DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Consumer Complaint Case No: 552 of 2011]

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              Date of Institution : 28.11.2011

                   Date  of Decision   : 01.10.2012

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Partap Singh son of Shri Paras Ram, aged 53 years, resident of 1716, Phase-II, Ram Darbar, Chandigarh.

                                  ---Complainant

V E R S U S

[1]  H.D.F.C. Bank Limited, Card Services Division, through its Deputy Manager, SCO No. 178, Sector 38-B, Chandigarh.

II.  CEEBROS, NO. 110, Nelson Manickam Road, Aminjikaral, Chennai – 600 029.

[2]  H.D.F.C. Ergo General Insurance Company Limited, through its Authorized Signatory, 6^th Leela Business Park, Andheri Kurla Road, Andheri East, Mumbai – 400 059.

     IInd Address: -

     Ramon House, H.T. Parekh Marg, Backbay Reclamation, Mumbai – 400 020.

     IIIrd Address: -

     S.C.F. No. 36, 1^st Floor, Phase-XI, Mohali, Punjab.

   ---Opposite Parties

BEFORE:  SH. LAKSHMAN SHARMA            PRESIDENT

         MRS.MADHU MUTNEJA              MEMBER

         SH. JASWINDER SINGH SIDHU     MEMBER

Argued By:    Sh. Inderjit Kaushal, Counsel for Complainant.

Sh. Sandeep Suri, Counsel for Opposite Party No.1.

Sh. Paras Money Goayl, Counsel for Opposite Party No.2.

PER JASWINDER SINGH SIDHU, MEMBER

1.      Complainant has filed the present complaint, against the Opposite Parties on the ground that the Complainant maintains an account with the HDFC Bank, Sector 38-B, Chandigarh. Opposite Party No.1 on its own issued a credit card in the name of the Complainant and sent one Titanium International Credit Card which the Complainant never used for any purchase transaction. The Complainant received a telephone call from the office of Opposite Party No.1 informing him that the Bank was giving HDFC Ergo Insurance to the Credit Card holders of the Bank and that the representative had all the data & information regarding the financial position of the Complainant. The Complainant claims to have turned down the offer of the representative of the Opposite Party No.1 that he was not interested in any policy.

        Despite turning down of the Offer, the Opposite Party, on its own, on 25.2.2011, sent an intimation regarding the Policy, issued to the Complainant and demanded a premium of Rs.9613/-. The policy was effective from 23.3.2011 to 22.2.2011. Copy of the forwarding letter, along with the policy is attached at Annexure C-1 (colly). Thereafter, Opposite Party No.1,issued Credit Card Statement dated 26.3.2011 for the first time showing an amount of Rs.9613/- due towards the premium of the policy issued (Annexure C-2). Later on, the Complainant received another Credit Card Statement dated 6.4.2011, in which the Opposite Party had asked for a late fee, along with other charges, immediately (Annexure C-3). Thereafter, the Complainant started receiving telephonic calls on his mobile threatening him to pay the amount due or face a legal action. The Complainant claims that he tried to convince that he had not given any information or declaration for issuance of HDFC Ergo Insurance Policy as no document were supplied to the Complainant, nor any consent given for the same. The Complainant refused to pay any amount, as shown in his credit card statement, on account of illegal dues of his credit card, without his consent. The Opposite Party served a legal notice on 12.7.2011 demanding a sum of Rs.12362/- within a period of 07 days which is annexed as Annexure C-4. The said legal notice was duly replied by the counsel of the Complainant on 26.8.2011, through which the illegal demand was asked to be withdrawn (Annexure C-5). The Opposite Parties issued a notice under section 62 of Arbitration & Conciliation Act, dated 15.10.2011, for amicable out of the court settlement of the account. The Complainant on receipt of this notice, visited the office of Opposite Party No.1, where the representatives of Opposite Party No.1 threatened the Complainant to face the criminal action of cheating, in case he did not pay the amount shown in his credit card statement. The copy of the notice dated 15.10.2011 is annexed at Annexure C-6 with the complaint. The Complainant thereafter, also received notices dated 2.11.2011, 10.11.2011  (Annexure C-7 and C-8) and after receiving threatening calls from different mobile numbers; three unidentified persons, claiming to be the Recovery Agents, visited the Complainant’s house, on 22.11.2011, and threatened his wife of dire consequences, if the Complainant failed to pay the dues outstanding. According to the Complainant, the issuance of insurance policy, in the name of Complainant, without there being any request, and thereafter, debiting the money from his Credit Card, tantamounts to unfair trade practice and deficiency in service. Thus, alleging deficiency in service and unfair trade practice on the part of the Opposite Party, Complainant has preferred the present complaint seeking the following relief:-

        The complaint of the complainant is duly verified and is supported by his detailed affidavit.

2.      The Opposite Party No.1 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the Complainant has not come to the court with clean hands. The issuance of credit card too is defended, as the same was duly applied for by the Complainant. The application form is annexed and present dispute if any has arisen out of a contractual relationship with HDFC Ergo General Insurance Co. Limited which is a separate entity whose policy of insurance has been availed by the Complainant. While stating the facts, the issuance of Master Card Gold Personal which was upgraded to Master Card Titanium is admitted and the Complainant was bound by its terms and conditions as well as the use of credit card is deemed acceptance of the said terms and conditions related to it. The card is also claimed to be available to the Complainant.

        The Opposite Party No.1 claims that the Complainant availed a Health Insurance Policy No. 50614462, vide Loan No. 2964785, from HDFC Ergo General Insurance Co. Limited, and a premium of Rs.9613/- was deducted on 23.2.2011 from the credit card account of the Complainant. The premium amount was converted into ‘DIAL AN EMI’ and an EMI of Rs.801.08P + processing fee and service tax etc. from Policy premium was charged from the Complainant.

        The policy in question was issued after sanction and permission taken from the Complainant on the Phone. The telephonic conversation with the Complainant has been recorded. The C.D. of the same procured from Opposite Party No.2 in pursuance of the present complaint is attached. It is further stated that the policy in question has been provided by Opposite Party No.2 after proper sanction and permission taken from the Complainant on the telephone by the Executive of the HDFC Ergo General Insurance Co. Limited. This recorded conversation is considered sufficient for the Bank or the Insurance Company to treat it as consent of the Customer. 

        The Opposite Party has also reproduced the clause related to ‘Proposal for Insurance’, as envisaged under IRDA Regulations, 2002. At the same time, Opposite Party No.1 stating that the present dispute is with regard to the Bill/ Statement, the answering Opposite Party was well within its right to invite the Complainant to settle the same through conciliation for which a notice was duly issued to the Complainant. The answering Opposite Party claiming that the dues towards the Complainant were just and legal and the Opposite Party had every right to recover the same.    

        On merits, the Opposite Party No.1 has repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Party has prayed for the dismissal of the complaint with heavy costs.  

        The reply of the Opposite Party No.1 is duly supported by detailed affidavit of Sh. Aman Gupta, Manager, H.D.F.C. Bank Limited, Credit Card Division, SCO No. 50-51, Phase 3B2, Mohali.

3.      The Opposite Party No.2 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the present complaint is misconceived, filed with soiled hands, without making out any case of deficiency in service, thus the same is not maintainable in its present form, as per the provisions of the Consumer Protection Act, 1986. The answering Opposite Party claims to have been unnecessarily dragged into the present litigation for not fault of their. 

        While replying on merits, all the averments of the present complaint have been simply denied in para-wise manner. However,  the aspect as mentioned in para 3 of their reply it is mentioned that the policy was extended only after the money was transferred to the answering Opposite Party. Secondly, in para 5, there is a categorical statement that the policy was extended in favour of the Complainant, only after the answering Opposite Party received the opinion from the Opposite Party No.1. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Party has prayed for the dismissal of the complaint.  

        The reply of the Opposite Party No.2 is duly supported by detailed affidavit of Sh. Praman Preet Singh Gujral, Claims Manager-Legal, HDFC ERGO General Insurance Co. Ltd., N22 (2^nd Floor), Sector 18, Noida.

4.      Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

5.      The fact with regard to maintaining the account with the HDFC Bank Limited as well as the issuance of a Credit Card bearing No. 5289 4513 0009 6720 effective from 19.11.2009 is admitted. Even the release of premium amount of Rs.9613/- against the said credit card of the Complainant being deducted on 23.2.1011 is admitted and that a Health Insurance Policy No. 50614462 vide Loan No. 2964785 from HDFC Ergo General Insurance Company Limited too is admitted.

6.      The Complainant through his present complaint has categorically mentioned that he was approached by the Opposite Party No.1 through a telephone call, seeking his consent for a Health Insurance Policy to be issued by HDFC Ergo Insurance Company to the Credit Card Holders of Opposite Party No.1, to which the Complainant had refused. Though at a later stage a Health Insurance Policy was issued in the name of the Complainant, which was delivered at his address. The same annexed with the complaint as Annexure C-1 (colly) page 14 to 25. On receiving a letter dated 2.3.2011, with regard to this policy, from the office of Opposite Party No.1, the Complainant claims to have raised this issue with Opposite Party No.1. The Opposite Party No.1 in reply to this particular averment mentioned in Para No. 2 has in detail claimed that the entire telephonic conversation was duly recorded, and that the Complainant had given his confirmation for issuance of the policy of insurance through deduction of premium from his credit card account. The C.D. has been placed on record, claiming that the averments of the complaint in para 2 are misleading and no reliance can be placed on the statement of the Complainant, specially when the Opposite Party No.1 has placed on record a copy of the recorded conversation as has been taken place.      

7.      The Opposite Party No.1 has also reproduced the relevant clause No. 4(4) ‘Proposal for Insurance’ as envisaged in IRDA Regulations, 2002, in Para No.11 of its reply, which demands that where a Proposal Form is not used, the insurer shall record the information obtained orally or in writing and confirm it within a period of 15 days thereof with the Proposer and incorporate the information in its cover note or policy. The onus of proof shall rest with the insurer in respect of any information not so recorded, where the insurer claims that the Proposer suppressed any material information or provided misleading or false information on any matter material to the grant of a cover.                                       We have failed to comprehend the logic on the part of the opposite party no.1 in reproducing the above IRDA clause as it does not relate to the business of Banking.

                                                                                                                                                                                                                                                                   8.      We have also minutely perused the sealed cover annexed by the Opposite Party No.1 in which the C.D. containing the telephonic conversation with the Complainant is claimed to be submitted. It is found from the addresses mentioned on the envelope itself that this C.D. was obtained by Opposite Party No.1 from Opposite Party No.2, as the airway bill no. 700009847736 is also found attached, so as to prove that the same was received from the office of Opposite Party No.2, as it is. Thus, the aspect that the conversation, which the answering Opposite Party No.1 claims to have happened between the insurance company and the Complainant was not available with Opposite Party No.1 before the filing of the present complaint is proved, or else there would have been no need for them to procure it from opposite party no. 2 after the filing of the present complaint. Thus, the Opposite Party No. 1 has failed to satisfy us as to how it had satisfied itself in releasing the amount of premium as it has failed to produce any evidence, in its possession, or from its own records that had empowered it for the release of the premium to Opposite Party No. 2.  Hence, the defence of the Opposite Party No. 1 is hollow on this account and cannot be believed.

9.      At the same time, it is very important and interesting to note that the Opposite Party No. 2, in para 5 of its reply on merits, claims that the policy was extended in favour of the Complainant only after the Opposite Party No.2 received the opinion from Opposite Party No.1. Hence, from this claim of Opposite Party No.2, it is established that Opposite Party No.2 never had any conversation with the Complainant and whatsoever, the contents of the CD submitted by Opposite Party No.1, as procured from Opposite Party No.2, in a sealed cover may be it only contains the conversation, if any, amongst the opposite parties and the Complainant is no where in the picture. Hence, it is proved beyond all reasonable doubts that Opposite Party No.1, as well as Opposite Party No.2 have acted in hand-in-glove manner to take away the hard earned money of the Complainant, without his valid consent. Hence, the demand raised by the Opposite Party No.1 of Rs.15,304/- as per legal notice (Annexure C-8) is found to be illegal and is not required to be honoured by the Complainant. 

10.     In the present circumstances, the present complaint deserves to succeed against both the Parties i.e. Opposite Party No. 1 and 2, for the reasons mentioned above. Hence, the present complaint is allowed, jointly and severally, qua Opposite Party No.1 and Opposite Party No.2 and the Opposite Parties are directed to: - 

[a] To pay Rs.15,000/- as compensation on account of deficiency in service and causing mental harassment to the Complainant;

 [b] To pay Rs.7,000/- as cost of litigation;

11.     The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] of para 10 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of the present complaint i.e. 28.11.2011, till it is paid.  

12.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced  

01^st October, 2012

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

‘Dutt’