Delhi

North East

CC/335/2017

Ms. Seema - Complainant(s)

Versus

Axis Bank Ltd. - Opp.Party(s)

27 May 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 335/17

 

In the matter of:

 

	Ms. Seema W/o Late Sh. Deepak Kumar R/o H.No. 151, Gali No. 6, Block-E Amar Colony, Gokal Pur Delhi-110094	Complainant
	Versus
1           2	Axis Bank Ltd. East Jyoti Nagar Branch B-36, East Jyoti Nagar Near Durga Puri Chowk Delhi-110093   The General Manager The New India Assurance Co. Ltd. Claim Hub M.R.01, 12th Floor New India Centre 17/A, Cooperate Road Mumbai-400039	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:                DATE OF DECISION      :

24.11.2017 27.05.2019 27.05.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Briefly put, the facts of the present complaint as culled out by the complainant are that the husband of the complainant had opened a current bank account bearing no. 914020019015569 with OP1 bank in the name of Priyanka Copier Services and was issued an ATM Card no. 4450699008091445 valid up to December 2016 and Prime Card no. 4179170022929010 valid up to April 2018. The husband of the complainant was informed  by the representative of OP1 that OP1 had insured him for life insurance cover vide Group Accidental Insurance Policy with OP2 for Rs. 2,00,000/- and in accordance with the terms and conditions of the said card, the husband of the complainant had made money transactions through the ATM up till 26.05.2015 before his accidental death on 27.06.2015 due to electricity shock when he came in contact with high voltage power cable of BSES while working on setting electricity light in his house for retirement function of his father. Thereafter, the complainant signed all the requisite papers at the instruction of OP2 for process of claim and despite the deceased husband of complainant having made money transactions from his account held with OP1 which was a necessary pre condition for availing of the insurance cover of Rs. 2,00,000/- and no premium required to be paid therefor, the OPs failed to release the said claim amount in favour of the complainant. The complainant got served the legal notice dated 19.05.2017 to the OP1 for making payment of insurance sum but the said legal notice went unheeded to compelling the complainant to file the present complaint against the OPs alleging deficiency of service and gross negligence praying for issuance of direction against the OP to pay a sum of Rs. 2 Lakhs towards the personal accident insurance claim facility available to her deceased husband by virtue of using the debit card of OP1 alongwith Rs. 25,000/- as litigation charges.
2. Complainant has attached copy of current bank account statement held by complainant’s deceased husband with OP1 showing transactions made before his death through the ATM, copy of ATM  pay roll card and ATM Prime Card issued by OP1 to complainant, copy of death certificate of complainant’s husband Deepak Kumar issued by EDMC, copy of DD No. 48B dated 28.06.2015 with PS Jyoti Nagar for handing over the body of the husband of complainant from GTB Hospital Mortuary to the complainant, copy of claim form of New Indian Assurance Co. Ltd. (OP2) filled and signed by the complainant dated 24.08.2015 and copy of legal notice dated 19.05.2017 issued by counsel for complainant to OP1. Complainant also filed letter dated 28.12.2015 to OP1 asking for the Insurance Policy number to enable her to follow up with OP2 regarding processing of claim.
3. Notice was issued to OPs on 08.12.2017. None appeared on behalf of OP2 despite service effected on 02.01.2018 and was proceeded against ex-parte vide order dated 24.08.2018. OP1 entered appearance and filed its written statement alongwith evidence by way of affidavit on 12.02.2018 in which it took the preliminary objection of complaint being time barred i.e. barred by limitation u/s 24A of Consumer Protection Act on grounds that the cause of action commenced from 26.06.2015 (death of complainant‘s husband) but was filed after more than two years i.e. in November 2017. Further, OP1 resisted the complaint on grounds of complainant’s husband having availed of services of OP1 for commercial purpose in as much as the account opened by him with OP1 was a current account in the name of Priyanka Copier Services, a proprietorship Firm and therefore  complainant is not a consumer u/s 2(1)(d)(ii) of CPA. OP1 submitted that  it does not carry on “insurance business” and the insurance policy was issued by OP2 subject to fulfillment of terms and conditions with respect to the debit card as well as insurance policy and role of OP1, being only a facilitator/referral agent without receiving any consideration from complainant, there exists no privity of contract between complainant and OP1 to claim insurance from OP1 as also is the settled principle u/s 230 of Indian Contract Act that an agent can neither sue nor be sued except under special circumstances. The OP1 admitted to have issued a debit card no. ending 9010 to the complainant’s husband with Personal Accident Insurance Cover thereon of Rs. 2 Lakhs given by OP2 but denied having issued card no. ending 1445 to the complainant’s husband since it was an Axis Bank Pay Roll Card issued to GLMS. OP1 further contended that the deceased husband of the complainant while filing the current account form was explained all the terms and conditions and he had acknowledged the same by signing the declaration in the said form after which he was handed over the said terms and conditions alongwith welcome kit of the debit card and its usage guide manual and terms and conditions booklet for activation, feature and benefits. OP1 alleged that there was no point of sale (P.O.S) transactions recorded in 180 days on the debit card preceding the death of complainant’s husband contrary to the express condition/ pre condition for availing insurance benefit attached to the debit card and averred that the complainant failed to submit the requisite documents for process of Personal Accident Insurance Claim to either the claim department of OP2 or to OP1 and therefore no acknowledgement filed by the complainant in proof of submission of documents showing total in action her part which led to non consideration/repudiation of the claim of the complainant by OP2. Lastly, OP1 denied receipt of any legal notice dated 19.05.2017 and urged for dismissal of the complaint for want of any cause of action against it.
4. Without going further into the subsequent pleadings i.e. rebuttal rejoinder and arguments placed by both sides, the preliminary issue for adjudication of maintainability of the present complaint is that of limitation. Admittedly, the death of the complainant’s husband occurred in June 2015 giving rise to the cause of action for availing Personal Accident Insurance Benefit extended to him by virtue of him being an account holder/ATM debit card holder of   OP1 through its insurance tie up with OP2 on which card was given Personal Accident Insurance up to Rs. 2,00,000/- subject to terms and condition of Clause 3 of Advantages of Debit Card. The claim was not passed / approved by OP1 and OP2 as is a case of complainant compelling her to file the present complaint. The cause of action commenced from June 2015 till June 2017 as per Section 24A of CPA which mandates two years period for filing consumer complaint. However, the complaint was filed in November 2017 i.e. after a delay of five months from June 2017 (last month of limitation) before which a legal notice dated 19.05.2017 was sent by complainant to OP1 and on which basis the cause of action / limitation has been argued by the counsel for complainant for complaint being well within limitation.
5. On perusal of documents, it can be ascertained that the death of complainant’s husband occurred in June 2015 after which the complainant had filled the claim form of OP2 in August 2015 and thereafter there was no action / follow up / correspondence by the complainant whatsoever barring a stray letter dated 28.12.2015 to Branch Manager of OP1 asking for insurance policy no. The complainant remained inactive for two years after the death of her husband and suddenly sent legal notice to OP1 in May 2017 and filed the present complaint six months thereafter i.e.  after lapse of almost six months of the limitation period which expired in June 2017. This cannot entitle the complainant for waiver of limitation period and it is pertinent to mention here that the complaint is not even accompanied with any condonation of delay application under Section 24 A (2) of CPA.
6. Section 24 A of CPA deals with the limitation period for complaints to be filed within two years from the date on which cause of action has arisen and contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action. In other words the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date on which the cause of action has arisen. The law on the said issue has been clearly settled by Hon’ble Supreme Court in so far as the nature and scope of Section 24 A is concerned in the landmark judgments of Kandimalla Raghavaiah & Co. Vs National Insurance Co. Ltd (2009) 7 SCC 768, State Bank of India Vs B S Agricultural Industries (2009) 5 SCC 121 and V. N. Shrikhande (Dr) Vs Anita Sena Fernandes (2011) 1 SCC 53.  The Hon’ble National Commission in the judgment of Jansatta Sahkari Awas Samati Ltd Vs Kone Elevators India Pvt Ltd I (2016) CPJ 190 NC held that mere sending a legal notice does not constitute a cause of action nor does it extend a period of limitation prescribed in the Act in view of settled proposition of law under Section 24A of CPA as mandatory in nature as held by Hon’ble Supreme Court in B.S. Agriculture Case (Supra) in which the Hon’ble Apex Court took the view that Section 24A is preemptory in nature and requires consumer Forums to see before it adjudicates the complaint that it has been filed within two years from the date of accrual of cause of action. The Hon’ble National Commission in the Judgment of Punjab Small Industries and Export Corporation Ltd and Anr. Vs Satinder Pal Singh II (2018) CPJ 245 (NC) has held that the complainant remaining inactive and suddenly sending legal notice to OP cannot entitle him for waiver of limitation period as any amount of correspondence cannot extend limitation period. The Hon'ble Supreme Court in BS Agricultural Industries (Supra) case held the view that it is the duty of the Consumer Forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside. The Hon'ble Supreme Court in State of Tripura & Ors Vs Arabinda Chakraborty & Ors I (2014) SLT 370 decided on 21.04.2014 held that simply by making a representation, period of limitation would not get extended. A person may go on making representation for years and such an event the period of limitation would not commence from the date on which the last representation decided. The said ratio was followed by Hon'ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Company Ltd. III (2006) CPJ 414 (NC) & Samruddhi Co-operative Housing Society Ltd Vs. Mumbai Mahalaxmi Construction Pvt Ltd. I (2019) CPJ 347 (NC) in which Hon'ble National Commission held that period of limitation cannot get extended on the basis of exchange of communication between parties once cause of action has arisen.
7. In view of the settled proposition of law as exhaustively discussed in the foregoing para on the aspect of limitation, we are of the considerd opinion and unambiguously conclude that the present complaint is hopelessly barred by limitation u/s 24A. The Hon'ble Supreme Court in N. Balakrishnan Vs M. Krishnamurthy VII (1998) SLT 334 laid down that law of limitation is enshrined in the maxim interest republic up sit finis Mum (it is for the general welfare that a period be put to litigation) and that it fixes a life span for such legal remedy for redressal of legal injury so that precious time which is wasted would never revisit. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time to see that party do not resort to dilatory tactics but seek their remedy promptly.
8. Therefore the complaint is dismissed on grounds of being barred under limitation u/s 24A which limitation cannot be extended on basis of mere sending of legal as is the settled law. With no order as to cost.
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  27.05.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member