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Date of Filing 24-08-2022

Date of Order 14-11-2022

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, DINDIGUL

PRESENT : THIRU. M. PIRAVI PERUMAL, B.Com., B.L., ADCL – PRESIDENT
TMT. P. SHANMUGAPRIYA, M.Sc., DLLAL. – MEMBER – I
THIRU. S. NAGENDRAN, B.Com., - MEMBER - II

C.C. 239/2022
MONDAY THE 14TH DAY OF NOVEMBER 2022

Aachi Muthu,
S/o.Aachi Muthu,
15-43, SF, Muthu Nagar,
Kariyampatti,
Silukkuvarpatti (Via),
Nilakottai (Taluk),
Dindigul District. .. Complainant

.. Vs ..

The Regional Manger,

Jana Small Finance Bank Limited.,
Regional Office,
1st floor, Door No.28/36,
South West Boke Road,
T.Nagar,
Chennai – 17. .. Opposite party

This complaint is coming for hearing before us on 9th day of November,

2022 in the presence of Thiru.M.Allwyn Amala Prasanna, Counsel for the
complainant, opposite party not filed their written version, called absent and set-
exparte, perused the complaint and complainant side documents, and the case
having stood over to this day for consideration, this Commission passed the
following:
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ORDER
THIRU. M. PIRAVI PERUMAL, B.Com., B.L., ADCL – PRESIDENT
1. The crux of the complaint is : -
The complainant’s wife on .02-02-2019 had availed a loan of Rs. 60,000/-
from the opposite party. The tenure of the loan is 24 months. The equated
monthly instalment for the said loan is Rs. 3,240/-. At the time of disbursement
the opposite party had collected a sum of Rs. 1,484/-. As insurance premium for
insurance coverage the ICICI Life Insurance Company and the sum assured being
Rs. 60,000/-. The complainant’s wife had repaid the loan from the month of April
2019 to the month of March 2021. Due to COVID pandemic she was not able to
pay the EMI for the months of April 2020 to July 2022 and the RBI had announced
moratorium. Subsequently on 27-05-2021 she expired and upon which the
opposite party had not settled the claim amount. The complainant had issued
lawyer notice dated 17-10-2021 to the opposite party and they had sent a reply
dated 16-11-2021 with false averments. The complainant had alleged deficiency in
service and had lodged the complaint seeking to direct the opposite party to pay
the claim amount of Rs. 60,000/- with interest, compensation and cost.

2. The complainant to prove his complaint had filed proof affidavit along
with 11 and the same has been marked as Exhibit A-1 to A-11.

3. The points for consideration are : -

1. Whether there is deficiency in service on the part of the opposite party ?
2. If so to what relief the complainant is entitled for ?

4. POINT NO. 1
We have carefully gone through the pleadings in the complaint, proof
affidavit of the complainant and documents marked on the side of the
complainant.
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5. It has been averred by the complainant in his complaint that his wife on
02-02-2019 (as per Ex.A-1 dated.22-02-2019) had availed a loan of Rs. 60,000/-
from the opposite party as can be evidenced from Exhibit A-1. The tenure of the
loan is 24 months. The equated monthly instalment for the said loan is Rs.3,240/.
At the time of disbursement the opposite party had collected a sum of Rs.1,484/-.
As insurance premium for insurance coverage the ICICI Life Insurance Company
and the sum assured being Rs. 60,000/-. On perusal of Exhibit A-2 it can be
evidenced that the opposite party had collected the insurance premium. The
complainant’s wife had repaid the loan from the month of April 2019 to the month
of March 2021. Due to COVID pandemic she was not able to pay the EMI for the
months of April 2020 to July 2022 and the RBI had announced moratorium, despite
the same the opposite party had pestered her for repayment of the dues.
Subsequently on 27-05-2021 she expired as can be evidenced from the death
certificate which has been produced and marked as Exhibit A-3. Subsequently, the
complainant had sought for settlement of the insurance claim from the opposite
party but in vain. Hence the complainant had issued a lawyer notice and the
opposite party had a categorical reply.

6. Aggrieved by the non-settlement of the insurance claim the complainant

had issued lawyer notice dated 17-10-2021 to the opposite party which can be
evidenced from Exhibit A-9 and the opposite party had sent a reply dated 16-11-
2021 with false averments vide Exhibit A-10. The complainant had alleged that
non-settlement of the claim amount by the opposite party amounts to shortcoming
and imperfection on the part of the opposite party. At this juncture it would be
appropriate and apposite on our part to refer to Exhibit A-1 wherein it has been
clearly stated as follows ; -
The settlement of the claim is at the sole discretion of the ICICI Life
Insurance Company and neither Jana Small Finance Bank nor its
officers shall be liable for rejection of claim on any grounds
whatsoever.
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The complainant had approached this Commission and had sought relief to direct
the opposite party finance company which had issued the loan to settle the
insurance claim amount to the complainant. It is pertinent to note that the
opposite party is a financial institution which had extended the loan to the
complainant also and collected insurance premium for policy to be issued by the
ICICI Life Insurance Co. Therefore it is the duty of the said insurance company to
process insurance claim and settle the same if the claim is found in order and the
opposite party in the case in hand to role to play. Being so we are unable to
attribute any negligence or shortcoming or imperfection in the services of the
opposite party financial institution.

7. We on perusal of the records noticed that the complainant has not

produced and placed the insurance policy in question before us. The copy of the
insurance policy is imperative and crucial for adjudication of the complaint since
we have to see whether the insurance policy in question is life insurance policy or a
policy issued for the loan availed by the complainant its terms and conditionsetc.
The complainant had also not taken any steps to file any application to seeking to
direct the opposite party to furnish copy of the insurance policy. In the absence of
the insurance policy we are blinded folded. Moreover the complainant had
miserably failed to implead the ICICI Life Insurance Company which according to
the complainant had issued the policy in question. The said insurance company is
a necessary party for adjudication of the complaint and as such the non-impleading
of them is bad for non-joiner of necessary party. If the insurance company which
is alleged to have issued the policy in question they will place all records and put
forth their contentions. Thus failure on the part of the complainant to produce the
insurance policy or implead the insurance company as a party to the complaint
proves fatal to the case of the complainant. The complainant had miserably failed
to prove and establish his case by letting in cogent and tangible evidence and also
to implead necessary party. In the absence of the same the contents of the
complaint filed by the complainant remain mere bald allegations.
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8. We are of the view that the onus is on the complainant to prove and
establish his case by letting in cogent and tangible evidence. We may at this
juncture refer to the decision of the HON’BLE SUPREME COURT in the case titled
as
RANVEET SINGH BAGGA
VS
KLM ROYAL DUTCH AIRLINES
Reported in 2000 (1) SCC 66, wherein the distinction between a deficiency
in service and negligence is brought out. This Court held:
"6. The deficiency in service cannot be alleged without attributing
fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be
performed by a person in pursuance of a contract or otherwise in
relation to any service. The burden of proving the deficiency
in service is upon the person who alleges it. The complainant has,
on facts, been found to have not established any willful fault,
imperfection, shortcoming or inadequacy in the service of the
respondent. The deficiency in service has to be distinguished from
the tortuous acts of the respondent. In the absence of deficiency
in service the aggrieved person may have a remedy under the
common law to file a suit for damages but cannot insist for grant of
relief under the Act for the alleged acts of commission and omission
attributable to the respondent which otherwise do not amount
to deficiency in service ...... If on facts it is found that the person or
authority rendering service had taken all precautions and
considered all relevant facts and circumstances in the course of the
transaction and that their action or the final decision was in good
faith, it cannot be said that there had been any deficiency
in service. If the action of the respondent is found to be in good
faith, there is no deficiency of service entitling the aggrieved person
to claim relief under the Act. The rendering of deficient
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service has to be considered and decided in each case according to

the facts of that case for which no hard and fast rule can be laid
down. Inefficiency, lack of due care, absence of bonafide, rashness,
haste or omission and the like may be the factors to ascertain
the deficiency in rendering the service."

9. In yet another judgement of the HON’BLE SUPREME COURT in the case

titled as
SGS INDIA LTD
VS
DOLPHIN INTERNATIONAL LIMITED
in C.A No. 5759/2009 vide its order dated 06-10-2021 had held as follows
The onus of proof of deficiency in service is on the complainant in
the complaints under the Consumer Protection Act, 1986. It is the
complainant who had approached the Commission, therefore,
without any proof of deficiency, the opposite party cannot be held
responsible for deficiency in service.

10. We on perusal of the pleadings and records are of the considered

opinion that first, the material facts constituting deficiency in service are blissfully
absent in the complaint as filed by the complainant. Further, the initial onus to
substantiate the factum of deficiency in service committed opposite party is
primarily on the complainant. It is the complainant who had approached the
Consumer Commission with the consumer complainant, therefore, without any
proof of deficiency, the opposite party cannot be held responsible for deficiency in
service. In view of the foregoing discussion the onus of proof that there was any
deficiency in service on the party of the opposite party is on the complainant.
Mere averments in complaint is not evidence and the complainant is obliged to
provide facta probanda and facta probantia. It is the duty of the complainant to
produce sufficient evidence to prove his case, which is missing. The present
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consumer complaint completely lacks facta probantia and ought to be dismissed

on that ground alone.

11. Sequel to the above discussion we hold that the opposite party are not
guilty of deficiency in service or unfair trade practice as the complainant has
miserably failed to prove and establish his case. Accordingly we answer Point 1
against the complainant.

12. POINT 2
As we have answered Point 2 against the complainant holding that the
opposite party is not guilty of deficiency in service as the complainant had
miserably failed to prove and establish his case hence there is no question of
granting any relief to the complainants sought by them in their complaint.

In the result the complaint is dismissed. No order as to costs.

This order is dictated by the President to the Steno-Typist, transcribed, typed

by her and corrected, signed and pronounced by us in open Commission, today on
this 14th day of November 2022.

(Sdxxxx) (Sdxxxx) (Sdxxxx)

(S.NAGENDRAN) (P.SHANMUGAPRIYA) (M. PIRAVI PERUMAL)
Member - II Member -1 President.

List of documents filed by the complainant side: -

1. Ex. A-1 - Small Batch Loan sanction letter Xerox

2. Ex. A-2 - Repayment Schedule (Moratorium –Post 07 disbursement-
TH

product code 819) Xerox

3. Ex. A-3 - Complainant’s Wife Death Certificate Xerox
4. Ex. A-4 - Legal Heir Certificate Xerox
5. Ex. A-5 - Complainant’s Aadhar Card Xerox
6. Ex. A-6 - Complainant’s Wife Aadhar Card Xerox
7. Ex. A-7 - Complainant’s Son (Aravind) Aadhar Card Xerox
8. Ex. A-8 - Complainant’s Son (Anbarasu) Aadhar Card Xerox
9. Ex. A-9 17-10-2021 Legal Notice & Acknowledgement card Original
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10. Ex. A-10 16-11-2021 Reply legal notice issued by opposite party advocate
Office copy
11. Ex. A-1114-09-2021 Loan Recall Notice Xerox

(Sdxxxx) (Sdxxxx) (Sdxxxx)

(S.NAGENDRAN) (P.SHANMUGAPRIYA) (M. PIRAVI PERUMAL)
Member - II Member -1 President.