Date of Filing 27.12.2022

                                                                                                             Date of Disposal: 21.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com.,ICWA(Inter), BL.,                                                           ……MEMBER-II

CC.No.07/2023

THIS WEDNESDAY, THE 21^st DAY OF FEBRUARY 2024

Mr.C.Babu, S/o.Late V.Chengalraya Naidu,

No.24G, Sekar Verma Nagar,

Tiruttani town & Taluk,

Thiruvallur District 631 209.                                                                 ……..complainant.

                                                                   //Vs//

1.Sanjeev Moghe,

    President-Head Cards and Payments,

    Axis Bank Limited.                                        

2.The Regional Manager,

   Axis Bank South Zonal Office – SZO,             

3.The Manager,

    Axis Bank,

   Tiruttani Branch.                                              

4.The Manager,

    The New India Assurance Company Limited,

    Motor third party claims cell,

    Bombay Mutual Buildings,

    No.232, 6^th Floor, NSC Bose Road,

    Chennai 600 001.                                                                            …..opposite parties.

Counsel for the Complainant                                  : M/s.V.Kishore Reddy, Advocate.

Counsel for the opposite parties 1 to 3                :  M/s.R.Palani Kumar, Advocate.

Counsel for the 4^th opposite party                        : M/s.R.S.Bharanivel Raj, Advocate.

This complaint coming before us on various dates and finally on 21.02.2024 in the presence of M/s.V.Kishore Reddy, counsel for the complainant and M/s.R.Palani Kumar, counsel for the opposite parties 1 to 3 and M/s.R.S.Bharanivel Raj counsel for the 4^th opposite party and upon perusing the compromised petition between the complainant and the 4^th opposite party this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to non issuance of insurance claim along with a prayer to direct the opposite parties to pay the claim of personal accident policy for a sum of Rs.4,00,000/- with 24% interest per annum from 28.08.2020 to till the date of realization, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to direct the opposite parties 1 to 3 to pay a sum of Rs.1,00,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that his uncle late M.Nagabushnam having Account with the 3^rd opposite party/Axis Bank Tiruttani Branch under Account No.9190100880992938 and issued ATM debit card No.4691980106232050 Visa Platimum and he was regularly using the same. Complainant’s uncle Late M.Nagabushnam met with an accident on 28.08.2020 while travelling in his motorcycle bearing Registration No.TN 20 CB 6237 and the same was reported to the Police Authorities and FIR was registered by the Sub Inspector of Police, Podhaturpet Police Station in Crime No.1319/2020 under section 279, 337 I.P.C. Unfortunately while under treatment the complainant’s uncle never regain consciousness and succumbed to death on 08.05.2021. The ATM card issued by the 1^st opposite party through 3^rd opposite party covers the personal accident policy to the deceased ATM card Holder to the tune of Rs.4,00,000/- if any untoward incident to the account holder.  Death of Late M.Nagabushnam was intimated to the 3^rd opposite party to have a claim for the personal accidental policy issued to the complainant’s uncle. Complainant had duly filled the claim form and handed over the same to the 3^rd opposite party with necessary documents such as FIR copy, Discharge summaries, Driving License of complainant’s uncle, photocopy of ATM card, Bank Statement, Nominee Driving License, death certificate and legal heir certificate.  Inspite of repeated enquiries the 3^rd opposite party did not provide any information to the complainant about the claim.  On 23.09.2021 complainant understood that a message was sent to the son of Late M.Nagabushnam N.Nethaji to his mobile number 9445119926 stating that your SR.No.67890120 regarding insurance claim on debit card and was not processed. Complainant was surprised to note the contents of the 3^rd opposite party’s rejection letter dated 05.10.2021 that as if the complainant had not submitted the documents listed in the complainant’s notice even after the request.  The 3^rd opposite party officer never asked and demanded to produce any of the documents even when the complainant have visited number of times to the 3^rd opposite party Bank and personally enquired about the claim.  Without making enquiry with the complainant or anybody else the 3^rd opposite party officials simply rejected the claim for flimsy reasons without knowing whether the complainant’s uncle died due to the accident or died for any other complications after the accident. Thus aggrieved by the act of the opposite parties the present complaint was filed for the reliefs as mentioned above.

The crux of the defence put forth by the opposite parties 1 to 3:-

3. The Opposite party was a scheduled commercial Bank and cannot carry on Insurance Business as per the provision of Banking Regulations Act 1949 and hence does not offer insurance products. Complaint was bad for non-joinder of necessary part to the complaint i.e., insurance company M/s. The New India Assurance Company Limited as the insurance cover was issued by the said insurance company and not by Axis Bank.  The role of the opposite parties was only of the facilitator/corporate agent and hence the complaint was bad on account of mis-joinder of necessary parties.  Mr.M.Nagabuhsnanam had opened a savings Account bearing No.919010080992938 with the opposite party with mobile No.9445119926 in Tiruttani Branch on 22.10.2019 and thereafter as per the procedure he was issued a Debit cum ATM card bearing card No.4691980106232050.  The said card was having an accidental insurance coverage for an amount of Rs.4,00,000/- and the said insurance cover was provided to Mr.M.Nagabushanam under the arrangement with opposite parties.  It was submitted that at the time of card issuance, the customer was provided with the most important terms and conditions were the timeline for intimation of the claim was clearly mentioned as 90 days.  The opposite parties confirm that all the debit card holders of the opposite party were insured with insurance company.  However the insurance cover under the said debit card can be claimed only on fulfilment of certain terms and conditions.  Opposite parties have no role in the claim settlement process and the decision of rejection or approval of the claim was solely made by the insurance company. Certain documents such as the Panchanama, which was required to verify the cause of death, have not been submitted by the complainant.  The rejection letter dated 05.10.2021 was sent to the son of Nagabushanam i.e., Netaji. Thus the opposite parties had not committed any deficiency in service and they sought for the dismissal of the complaint.

The crux of the defence put forth by the 4^th opposite party:-

4. The 4^th opposite party filed version disputing the allegations that all the allegations stated in the complaint about the deficiency in service was of the 1^st to 3^rd opposite parties only and  there was no statement at anywhere in the complaint that the deficiency in service was done by the 4^th opposite party.  Based on this the complaint is liable to be dismissed against the 4^th opposite party. There is no cause of action against the 4^th opposite party. On the basis itself the complaint was liable to be dismissed. It was submitted that agreement between Axis Bank and New India Assurance was only to disburse the amount regarding death claim and insurance only.  There is no any contract between New India Assurance and Axis Bank to disburse the amount for the damages caused to the third parties, to the lack of service by Axis Bank.  Moreover the New India Assurance was impleaded at the instigation of other opposite parties only to grab money from the 4^th opposite party for the deficiency in service committed by the opposite parties 1 to 3. Thus they sought for the dismissal of the complaint.

5. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A15 were submitted. Though sufficient opportunities given to the opposite parties 1 to 3 they did not file any proof affidavit and hence evidence on their side was closed on 12.09.2023. On the side of 4^th opposite party filed written version but he did not file any proof affidavit on their side.

Points for consideration:-

1.                                Whether the opposite parties had committed any deficiency in service as alleged by the complainant with regard to payment insurance claim to the complainant for the death of one Mr.M. Nagabushanam and whether the same has been successfully proved by the complainant?

2.                                If so which opposite party is liable to pay the amount?

3.                                To what reliefs the complainant is entitled?

Point No.1 to 3:-

The following documents were filed on the side of complainant in support of their contentions;

a)     Photo copy of the ATM card was marked as Ex.A1;

b)    Driving license of deceased M.Nagabushanam  was marked as Ex.A2;

c)     Copy of FIR No.29.08.2020 was marked as Ex.A3;

d)    Death certificate of M.Nagabushanam was marked as Ex.A4;

e)     Legal heirs certificate was marked as Ex.A5;

f)      Statement of Account from 01.12.2020 to 31.05.2021 of the deceased M.Nagabushanam was marked as Ex.A6;

g)     Peacock Hospital First Aid Treatment cum consultation record dated 28.08.2020 was marked as Ex.A7;

h)    SIMS Hospital’s Discharge summaries were marked as Ex.A8 & Ex.A9;

i)       Claim petition submitted with the 3^rd opposite party by the complainant dated 05.06.2021 was marked as Ex.A10;

j)       Rejection of the complainant’s claim by the 3^rd opposite party to the deceased M.Nagabushnanam Son N.Nethaji through mobile message was marked as Ex.A11;

k)     Complainant issued a letter to the RBI dated 27.09.2021 was marked as Ex.A12;

l)       Complainant issued a letter to Office of the Insurance Ombudsman dated 27.09.2021 was marked as Ex.A13;

m)  Rejection letter issued by the 3^rd opposite party dated 05.10.2021 was marked as Ex.A14;

n)    Reply letter by the complainant to the 3^rd opposite party dated 08.10.2021 was marked as Ex.A15;

6. Heard the oral arguments made by the complainant and the 4^th opposite party.

 7.  It is the case of the complainant that his uncle Late M.Nagabushnam had availed ATM debit card from the 3^rd opposite party which carries an insurance coverage from the 4^th opposite party.  Uncle of the complainant succumbed to injuries and died on 08.05.2021 out of an accident that occurred on 28.08.2020. While so, the complainant being the nominee for the Bank Account of the deceased M.Nagabushanam submitted a claim application with the opposite parties for the insurance coverage.  However, the said claim was rejected by the opposite parties and hence the complainant filed the present complaint before this commission.

8. The opposite parties 1 to 3 in their written version had stated that the Insurance Company was a necessary party to the proceedings  for which the complainant vide CMP.No.65/2023 took an application which was allowed and the 4^th opposite party/Insurance Company was joined as a party to the proceedings. 

9. It is not disputed by the opposite parties that the complainant is the nominee for the deceased M.Nagabushanam.  It is also not denied by the opposite parties 1 to 3 that the ATM debit card availed by the deceased had an insurance coverage for Rs.4,00,000/-.  Though, the 4^th opposite party stated that there is no privity of contract between them and the complainant being the insurer they are liable for the insurance coverage for the ATM debit card stood established.

10. In such facts and circumstances the complainant and the 4^th opposite party/Insurance Company entered into a compromise and the 4^th opposite party agreed to pay a sum of Rs.3,90,000/- to the complainant.  Thereafter a the petition in CMP.No.28/2024 was filed by the complainant stating that towards final and full settlement a sum of Rs.3,90,000/- was received by him vide cheque bearing No.360151 on 19.02.2024.

11. We perused the petition filed by the complainant. When the complainant had claimed a compensation of Rs.4,00,000/- along with Rs.5,00,000/- for the mental agony and Rs.1,00,000/- towards cost of the complaint it is stated that he was satisfied with the amount admitted and paid by the 4^th opposite party.  In view of the affidavit in CMP.No.28/2024 and the amount paid by the 4^th opposite party to the complainant a sum of Rs.3,90,000/-, we allow the petition as prayed for. In view of the same we dispose off the complaint recording the compromise entered between the parties.  There is no order against the opposite parties 1 to 3 and complaint dismissed against them.

  In the result, CMP.No.28/2024 allowed.  No order against the opposite parties 1 to 3.  Matter is settled out of court as compromised between the parties for an amount of Rs.3,90,000/- (Rupees three lakhs ninety thousand only) paid by the 4^th opposite party.  Consequently, the complaint is disposed off accordingly.  No cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 21^st February 2024.

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 MEMBER-II                                   MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

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MEMBER-II                               MEMBER-I                                                      PRESIDENT