sheet  filed by the JMFC Court, Kanakapura.

Ex P11: Copy of the Insurance policy.

Ex P12: Copy of the letter written by the bank.

Ex P13: Copy of the loan account statement.

Ex P14: Copy of the letter by the complainant to bank.

Ex P15: Copy of the letter correspondences.

Ex P16: Copy of the claim application form for family pension.

Ex P17: Copy of the PPO order.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri P. Ramesh , Administrative Officer of OP-4.

RW-2: Sri Vishwanath Naik, Chief Manager of OP-1

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorisation letter.

Ex R2: Copy of the Insurance Policy of the Insurance Policy.

Ex R3: Copy of the complaint made to the ombudsman.

Ex R4: Copy of the reply to the legal notice.

MEMBER                 MEMBER        PRESIDENT

RAK*