BETWEEN:

1. Krosuri Sreeravamma, W/o. late Venkateswara Rao

2. Krosuri Ananya, D/o. late Venkateswara Rao

    Being minor rep. by her next friend, mother cum guardian

    Krosuri Sreeravamma (1^st complainant)

    Complainants 1&2  residents of C/o. Teppalli Jaganndham,

    Door No.11-29-1/1, Ramireddy Pet,

    Narasaraopet, Guntur District.

3. Krosuri Venkayamma, W/o. Butchaiah

4. Krosuri Butchaiah, S/o. Rama Swamy

    Complainants 3&4 resident of Ponugubabu Village,

    Phirangipuram Mandal, Guntur District.                 … Complainants

AND

1. Axis Bank Limited,

    Rep. by its Manager,

    Narasaraopet Branch,

    Door No.9-9-9 & 9-9-10, Bank Street,

    Arundelpet, Narasaraopet.

2. The President (Retail Banking),

    Axis Bank Limited,

    Office at ‘TRISHUL’ opp. Samartheswar Temple,

    Near Law Garden, Ellisbridge,

    Ahmedabad – 380 006.

3. The Managing Director,

    Bajaj Allianz General Insurance Company Ltd.,

   952/954, Appasaheb Marathe Marg,

    Prabhadevi, Mumbai – 400 025.                      … Opposite parties

              This complaint coming up before us for final hearing on                      31-03-11 in the presence of Sri P.Venkateswarlu, Advocate for complainant and of Sri K.Ramamohan, Advocate for OPs 1&2, Sri K.Srinivasa Rao, Advocate for OP3, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

        This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay an amount of Rs.5,00,000/- to the complainants with interest at 18% p.a. from the date of repudiation, to pay an amount of Rs.2,50,000/- towards deficiency of service and to pay an amount of Rs.2,50,000/- towards mental stress and for costs of complaint.

The averments of complaint in brief are as follows:

                The husband of 1^st complainant, father of 2^nd complainant, son of complainants 3 and 4 viz. Krosuri Venkateswara Rao has enrolled himself as a member of easy access fraternity of opposite parties 1 and 2 and he was allotted an account number with a  corresponding customer identification number and also issued passbook.  The 3^rd opposite party has got tie-up with opposite parties 1 and 2 and that thereby the said Venkateswara Rao was covered with insurance under policy to a tune of Rs.5,00,000/-.  Subsequently, the said Venkateswara Rao died in a railway accident and a crime was registered under FIR No.02/09 of Narasaraopet Railway Police Station on 01-02-09.  After the demise of said Venkateswara Rao, complainants submitted claim form to opposite parties seeking payment of insured amount of Rs.5,00,000/-.  The opposite parties repudiated the claim of complainant on the ground that “the verification of claim documents reveal that there is NO POINT OF SALE transaction done on card No.4215724760010650 of the deceased Venkateswara Rao.  Thus there is deficiency of service on the part of opposite parties.  Hence, the complaint.

The version of opposite parties 1 and 2 in brief is as follows:       

                The case of complainant is not true on facts and it is not maintainable.  Opposite parties 1 and 2 role is only as corporate agent/facilitator and the actual insurance was issued by 3^rd opposite party and as such opposite parties 1 and 2 are not liable.  The 1^st complainant’s husband Venkateswara Rao opened savings bank account with 1^st opposite party branch on 19-07-07 and thereafter as per procedure, he was issued a debit cum ATM card bearing No. 4215724760010650.  The said debit card was having an accidental insurance coverage for an amount of Rs.5,00,000/- and the said insurance cover was provided by 3^rd opposite party under an arrangement with 1^st opposite party.  The insurance cover under the said debit card can be claimed only on fulfillment of certain terms and conditions and the same is forwarded to all personnel by 3^rd opposite party at the time of availing debit card facility.  The said account holder expired on 01-02-09.  The complainant claimed personal accident insurance cover under the debit card scheme issued by 3^rd opposite party.  As seen from Statement of Account, it is revealed “there is no point of sale (POS) transaction recorded on debit card”.  The said fact was informed to complainant orally.  The 3^rd opposite party is entitled to repudiate the claim of complainant on the aforesaid ground.  The claim form along with necessary documents was forwarded to the office of 3^rd opposite party on 27-02-09.  The 3^rd opposite party repudiated the claim of complainant on the ground “verification of claim documents reveal that there is no POS (point of sale) transaction done on card No.4215724760010650.  Hence, the claim is not liable under the policy”.  The customer should have used the debit card at any merchant establishments at least once prior to his death to activate the personal accident insurance cover.  If not the insurance cover will lapse.  The personal accident insurance cover will come into force only after making first successful payment transaction at any merchant outlet.  The opposite parties 1 and 2 are not liable to pay the insured amount.  Hence, there is no deficiency of service on the part of opposite parties 1 and 2.  Hence, the complaint may be dismissed.    

The 3^rd opposite party filed its counter and that the averments in brief are as follows:

                The complainant is not a customer and the complaint does not come under the purview of consumer dispute.  The 3^rd opposite party issued insurance policy to opposite parties 1 and 2 to cover the risk of debit card holders under certain terms and conditions. The coverage of said policy starts only after point of sale has been done in any merchant let outs on the debit card prior to 365 days immediately preceding the date of accident, which is the cause for claim.  The husband of complainant was not covered under the above said policy as there was no (POS) point of sale done on his debit card.  Soon after the claim intimation, 3^rd opposite party enquired about the POS details with opposite parties 1 and 2 and as per their records no POS done by the deceased on the said debit card prior to 365 days from the date of death.   Hence there was no coverage at all.  Accordingly, 3^rd opposite party repudiated the claim and there is no deficiency of service on the part of 3^rd opposite party.  Hence the complaint may be dismissed with costs.

                The complainant and 3^rd opposite party filed their affidavits in support of their versions.

                On behalf of complainant Ex.A1 to A3 are marked. On behalf of opposite parties 1 and 2 Ex.B1 to B5 are marked.  On behalf of 3^rd opposite party Ex.B6 and B7 are marked.  

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite parties?
2. To what relief the complainant is entitled to?

POINT No.1

                The case of complainants is that the husband of 1^st complainant opened an account with 1^st opposite party and that he was issued a debit card for his account which was covered with accidental insurance for a sum of Rs.5,00,000/- and that the 3^rd opposite party had tie-up with opposite parties 1 and 2 for the insurance coverage of the debit card and that the husband of 1^st complainant died in a railway accident and that the complainants claimed for the accidental claim and that 3^rd opposite party repudiated claim on the ground that there is no point of sale transaction done from the said debit card and that there is deficiency of service on the part of opposite parties. 

                The case of opposite parties is that as per terms and conditions of policy of the debit card, the coverage under the policy starts only after point of sale in any merchant let outs on debit card prior to 365 days immediately preceding the date of accident.  As there was no point of sale done by the deceased on the said debit card prior to 365 days from the date of death, there was no coverage at all and that the 3^rd opposite party is not liable for the same and that there is no deficiency of service on the part of opposite parties. 

                It is not in dispute that the husband of 1^st complainant was having savings bank account with 1^st opposite party and in that connection, he was issued a debit card, which is covered with accidental insurance to a sum of Rs.5,00,000/-.  It is also not in dispute that the husband of complainant died in an accident.  As seen from Ex.B3 debit card holders are entitled to a comprehensive insurance coverage including zero lost card liability and purchased protection of upto Rs.1,75,000/- and personal accident insurance upto

Rs.5,00,000/- free of charge.  To avail of the personal accident insurance cover, it is necessary to use the debit card at a merchant outlet.  The personal accident insurance cover will come into force only after making first successful payment transaction at any merchant outlet.  As seen from Ex.B7, the policy becomes operational only after the first transaction through a point of sale.  Ex.B2 is the repudiation made by 3^rd opposite party.  The reason for repudiation as seen from Ex.B2 is “verification of claim documents reveal that there is no point of sale transaction done on the card.  Hence, the claim is not payable under the policy. Accordingly the claim was repudiated.” Contrary to the said repudiation made by 3^rd opposite party, complainants have not filed any evidence establishing that there is point of sale during the life time of insured on the debit card. As seen from Ex.B1, the statement of accounts on 07-09-07 one religare entry was made.  As to what is that transaction was not explained.  The complainants have not made any averments regarding point of sale on the said debit card.  As per Ex.B3 column No.12, the merchant or merchant establishments shall mean establishments wherever located which accept/honour the card and shall include amongst others “stores shops, restaurants, air line organizations etc. advertised by UTI Bank or Visa International.”   As seen from Ex.B1 accounts statement, the husband of 1^st complainant i.e., the insured deceased had not made any point of sale and that therefore, the debit card does not cover the policy. 

                During the course of arguments, the learned counsel for 3^rd opposite party relied on the following decisions in support of his case.

1. SCC 1999 (6) Page No.451 (SC) between Oriental Insurance Company Ltd. Vs. Sony Cheriyan

              “The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer.  The insured cannot claim anything more than what is covered by the insurance policy.  That being so, the insured has also to act strictly in accordance with the statutory limitations on terms of the policy expressly set out therein”

1. 2005 (1) CPR Page No.64 (SC) between United India Insurance Company Ltd. Vs. M/s. Harchand Rai Chandan Lal       

              “In this case it was held that only policy terms and conditions are to be considered and judged.  Repudiation as per the terms and conditions of the policy is not a deficiency.  The policy is a contract between the parties and both parties are bound by the terms of contract.”

              It was held by the Supreme Court that “the question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not.  We have already reproduced the terms of the policy as also the definition of burglary and/or housebreaking as defined in the policy.  The definition given in the policy is binding on both the parties.  The policy is a contract between the parties and both parties are bound by the terms of contract.”

1. 2011 Consumer Judgments Page 146 – SC – Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. Vs. United India Insurance Company Ltd. and another:

              The Hon’ble Supreme Court of India observed that the terms of contract of insurance have to be strictly construed and no exception can be made on ground of equity. 

(4) The Apex Court in a judgment in Civil Appeal No.8701/1997 in Ravaneet Singh Bagga Vs. M/s. K.L.M. Royal Dutch Air-lines and another held that “the deficiency in service cannot be alleged without attributing fault, imperfection, short coming 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 of service in upon the person who alleges it.”   

                In view of the foregoing discussion and in view of decision relied on by the counsel for 3^rd opposite party, we find that there is no deficiency of service on the part of opposite parties.  Accordingly this issue is answered in favour of opposite parties and against the complainants.

                In the result, the complaint is dismissed without cots.

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 15^th day of April, 2011.

                 Sd/-XXX                      Sd/-XXX                            Sd/-XXX

          MEMBER                               MEMBER                            PRESIDENT

APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:

For Opposite Parties:                                                                         

                                                                                                                   PRESIDENT