Jameela v. State Bank of India and State Bank Life Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** ## **WP(C) NO. 12173 OF 2012** ## **PETITIONER:** JAMEELA AGED 52 YEARS W/O. SAKRI AHAMMED, PALATHINGAL HOUSE, VENGALOOR VILLAGE, B.P ANGADI.P.O, PIN - TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV SRI.JAMSHEED HAFIZ ## **RESPONDENTS:** 1 THE STATE BANK OF INDIA, TIRUR BRANCH REPRESENTED BY THE BRANCH MANAGER, STATE BANK OF INDIA, TIRUR BRANCH, POST BAG NO. 40, TIRUR.P.O, PIN - 676 101, MALAPPURAM DISTRICT. 2 THE STATE BANK OF INDIA LIFE INSURANCE COMPANY LTD., REPRESENTED BY ITS HEAD CLAIMS, S.B.I LIFE INSURANCE CO. LTD., STATE BANK BHAVAN, MADAME CAMA ROAD, NARIMAN POINT, MUMBAI - 400 021. BY ADVS. BINDUMOL JOSEPH SRI.S.EASWARAN - R2 PUSHKARAKSHAN V.P - R1 SRIVIDYA K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12173 OF 2012 2 ## **P.V.KUNHIKRISHNAN, J ------------------------------W.P.(C)No. 12173 of 2012** **-------------------------------Dated this the 15[th] day of February, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(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._ _(c) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.”[SIC]_ 2. The petitioner herein is the resident of B.P Angadi, in Tirur Taluk, Malappuram District. He is the nominee/assignee in a loan transaction and in an WP(C) NO. 12173 OF 2012 3 insurance coverage for the same of her son Yahiya. The petitioner's son Yahiya had taken a 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 the death of Yahiya and the policy is valid with effect from 19.03.2008. Ext.P1 is the certificate of insurance. The petitioner's son Yahiya died on 23.03.2008 on the date of his marriage due to heart attack. Though Yahiya died after taking the insurance policy, the 2[nd] respondent did not pay back the loan with the 1[st] respondent and rejected the claim stating that there is a clause in Ext.P1 which says that no claim will be admissible within the first 45 days from the date of admission of the borrower under the Scheme. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Standing counsel appearing for respondents 1 and 2. 4. The learned counsel for the petitioner WP(C) NO. 12173 OF 2012 **==> picture [7 x 8] intentionally omitted <==** reiterated his contentions in the writ petition. The counsel takes me through the Summary of terms and conditions of the scheme in Ext.P1. The counsel submitted that Clause 5 only says that no claim will be admissible within the first 45 days from the date of admission of the borrower under the Scheme except in a case where the death is due to an accident. The counsel submitted that the petitioner's son's death was an accident and the accident is not defined in the policy. The counsel also relied on the judgment of the Apex Court in _**Life Insurance Corporation of India and another v. Hira lal [(2011) 14 SCC 445]**_ . The counsel submitted that since heart attack is an accident and that also happened on the date of the marriage of the petitioner's son, the 2[nd] respondent ought to have cleared the loan based on Ext.P1 certificate of insurance. 5. The learned Standing counsel appearing for the 2[nd] respondent seriously opposed the submission of the petitioner. The counsel takes me through Ext.P5 WP(C) NO. 12173 OF 2012 5 order by which the 2[nd] respondent rejected the claim of the petitioner. The counsel submitted that Ext.P5 is not challenged in this writ petition. The counsel also submitted that Ext.P5 is dated 11.08.2008 and the writ petition is filed only on 28.05.2012. The learned Standing counsel submitted that even for approaching the Insurance Ombudsman, there is a time limit of one year. Even after the expiry of that time limit, this writ petition is filed. The learned counsel also submitted that the original policy is not produced by the petitioner. Therefore, this Court may not interfere with Ext.P5 in the light of the above facts. 6. The learned Standing counsel appearing for the 1[st] respondent submitted that a huge amount is due to the 1[st] respondent bank and there is an interim order in this writ petition and therefore there may be a direction to the petitioner to pay the amount. 7. This Court considered the contentions of the petitioner and the respondents. I perused Ext.P5 which 6 WP(C) NO. 12173 OF 2012 is the order passed by the 2[nd] respondent rejecting the claim of the petitioner. In Ext.P5 itself it is stated that the petitioner can approach the Insurance Ombudsman, if there is any grievance to the petitioner. I perused Ext.P1 which is the policy certificate. It will be better to extract Clause 5 of the Summary of terms and conditions of the scheme in Ext.P1: _“5._ _**Benefits:** In the event of death of the insured housing loan borrower due to any cause, the Sum Assured would become payable to the Group Administrator. The Sum Assured will be equivalent to the outstanding loan amount including interest as per the original EMI schedule._ _No claim, however,_ _**(except death due to an accident)** will be admissible within the first 45 days from the date of admission of the borrower under the Scheme. For other exclusions, please refer to the Group Administrator._ _Premium paid under this policy is eligible for tax rebates under Section 80(C) of the Income Tax, Acts 1961, as applicable._ _*This is only a summary. Full text of the terms and conditions are contained in the Master Policy issued by SBI Life in the name of the Group Administrator.” [underline and emphasis supplied]_ ## 8. Clause 5 says that no claim, however, (except WP(C) NO. 12173 OF 2012 7 death due to an accident) will be admissible within the first 45 days from the date of admission of the borrower under the Scheme. According to the petitioner, it is an accident. The counsel relies on the Supreme Court judgment in _**Life Insurance Corporation of India and another v. Hira lal [(2011) 14 SCC 445]**_ . On the other hand the learned Standing counsel appearing for the 2[nd] respondent opposes the contentions of the petitioner and submitted that the claim of the petitioner is barred by limitation. In such situation, the remedy of the petitioner is to approach the Insurance Ombudsman within time and the petitioner filed this writ petition after about 4 years from the date of Ext.P5. I perused the Insurance Ombudsman Rules, 2017. On a reading of Rule 14 (3) and (4) of the Insurance Ombudsman Rules, 2017, it is clear that the Ombudsman has got the power to condone the delay if a reasonable explanation is given. Here is a case where the son of the petitioner died on the date of his marriage. The petitioner and her WP(C) NO. 12173 OF 2012 8 son availed a loan from the 1[st] respondent bank. The bank rejected the claim of the petitioner as per Ext.P5. The only reason to reject the claim is that the petitioner's son died within 45 days from the date on which the policy was taken. This writ petition is filed on 28.05.2012. There is an interim order passed by this Court staying the recovery proceedings on 29.05.2012 and even now the interim order is in force. The petitioner has got a case that he can explain the delay in approaching the Insurance Ombudsman, if this Court is not inclined to consider this matter on merit. The counsel submitted that it is a case in which injustice is done by the respondents. 9. I think there is some force in the argument of the petitioner. I don't want to make any further opinion in this case. It is a matter to be decided by the Ombudsman. The petitioner is free to challenge the rejection of the claim before the Insurance Ombudsman by filing a complaint with a delay condonation petition. WP(C) NO. 12173 OF 2012 9 While calculating the delay, the Ombudsman will exclude the period from 28.05.2012 to this date. As far as the period from Ext.P5 to 28.05.2012, the petitioner is free to explain her reason for that delay. The Insurance Ombudsman will consider the same in accordance to law after giving an opportunity of hearing to the petitioner and respondents. 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_ WP(C) NO. 12173 OF 2012 **==> picture [13 x 10] intentionally omitted <==** _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._ - _vi. All the contentions raised by the petitioner and the respondents about the merit of the case and the delay aspect are left open._ Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 12173 OF 2012 11 ## **APPENDIX OF WP(C) 12173/2012** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF INSURANCE VALID FROM 19.03.2008 ISSUED BY THE 2ND RESPONDENT DATED 02.04.2008. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF THE HOSPITAL TREATMENT OF YAHIYA DATED 09.07.2008. EXHIBIT P3 TRUE COPY OF THE DEATH CERTIFICATE OF YAHIYA DATED 28.03.2008. EXHIBIT P4 TRUE COPY OF THE CLAIM PETITION/CLAIMANTS STATEMENT DATED NIL. EXHIBIT P5 TRUE COPY OF THE REJECTION ORDER BY THE RESPONDENTS DATED 11.08.2008. EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT DATED 08.02.2012. RESPONDENTS EXHIBITS : EXHIBIT R1(A) A TRUE COPY OF THE AGREEMENT LETTER DATED 14.01.2008. //TRUE COPY// PA TO JUDGE