BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 427/2004 Filed on 17.11.2004 Dated : 30.01.2010 Complainant:
Mary Mathew, T.C 11/203(1), Kanaka Nagar, Thiruvananthapuram- 695 003.
(By adv. M.S. Preetha Rani) Opposite parties:
M/s ICICI Bank, ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400 051 represented by its General Manager.
The Manager, ICICI Lombard General Insurance Company, Zenith House, Kesavarao Khadye Marg, Mahalakmi, Mumbai-400 034.
(By adv. Prasanna Kumar Nair)
Manager, M/s ICICI Bank, P.O.Box 120, T.C 25/2491-1, M.G. Road, Thiruvananthapuram.
(By adv. A. Sampath)
This O.P having been heard on 30.12.2009, the Forum on 30.01.2010 delivered the following: ORDER SMT. BEENAKUMARI.A: MEMBER Brief facts of the case are as follows: The complainant in this case is a widow. The husband of the complainant was having an ICICI Solid Gold Credit Card bearing No. 4477 4701 4392 7003 issued by the opposite parties. The said card was having personal accidental death insurance coverage and if the card holder dies in a road accident, his nominee will get Rs. 5 lakhs as insurance amount and if the death occurred in an air accident the insurance amount is Rs. 20 lakhs. The complainant's husband met with a road accident and died on 10.01.2004. When the complainant, being the nominee, applied for getting the insurance amount the opposite parties rejected her application. The complainant further stated that the complainant's husband was having other credit cards issued by the SBI and HSBC Bank and they were also having insurance coverage and the amount legally due to the complainant was paid by them without any delay. Hence the opposite parties by not giving the insurance amount of Rs. 5 lakhs as promised in their brochure issued along with the credit card had in fact cheated the complainant and their actions amount to unfair trade practice and deficiency of service. That the complainant had issued an advocate notice on 10.07.2004 in this regard. Hence complaint is filed for getting Rs. 5 lakhs being the insurance amount and Rs. 50,000/- as compensation for mental agony. The 1st and 3rd opposite parties in this case are M/s ICICI Bank and Manager, M/s ICICI Bank. The 2nd opposite party is the Manager, ICICI Lombard General Insurance Company. The 1st opposite party in this case never turned up to contest the case. The 3rd opposite party filed version, but thereafter they did not appear for contesting this case. The 2nd opposite party has very strongly contested the case. Main contention of the 2nd opposite party is that as per the terms and conditions of the policy an insurance policy coverage will be available only to those credit card holders aged between 18 years and 70 years. But the deceased Sri. E.M. Mathew was at the age of 72 years at the time of death. For that ground the 2nd opposite party rejected the claim of the complainant. They further stated that the policy was G.P.A Policy the complainant has not taken care to understand the policy conditions carefully and this claim was made without understanding the policy conditions. In the specific interpretation for Sec. I & II of the Comprehensive Credit Card Insurance Policy, it is clearly stated that “Insured person shall mean the credit card holder between 18 years and 70 years. The 2nd opposite party stated that it is an admitted fact that the deceased was aged above 70 years. The 3rd opposite party filed version admitting the issuance of the credit card, but discarded its liability stating that the insurance coverage was only to those persons who fall between the age group of 18 to 70 years and that the deceased was 72 years of age at the time of his death which is clearly evident from the claim form. In this case complainant was examined as PW1 and Exts. P1 to P10 were marked and from the side of 2nd opposite party, the Manager was examined as DW1 and 4 documents were marked. Both parties were cross examined by each other. In the argument note the complainant has stated that nobody has cross examined the complainant, but that statement is not correct. The 2nd opposite party cross examined the complainant. The marking of Ext. D1(a) document through DW1 was objected by the complainant. The main objection is that the document was a fax copy. But the document has been certified by DW1 the Manager, Legal and he stated that the original is with the 1st opposite party. Points that would arise for consideration are:- Whether the repudiation of the claim by the 2nd opposite party is justifiable or not? Whether there is deficiency in service or unfair trade practice from the side of opposite parties? Whether the complainant is entitled to get the reliefs and costs?
Points (i) to (iii):- In this case the complainant has filed proof affidavit in lieu of chief examination and she was examined as PW1. The document marked as Ext. P1 is the Gold Credit Card bearing No. 4477 4701 4392 7003 issued by the 1st opposite party. Ext. P2 is the brochure issued by the 1st opposite party to the complainant. This document gives all the information regarding the use of credit card facility. Through this brochure we get only a general information regarding the benefit of insurance. No terms and conditions of the insurance is seen in that document. In that, it is only stated that personal accident benefit is Rs. 20 lakhs in air accident and Rs. 5 lakhs in any other accident. In this brochure it is clearly stated that for more details 'please see the insurance annexure'. In this case the complainant's husband or the complainant did not try to understand the terms and conditions of the insurance. Ext. P3 is the letter issued by the 2nd opposite party to the complainant to provide necessary documents to process the claim of the complainant. Accordingly the complainant has produced all the documents before the opposite parties. Ext. P4 is the claim repudiation letter issued by the 2nd opposite party. The reason stated in the letter is that at the time of incident, the age of the deceased was 72 years, which is not covered under the terms and conditions of the policy. Ext. P5 is the letter issued by the HSBC and Ext. P6 is the letter issued by United India Insurance Company to the complainant. Through these documents the complainant has proved her statement that other credit cards, having insurance issued by other banks settled her claim without delay. Ext. P7 is the copy of lawyer's notice issued by the complainant to the opposite parties demanding the insurance amount and compensation dated 10.07.2004. Ext. P8 is the returned acknowledgement card signed by the 1st opposite party. Ext. P9 is the copy of FIR and Ext. P10 is the post mortem report. Through these documents the complainant has proved that the death of her husband was by a road accident. There is no dispute regarding the death of the complainant's husband. In this case from the side of 2nd opposite party, the Manager was examined as DW1 and Exts. D1 and D1(a) were marked through him. Ext. D2 and D3 were marked through the complainant. Ext. D1 is the Part II of the comprehensive credit card insurance policy. The learned counsel for the 2nd opposite party clearly stated before this Forum that that document is an incomplete document, hence they have produced Ext. D1(a). In Ext. D1 and D1(a) documents in the specific interpretation for Sec. I and II it is clearly stated that “Insured person shall mean the credit card holder aged between 18 years and 70 years. Ext. D2 is the original claim form submitted and signed by the complainant. In this document the complainant has written the age of the deceased is 72 years. In this case there is no dispute regarding the age of the complainant's husband. Ext. D3 is the reply notice issued by the 2nd opposite party to the complainant dated 24.07.2004. Through that reply notice the 2nd opposite party informed the reason for the repudiation of the claim clearly. The insurer in this case is the 2nd opposite party ICICI Lombard and the insured is M/s ICICI Bank, the 1st opposite party and their credit card holder. It is an offer given by the 1st opposite party to its credit card holders. The terms and conditions of the contract of insurance is between the 1st opposite party and 2nd opposite party. The complainant has no case that the deceased husband had paid any amount to the opposite parties as insurance premium. At the time of taking credit card, the 3rd opposite party issued the Ext. P2 brochure to the credit card holder. In that document the terms and conditions of the insurance are not stated, but it is clearly stated in that document that “for more details please see the insurance annexure”. The husband of the complainant did not turn up to see the annexure because he did not pay anything for the insurance premium. At the same time the 3rd opposite party has the liability to inform him that there was a condition that the credit card holder between 18 years and 70 years only would get the benefits under the scheme. After the death of her husband the complainant submitted the claim form before the opposite parties. The original claim form produced by the 2nd opposite party is marked as Ext. D2. In that document the age of the deceased was mentioned as 72 years at the time of his death. Ext. D2 was marked through the complainant wherein she has admitted her signature and handwriting. But at the time of cross examination she said that “10.01.2004- ലാണ് എന്റെ ഭര്ത്താവ് മരിച്ചത്, ടി സമയം അദ്ദേഹത്തിന് 75 years ഉണ്ടായിരുന്നു. ടിയാന്റെ date of birth തെളിയിക്കാന് രേഖ ഹാജരാക്കാം”. In this case the complainant has no case that at the time of her husband's death he was below 70 years. As per the terms and conditions of the policy, the policy covers only those persons who fall between the age of 18 to 70 years. For that reason the 2nd opposite party has repudiated the claim of the complainant. In this case the learned counsel for the complainant argued that it is the duty of the opposite parties to communicate the terms and conditions of the policy to the credit card holders. To strengthen that argument he has produced 2 decisions:- New India Assurance Co. Ltd. Vs. Padmaben Himatlal Shah & another, 2004(4) CPJ 67: 2005(1) CPR 80: 2004(3) CLT 390(Guj). In that case deficiency in service of the opposite party proved on the ground that no evidence has been adduced to show that the insured came to be communicated with the terms and conditions of the policy. But in this case in Ext. P2 brochure it is clearly stated that “for more details please see the insurance annexure”. The insurance policy in this case is a Group Insurance Policy. Hence it is difficult to issue each and every credit card holders the copy of master policy. The master policy is always in the custody of the 1st opposite party. It is the 1st opposite party who has taken the insurance policy for and on behalf of its credit card holders. Another decision cited as Laxmikantha Vs. Branch Manager, Andhra Bank Ltd., 2001(1) CPR 409 (AP) produced by the complainant. In that case complainant's husband, holder of account which gave insurance coverage in case of accident, died in accident-claim rejected. The pass book did not mention that claim had to be made within 90 days. The opposite party did not file policy agreement. Hence the court finds that the rejection of the claim was deficiency in service. In the instant case the opposite party has produced the policy copy, which shows the terms and conditions of the policy. The counsel for the 2nd opposite party vehemently argued that policy is a contract between parties and both parties are bound by the terms of contract if there is violation of the terms and conditions, the insurance company is well within their right to repudiate claim of insured. To strengthen his argument he has produced various decisions of National Commission. In the argument note the learned counsel for the 2nd opposite party submitted that in the case of Oriental Insurance Co. Ltd. Vs. Sony Cheriyan, reported in (1999) 6 SCC 451, an insurance was taken out under the Motor Vehicles Act, 1988 in which the court observed “The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by this insurance policy”. Similarly in the case of General Assurance Society Ltd. Vs. Chandukull Jain and another reported in (1966) 3 SCR 500, the Constitution Bench has observed that the policy document being a contract and it has to be read strictly. The court's observation is that “In interpreting documents relating to a contract of insurance the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone etc. had come into being.” In this case as per the recitals of the terms and conditions of the policy, Sec. I deals with personal Accident cover and Sec. II deals with medical expenses for bodily injury covered by and arising out of road/train accident. As per the provisions of the policy under the specific interpretation for Secs. I & II read as under[Ext. D1 & D1(a)] : “Insured person shall mean the credit card holder aged between 18 years and 70 years. After duly verifying the documents submitted by the complainant the 2nd opposite party repudiated the claim of the complainant and the same was informed vide letter dated 31.05.2004 to the complainant(Ext. P4). And the 2nd opposite party had promptly replied to the advocate notice dated 10.07.2004 which was marked as Ext. D3. From the above mentioned discussions we are of the view that there is no deficiency on the part of the 2nd opposite party and the repudiation of the claim of the complainant made by the 2nd opposite party is justifiable. Hence 2nd opposite party is exonerated from the liability. But the 1st and 3rd opposite parties in this case did not contest the case. In this case the 1st opposite party is the party who has promised and taken the insurance policy for its credit card holders. At the time of taking the credit card the husband of the complainant was above 70 years, at that instance the 3rd opposite party who had issued the card to the complainant, should have informed and specified the condition that only the person below 70 years would get the benefit under the policy. Hence there is deficiency in service from their part in suppressing the same and giving false and attractive offers. For that act the 1st and 3rd opposite parties are jointly and severally liable for their deficient service. Hence the complaint is partly allowed. In the result, the opposite parties 1& 3 are directed to pay Rs. 25,000/- as compensation to the complainant and shall also pay Rs. 1,500/- as costs of the proceedings. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid for the entire amount. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of January 2010.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT S.K. SREELA : MEMBER jb
O.P. No. 427/2004 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Mary Mathew II COMPLAINANT'S DOCUMENTS : P1 - Credit Card P2 - Brochure issued by the 1st opposite party. P3 - Letter dated 24.12.2004 issued by the opposite party. P4 - Letter dated 31.05.2004 issued by the opposite party. P5 - Letter dated 14.09.2004 issued by HSBC P6 - Cheque covering letter dated 31.05.2004 P7 - Registered advocate notice dated 10.07.2004 P8 - Acknowledgement card addressed to opposite party. P9 - Photocopy of FIR dated 11.01.2004. P10 - Photocopy of post-mortem certificate dated 19.01.2004. III OPPOSITE PARTY'S WITNESS : DW1 - Jayachandran IV OPPOSITE PARTY'S DOCUMENTS : D1 - Policy conditions. D1(a) - Policy conditions D2 - Original claim form for personal accident insurance D3 - Photocopy of letter dated 24.07.2004.
PRESIDENT
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