Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.209/22.07.2019
Smt. Sushma Singh w/o Late Pawan Kumar Singh
R/o 312/313, Triveni Apartment, Jhilmil Colony,
Vivek Vihar, Delhi-110095 …Complainant
Versus
OP1-The Branch Manager-Axis Bank
Branch At: 4/6/B, Ground Floor, Asaf Ali Road,
New Delhi-110002
OP2-The New India Assurance Ltd.
Mumbai LCBO-II (990000), New India Centre,
Ground Floor, Cooperage Road, Mumbai-400039 ...Opposite Party
Date of filing: 22.07.2019
Coram: Date of Order: 14.05.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services against OPs for want of settlement of personal accident claim that despite her husband account/card holder with the OP1 and he was issued insurance cover by the OP2 but her husband expired in accident, the claimed was raised but it was not settled. The claim was rejected by OPs with the connivance of each other.
1.2. The complaint is opposed by OPs on various grounds that it is barred by limitation, there was no deficiency of services on the part of OPs but the complainant was at her fault for want of furnishing all sets of documents within the stipulated period of 90 days of SLA between OP1 and the OP2. The complainant was at her own fault.
2.1. (Case of complainant) –Complainant Smt. Sushma Singh is widow of Sh. Pawan Kumar; he expired on 17.11.2013 in an accident, for which in DD. No. 17A was registered in P.S. Vivek Vihar, Delhi-110095. Sh. Pawan Kumar Singh was account/card holder of OP1/Axis Bank and insurance policy with OP2/The New India Assurance Company; having complete details - name of customer- Pawan Kumar; card no. 4062289006207423; claim type-death normal person, loss type personal accident, claim amount Rs. 5 lakhs and date of loss 17.11.2013.
2.2. The complainant visited the office of OP1 and submitted all requisite documents on 06.1.2014, however, the final report of the case under DD. No. 17A/17.11.2013 was made available by police authorities in July 2014, that too was also immediately submitted with OP1. But the complainant was not released the insurance claim amount by the OPs, they are in collusion of each other. There was no delay on the part of complainant.
The acts of OPs are showing their bad intension and for want of settlement of claim, it has caused great harassment, mental pain and agony to the complainant. There is breach of contract by the OPs for want of fulfilling the promise made in the form of contact. The complainant was constraint to send legal notice to the OPs, it was served but claim was not settled and the claim was rejected vide letter dated 28.03.2019. That is why the present complaint for claim of sum insured amount of Rs. 5 lakhs and claim of Rs. 50,000/- in lieu of harassment, mental pain and agony, litigation charges of Rs. 10,000/- besides interest at the rate of 24%pa till realization of the amount and other appropriate relief.
2.3 The complaint is accompanied with copies of - identity proof of complainant of the Aadhar Card, Identity card of Sh. Pawan Kumar Singh issued by Delhi Police, debit card no. 4062289006207423 issued by OP1, check-list with acknowledgement seal dated 06.01.2014 of receipt of documents by OP1, letter dated 28.03.2019 issued by OP1 of rejection of claim and undated letter issued by OP2 under the heading claim rejection letter, post mortem report no.2017/13 dt 18.11.2013 inquest report u/s 174 Cr.P.C. under DD. No. 17A/17.11.2013, extract of rojnamcha dated 17.11.2013, pending accident death claim as on 22.05.2018.
3.1 (Case of OP1)- The OP1/Axis Bank opposed the complaint that the cause of action had arisen on 17.11.2013 but the complaint was filed after more than two years, it is barred by prescribed limitation period u/s 24A of the Consumer Protection Act 1986. The OP1 does not carry insurance business but banking functions under the Banking Regulation Act 1949, therefore, it does not offer insurance product. The insurance policy was issued by OP2 but the role of OP1 was just a facilitator/referral agent, therefore, there is no previty of contract of insurance between the OP1 and the insured. The complaint is also liable to be dismissed in terms of section 230 of Indian Contract Act that OP1 as an agent of principal of OP2 cannot be issued. It was an insurance benefit free of cost and there was no consideration. Moreover, as per terms and conditions of debit card and as per the terms of insurance policy, all claims have to be intimated to the insurance company within 60 days of occurrence of the event in case of a lost card for insurance claim for purchase protection and 90 days in case of personal accident insurance claim. The written statement also reproduces the detailed declaration to emphasis that it would have been read over by the husband of complainant. It is also admitted case of complainant that requisite complete set of documents were not submitted to OP1 or to OP2 till July 2014. It is matter of record of documents furnished. No legal notice was received by the OP1 from the complainant. Many paragraphs are legal in nature and they do not require reply. However, no claim, whatsoever it made out against OP1 nor the OP1 has any liability to be fastened with, therefore, the complaint is liable to be dismissed. There is no document furnished in the support of written statement.
3.2.1. (Case of OP2) – The OP2 also opposed the complaint that neither the complainant is a ‘consumer’ nor there is ‘consumer’ dispute and the matter is not covered by the definition of ‘service’. There are triable issues to be determined by the civil court, it cannot be adjudicated in a summary way under the Consumer Protection Act 1986; thus the Consumer Fora lacks the jurisdiction. The complaint is abuse of process of law, it has been filed to harass the OP vis-à-vis the complainant has no locus standi to file the complaint. It is a frivolous complaint.
3.2.2. The OP has closed the claim since complainant failed to provide the documents as per SLA between the OP1 & OP2 and that too within stipulated period, which is 90 days as per standard practice being followed by the OP2. The accidental took place on 17.03.2013 but complainant failed to submit the documents till 2019. The OP had issued letter dated 28.03.2019 to OP1 that the claim was rightly closed. The complainant failed to contact the OP2 for more than 5 years or to submit any document to evaluate the claim.
The OP2 denies all other allegations of the complaint that there is no substance in the complaint and as a matter of fact for want of filling the documents with the OPs, the claim was properly rejected vide letter dated 28.03.2019. OP2 had not received any legal notice dated 24.04.2019 from the complainant. The complaint is without substance, it is a false complaint and for want of any cause of action, it is liable to be dismissed.
4.1 (Replication of complainant) –The complainant filed rejoinder to the written statement of OP1 in brief while reaffirming the contents of complaint as correct vis-à-vis the documents were furnished in time.
4.2. The complainant filed rejoinder to the written statement of OP2 in brief while reaffirming the contents of complaint as correct and the documents were furnished to the OPs but the claim was wrongly closed. The complaint is correct.
5.1 (Evidence) - The complainant Ms. Sushma Singh led her evidence by detailed affidavit, which is on the lines of her complaint with documents.
5.2. The OP1 also led its evidence by filing affidavit of Aasish Sahni, Dy. Vice President and Branch Head and the affidavit is replica of written statement of OP1.
5.3. The OP2 also led its evidence by filing affidavit of Ms. Monica Goyal, Admn Officer (Legal) and her affidavit is on the pattern of written statement of OP2.
6. (Final hearing)- The parties filed their respective written arguments. The parties were also given opportunities for making oral submissions, thence Sh. Lokesh Kumar, Advocate for complainant, Sh. L. R. Goyal, Advocate for OP1 and Sh. Anshuman Jain, Advocate for OP2 presented their submissions.
7.1 (Findings)- The rival contentions are considered keeping in view the case as set up by the parties, their evidence especially the documentary record and statutory provisions of law. There are a few disputes on law points and also on other facts and features of the case. All of them are being considered and rival contention of the parties will be dealt appropriately with the case law referred by the parties. The rival contentions are not being repeated but the same will be considered while appreciating their cases.
7.2.1 The OP2 has reservation that there are complicated question of facts and law involved which cannot be decided in summary procedure by the Consumer Fora, but by the civil court. Whereas, on the other side, it is opposed that the case is a simple case of consumer dispute and it can be determined by the Consumer Court.
7.2.2 As per record as well as during the final hearing, the OP2 could not show as to which material are complicated in nature or mixed question of fact and law to be determined by the Civil Court exclusively or as to how the dispute cannot be determined by the present DCDRC Central District. Therefore, this objection is decided against the OP2 that on the basis of material on record in respect of dispute involved, it can be determined by the present DCDRC on the basis of sufficient material on record. This contention is disposed off.
7.3.1 The next question raised on behalf of OP2 is that neither the complainant is a ‘consumer’ nor she is covered under the definition of ‘services’ but the contentions have been opposed on behalf of complainant.
7.3.2 The answer of this objection is lying in the provisions of Consumer Protection Act 1986 for many reasons there-from. The OP1 is a Banker and OP2 is an Insurer, the debit card was issued to Sh. Pawan Kumar Singh and insurance policy was consequent to opting of that debit card, which is issued exclusively to the account holder. Both the banking services and the insurance services are within the definition of ‘services’ defined u/s 2 (o) of the Act 1986. Secondly, its stand surfaced in investigation and inquest enquiry u/s 172 of CrPC about the cause of death is accident, which is covered under the policy. Thirdly, the complainant is widow of Sh. Pawan Kumar Singh and there is no second opinion that Sh. Pawan Kumar Singh was ‘a consumer’ and on the death of such consumer, his widow as his legal heir/LR can make complaint by virtue of definition of complainant given u/s 2 (b) of the Act 1986 [as amended wef 15.3.2003]. Moreover, by joint reading of definition of ‘complainant’ u/s 2 (b) and of ‘consumer’ 2 (d) together, it clearly makes out that the complainant is competent to write & file the complaint and it is a valid complaint.
7.3.3 The OP1 took the objections that policy issued was without consideration in issuing the insurance policy, however, in view of the discussion in paragraph 7.3.2 above and conclusions therein, it is apparent and also proved that the insurance cover was extended by OP2 since Sh. Pawan Kumar Singh was took debit card from OP1 and debit card is issued to account holder and not to others; there are also usual charges and services charges for the card. These aspect are interrelated with the each other; debit card is condition precedent for insurance policy cover. Therefore, there is consideration and that is why the debit card holder was extended insurance cover within that parameters and arrangements. The OP1’s contentions that insurance policy was issued without consideration is not tenable, especially it also not the case of OP2 that insurance cover was without consideration.
Otherwise. if the analogy of OP1 is accepted that insurance cover under debit card was without consideration, then each of contract will be without consideration and each banker and insurer will take the stand that there is no valid contract for want of consideration. Then for what purposes the debit card with insurance cover would mean? The plea of OP1 is hollow and without any legal sanctity and this type of plea means to avoid the obligation toward insured.
8.1. The other objection is on the point of limitation. According to OP1, the complaint filed on 22.07.2019 is barred by prescribed period of limitation since the date of accident was of 17.03.2013 and the limitation period prescribed is of two years as per section 24A of the Act 1986. Further OP1 makes reference of Richard Raja Singh Vs. Ford Motor Company (without citation) and BS Agricultural Industries Vs. SBI II 2009 SLT 793 . But it is opposed by the complainant that the complaint was filed after rejection of claim by the OPs and it is within time from that date.
8.2. The documentary records proved gives answer of this objection. It is apparent that OP1 is considering the date of accident of 17.11.2013 as a cause of action for computing period of two years but the complainant is making rest on the letter dated 28.03.2019 of rejection of the claim. It is but natural for the complainant to file the complaint only after rejection of the claim by the OPs and that rejection was through letter dated 28.03.2019. In other words, the claim was pending for processing with OPs prior to letter dated 28.03.2019. The OPs have not proved any other documentary record that the claim was rejected prior to 28.03.2019 or it was communicated to the complainant. Thus, the complaint is within prescribed period by computing period of two years from 28.3.2019. Had the complainant filed complaint prior to letter dated 28.03.2019, the OPs would have protest that it was filed prior to decision on claim by the OPs.
It is relevant to mention here that the complainant mentions legal notice dated 24.04.2019 in the complaint but it was not filed nor proved vis-à-vis the legal notice does not always give rise cause of action. With this observation the contentions on the point of limitation stand disposed off.
9.1 So far other and remaining issues are concerned, the following are the discussion and conclusions:-
(i) The OP1 contends that it is just a facilitator/an agent, therefore, by virtue of section 230 of Indian Contract Act, it is not liable but Principal of agent. The OP1 also refers case law (a) A. S. Pai Vs. Delux Roadlines III (1995) CPJ 44 NC; (b) Overseas Marine & Transport Company Vs. Gupta Carpet Palace & Ors. I (2009) CPJ 187 NC; (c) Master Trust Ltd. Vs. Reeta Verma I (2002) CPJ 32; (d) Banka Finance and Investment Services Vs. Sucha Singh Bhati III (2001) CPJ 398 and (e) Suresh Chandra Parerk Vs. Ram Vilas II (2001) CPJ 543. However, the complainant has reservations that OP1 has been properly impleaded being a proper and necessary party, section 230 of the Indian Contract Act does not bar it, the complainant also refers Marine Container Services South Pvt. Ltd. Vs. Go Go Garments AIR 1999 SC 80 in support of her this plea.
It is apparent from discussion and conclusions in other paragraphs that the role of OP1 is not just of issuing the debit card and matter ends. There is reciprocal arrangement between the OP1 and the OP2, which they also refer. It is also apparent that OP2/Insurer does not entertain the insured directly but through OP1/Banker, who issued the debit card. Therefore, the OP1 cannot take shelter of section 230 of the Indian Contract Act, 1872 to escape from the proceedings, especially the claim was lodged with OP1 to be finalized by OP2. Thus, the complaint is not bad for joining OP1 as a party to the complaint.
(ii) There are also reservations as on the one side, the OP1 contends that there is SLA between the OP1 and OP2, which prescribes period of 90 day for furnishing the documents and OP2 contends that there is standard practice for furnishing claims within 90 days. The OP1 also reproduces upon declaration, which was supposed to be gone through by the insured.
However, neither OP1 nor OP2 have filed or proved any such record of SLA [service level agreement] to substantiate their plea of 90 days or a standard practice being followed by OP2 nor the document containing such declaration. In case there is an inter-se arrangement between the OP1 and the OP2, how a third party/account holder/card holder/insured would know that practice of 90 days. The third party could know it only when such terms and conditions would have been provided to the insured, but is not the plea of OPs. There is also no proof of terms and conditions of such arrangement or policy or its supply to the insured. Moreover, reproduction of declaration clause in the written statement itself proves that the insured was not provided with record of such terms and conditions, if any.
In fact, the terms and conditions are required to be provided to the customer/insured. In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
(iii) The parties have also reservation about the furnishing of documents and in fact OP1 has vehemently stated that the accident took place on 17.03.2013 but the documents were not furnished till 2019, which has been strongly opposed on behalf of complainant that documents were furnished immediately after receiving of the same and there is acknowledgement dated 06.01.2014 by the office of OP1. The final police report was received subsequently in July 2014 and immediately it was furnished. Similarly, the OP1 also emphasizes that documents ought to have been furnished in time but OP failed.
On perusal of the entire case of the OPs, in nutshell the OPs maintained that complainant failed to furnish all the documents in time and because of her fault, the claim was declined. It needs to refer the record. Paragraph-5 of the complaint mentions that documents were given to OP1 on 06.01.2014 under acknowledgement and final police report in July 2014. The OP1 in its reply to paragraph-5 of the complaint states that it is matter of record; thus plea of complainant stand admitted by OP1. The complainant has proved check-list of document (at page 13 of the paper book) wherein 11 documents were received on 06.01.2014 under the seal and signature of OP1.
But OP2 in para 5 of its written statement replies that complainant failed to furnish all the documents for more than 5 years. But, the complainant has also proved letter dated 23.01.2014 issued by OP1/ Bank and the complainant was asked to furnish them 'final police report'. The complainant has also proved final inquest report u/s 174 CrPC as provided to her by police authorities. This clearly shows that till 23.01.2014 the OP1 was requiring a single document of police report and till that date the final police report was not available or ready, it came into existence subsequently. The complainant could furnish to the OPs after receipt thereof and not prior to it. There is no counter plea of OP2 to para-5 of the complaint. It clearly establishes that the plea of OP2/insurer is contradictory to the stand of OP1/banker as well as the complainant had furnished all the documents available to OP1 under acknowledgement on 06.01.2014 and the police report was furnished when it was made available by the police authorities. The stand of OP2 that documents were not furnished for 5 years is not tenable. It would also not be out of context to mention that inquest report gives details of there post-mortem of deceased, chemical examination of viscera by FSL, its opinion and then report was finalized, which took time.
(iv) It also proves that documents were already received by OP1 under acknowledgement on 06.01.2014 from the complainant, then why it were not forwarded to OP2 if the plea of OP2 is considered for want of receipt of record for more than five years. It is deficiency of services on the part of OP1. If the papers were forwarded to OP2, then the plea of OP2 is wrong and unacceptable.
(v) The OP1 and the OP2 justify rejection of claim and according to them the claim was rejected because of delay in submission of documents as per SLA. Whereas, it is opposed by the complainant that both OP1 and OP2 were in collusion and that is the claim was declined.
It needs to refer the record, especially letters issued by OP1 and the OP2. The complainant has proved OP1’s letter dated 28.03.2019 (page no. 18 of the paper book) that complainant’s claim was rejected on ground of delay in submission of claim documents as well as the competent authority reserves the right for repudiation of the claim. The complainant has also proved OP2’s letter under the title 'claim rejection letter' (at page no. 19 of the paper book) it contains the same reason as mentioned in the letter dated 28.03.2019. However, by reading both the letters together by putting them side by side, it reflects that letter dated 28.03.2019 issued by OP1 narrates that claim has been rejected by the insurance company and it also mentions the reasons, meaning thereby letter dated 28.03.2019 is subsequent to the other letter issued by New India Insurance Company Ltd/OP2 but the letter of OP2 does not mention any reference number, date of issue, designation of the author of the letter or its name.
Further, paragraphs-1 (preliminary objection) and paragraph-6 &7 of on merits of the written statement of OP2 mentions that the claim was closed or rightly closed, this expression mentioned in the written statement is contrary to the expression mentioned by OP2 in its undated letter or by OP1 in its letter dated 28.03.2019 that the claim was rejected or it may be repudiated by the competent authority as such right is reserved by them. It is settled law OP cannot take defence beyond the ground mentioned in such deceling letter as held in -
(a) In Saurashtra Chemicals Ltd Vs NIC 2019 19 SCC 70 (while relying upon Galada Power and Telecommunication Ltd. Vs United Insurance Co,. Ltd 2016 14 SCC 161), it was held that it is settled position that an insurance company cannot travel beyond the ground mentioned in the letter of repudiation, they cannot do so at the stage of hearing of consumer complaint before NCDRC.
(b) Further in JSK Industries Pvt Ltd. Vs Oriential Insurance Co. Ltd Civil Appeal No.7930/2022 dod 18.10.2022, it is held that repudiation letter is an important document in case of insurance claim. The wordings of repudiation letter should be clear and include all possible valid ground of repudiation. Since in later stages or in court of law, an insurance company cannot take stand other than what is mentioned in the repudiation letter.
(v) The facts, features and circumstances are also speaking a volume that the role of OP1 is not just as a banker in the present case but more than that as the OP1 was collecting documents etc. from the aggrieved persons to collect/process the claim for and on behalf of OP2 vis-à-vis the OP2 does not entertain direct claim from the insured but through the banker/OP1. The role and function of OP1 and role and function of OP2 are complementary and supplementary to each other.
(vi) The aforementioned discussion and analysis, clearly establish that the complainant has proved the circumstances of accident to her husband, who died on 17.11.2013 and final report by the police was prepared after post-mortem, chemical examination by FSL and then opinion thereon. The complainant has also proved other circumstances that her husband was issued debit card, against which there was insurance sum insured of Rs. 5 lakhs, which OPs failed to pay despite making claim. This is deficiency of services on the part of OP1 and OP2.
9.2. Thus, the complainant is held entitled for claim of sum insured of Rs. 5 lakhs in her favour and against OP1 and OP2 jointly and severally.
9.3. The complainant has claimed interest at the rate of 24%pa till realization of the amount, however, the complainant could not prove her this claim. Therefore, the request for interest is declined.
10.1 The complainant seeks compensation of Rs.50,000/- in lieu of the inconvenience, harassment and agony suffered, besides cost of Rs. 10,000/- but no method for quantification is mentioned by complainant, therefore, it appears to be a rough assessment. The circumstances are showing that complainant had suffered inconvenience and harassment for want of settlement of claim. Moreover, the complainant was not informed of the progress of claim but wrote letter dated 28.03.2019 after 5 years from previous letter dated 23.01.2014 of OP1. Thence, complainant filed the present complaint, which was also opposed on such unsuccessful stand. Therefore, compensation of Rs.20,000/-and cost of Rs.8000/- are ideal in this case and accordingly it is determined in favour of complainant and against the OPs.
11.1 In view of the above, the OP1 & OP2 are directed to pay jointly and/or severally to complainant the sum assured amount of Rs.5,00,000/- apart from compensation of Rs. 20,000/- and cost of Rs. 8,000/-. This amount will be payable within 45 days from the date of this order, failing to pay the amount in that time, then amount will be payable with interest at the rate of 4% pa on amount of Rs.5,00,000/-. The OPs may also deposit the amount in the form of valid instrument in the name of complainant in the Registry of this Commission.
12. Announced on this 14th day of 2024 [वैशाख 24, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs54]
Item No. 22
CC- No.209/2019
14.05.2024 - [Proceedings]
Appearance - Complainant in person.
None for OP1 today.
None for OP2 today.
It is scheduled today for final orders. By separate reasoned order authored by the President of this Commission, announced and signed today, the complainant is partly allowed in favour of the complainant and against the OP1 and the OP2 as concluded in the final order. The parties are apprised of right of appeal. The file be consigned to record room after proper pagination. [complainant requests that the free copy is to provide physically in the Commission, the Registry is directed to provide free copy under acknowledgement as per rules].
[Rashmi Bansal] [Inder Jeet Singh]
Member (Female) President
