BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA 170 of 2012 against C.C. 32/2011, Dist. Forum, Nalgonda
Between:
The Branch Manager
Axis Bank
Miryalaguda Branch
Opp. RTC Bus Stand
Miryalaguda Town
Nalgonda Dist. *** Appellant/
O.P No. 1
And
1. Miryala Aruna
W/o. Late Ashok
2. Miryala Santosh
S/o. Late Ashok
3. Miryala Sharavan
S/o. Late Ashok
4. Miryala Laxmamma *** Respondents/
W/o. Late Laxmaiah Complainants.
(All are R/o. Subbreddygudem
H/o. Alagadapa (V)
Miryalguda (M), Nalgonda (Dist.)
5. Bajaj Allianz General Insurance Company Ltd
R/o. Fareast Plaza, H.No.3-6-111/8,
Street No.18, Himayatnagar,
Hyderabad. *** Respondent/
O.P. No. 2
Counsel for the Appellant : M/s. V. Dharma Suri
Counsel for the Respondent: R1 to R4 (PIP)
M/s. N. Mohana Krishna (R5)
FA 386 of 2012 against C.C. 32/2011, Dist. Forum, Nalgonda
Between:
Bajaj Allianz General Insurance Company Ltd
R/o. Fareast Plaza, H.No.3-6-111/8,
Street No.18, Himayatnagar,
Hyderabad. *** Appellant/
O.P No. 2
And
1. Miryala Aruna
W/o. Late Ashok
2. Miryala Santosh
S/o. Late Ashok
3. Miryala Sharavan
S/o. Late Ashok
4. Miryala Laxmamma *** Respondents/
W/o. Late Laxmaiah Complainants
(All are R/o. Subbreddygudem
H/o. Alagadapa (V)
Miryalguda (M), Nalgonda (Dist.)
5. The Branch Manager
Axis Bank
Miryalaguda Branch
Opp. RTC Bus Stand
Miryalaguda Town
Nalgonda Dist. *** Respondent/
O.P. No. 1
Counsel for the Appellant : M/s. M/s. N. Mohana Krishna
Counsel for the Respondent: R1 to R4 (PIP)
M/s. V. Dharma Suri (R5)
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT. M. SHREESHA, MEMBER
&
SRI S. BHUJANGA RAO, MEMBER
MONDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND TWELVE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
1) These appeals are preferred by the Ops 1 & 2 bank and insurance company respectively against the order of the Dist. Forum directing them to pay Rs. 5 lakhs with interest @ 9% together with compensation of Rs. 5,000/- and costs of Rs. 2,000/-.
2) Since both these appeals arise out of same order, we are of the opinion that they can be disposed of by a common order. The parties are described as arrayed in the complaint for felicity of expression and avoid confusion.
3) The case of the complainant in brief is that complainant No. 1 is the wife, complainant Nos 2 & 3 are children and complainant No. 4 is the mother of late Miryala Ashok who had an S.B. account with Op1 bank under which he got ATM debit card facility wherein in the event of his death in an accident a sum of Rs. 5 lakhs was covered. By virtue of it policy was issued by the insurance company. While so on 8.4.2009 Miryala Ashok died in an accident basing on which a case in crime No. 125/09 u/s 304-A was registered . When the complainants lodged the claim the insurance repudiated it on the ground that no point of sale was made within 365 days, and therefore they were not entitled to any amount. Assailing the repudiation, complaint was filed claiming the amount covered under the policy together with compensation and costs.
4) Op1 bank resisted the case. However, admitted that the deceased was an account holder under which debit card facility was made. Op2 had provided personal accident insurance coverage for a sum of Rs. 5 lakhs. In case of his death an amount of Rs. 5 lakhs could be paid however it was subject to certain terms and conditions. At the time of issuance of debit card a booklet was forwarded to him mentioning terms and conditions. After receipt of claim form the same was forwarded to Op2 insurance company. At any rate the insurance company had to settle the claim it being only a facilitator. As seen from the statement of account there was no point of sale done within 365 days prior to date of loss. Therefore the complainants were not entitled to any amount. He had to maintain minimum average quarterly balance of Rs. 5,000/- in case of urban or metropolitan branches, Rs. 2,500/- in case of semi-urban or rural branches and continued only if the customer makes at least one POS transaction within 365 days. If not the insurance would lapse. They were not liable to pay any amount. Therefore it prayed for dismissal of the complaint with costs.
5) Op2 insurance company equally resisted the case by taking similar pleas that were taken by Op1 bank. While admitting issuance of policy he being a debit card holder however stated that there was no Point of Sale (POS) transaction recorded on the debit card. As per Section II (a) of Special Contingency Policy covering the debit card holder, at least one point of sale transaction has to be done on the debit card prior to 365 days immediately preceding the date of incident which is the cause for claim. The deceased was aware of the requirement. A copy of the booklet was furnished to him at the time of opening the account itself. Therefore they have rightly repudiated the claim and the same was conveyed through their letter dt. 13.7.2009. Therefore there was no deficiency in service on its part, and prayed for dismissal of the complaint with costs.
6) The complainants in proof of their case filed their affidavit evidence and got Exs. A1 to A5 marked while the bank filed the affidavit evidence of its Branch Head and got Exs. B1 to B4 marked, and the insurance company filed the affidavit evidence of its Senior Legal Executive, and got Exs. B5 to B6 marked.
7) The Dist. Forum after considering the evidence placed on record opined that there is no proof to show that the condition pertaining to usage of debit card within 365 days is a condition precedent for coverage of policy was brought to the notice of the deceased, and therefore both the bank as well as insurance company were directed to pay Rs. 5 lakhs covered under the policy with interest @ 9% together with compensation of Rs. 5,000/- and costs of Rs. 2,000/-.
8) Aggrieved by the said order, Op1 bank preferred the appeal FA No. 170/2012 contending that it ought to have seen that it was only a facilitator and it had no liability to pay any amount covered under the policy. It was not liable in regard to insurance transactions.
9) Equally Op2 insurance company preferred the appeal F.A No. 386/2012 contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that having received Ex. B3 copy of debit card usage guide wherein stipulation of usage of card within 365 days was made a mention, and non-usage of it would entail refusal of the claim. Even he did not maintain the minimum balance of Rs. 2,500/- apart from non-usage of the card. The stipulation was binding on him, and therefore prayed that the complaint be dismissed.
10) The point that arises for consideration is whether the complainants are entitled to the amount covered under the policy, and if so by whom?
11) It is an undisputed fact that Miryala Ashok a debit card holder was covered by insurance policy for Rs. 5 lakhs. It is also not in dispute that the cardholder died on 8.4.2009 in an accident evidenced under FIR Ex. A1, followed by panchanama Ex. A2, post-mortem examination Ex. A3. When the complainants laid the claim the same was repudiated under Ex. A4 on the ground that ‘there is no point of sale (POS) transaction recorded on debit card’, a pre-condition for payment of insurance benefit.
12) It may be stated herein that in Ex. B4 International Debit Card Usage Guide under the heading ‘Insurance’ it was specifically mentioned that “to avail of the personal accident insurance cover it is necessary for you to use your debit card at a merchant outlet. The P.A. will be considered to be in force at the time of accident only if you have made a successful payment transaction at any merchant out using your debit card in the 365 days prior to the occurrence of the incident and have maintained a minimum average quarterly balance of Rs. 5,000/- in case your base branch is in an urban or metropolitan branch and Rs. 2,500/- in case your branch is a semi-urban or a rural branch. ”
The bank has maintained Ex. B1 statement of account. A perusal of it shows that the deceased did not make even a single transaction using the debit card within 365 days having received the card from the bank on 1.2.2007. In the light of above the complainants are not entitled to the benefits as per the terms and conditions of the policy. The contention that the deceased was not aware of the conditions nor he was informed about these stipulations cannot be accepted in the sense that they could not have stated so when such an information pertained to the deceased. When the stipulation for coverage of policy is clearly made a mention it cannot be said that the deceased was not aware of said condition.
13) The Hon’ble Supreme Court in Vikram Greentech (I) Ltd., Vs. New India Assurance Company Ltd., reported in II (2009) CPJ 34 (SC) held:
“An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. [General Assurance Society Ltd. Vs. Chandumull Jain and another AIR 1966 SC 1644, Oriental Insurance Co. Ltd. Vs. Sony Cheriyan (1999) 6 SCC 451 and United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal (2004) 8 SCC 644]
14) In view of the above, we are of the opinion that the Dist. Forum was not correct in directing both the appellants to pay the amount covered under the policy. The policy has not come into force in view of the fact that the deceased did not use the debit card at least once within a period of 365 days prior to his death. Therefore neither the bank nor the insurance company could be made liable for payment of amount. Therefore, we are of the opinion the Dist. Forum was erred in directing the appellants to pay the amount covered under the policy.
15) In the result the appeals are allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) ________________________________
MEMBER
30/07/2012
*pnr
UP LOAD – O.K.
