Allowed

Daya, v. the Branch Manager

Kerala HC1 Dec 2023WP(C)/7474/2023

Case brief

AI extract

What is this about?

This judgment allows a writ petition filed by a widow seeking benefits under a Chitty Scheme where amounts were written off upon the subscriber's death subject to default. The court set aside an order denying the benefit due to defaulted instalments during the husband's hospitalization prior to death.

What did the court decide?

Set aside Ext.P9 and directed KSFE to rehear the petitioner within three months, considering observations regarding hospitalization default.

Daya, Vs the Branch Manager — Consumer Protection | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 1^ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945

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WP(C) NO. 7474 OF 2023

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PETITIONER:

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DAYA S., AGED 54 YEARS, W/O LATE RAJAGOPAL, SREEVARAHAM, RAMESWARAM NAGAR-142, KOLLAM - 691012

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V.I.RAHUL SHIFA LATHEEF

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RESPONDENTS:

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1 THE BRANCH MANAGER KERALA STATE FINANCIAL ENTERPRISES LTD, OACHIRA BRANCH, OACHIRA P O, KOLLAM, PIN - 690526

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2 THE MANAGING DIRECTOR KERALA STATE FINANCIAL ENTERPRISES LTD "BHADRATHA",MUSEUM ROAD, THRISSUR, PIN - 680020

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BY ADV K.A.SALIL NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 7474 OF 2023

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JUDGMENT

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The petitioner's husband, who she unfortunately lost, had subscribed to a “Chitty” from the Kerala State Financial Entreprises; and she has filed this writ petition impugning Ext.P9, whereby, the benefit of Ext.P10 Scheme has been denied to her. She says that, as is evident from the said Scheme, when the subscriber of a “Chitty” dies pending its payment, certain amounts are liable to be written off; but that this has been denied to her unfairly and illegally.

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The petitioner says that she, therefore, approached this Court earlier, to obtain Ext.P8 judgment, but that even though a learned Judge of this Court directed the KSFE to consider her case under Ext.P10, it has been rejected in Ext.P9, merely saying that her husband had committed default in payment of the “Chitty” before his unfortunate demise; and therefore that the Scheme will not be applicable to his case.

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The petitioner argues that this is illegal and unlawful because, Ext.P10 does not mandate any such prescription, particularly when it is virtually admitted that her husband was in hospital two months prior to his unfortunate death, thus being

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WP(C) NO. 7474 OF 2023

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unable to pay two of the subscriptions in time. She thus prays that Exts.P6 and P9 be set aside and the KSFE be directed not to continue with any recovery against her for the “Chitty” transaction availed of by her late husband, in terms of Ext.P10.

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Sri.K.A.Salil Narayanan – learned standing counsel for the KSFE, in response, submitted that, as evident from Ext.P9, the petitioner has been denied the benefit of Ext.P10 Scheme because, when her husband unfortunately died on 23.04.2022, there were two instalments in default. He submitted that Ext.P10, normally, would apply only to the case of a person who had been prompt in making the payment of instalments and hence that the petitioner cannot now maintain this writ petition. He added that, in any event, through Ext.P8 judgment, his client was only directed to consider the petitioner's claim, which has been done through Ext.P9; and thus prayed that this writ petition be dismissed.

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I must say upfront that I cannot find favour with the afore explanation of the KSFE, because, as rightly argued by Sri.V.I.Rahul - learned counsel for the petitioner, prima facie, this is not a case where the petitioner or her husband had committed any deliberate default. She has explained that her

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WP(C) NO. 7474 OF 2023

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husband was hospitalised for a few months before his unfortunate death and that it is only, therefore, there had been a default in the payment of the subscribed instalments. It is also without doubt from Ext.P9 that the KSFE does not have a case that the petitioner's husband had committed any default prior to that; and this indicates that he was a good subscriber, paying the instalments well in time.

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Coming to Ext.P10, Clause 3 of the terms therein would make it apodictic that when a subscriber dies, certain amounts are liable to be written off, but it does not say that this should be contingent upon any instalment being paid or otherwise. That apart, as I have already said above, even if there is any such prescription which can be read into it, in my prima facie view, the petitioner should not be burdened with it because, as rightly argued by her learned counsel, the default happened only because of the unfortunate situation she was placed in, particularly that her husband was hospitalised for two months prior to his death, which was the two months when the default occurred.

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The afore has not been considered by the KSFE in its proper perspective and am certain that Ext.P9 cannot hence find

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WP(C) NO. 7474 OF 2023

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my favour.

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In the afore circumstances, I allow this writ petition and set aside Ext.P9; with a consequential direction to the competent Authority of the KSFE to rehear the petitioner and advert to my observations above; thus culminating in an appropriate fresh order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.

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I make it clear that if the KSFE is to find that the petitioner is entitled to any benefit, it can even be made clear by them that this will not operate as a precedent because, this judgment has been delivered only in the peculiar circumstances presented and taking note of the singular facts involved.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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stu

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WP(C) NO. 7474 OF 2023

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APPENDIX OF WP(C) 7474/2023

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PETITIONER EXHIBITS

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EXHIBIT P1	COPY OF STATEMENT OF THE CHITTY ISSUED FROM KSFE.
EXHIBIT P2	DISCHARGE CERTIFICATE OF THE PETITIONER'S HUSBAND ISSUED FROM KIMS HOSPITAL DATED 11/02/2022 .
EXHIBIT P3	DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND DATED 30/04/2022.
EXHIBIT P4	REPRESENTATION SEND BY THE PETITIONER TO THE FIRST RESPONDENT DATED 01/09/2022
EXHIBIT P5	REPRESENTATION SEND BY THE PETITIONER TO THE SECOND RESPONDENT DATED 01/09/2022
EXHIBIT P6	REPLY LETTER BY THE FIRST RESPONDENT DATED 06-09-2022
EXHIBIT P7	DEMAND NOTICE SENT BY THE FIRST RESPONDENT DATED 22-11-2022
EXHIBIT P 8	CERTIFIED COPY OF JUDGEMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WP(C ) 40388/2022 DATED 19-12-2022.
EXHIBIT P9	NOTICE ISSUED BY THE SECOND RESPONDENT DATED 03-01-2023
EXHIBIT P10	CIRCULAR NO 49/2020 ISSUED BY THE SECOND RESPONDENT DATED 10/08/2020

Daya, v. the Branch Manager

Case brief

What is this about?

What did the court decide?

Daya, v. the Branch Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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