State Consumer Disputes Redressal Commission
Sundaram Bnp Paribas Home Finance ... vs Consumer Guidance Society ... on 23 July, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. F.A.No.1216/2010 against CC.No.177/2009 District Forum-II, Krishna at Vijayawada. Between: 1.
Sundaram BNP Paribas Home Finance Limited Represented by its authorized signatory, JM-3, Second Floor, Opp:Chandramoulipuram Post Office M.G.Road, Vijayawada- 520 010
2. Sundaram BNP Paribas Home Finance Limited, Represented by its Managing Director, Registered office 21, Patullos Road, Chennai- 600 002.
Appellant/Opp.Parties.
AND
1.CONSUMER GUIDANCE SOCIETY Representing Smt.Sujatha Yanam, W/o.late Raju Yanam, Residing at R.No.126/3A, 38, & 16/4A, High School Road, Beside Ramakrishna Ventures, Ramavarapadu, Vijayawada 521 108. ..Respondent/ Complainant
2.SBI Life Insurance Company Limited Rep. by its. Regional Manager, No.5-9-58/B, Ground Floor, Parishram Bhawan, Basheerbagh, Hyderabad 500 029.
Respondent/opp.3.
(Respondent No.2 is not necessary party) Counsel for the Appellants M/s,C.Ramesh Sagar Counsel for the Respondents Notice on R1 held sufficient.
Later R1 filed written arguments.
M/s.G.Anand Kumar R2 QUORUM:THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER, MONDAY, THE TWENTY THIRD DAY OF JULY, TWO THOUSAND TWELVE Order:(Per Smt.M.Shreesha,Honble Member.) *** Aggrieved by the order in C.C.No.177/2009 on the file of District Forum-II, Krishna at Vijayawada, Opposite Parties preferred this appeal.
The brief facts as stated in the complaint are that the complainants husband availed a loan of Rs.14,36,464/- from opposite parties 1 and 2 on 31-8-2008 to which the complainant is the co-borrower.
The complainant submitted that at the time of disbursement of loan, the opposite parties informed the late husband of the complainant to obtain SBI Policy and he accordingly agreed and paid a premium of Rs.36,464/- in lumpsum to the opposite party No.3 and received the balance of the loan from the opposite parties 1 and 2. The complainant submitted that during his life time submitted that her husband during his life time requested opposite party No.1 to deliver the original policy certificate given by opposite party no.3 and he was asked to wait and therefore they were under the bonafide impression that their proposal for insurance with opposite party No.3 was duly approved without any hitch. The complainant further submitted that her husband expired on 03-12-2008 and thereafter she brought the death of her husband to the notice of opposite parties 1 to 3. The complainant submitted that opposite party No.1 asked her to fill the claim form for claiming insurance without giving the details as to the subscribed policy and she accordingly submitted the claim form and duly handed over the same to opposite party No.1 for forwarding to opposite party No.3 to facilitate waiver of entire outstanding loan amount as per the terms and conditions of the Housing loan Protection Policy. The complainant submitted that she was astonished to receive a speed post notice under Section 13(2) Chapter III of Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 dated 4-6-2009 calling upon the complainant and her husband to pay the entire loan amount along with accrued interest amounting to Rs.14,86,677/-. The complainant submitted that opposite parties 1 and 2 forcefully collected two instalments amounting to Rs.38,000/- even though she brought the death of her husband to their notice. Therefore the complainant was impelled to elicit the information as to the recovery of claim amount from Opposite party No.3 in regard to the recovery of claim and was informed for the first time by opposite party No.1 that the policy was yet to be subscribed contrary to the earlier assurance given to the complainant by opposite parties 1 and 2. Thereafter the complainant approached the Consumer Guidance Society which issued a notice on 09-7-2009 calling upon the opposite parties to indemnify the complainant from the entire loss due to non issuance of insurance coverage due to negligence of opposite parties 1 and 2 and they issued a reply on 21-7-2009 informing the complainant that her claim was repudiated by opposite party No.3 on the ground that the complainants husband suffered from HIV positive but no details regarding the policy nor repudiation of claim were furnished by opposite parties 1 and 2. Therefore the complainant got issued a rejoinder notice dated 28-7-2009 to opposite parties 1 and 2 to disclose the details of the subscribed policy and the alleged repudiation letter but they did not choose to reply which is clear deficiency in service on their part. Hence the complaint for a direction to the opposite parties to write off the entire outstanding loan in the account of the complainants deceased husband amounting to Rs.14,86,677/- and release all the original documents delivered to opposite party No.1 and refund the amount of Rs.38,000/- illegally collected from the complainant after the death of her husband and award compensation of Rs.1,00,000/-.
Opposite parties 1 and 2 filed version resisting the complaint. They admitted the sanctioning of loan and payment of insurance premium but submitted that the D.D. for insurance premium was misplaced while sending it to 3rd opposite party in transit and after knowing they sent fresh D.D. but in the mean time, the husband of the complainant died and concealed material facts and therefore the complainant is not entitled for the insurance claim and prayed for dismissal of the complaint with costs.
Opposite party No.3 filed written version denying the allegations made in the complaint as well as version of opposite parties 1 and 2 and stated that the complaint is premature as the complainant has not submitted any claim forms and in fact no cause of action arise because they did not receive any premium nor issued policy in the name of the late husband of the complainant and that there is no privity of contract between the complainants husband and opposite parties 1 and 2 and the complainant is not entitled to the relief claimed and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A11 and B1 to B8 and the pleadings put forward, the District Forum allowed the complaint and held that the complainant need not pay the loan amount of Rs.14,86,677/- to opposite parties 1 and 2 and they have to wipe off/write off the loan amount and return the documents mortgaged to the complainant and also refund Rs.38,000/- collected from the complainant together with compensation of Rs.5,000/- and costs of Rs.2,000/- within one month. The case against opposite party No.3 was dismissed.
Aggrieved by the said order, opposite parties 1 and 2 preferred this appeal.
The facts not in dispute are that the complainants husband availed a loan of Rs.14,36,434/- from opposite parties 1 and 2 on 31-8-2008 and the complainant is a co-borrower and they also paid a premium of Rs.36,464/- vide Ex.A2 dated 31-8-2008 in favour of SBI Life Insurance Company. While so, on 03-12-2008 the complainants husband died evidenced under Ex.A3 death certificate and it is the complainants case that she made a claim with the opposite party but did not receive any response and hence approached the Consumer Guidance society who issued a legal notice to the opposite parties on 09-7-2009 vide Ex.A8. The complainant got issued a rejoinder (Ex.A10) on 28-7-2009 but there was no response. Ex.A4 is the letter addressed by the opposite party to the Chairman, Help Hospitals, Vijayawada wherein Mr.Nagaraju had taken treatment.
Ex.A5 is the certificate of hospital treatment which shows that the patient was reactive for HIV and he had four episodes of convulsions. Ex.A7 is the notice sent by the opposite parties with respect to the defaults committed in payments. Ex.A9 is a reply notice given to the defacto complainant in which it is stated that the funding of the premium amount towards SBI life coverage was done and there was continuous default in the repayment of the loan amount and the claim made by the complainant was forwarded to the insurance company because the opposite parties 1 and 2 had lent the money for the premium payment.
But thereafter they were informed that Nagaraju.Y. was suffering from HIV disease which is exempted from insurance coverage. Section 45 of the Insurance Act envisages that the material which is alleged to have been suppressed should be proved to be willfully and fraudulently suppressed before the issuance of the policy. Here Ex.A5 is dated 01-12-2008 and it discloses that the complainants husband was reactive for HIV and TB. All these facts prove and establish that the complainants deceased husband did not have any knowledge that he was infected with HIV prior to issuance of the policy. In the absence of any documentary evidence on record that the complainants husband had willfully and fraudulently suppressed that he had HIV, we are of the considered view that non settlement of the claim is unjustified. Now we address ourselves to the liability of opposite parties 1 and 2?
To reiterate, the payment of premium by Nagaraju Yanam on 31-8-2008 for an amount of Rs.36,464/- to opposite parties 1 and 2 is not in dispute (A2). In Ex.A9 reply notice given by opposite parties to the defacto complainant, they clearly stated that Nagaraju Yanam opted for an insurance policy from opposite party No.3 which was routed through opposite parties 1 and 2 and that the premium towards this policy coverage was funded by them. But in the same breath they contend that there is no privity of contract between the complainant and opposite parties1 and 2 with respect to insurance policy because they are only facilitators and they have only forwarded the claim to opposite party No.3, insurance company. It is pertinent to note that either in their affidavit or in their reply notice, there is no evidence of transmitting the premium amount to the insurance company. In fact in page 2 of the affidavit filed on behalf of opposite parties 1 and 2, the opposite parties admitted that on 19-9-2008, a bunch of cheques were sent through Pavan Air couriers which was lost during transit. This concludes that opposite parties 1 and 2 never sent the premium amount to opposite party No.3 and therefore no policy was issued, for which act the complainant cannot be made to suffer. The complainant also filed the guidelines on Fair Practices Code for HFCs which she procured under Right to Information Act, 2006 and keeping in view this code, it was the duty of opposite parties 1 and 2 to have informed the complainant about the issuance/non issuance of the policy. Opposite parties 1 and 2 sent a notice U/s.13(2) to the complainant evidenced under Ex.A7 stating that the complainant is due some amounts and has not discharged the loan. This is dated 04-6-2009 and does not state the number of instalments paid and what is the exact due amount. Even in the exhibits filed by the opposite parties, there is no statement of account denying the payment of Rs.38,000/- made by the complainant after the demise of her late husband. Ex.B8 is the Home loan Insurance Master Policy in Schedule II under clause 7 SUM ASSURED it is stated that sum assured means the outstanding home loan account, including interest and calculated as per the original EMI repayment schedule. Therefore, we are of the considered view that in the absence of any concluded contract by opposite party No.3, only because of the latches of opposite parties 1 and 2 in not transmitting the premium amount to opposite party No.3, opposite parties 1 and 2 are liable to settle the claim amount and we see no reasons to interfere with the well considered order of the District Forum.
In the result this appeal fails and is accordingly dismissed. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.23-7-2012