# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`**
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&
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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
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THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
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WA NO. 340 OF 2022
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AGAINST THE JUDGMENT IN WP(C) 12173/2012 OF HIGH COURT OF KERALA
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## **`APPELLANT:`**
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JAMEELA
AGED 61 YEARS, W/O. SAKIR AHAMMED,
PALATHINGAL HOUSE, VENGALOOR VILLAGE,
B.P.ANGADI (PO), TIRUR TALUK, MALAPPURAM DISTRICT.
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BY ADVS.
JAMSHEED HAFIZ
K.K.NESNA
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## **`RESPONDENT/S:`**
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1THE STATE BANK OF INDIA,
TIRUR BRANCH, REPRESENTED BY THE BRANCH MANAGER,
STATE BANK OF INDIA, TIRUR BRANCH, POST BAG NO.40,
TIRUR (PO), PIN-676101, MALAPPURAM DISTRICT.
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2THE STATE BANK OF INDIA LIFE INSURANCE COMPANY LTD.,
REPRESENTED BY ITS HEAD CLAIMS,
S.B.I. LIFE INSURANCE CO. LTD.,
STATE BANK BHAVAN, MADAMA CAMA ROAD,
NARIMAN POINT, MUMBAI-400021.
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BY ADV SRI.S.PUSHKARAKSHAN, STANDING COUNSEL (B/O)
SMT. BINDUMOL JOSEPH, SC FOR R1
SRI.S.EASWARAN, SC FOR R2
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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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**W.A.No.340 of 2022**
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## **JUDGMENT**
Dated this the 17[th] day of March, 2022
## **S.Manikumar, C.J.**
Before the writ court, the petitioner therein, father of
the policyholder/nominee, has sought for the following reliefs:
- “(a) Issue a writ of Mandamus or any other appropriate writ or direction, directing the respondent to disburse the loan amount taken by the petitioner's son, Yahiya to the 1[st] petitioner and may direct him to close the loan amount with the 1[st] respondent.
- (b) Issue a writ of Mandamus or any other appropriate writ or direction, directing the 1[st] respondent not to initiate any proceedings against the petitioner for recovering the loan amount.”
2. Brief facts leading to the filing of the writ petition are as under:
The petitioner is a resident of B.P. Angadi in Tirur Taluk, Malappuram District. She is the nominee/assignee in a loan transaction and an insurance coverage for the same, of her son Yahiya. The petitioner's son Yahiya had taken a
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loan from the 1[st] respondent and the loan amount was insured with the 2[nd] respondent to pay back the loan amount, in case of death of Yahiya, with effect from
19.03.2008, Ex.P1. The petitioner's son Yahiya, died on 23.03.2009 after his marriage, on the same day of his marriage due to heart attack. Though Yahiya died after taking insurance, the 2[nd] respondent did not pay back the loan amount with the 1[st] respondent and rejected the claim, on untenable ground, that the death is within 45 days of admission to the insurance scheme.
The said contention is totally against the condition in Clause 4 of the Scheme which says that "the Insurance Coverage is available to the housing loan borrower from the date of enrollment and will be current during the tenor of the loan".
3. Pending disposal of the writ petition, writ petitioner
has sought for a direction to the State Bank of India, Tirur Branch, represented by the Branch Manager, Malappuram District, not to initiate any proceedings against her for
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recovering the loan amount.
4. W.P.(C)No.12173 of 2012 was admitted and an interim stay of the recovery proceedings was granted by the writ court.
5. When the writ petition came up for hearing after 10 years, submission is stated to have been made by the Bank that the claim ought to have been made within the first 45 days from the date of admission of the borrower under the scheme, and that in the case on hand, writ petition has been filed after four years from the date of death of the insured - son of the writ petitioner/appellant.
6. Submission is also stated to have been made that Exhibit P5 rejection of the claim was dated 11.08.2008 and the writ petition was filed only on 28.05.2012.
7. Submission is also stated to have been made that as per rule 14(3) and (4) of the Insurance Ombudsman Rules, 2017, the Insurance Ombudsman has got the power to condone the delay if a reasonable explanation is given, for not making a claim within time.
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8. Taking note of the provision for an alternate redressal
by approaching the Insurance Ombudsman, by filing a complaint, with a delay condonation petition, for not making a claim within the period provided thereunder, the writ court vide judgment dated 15.02.2022, disposed of the writ petition as hereunder:
- “Therefore, this writ petition is disposed of in the
- following manner:
- i. The petitioner is free to file a complaint before the Insurance Ombudsman along with a petition to condone the delay in filing the complaint, within three weeks from the date of receipt of a copy of this judgment.
- ii. If such a complaint is received by the Insurance Ombudsman, the Insurance Ombudsman will consider the delay condonation petition first and thereafter decide the complaint in accordance to law based on the decision in the delay condonation petition.
- iii. Needless to say the period during which this writ petition was pending before this Court will definitely be excluded by the Insurance Ombudsman while considering the limitation period.
- iv. The Insurance Ombudsman will dispose of this matter as expeditiously as possible.
- v. The recovery proceedings against the petitioner will be kept in abeyance till the Insurance Ombudsman decide the matter, if such a complaint is filed as directed above.
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- vi. All the contentions raised by the petitioner and the respondents about the merit of the case and the delay aspect are left open.”
## 9. Being aggrieved, instant writ appeal is filed inter alia
on the following grounds:
- a) The court below totally failed to appreciate that the writ petition was filed by the appellant in the year 2012 and ought to have considered that the respondent insurance company did not file any counter affidavit or statement in the said matter. Now the amount of loan taken is more than 3 times the actual amount with its interest. Hence the learned single judge ought to have decided the matter on merits rather than directing the party to adjudicate the claim before the ombudsman. It would even be more higher if it is again challenged before this court and the matter being finally decided after the order of remand to Ombudsman.
- b) The clause 5 in the insurance scheme says that “No claim however, (except death due to an accident) will be admissible within 45 days from the date of admission of the borrower under the Scheme. Infact the term accident is not defined anywhere in the scheme or in any statute and hence general meaning as found in the dictionary has to be construed as its meaning. All the dictionary
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meanings clearly say that accident is something which is unexpected or unforeseen. The death of the son on the day of his marriage was unforeseen and unexpected to the parents as well as to his wife who lost her husband on the date of marriage and hence an accident.
- c) The Court below ought to have considered the merit of the case and ought to have considered the decision of the Apex court in **Life Insurance Corporation of India and Another v. Hira lal** (2011) 14 SCC 445, in the correct perspective.
- d) The Exhibit P5 rejection of the claim by the respondent is unjust illegal, arbitrary and bad in law.
- e) It is respectfully submitted that even if the above clause is incorporated in the policy, it is contrary to clause 4 of the above policy conditions. Clause 4 of the above policy conditions says that “the Insurance Coverage is available
- to the housing loan borrower from the date of enrollment and will be current during the tenor of the loan". Hence the subsequent clause 5 is contrary to the earlier clause 4 and hence is illegal and bad in law.
- f) The respondents ought to have found that the appellant’s son, insured, was in a good health condition at the time of taking loan. The above death was all of a sudden on the day of his marriage and was infact an heart attack, just like an unfortunate accident which was unexpected
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and unforeseen. The insured had already paid the 1[st] premium and the said amount was accepted by the respondents also. In the above event, the appellant’s claim petition ought not to have rejected.
10. The fact that the writ petition was entertained in the year 2012 and an interim order of stay of recovery proceedings initiated by the Bank was granted is not disputed.
11. Appellant’s son has taken a loan from the State Bank of India, Tirur Branch, Malappuram District. The loan amount was insured with State Bank of India Life Insurance Company Ltd., Mumbai (respondent No.2). The policy is valid with effect from 19.03.2008. Exhibit P1 is the certificate of insurance. Unfortunately, the appellant’s son died on 23.03.2008 on the date of his marriage due to heart attack.
12. Though the appellant’s son died after taking the insurance policy, SBI LIC Ltd. did not pay back the loan amount with the State Bank of India and rejected the claim by Exhibit P5 stating that the death is within 45 days of admission to the insurance scheme.
13. Admittedly, writ petition has been filed after four
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years. Notwithstanding the delay, writ petition has been entertained and there was also a stay of the recovery proceedings for nearly 10 years till the writ petition was taken up for final disposal in February 2022.
14. On the aspect of relegating the matter to the Insurance Ombudsman, learned counsel for the appellant submitted that having spent 10 years in this court and relegating the matter at this stage would only aggregate the agony of the appellant, who has not only lost her son but also to litigate before another forum. According to the appellant, writ court itself should have considered the merits of this case and passed appropriate orders including delay.
15. Ms.Bindumol Joseph, learned standing counsel for the State Bank of India has no objection to the above submission.
16. Placing on record the above, we set aside the directions issued by the writ court. Both parties are at liberty to approach the writ court for early disposal of the writ petition on merits. Stay of the recovery proceedings shall
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continue.
Writ appeal is disposed of as above.
Pending interlocutory applications, if any, shall stand
closed.
Sd/-
**S.Manikumar Chief Justice**
Sd/-
**Shaji P.Chaly Judge**
## **vpv**
//true copy//
P.A. to Judge
