DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 83 of 12-03-2008<br /> Decided on : 30-05-2008 <br /> <br /> 1.Ashok Kumar S/o Sh. Sarwan Kumar<br /> 2.Sudesh Rani W/o Sh Ashok Kumar S/o Sarwan Kumar<br /> 3.Richa D/o Sh. Ashok Kumar<br /> All residents of C/o M/s. Sarwan Kumar Ashok Kumar, L & M Merchant, Main Bazar, Bathinda.<br /> .... Complainants<br /> Versus<br /> <br /> 1.Axis Bank Limited, Registered Office : Central Processing Unit, 13, Corporate Park, Sion Trombay Road, Chembur, Mumbai 400 071 through its Managing Director.<br /> 2.Branch Manager, Axis Bank Limited, Pocket No. 6, MC Building No. 2089, TP Scheme, The Mall, Bathinda.<br /> .... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Sanjay Goyal, Advocate.<br /> For the Opposite parties : Sh. Rajnish Rampal, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Previous name of UTI Bank has now been changed to Axis Bank Limited. Rishav Bansal S/o Sh. Ashok Kumar was maintaining his A/c bearing No. 242010100039118 with opposite party No. 1. Opposite parties had offered a scheme for its account holders saying that on issue of International Debit Card they provide a Comprehensive Insurance Cover of Rs. 2.00 Lacs for each of them. In case of accidental death of account holder, the insurance amount would be paid to his legal heirs. Mr. Rishav Bansal had got issued International Debit Card No. 4688 0524 2003 5364 from the opposite parties valid from March 2006 to March 2011. He has since died in an accident which had taken place on 4.9.06. Complainants No. 1, 2 & 3 are the father, mother and sister of the deceased respectively. Insurance claim was lodged by them with the opposite parties. Requisite formalities as desired by them have been completed. Insurance claim has not been paid. Opposite parties are not responding despite repeated requests. Due to the withholding of the claim, they are undergoing mental tension and botheration. They allege deficiency in service and unfair trade practice on their part. In these circumstances, instant complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred seeking direction from this Forum to the opposite parties to pay them Rs. 2.00 Lacs alongwith interest @18% P.A. from the date of death i.e. 4.9.06 till payment: Rs. 50,000/- as compensation and damages on account of loss, harassment and mental tension besides cost of the complaint.<br /> 2. Opposite parties filed their version taking legal objections that complaint is not maintainable; complainants have no locus standi and cause of action to file the complaint; ATM-cum-debit card was issued by M/s. Bajaj Allianz General Insurance Company Limited which has not been arrayed as party; complainants are estopped from filing the complaint by their act and conduct; they are not consumer; this Forum has got no jurisdiction as all the disputes are subject to the exclusive jurisdiction of the courts at Mumbai (India) irrespective of whether any other court may have concurrent jurisdiction in the matter; intricate questions of law and facts are involved which can only be decided by elaborate oral and documentary evidence and as such, only civil court is competent to adjudicate the matter. They do not deny that name of UTI Bank Limited has been changed to Axis Bank Limited . They admit that Mr. Rishav Basal was holding account with opposite party No. 2. Scheme of the bank was subject to the terms and conditions of the Insurance Policy. Deceased Rishav Bansal had got issued International Debit Card but he failed to comply with the terms and conditions as he could not carry out any transaction at any Merchant establishment using the International Debit Card provided to him. This fact has been recorded in the Debit Card - key to usage booklet. He was well aware that to get International Debit Card eligible for Insurance cover it had to be used at some Merchant establishment. Key to usage Booklet was supplied to the account holder with welcome kit. They admit that claim was lodged with them but it was not maintainable. As per page '6' of the usage booklet 'The Zero Lost Card Liability/Purchase Protection/Personal Accident (Death Cover Only)' insurance coverage is provided to Card holder by Bajaj Allainz for which they are not liable to make payment. They are only facilitators. Their duty is restricted to forward the application if any submitted by the claimants to the Insurance Company. If any communication is received from the Insurance Company, the same is to be communicated by them to the claimants. They deny the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his two affidavits (Ex. C-1 & Ex. C-2), photocopy of International Debit Card (Ex. C-3), photocopy of Death Certificate (Ex. C-4) and photocopy of F.I.R. (Ex. C-5).<br /> 4. In rebuttal, on behalf of the opposite parties affidavit of Sh. Ravikant Branch Head cum Assistant Vice President (Ex. R-1), photocopy of letter dated 2.4.08 (Ex. R-2), photocopy of account statement (Ex. R-3), photocopy of letter (Ex. R-4) and photocopy of Booklet of Debit Card (Ex. R-5) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 6. Some facts do not remain in dispute. They are that Mr. Rishav Bansal was having an account with opposite party No. 2. He got issued International Debit Card from the UTI Bank and copy of the same is Ex. C-3. Comprehensive Insurance Cover Note of Rs. 2.00 Lacs was being provided in such like cases. In case of accidental death of account holder, Insurance amount was to be paid to the legal heirs of the deceased account holder. Mr. Rishav Bansal has expired on 4.9.06 in an accident and copy of his Death Certificate is Ex. C-4. Copy of the FIR recorded in Police Station Kotwali, Bathinda is Ex. C-5. Claim was lodged by the complainants. It has not been paid. As per Ex. R-5 copy of the Booklet of Debit Card, account holder was to carry out a transaction in a Merchant establishment using the International Debit Card provided to him as per terms and conditions contained in it. Relevant portion of it is reproduced as under :<br /> “Insurance<br /> The AXIS Bank International Debit Card entitles you to a comprehensive insurance cover including zero lost card liability & Purchase Protection of upto Rs. 50,000/- and Personal Accident Insurance of upto Rs. 2,00,000/- free of charge. To avail of the Personal Accident Insurance cover, it is necessary for you to use your Debit Card at a Merchant Outlet. The Personal Accident Insurance cover will come in force only after you make your first successful payment transaction at any Merchant Outlet.” <br /> As is clear from copy Ex. R-3 of the statement of account of deceased Mr.Rishav Bansal, he did not carry out a transaction in Merchant establishment using the International Debit Card in the last 365 days from the date of incident (death). Opposite parties had sent claim of the complainants to Bajaj Allianz General Insurance Company Limited as is evident from Ex. R-2. It has repudiated the claim on the grounds reproduced as under :<br /> “There is no POS transaction recorded on debit card”<br /> In view of the clarification given above, we are afraid that your claim does not fall under the purview of the Personal Accident cover; therefore we sincerely regret our liability to be of assistance of this occasion.” <br /> 7. Submission of Mr. Rampal, learned counsel for the opposite parties is that since Mr. Rishav Bansal could not carry out any transaction at any Merchant establishment as per mandatory terms and conditions even for a single time in the period of 365 days before the date of incident/his death, complaint is liable to be dismissed. Even the terms and conditions of the International Debit Card were supplied to the deceased.<br /> 8. Mr. Goyal, learned counsel for the complainants argued that terms and conditions of International Debit Card or any document, Brochure/booklet containing terms and conditions for availing personal accident Insurance Cover were not supplied to Mr. Rishav Bansal till his death and it being so, complainants are not bound by the terms and conditions. On this aspect of the matter, he drew our attention to the affidavit Ex. C-1 of complainant Ashok Kumar in which he has stated in para No. 4 that the terms and conditions of the Debit Card or any other document, brochure/booklet were not supplied/intimated to Mr. Rishav Bansal. For this, he drew our attention to the authority M/s. Hundi Lal Jain Cold Storage and Ice Factory Private Limited Vs. Oriental Insurance Company Limited 2004(2) CPC 581 in which it was held that when policy was not supplied to the Insured, he cannot be blamed for breach of conditions.<br /> 9. We have considered the respective arguments.<br /> 10. It is well settled that no amount of evidence and arguments can be considered if it is beyond pleadings. Complainants have not averred in the complaint itself that terms and conditions of the International Debit Card were not supplied. It being so, stand of Ashok Kumar complainant in his affidavit Ex. C-1 on this point appears to us to be after thought. Admittedly Mr.Rishav Bansal who was the card holder has expired. He was the best person to tell as to whether the terms and conditions of International Debit Card or any any document, brochure/book let were intimated and supplied to him or not. Complainants have stepped into his shoes after his death. Ashok Kumar has tried to cover up the matter by saying that at the time of issuance of Debit Card he was accompanying Mr. Rishav Bansal. This plea has not been taken by the complainants in the averments of the complaint. He has gone to the extent of saying that opposite parties had obtained signatures of Mr. Rishav Bansal on some papers. On the one hand, they are saying that terms and conditions were not supplied and to the contrary they are saying through Ex. C-1 that his signatures were obtained by the opposite parties on some papers. Nature of the papers which were got signed has not been explained. Plea of the opposite parties is that Debit Card usage Book-let were supplied to the account holder alongwith welcome kit while issuing ATM card, cheque book and Debit Card. Learned counsel for the opposite parties drew our attention to the specimen of the letter which is sent to the customers in such like cases and copy of the same is Ex. R-4. A perusal of the same reveals that alongwith International Debit Card Key to usage manual which contains complete details of activation, features & benefits and the terms and conditions are also supplied in the welcome kit. In the letter itself, it is made clear to the customer that personal accident cover would remain valid based in case the average quarterly balance of Rs. 5,000/- for metro/urban centres and Rs. 2500/- for semi urban/rural centres in last two quarters from the date of incident is maintained and Point of Sale (POS) transaction at any merchant outlet in last 365 days from the date of incident is made. Mr. Ravi Kant Branch Head cum Assistant Vice President of the opposite bank in his affidavit has also reiterated version of the opposite parties in the reply of the complaint regarding supply of the key to usage booklet etc. Not to speak of this, he has gone to the extent of deposing that the requirement of using the Insurance Card is/was also intimated to the customers of Bank by poster and it is generally inserted in the statement of account sent to the customers. In these circumstances, we are unable to accept the submission of the learned counsel for the complainants that the terms and conditions of International Debit Card, Brochure/Book let were not supplied. Deceased was bound to carry out atleast one transaction at any Merchant establishment within the period of 365 days prior to the date of accident. Since he has failed to carry out any transaction at any Merchant establishment using the International Debit Card, claim does not fall under the purview of Personal Accident cover. Accordingly, opposite parties are not liable to pay the amount and claim has also been rightly repudiated by Bajaj Allianz General Insurance Company Limited. In these circumstances, no deficiency in service or unfair trade practice on the part of the opposite parties is established. <br /> 11. With utmost regard and humility to the authority M/s. Hundi Lal Jain Cold Storage and Ice Factory Private Limited Vs. Oriental Insurance Company Limited (supra) the same is distinguishable on facts.<br /> 12. In the result complaint being devoid of merits, is dismissed. Parties are left to bear their own costs.<br /> Copy of this order be sent to the parties concerned free of cost and file be also consigned. <br /> Pronounced :<br /> 30-05-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Dr.PhulinderPreet) <br /> Member<br /> 'iki'