Delhi

East Delhi

CC/1050/2013

SASHI CH. - Complainant(s)

Versus

AXIS BANK - Opp.Party(s)

07 Apr 2017

ORDER

                  DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                  Consumer complaint no.      1050/2013

                                                                                                  Date of Institution                05/12/2013

                                                                                                  Order Reserved on               07/04/2017

                                                                                                  Date of Order                        10/04/2017  

                                                                                                       

In matter of

Mr Shashi Kumar Chaudhary  , adult   

R/o-F-73, Gali no.9,  

Laxmi Nagar Delhi 110092.………………………………....………..…………….Complainant

                                                                   

                                                                         Vs

1- The Branch Manager

Axis Bank  

C-58, Basement, GF

Preet Vihar, Vikas Marg, Delhi 110092

 

2-The Manager

The New India Assurance Co. Ltd

12/1, Jeevan Raksha Building

Asaf Ali Road, New Delhi 110002………..……………………………………….Opponents

 

 

Quorum  -       Sh Sukhdev Singh      President

                         Dr P N Tiwari               Member                                                                                                   

                         Mrs Harpreet Kaur     Member

 

Order by Dr P N Tiwari, Member 

 

Brief Facts of the case                                                                                                

Complainant now deceased, was having a saving bank account in Axis Bank / OP1 bank vide saving account no. 0550101000226257 since long. The complainant was suffering from chronic liver ailments and had other brain related problems. He was in need of some money urgently, so went to the nearest ATM of OP1 bank and withdrew Rs 2000/-on 19/05/2012. Due to chronic ailments, he lost/left his ATM card in ATM machine. He did not remember for the same and his ATM card was taken by someone and withdrew about 19635/-within two days. It was stated that neither guard was present at ATM machine on that day nor CCTV was working.

 

Due to his illness, complainant could not read his massage box in his mobile for about one day and came to know about fraudulent withdrawal of Rs 10,200/ through bank alert massage where as he had taken Alert massage facility from OP1. He immediately reached police station Shakarpur, Delhi where DD entry was done vide no. 54B on dated 21/05/2012 and thereafter to Axis bank / OP1 and got his ATM card blocked immediately and lodged complaint to the bank manager along with his son. At bank, he was told that a sum of Rs 19635/-had been withdrawn and again bank official asked for a new police complaint.

 

The complainant again reached police station and lodged complaint for Rs 19635/ vide DD entry no. 75B on 21/05/2012. Thereafter OP1/bank official filled “CLAIM FORM FOR ALL RISK INSURANCE” and told to wait for some time and as your ATM card was insured by the New India Assurance Co., so you would get the money refunded as withdrawn by someone.

 

OP1 bank got filled another INSURANCE CLAIM –AXIS BANK DEBIT CARD form under lost card liability category. After about five month, complainant was informed by the OP1 bank and OP2 that his claim was repudiated by the Insurance claim due to negligence on the part of card holder under policy no 11270046111300000001 for saving bank account no. 055010100226257 with OP1.

Aggrieved by the rejection of his claim by the insurance co., the complainant again wrote a letter to the bank manager for re-consideration of his grievance. After some time, OP1 again sent a letter informing complainant about rejection of his claim. When he did not get any satisfactory reply from OP1 and 2, filed this complaint claiming refund of his fraudulently withdrawn amount Rs 19635/- besides harassment and mental agony.

Notices were served. OP1 submitted their written statement denying any deficiency on their part. OP1 stated that complainant had left his ATM card by mistake and as his claim was rejected by OP2, so neither OP1 was responsible to refund nor OP2 was liable for any damages.  

It was admitted that complainant had withdrawn Rs 2000/- from ATM and due to negligence of complainant, his ATM card was misused by someone. For such act of negligence, OP1 was not responsible. More so, complainant had informed police and OP1 after two days which itself amounts to violation of terms and conditions of ATM card usage and safety.

It was also stated that ATM card usage declaration and undertaking were duly signed by the complainant and all the details were known to him still false case had been filed before this Forum.  Thus OP1 stated that this frivolous and malafide complaint be dismissed.

 

OP2/The New India Assurance Co. had also submitted their written statement and denying all the allegations against themselves. It was stated that due to negligence of card holder, OP2 could not be responsible for any damages as per the terms and conditions.

 

In the process of pleadings, the complainant expired due to his long standing liver ailment and his son filed an application under Order 22 Rule 3 for impleading legal heirs and the same was not opposed by the OPs, hence deceased sons as Kavish, Avneesh and daughter Vasudha were made party to this case.  

The complainant submitted his evidences on affidavit and reaffirmed the facts narrated in his complaint and the same were correct and true. OP1 submitted its evidences through Sh Narendra Kumar Bhasin, vice president at OP1 bank, affirmed on oath that the claim was repudiated by OP2 a per their terms and conditions and OP1 had immediately forwarded claim form of complainant to the head office of OP2. More so, as there was violation of terms and conditions of agreement between card holder and OP2, so claim was repudiated. OP1 also stated that intimation was given two days later to OP1 and also to Police. Hence, conditions were not properly followed by the complainant. His card was lost due to his negligence.

The evidence submitted by the OP2 through Sh DS Dabas, Regional Manager, OP2 stated on oath that Credit Card Package Insurance Policy was extended to OP1/Axis Bank vide policy no. 11270046121300000004 which was valid from 15/04/2012 to 14/04/2013 on certain terms and conditions. OP2 also stated that the incidence occurred on 19/05/2012 and there was no policy cover to the ATM card on that day. Also after withdrawing Rs 2000/- from ATM, complainant forgot to take his ATM card back from the machine. OP2 also stated that the contention of no security person was on duty as wrong because guard always remained present in ATM, thus the allegations of complainant were wrong. Here intimation was given two days late to Police and bank, so, the complaint may be dismissed by this Forum.  

Arguments were heard from both the parties and order was reserved.  

 

We have gone through all the facts and evidences on record. It was noted that the OP1 had not submitted any evidence to show that complainant had ever been supplied with the copy of terms and conditions of policy being taken from OP2 for the insurance of ATM debit cards. Also OP1 never had stated in their written statement or in evidence that the ATM cards were insured by OP2 under package policy and exclusion clauses to the complainant. More so, it was also noted that even if contract was between complainant and OP2 pertaining to the terms and conditions of insurance of his debit card, OP2 never supplied any such documents to the complainant not OP1 did so. It was also seen that OP2 stated in his written statement and evidence that guard was present, neither OP1 nor OP2 submitted their log/attendance book record in evidence that guard was always remained present. No CCTV record was made available to confirm who entered in the ATM counter after the complainant left. Also, there was no record from OPs whether any policy documents were supplied to the complainant, if there was any contract between them.  

 

In general, bankers never tell that their ATM debit cards are insured with certain terms and conditions with the Insurance co. It was also noted that OP2 had nowhere stated that certain amount of premium was paid by the complainant. Meaning thereby the amount of premium was to be paid by OP1 to OP2 in time as soon as tenure of insurance was to expire and as being their internal matter, OP1 did not pay the premium in time and tried to get exonerated from any liability. So, it was the duty of OP1 to pay the regular premium to OP2 for keeping the insurance cover intact. The complainant only came to know about insurance facts when he went to lodge the complaint with OP1 where officials of OP1 told about the insurance terms and conditions and filled his CLAIM FORM FOR ALL RISK ASSURANCE and filed claim for LOST CARD LIABILITY under INSURANCE CLAIM-AXIS BANK DEBIT CARD form as annexed here, given by OP1, and it was assured that the amount withdrawn fraudulently would be reimbursed by OP2.

As per the rejection letter from OP2 to complainant, the claim rejection was justified on the ground that the intimation was delayed by two days and the said ATM card was not insured at the time of lost/misused by someone. Complainant also received letter of no claim from OP1.

As far as insurance cover of ATM card is concern and basis of rejection by OP2 and subsequently issuing rejection letter to the complainant, we cannot take on record the fact of rejection as justified by OP2 as it is an internal matter between OP1 and OP2. There was no direct contract of insurance between the complainant and OP2, rather it was the OP1 who issued the ATM card for their benefit and entered in contract between OP1 and OP2 on certain terms and condition. There was no evidence on record of paying premium by the complainant from his saving bank account to OP2.

 

The terms and condition submitted by OP2 clearly shows under Annexure A, Section 1 sub heading – LOST CARD LIABILITY DUE TO MISUSE OF THE LOST/STOLEN DEBIT CARD which reads as –

“Whereas the insured designated in the schedule hereto has applied to THE NEW INDIA ASSURANCE CO. LTD.(hereinafter called the Company) for the insurance hereinafter contained and has paid the premium as consideration for such insurance in respect of financial loss, arising out of fraudulent utilization of lost or stolen Axis Bank Debit Cards.

INCLUSION-

• Company will indemnify the insured against financial loss sustained by the insured arising out of fraudulent utilization of lost or stolen Axis Bank Debit Card up to the specified limit.   
• Lost card liability including counterfeit (ATM withdrawal covered only on the counterfeit card).

By seeing these terms and condition with inclusive conditions, OP1 had full knowledge of such conditions, but never communicated to the complainant during the insurance cover of his debit card. As far as paying the premium is concern, it is the duty of OP1 to pay the premium timely to OP2, so that the interest of insurance cover is protected.

In addition to this, terms and conditions for ATM DEBIT CARD SPECIAL CONTINGENCY INSURANCE POLICY under Annexure A, Section I, submitted by OP2, various documents are required for claim settlement process under lost card policy as-

• Format Letter
• Claim form for Lost card liability
• Attested copies of FIR/ Police report
• Bank Statement including forged transaction
• Certification from Axis Bank branch certifying the date, time of blocking the debit card timing of intimation by complainant to the bank regarding the loss of the same.

It has also been noted that the turnout time is 7 days for all kinds of claim subject to submission of all the documents by the bank. Thus it is evident before us that OP1 has completed all the above required documents from the complainant and also assured for repayment by OP2.

By taking shelter of rejection of claim by OP2 on the ground that policy was not in force due to nonpayment of premium and negligence of card holder and claiming rejection was justified merely by sending rejection letter to the complainant, does not exempt the liability of paying the damage by OP2 also to its specified limit. We have come to the conclusion that the complainant has proved deficiency in services from OP1 directly, so we allow this complaint and pass the following order—

• OP1 shall refund the fraudulently withdrawn amount sum of Rs 19635/-with 9% interest from the date of filing of this complaint within 30 days from the receiving of this order.
• We also award a sum of Rs 3000/-as compensation for mental agony and harassment caused to the complainant due to the deficient services of OP1.
• We also award a sum of Rs1000/-as litigation charges to be paid by OP1 within specified time.

 

• If order is not complied in stipulated time, then complainant shall be liable to recover the entire awarded amount with the same interest till realization.  

The copy of this order be sent to the parties as per rules and file be consigned to the record room.

 

(Dr) P N Tiwari - Member                                                                    Mrs - Harpreet Kaur- Member                                            

 

                                       

                                            Shri Sukhdev Singh - President