Punjab

StateCommission

A/11/1187

Bajaj Allianz General Insurance Company Ltd. - Complainant(s)

Versus

Daljit Kaur - Opp.Party(s)

Paras Money Goyal

16 Feb 2015

ORDER

First Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

First Appeal No.1187 of 2011 

 

                                              Date of institution: 05.08.2011.                                                            Date of Decision:   16.02.2015.

 

Bajaj Allianz Insurance Company Limited, Ground Floor, Ashok Plaza, Next to Weikfield Company, 32/2, Nagar Road, Pune through Senior Legal Executive, Bajaj Allianz General Insurance Company Limited, SCO 139-140, 1^st Floor, Madhya Marg, Sector -8-C, Chandigarh – 160 018.

                                                      .….Appellant/ opposite party No.1.

 

                                      Versus

 

1. Daljit Kaur wife of Late Sh.Kulwinder Singh resident of H.No.131, Ward No.5, Anand Basti, Patran, District Patiala.
    

   …..…Respondent/Complainant.

    

2. Manager, AXIS Bank, Samana, District Patiala.

                                                …..…Respondent/Opposite party No.2.

 

First Appeal against order dated 24.05.2011 of District Consumer Disputes Redressal Forum, Patiala.

Before:-

                Shri J.S.Klar, Presiding Judicial Member

                Shri Vinod Kumar Gupta, Member.

Present:-

                For the appellant      :    Sh.Deepak Goyal, Advocate for Sh.P.M.Goyal, Advocate

                For respondent No.1 : None         

   For respondent No.2: Sh.Deepak Aggarwal, Advocate

 Vinod Kumar Gupta, Member

                This appeal has been preferred by the appellant (opposite party No.1 in the complaint) against the respondent No.1 of this appeal (complainant in  the complaint) under Section 15 of the Consumer Protection, 1986 (hereinafter referred to as the ‘Act’) against order dated 24.05.2011 of District Consumer Disputes Redressal Forum, Patiala, (hereinafter called the ‘District Forum’) in  Consumer Complaint No.157 of 2010, vide which, the complaint of the complainant was accepted and the opposite party No.1 was directed to make the payment of the amount of Rs.2,00,000/- within a period one month from the date of receipt of the copy of the order, failing which the complainant shall be entitled to recover the same with interest @ 10% per annum from the date of the repudiation of the claim till realization besides the amount of Rs.10,000/- as compensation on account of mental harassment.

2.             The brief facts of the case are that Smt.Daljit Kaur,  the complainant, filed the complaint under the Act against the OPs on the averments that her husband late Kulwinder Singh maintained an account No.334010100004725 with Axis Bank at Samana, where his salary/commission, as an agent of the Life Insurance Corporation used to be deposited by the Life Insurance Corporation of India.  The account was being operated by the deceased Kulwinder Singh regularly.  The Axis Bank- OP No.2 issued the ATM Card bearing No.4688053340005834 to the husband of the complainant and he had been operating his account through the ATM Card.  It was further pleaded in the complaint that Sh.Kulwinder Singh the holder of the ATM died in a road side accident on 17.10.2009 at 6.30 p.m. in respect of which FIR was lodged on 18.10.2009.  The Postmortem examination of his dead body was also conducted on 18.10.2009.  It was further pleaded that against the ATM card issued by the opposite party No.2 Axis Bank, the opposite party No.1 namely Bajaj Allianz Insurance Co. Ltd. was required to pay Rs.2,00,000/- as insurance amount in case of an accidental death.  After the death of her husband, the complainant submitted the documents with OP No.2 for the release of the insurance amount of Rs.2,00,000/-, because of accidental death of her husband.  It was further alleged in the complaint that OP No.1, vide its letter No.Nil dated nil, rejected the claim of the complainant on the ground “scrutiny of the claim documents submitted for Kulwinder Singh revealed that there is no point of sale (POS) transaction done against the card No.4688053340005834.  The claim of complainant stood repudiated as the personal accident benefit could not be availed if there was no point of sale transaction done within 365 days prior to the date of loss.”  It was further alleged that the claim repudiated by the opposite party no.1 was illegal and arbitrary, in as much as the Axis Bank has never intimated the holder of the ATM card regarding any such condition of sale of transaction either at the time of issuance of the ATM card or thereafter.  The OP No.1 had also never intimated regarding such a condition to the husband of the complainant.  Otherwise, he might have made such transaction through the ATM Card.  The complainant requested the OPs to reconsider the claim of the husband of the complainant and to release the insurance amount of Rs.2,00,000/- to her, but to no effect.  Accordingly, the complainant has filed the complaint seeking direction to the opposite parties to pay the insurance claim to the complainant amounting to Rs.2,00,000/- with interest @ 18% p.a. from the date of his death till actual realization and further to pay Rs.50,000/- for mental agony to the complainant and Rs.11,000/- as costs.

3.             The complaint was contested by OPs and opposite party No.1 filed its separate written reply before the District Forum, raising preliminary objections that present complaint is not maintainable, in as much as the complainant does not fall under the definition of Consumer and moreover, the complicated question of law and facts are involved in this case, only Civil Court is competent to try the present dispute.  With regard the facts of the complaint, it was denied by the OP no.1 if the husband of the complainant maintained an account with the Axis Bank or he was maintaining the same regularly.  It was also denied by OP  No.1 if the Axis Bank issued the ATM card to the husband of the complainant and he was maintaining the account with the help of the same.  It was further denied by OP No.1 if Kulwinder Singh died in a road accident on 17.10.2009 and in this regard, FIR was lodged on 18.10.2009.  On merits, it was admitted that the opposite party No.1 had issued personal accident policy to the account holder having ATM/Debit Card of the Axis Bank for a sum of Rupees two lacs in case of accidental death, the insurance cover under the debit card could be claimed on the fulfillment of terms and conditions of the insurance policy.  It was admitted by OP No.1 that on receipt of the claim of the claimant, the same was considered and it was found that it was not maintainable being hit under Section 11 of the Personal Accident Policy.   It was further pleaded by OP No.1 that the statement of account of deceased maintained with the bank revealed that there was no point of sale transaction recorded on his debit card.  It was also denied if the Axis Bank had ever intimated the ATM card holder regarding any such condition of point of sale transaction at the time of issuance of the ATM Card.  The policy was issued to the policy holder and all the conditions were duly mentioned therein and it was specifically clarified that the fact of getting the insurance cover to the debit card is linked to terms and conditions, as stated above.  The insurance cover provided does not confer right, which can be claimed, for the purpose, but is attached to the terms and conditions like a Civil contact and one has to comply with the same. The opposite party no.1, thus, prayed for dismissal of the complaint of the complainant.

4.             OP No.2 filed its separate written version before the District Forum.  It was admitted that Kulwinder Singh, husband of the complainant had opened a saving account with opposite party No.2 bearing No.334010100004725 on 04.03.2006 and thereafter, he was issued an ATM card bearing no.4688055340005834, which was having an accidental insurance cover for an amount of Rs.2,00,000/-, to be provided by M/s Bajaj Allianz General Insurance Co. Ltd. under the arrangement made with the opposite party No.2.  It was pleaded that the insurance cover could be claimed on fulfillment of certain terms and conditions, which are available in the ATM Card-Key to usage booklet and the same is forwarded to all the customers by the OP No.2 at the time of availing the debit card facility.  It was further admitted that the complainant had submitted the claim application alongwith necessary documents and the same was forwarded to the office of the OP No.1 on 16.12.2009.  It was further submitted that the insurance cover was a matter to be settled by the insurance company (OP No.1) and not by the OP No.2.  The statement of account revealed that there is no point of sale transaction recorded on debit card, as per the express conditions attached with the debit card.  As per the transaction made between the opposite parties and the insurance company, the legal heirs of the nominee of the card holders would be entitled to insurance subject to conditions  interalia (i) the death should be accidental (ii) that the customer should have used the debit card at any merchant establishment done within 365 days prior to the date of loss or else (iii) the insurance cover would lapse and that the claim has to be submitted within 30 days from the date of accident.  It was further submitted that the account holder was specifically informed about the same, while sending the ATM cum debit card in the form of debit card – key to usage book let.  Mr.Kulwinder Singh, since deceased, did not use the ATM card at any commercial or business establishment within 365 days prior to the date of accident, thereby resulting into the repudiation of the claim.  OP No.2 prayed for dismissal of the complaint on the above grounds.

5.             The complainant tendered in evidence her own affidavit Ex.C-1 alongwith documents Ex.C-2 to C-4 and closed the evidence.  The OP No.1 tendered in rebuttal evidence affidavit of Mr.Sunil Koul Assistant Manager of OP No.1 Ex.R-1, Copy of policy Ex.R-2 and copy of letter Ex.R-3 and closed the evidence. OP No.2 tendered in evidence the sworn affidavit Ex.R1 (a duplicate exhibit and for the sake of brevity, now, it will be referred to as Ex.R1/A) of Mr.Ishwinder Singh Assistant Vice President of OP No.2 alongwith documents Ex.R-2 to R-4 duplicate exhibits and now, for the sake of brevity will be referred to as Ex.R2/A, R3/A and R4/A and closed the evidence. On conclusion of evidence and arguments, the District Forum, Patiala accepted the complaint of the complainant with the directions to the OP No.1 to pay the amount of Rs. 2,00,000/- to the complainant within a period fo one month on receipt of the certified copy of the order, failing which she shall be entitled to recover the same with interest @       10% per annum from the date of the repudiation of the claim till realization, besides Rs.10,000/- on account of her mental and physical harassment. Dissatisfied with the order of District Forum, the instant appeal has been preferred by the opposite party No.1 now appellant against the same.

6.             We have heard learned counsel for the parties and have gone though the record of the case.

7.             The perusal of the record shows that the appellant/OP No.1 issued the policy No.OG-10-1901-9930-00000007 to the OP No.2 (Axis Bank on 14.04.2009) for a period of 11.04.2009 to 10.04.2010, which is proved on record vide Ex.R-2.  It is an admitted fact that Kulwinder Singh since deceased, the husband of the complainant, had opened a saving bank account with OP No.2 bearing No.334010100004725 on 04.03.2006 and thereafter died in accident, OP No.1 issued ATM cum Debit Card bearing No.4688055340005834.  As per the version of the complainant, her husband Sh.Kulwinder Singh died in road accident on 17.10.2009 and FIR No.232 dated 18.10.2009 was lodged about it. The post-mortem report was conducted on 18.10.2009, which is proved on record vide Ex.C-4.  It is further admitted by the OP No.2 that the complainant had submitted the claim application alongwith the necessary documents and the same were forwarded to the OP No.1 on 16.12.2009.  The claim of the accident of the complainant was repudiated by the OP No.1 on the ground as set out in letter Ex.C-2 which is reproduced as under :-

“Scrutiny of the claim document submitted for Mr.Kulwinder Singh reveals that there is no point of sale (POS) transaction done against the card no.4688053340005834.  The claim stands repudiated as the personal accident benefit cannot be availed, if there is no point of sale transaction done within 365 days prior to the date of loss.”

 

8.             We have looked into the policy Ex.R-2, wherein, three cards are mentioned namely normal card, premium card and platinum card.  However, only the premium towards platinum card has been taken to Axis Bank.  Thus, as per the warranty condition for personal accidental cover: in platinum cards, no pre-condition under the policy as such will be applicable to the case in hand.

9.             In view of the above, the claim of the complainant was wrongly repudiated by the OP No.1 on the ground that there were no sale points carried out by the deceased, when there are no pre condition in the policy with regard to Platinum Card.  From perusal of the insurance policy, it is quite clear that the insurance cover issued to Axis Bank was only towards Platinum Card Personal accident policy against which the sum insured was shown as of 200 Crores, whereas no sum insured was there under the head of normal card and premium card in favour of Axis Bank Limited by the said insurance company and the final premium amount collected by them for this cover was to the extent of Rs.10,20,27,500/- and under the condition for platinum cards, in case of accident, no pre-conditions as laid down thereunder are applicable.  There is no evidence on the record placed by the opposite parties that the Exclusion Clause was ever conveyed to the husband of the complainant being the ATM/Debit Card holder. 

10.           Sequel to the above discussions, appeal filed by the appellant/OP No.1 is devoid of any merits and the same is, hereby, dismissed.  The order of the District Forum is affirmed and upheld in the appeal.

11.           The appellant/OP No.1 has deposited an amount of Rs.25,000/- with this commission at the time of filing the appeal.  The amount of Rs.25,000/- with interest accrued, if any, be remitted by registry to the complainant by way of a crossed cheque/demand draft after the expiry of 45 days.  Remaining amount shall be paid by the appellant to the respondent No.1/complainant within 45 days from the receipt of copy of the order.

12.           The arguments in this appeal were heard on 02.02.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                             (J.S.Klar)

                                                                Presiding Judicial Member

 

February 16, 2015                                         (Vinod Kumar Gupta)

LB/-                                                                              Member