State Consumer Disputes Redressal Commission
M/S.Mahindra & Mahindra Financial ... vs Smt.Sumati Anand Dandale, on 23 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/06/1563 (Arisen out of Order Dated 22/05/2006 in Case No. cc/170/2005 of District Buldana) 1. M/s.Mahindra & Mahindra Financial Services Ltd.,Manager,Nagpur Tq. & Distt.Nagpur,C/o.Narang Towers, Near Traffic Police Station, Civil Lines, Nagpur Nagpur Maharashtra ...........Appellant(s) Versus 1. Smt.Sumati Anand Dandale, Sultanpur, Taluka Lonar, Distt.Buldhana Buldhana Maharashtra 2. Shri.S.R.Gadre &Company Through its manager, Shri.S.R.Gadre & Company, C/o.Shri.Khatri, MIDC Area, Jalna Road, chikhali, Tq.Chikhali,Distt.Buldhana Buldhana Maharashtra 3. Shri.S.R.Gadre & Company, Through its Manager Shri. S.R.Gadre & Company, Amravati Road, Akola,Distt.Akola Akola Maharashtra 4. Kotak Om Kotak Mahindra Life Insurance 1112,Krushna House, Reghuwanshi Mill Compound, Bapat Marg, Lower Parl (W) , Mumbai Mumbai Maharashtra ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Advocate Mr.Joharapurkar. For the Respondent: Advocate Mr.S.M.Kasture for respondent No.1 Dated : 23 Mar 2017 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. This appeal is filed by original opposite party (for short O.P.) No.3/Finance Company against the order dated 22/05/2006 passed by the District Consumer Forum, Buldana, by which Consumer Complaint bearing No.170/2005 filed by the respondent No.1 herein has been partly allowed.
2. The case of the respondent No.1 herein/original complainant as set out by her in the consumer complaint filed before District Forum in brief is as under.
The deceased Anand Pandurang Dhandale who was the husband of the complainant, had purchased Jeep of Mahindra Company make from O.P.No.1 dealer by obtaining finance from O.P.No.3. The O.P.No.2 is also one of the dealer of the said Jeep. The O.P.No.3/financer had obtained Group Insurance Policy from O.P.No.4/Insurance Co. under which it was agreed that the insurance company would pay the balance loan amount in case of death of the owner of the vehicle or in case of his suffering from permanent disablement. The deceased Anand Dhandale died on 31/07/2004 due to heart attack. Therefore complainant submitted a claim to O.P. Nos. 2 and 3. They did not provide her benefit of the policy. On the contrary their representatives came to the house of complainant on 03/07/2005 and they threatened to forcefully seize the vehicle. It is the responsibility of the O.P.No.4 to discharge the loan as per the policy. Therefore complainant filed the consumer complaint before the Forum against the O.P.Nos.1 to 4 with a request to direct them to act as per the provisions of the policy and to direct the O.P.No.4 to pay the out-standing loan amount to O.P.No.3 as per policy and to it be declared that it is the joint and several responsibility of O.P.No.1 to 4 to discharge the loan out-standing against the vehicle and to pay cost of the complaint and compensation for physical and mental harassment, to the complainant.
3. The O.P.No.1 and 2 appeared before the Forum and filed common reply. In brief they came with a case that they have no concern with the insurance policy and they are not liable to discharge the out-standing loan amount as they have not rendered deficient service to the complainant.
4. The O.P.No.3 also appeared before the Forum and filed the reply and thereby resisted the complaint. It is the case of O.P.No.3 in brief that it was the responsibility of the deceased husband of the complainant as per the certificate cover of the policy given to him to pay regularly premium and EMIs to O.P.No.3. He did not pay the premium and EMIs regularly and that he had paid the premium for the period from 01/07/2003 to 30/06/2004 only. He did not pay the premium of subsequent year and he died on 31/07/2004, after lapse of the last date of payment of premium of the subsequent years and hence complainant is not entitled to benefit of the insurance scheme launched by the O.P.No.3. It denied that its representative tried to forcefully seize the vehicle. It also submitted that the complaint is not maintainable before the Forum. Hence he requested that the complaint may be dismissed.
5. The O.P.No.4 also appeared before the Forum and filed reply and thereby resisted the complaint. It submitted in brief that there was no privity of contract in between the deceased husband of the complainant and O.P.No.4 and that the Group Insurance Policy issued by it covered only members of the O.P.No.3 whose names were included by the O.P.No.3 in list and period of that policy was from 31/07/2003 to 30/06/2004 and that no premium was paid on behalf of the husband of the complainant for renewal of the policy for the subsequent period to cover his risk. It was the responsibility of the O.P.No.3 to pay the premium being the policy holder and to fulfill the terms and conditions of the Group Policy. But it failed to do so pertaining to payment of the premium of subsequent years on behalf deceased husband of the complainant. Therefore the O.P.No.4 is not liable to discharge the out-standing loan amount claimed by the complainant.
6. The Forum heard both the parties and then considered the evidence brought on record and passed the impugned order on 22/05/2006. The Forum particularly observed in the impugned order that the O.P.No.3/appellant being the policy holder, it was the responsibility of the O.P.No.3 to inform the deceased husband of the complainant and about the rate of the premium for depositing the same with the O.P.No.4 for renewal of the policy. But it failed to do so. The Forum also observed that in the policy cover note issued by the O.P.No.3 the number of premiums and rate of the premium are not specified and there was no reason for the deceased husband of the complainant to know about the same on the basis of policy cover certificate and therefore it was the sole responsibility of the O.P.No.3. to give intimation of the same to the husband of the complainant. But it failed to do so. It is also observed by the Forum that in case premium was not deposited by the deceased, it was the responsibility of the O.P.No.3 to pay that premium to O.P.No.4 and to debit that amount to the loan account of the deceased husband of the complainant so as to keep the policy in existence for subsequent year. But it has not done so, which constitutes deficiency in service on the part of O.P.No.3.
7. Moreover the Forum also observed that post dated signed cheques were given by the deceased husband of the complainant towards payment of premium/EMIs. But there is no evidence to show that the O.P.No.3 presented those cheques to concerned bank and that they were dis-honored by the concerned bank. The Forum also observed that there is no evidence to show as to how many loan installments were due against deceased husband of the complainant at the time of his death on 31/07/2004 and that account statement produced is dated 16/08/2005 which is not clear as to how many installments were due as on 31/07/2004.
8. Therefore the Forum held O.P.No.3/appellant responsible for the aforesaid deficient service. The Forum therefore directed O.P.No.3 to bear the out-standing amount against the deceased husband of the complainant and not to put any demand about the same to the legal representatives of the deceased Anand or the guarantor of the loan. The Forum also directed the O.P.No.3/appellant not to take possession of the vehicle in question and allow it to be retained by the legal representatives of deceased Anand. The Forum also directed to O.P.No.3 to pay cost of Rs.750/- to the complainant. The Forum dismissed the complaint as against O.P.Nos.1. 2 and 4.
9. As observed above this appeal is filed by O.P.No.3 against that order. We have heard Mr.Joharapurkar, the learned Advocate appearing for the appellant and Mr.S.M.Kasture, the learned Advocate appearing for the respondent No.1/original complainant. The respondent Nos. 2, 3 and 4 who are respectively original O.P.Nos.1, 2 and 4 have not appeared despite service of notice and hence this appeal is proceeded ex-parte against them.
10. The learned Advocate of the appellant submitted that the Forum has not considered in right perspectives the policy cover certificate in which it is specifically stated that "To ensure that your benefits under Mahindra Loan Suraksha remain in force you must regularly pay your Mahindra Loan Suraksha premium and the loan EMIs on time to MMFSL". He thus argued that it is seen from the account statement produced on record that the deceased husband of the complainant did not pay EMIs regularly and did not pay the premium and therefore the Forum erred in holding the O.P.No.3/appellant responsible for discharging his loan amount. He therefore requested that impugned order may be set aside.
11. On the other hand the learned Advocate of the respondent No.1 submitted that the O.P.No.3/appellant was the policy holder and it was the responsibility of policy holder only to pay the premium regularly and to recover the same from the respective borrower of loan to secure discharge of loan by insurance company after the death of borrower. Thus according to him as neither premium was paid as per policy by O.P.No.3/appellant nor any intimation for payment of the same was given by it to the deceased husband of the complainant, the Forum has rightly held the O.P.No.3 responsible to discharge the loan out-standing against the deceased husband of the complainant. He thus supported the impugned order and submitted that appeal may be dismissed.
12. It is not disputed that O.P.No.3/appellant after providing the finance to its members/borrowers including the deceased husband of the complainant, it had launched the scheme under the title called as "Mahindra Loan Suraksha" to secure payment of out-standing loan after death of borrower. As per that scheme in case of death of a person who obtained loan, it would be the responsibility of the insurance company to discharge the loan out-standing against the deceased borrower. The policy shows that the O.P.No.3/appellant is a policy holder and that it was the responsibility of the policy holder to pay premium of each year regularly to the insurance company/O.P.No.4.
13. However the O.P.No.3/appellant relied on the insurance cover certificate filed on record to show that it was the responsibility of the deceased husband of the complainant to pay the premium required alongwith the EMIs. However the said certificate does not shows the rate of the premium and the terms of the premium. There are no documents to show that the deceased husband of the complainant was communicated by the O.P.No.3/appellant the rate of the premium and the term of the premium. Hence in the absence of any communication, it was not expected from the deceased husband of the complainant to pay the premium within given time.
14. Merely production of the policy cover certificate without giving intimation to borrower deceased husband of complainant the rate of premium and terms of premium, to our mind does not discharge the policy holder/ O.P.No.3 from its liability of payment of premium of its borrower members directly to O.P.No.3 and then to recover the same from them alongwith EMIs.
15. We also find that the deceased husband of the complainant had also given post dated cheques signed by him towards future installments. There is no evidence to show that the O.P.No.3/appellant had presented those cheques to the concerned bank on which said cheques were drawn and that those cheques were dis-honoured for want of sufficient fund. Thus in the absence of any documents about the same, it can not be said that deceased husband of the complainant was defaulter in payment of the EMIs.
16. Thus we are of the considered view that O.P.No.3/appellant has been rightly held to have provided deficient service by not intimating the deceased husband of the complainant about the rate of the premium and the terms of the premium for continuation of the policy for subsequent year from 01/07/2004 to 30/06/2005. Therefore the O.P.No.3/appellant is not entitled to recover the out-standing loan amount from the complainant or legal representatives of the deceased husband of the complainant or from the guarantors. The Forum thus committed no error in appreciating the evidence brought on record and coming to the aforesaid conclusions and findings. Thus appeal deserves to be dismissed.
// ORDER // Appeal is dismissed.
No order as to costs in appeal.
Copy of this order be supplied to both parties free of costs.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER