Kerala High Court
Jameela vs The State Bank Of India on 17 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WA NO. 340 OF 2022
AGAINST THE JUDGMENT IN WP(C) 12173/2012 OF HIGH COURT OF KERALA
APPELLANT:
JAMEELA
AGED 61 YEARS, W/O. SAKIR AHAMMED,
PALATHINGAL HOUSE, VENGALOOR VILLAGE,
B.P.ANGADI (PO), TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.
JAMSHEED HAFIZ
K.K.NESNA
RESPONDENT/S:
1 THE 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.
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, MADAMA CAMA ROAD,
NARIMAN POINT, MUMBAI-400021.
BY ADV SRI.S.PUSHKARAKSHAN, STANDING COUNSEL (B/O)
SMT. BINDUMOL JOSEPH, SC FOR R1
SRI.S.EASWARAN, SC FOR R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.340 of 2022
2
JUDGMENT
Dated this the 17th 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
1st petitioner and may direct him to close the loan
amount with the 1st respondent.
(b) Issue a writ of Mandamus or any other appropriate writ
or direction, directing the 1st 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
W.A.No.340 of 2022
loan from the 1st respondent and the loan amount was
insured with the 2nd 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 2nd respondent did not pay back the
loan amount with the 1st 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
W.A.No.340 of 2022
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.
W.A.No.340 of 2022
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.
W.A.No.340 of 2022
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
W.A.No.340 of 2022
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
W.A.No.340 of 2022
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
W.A.No.340 of 2022
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
W.A.No.340 of 2022
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
