The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that his son Deepak Kumar was having A/c bearing No. 01871530009692 with opposite party No. 2 and it has issued Debit Platinum Card No. 4363 0302 0494 to him. At the time of opening of the said account, the opposite party No. 2 insured the account holder i.e. Deepak Kumar for a sum of Rs. 10.00 Lacs under personal accidental insurance scheme, with opposite party No. 2 and in this regard one covering letter alongwith Debit Card was issued to the account holder. The complainant is the nominee of the said account holder and she is the only class I legal heir of said Deepak Kumar. The complainant alleged that the opposite parties never issued any insurance policy or its terms and condition or any document related to the insurance except the covering letter wherein it has been mentioned that personal accident insurance cover upto Rs. 10.00 Lacs and for every Rs. 1/- spent on purchases through the Platinum Debit Card, sum insured increases by five times. Deepak Kumar insured son of the complainant died and totally burnt alongwith the car in road side accident in the intervening night of 30/31-10-2013 in the revenue limits of P.S. Bajakhana and in this regard FIR No. 108 dated 31-10-2013 was duly registered at P.S. Bajakhana. The complainant lodged the claim with opposite party No. 2 and they demanded documents alongwith platinum debit card from the complainant. The complainant told the opposite parties that the card was burnt alongwith body of Deepak Kumar Kalsi. However, the complainant supplied death certificate, post mortem report, FIR and covering letter of Debit Card to the opposite party No. 2 on 3-12-2013. The opposite party No.2 conveyed the complainant that all the claim papers have been forwarded to the opposite party No. 1 and assured her that the claim will be paid within 7 days. The complainant further alleged that she alongwith her husband repeatedly visited the office of opposite parties and requested them to pay the claim but they lingered on the matter without any reason. The complainant again visited the office of opposite party No. 2 and photocopy of letter dated 17-12-2013 was delivered to her vide which the opposite party No. 1 already closed the claim file as 'No Claim' with special conditions that claims on the policy would be admissible subject to a minimum of non ATM swipe/transaction within 3 months of the insured event, as such this claim is not covered and treated the same as no claim. The complainant raised objection in this regard that such special exclusion clause or policy was never supplied to the account holder, thus it is totally illegal and against the spirit of insurance. The complainant further alleged that the opposite parties illegally and on flimsy grounds rejected the legal claim of the complainant by using such type of exclusion clause which is against the natural justice, against the spirit of the insurance and moreover the opposite parties never communicated any special clause. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to make the total loss amount of Rs. 10.00 lacs with interest alongwith damages and cost.
The opposite party No. 1 filed its written statement and admitted complainant's son having a HDFC Bank Platinum Debit Card. It has been pleaded that the complainant's son was having account with opposite party No. 2. The opposite party No. 2 entered into an agreement with opposite party No. 1 and purchased a group insurance policy named as Cardsure Package Policy to provide insurance coverage under Accelerated Personal Accident Insurance to protect its account holders who were interested to get the benefits of the HDFC Bank Platinum Debit Card. The opposite party No. 1 has further pleaded that at the time of issuing the said card to the complainant's son, the opposite party No 2 also provided a guide book as debit card usage guide and this fact is clearly mentioned on the covering letter issued by the opposite party No. 2. The opposite party No. 2 had purchased a group insurance policy from opposite party No. 2 named as Cardsure Package Policy bearing No. 2999200570315100000 and the opposite party No. 1 sent the entire terms and conditions alongwith the policy to opposite party No. 2. The policy contains some terms and conditions and the said terms and conditions with regard to the benefits were mentioned in debit card usage guide and copy of the same had already been provided to the HDFC Bank platinum debit card holder issued by the opposite party No. 2. The complainant purposely with malafide intention and to get undue benefits, denied the factum of debit card usage guide. The opposite party No. 1 has admitted that the complainant is the nominee of the said account being mother of deceased life assured. The opposite party No. 1 has pleaded that the opposite party No. 2 provided a debit card usage guide with the said card and this fact is clearly mentioned in the covering letter i.e. 'For details and terms and conditions, please refer to the usage guide closed and there is further specifically mentioned that 'conditions apply'. The complainant did not use the said platinum card in non ATM swipe/transaction within three months of event. The opposite party No. 1 is a general insurance company registered under the provisions of Insurance Act, 1938, IRDA Act, 1999 and rules and regulations made their under and to follow the entire guidelines issued by IRDA from time to time strictly. The opposite party No. 1 as well as the complainant is bound by the terms and conditions of the policy. The opposite party No. 2 is a bank and the same is registered under the provisions of banking regulations Act and allied Acts as applicable within Indian Territory to run the banking business so in this way, both institutions having different identifications, have no concern with each other. The opposite party No. 1 has admitted that it has received a claim against the policy in question against HDFC Platinum Debit Card No. 4363030204946099 lodged by the complainant. The opposite party No. 1 gone through the entire documents and found that the complainant's son did not use the said platinum debit card at non ATM swipe/transaction within three months of the insured event, so the claim of the complainant is not covered under the policy terms and conditions, hence she is not entitled for any claim against the policy.
Notice of this complainant was delivered to opposite party No. 2 dasti on 17-02-2014, but despite service, none appeared on its behalf, as such exparte proceedings were taken against opposite party No. 2.
The parties have led their evidence in support of their respective pleadings.
Arguments heard. The record alongwith written submissions submitted by the parties perused.
These are the admitted facts of the parties that opposite party No. 2 entered into an agreement with opposite party No. 1 and purchased a group insurance policy bearing No. 2999200570315100000 named as Cardsure Package Policy to provide insurance coverage under Accelerated Personal Accident Insurance to protect its account holders who were interested to get the benefits of the HDFC Bank Platinum Debit Card. Deepak Kumar Kalsi son of the complainant was having one account No. 01871530009692 with opposite party No. 2 and Debit Platinum Card No. 4363030204946099 was issued to him by opposite party No. 2 against said account. The said account holder Deepak Kumar Kalsi insured son of the complainant died and totally burnt alongwith the car in road side accident in the intervening night of 30/31-10-2013. The complainant being nominee of the said account and class I legal heir of deceased insured, lodged the claim on 3-12-2013 and provided the necessary documents to the insurance company. The claim of the complainant has been repudiated by the opposite parties on the ground that complainant's son did not use the said platinum debit card at non ATM swipe/transaction within three months of the insured event.
The submission of the learned counsel for the complainant is that the opposite parties never issued any insurance policy or its terms and conditions or any document related to the insurance cover issued to the account holder or complainant till date except the said covering letter wherein it is mentioned that Accelerated Personal Accident Insurance Cover upto Rs. 10.00 Lacs and for every Rs. 1/- spent on purchases through the Platinum Debit Card, sum insured increases by five times. The debit card was duly used by the account holder as per his requirements. The learned counsel for the complainant further submitted that the insurance is a contract like any other contract and it is not the statutory in nature and it should be construed like any other contract and it must be signed by both the parties. The opposite parties till date did not supply any insurance policy or its terms and conditions and its exclusion clause to the account holder or nominee. The complainant's son died in road side accident and she being nominee and class I legal heir of deceased Deepak Kumar Kalsi, lodged claim with the opposite parties and submitted necessary documents. The opposite parties have repudiated the claim of the complainant on special condition that claims on the policy would be admissible subject to a minimum of non ATM swipe/transaction within 3 months of the insured event. The submission of the learned counsel for the complainant is that repudiation of claim is totally illegal and against the spirit of insurance. The opposite parties illegally on flimsy ground rejected the legal claim of Rs. 10.00 Lacs of the complainant by using such type of exclusion clause which is against the natural justice.
On the other hand the submission of the learned counsel for the opposite party No. 1 is that at the time of issuing the HDFC Bank Platinum Debit Card to the complainant son, the opposite party No. 2 also provided a guide book as debit card usage guide and this fact is clearly mentioned on the covering letter issued by opposite party No. 2 wherein it is mentioned “Spend a few minutes reading the Debit Card Usage Guide, which has the details of benefits, terms and conditions pertaining to your HDFC Bank Platinum Debit Card.” It has also been mentioned in the covering letter of usage guide that “For details and a Terms and conditions, please refer to the usage guide enclosed.” The opposite party No. 2 had purchased a insurance policy from the opposite party No. 1 named as Cardsure Package Policy bearing No. 2999200570315100000 and the opposite party No. 1 sent the entire terms and conditions alongwith the policy to opposite party No. 2. The learned counsel for the opposite party No. 1 further submitted that after going through the entire documents, it was found that the complainant's son did not use the said platinum debit card at non ATM swipe/transaction within three months of the insured event, so the claim of the complainant is not covered under the policy terms and conditions. Thus, the complainant is not entitled for any claim against the policy. The policy was purchased by the opposite party No. 2 and the claim was received by opposite party No.2, so the letter of repudiation was sent by the opposite party No. 1 to the opposite party No. 2. The learned counsel for the opposite party No. 1 referred various authorities on different aspect of matters.
The opposite parties have repudiated the claim of the complainant vide letter Ex. C-8, the relevant portion of this letter reads as under :-
“..This has reference to above claim lodged by you and all the documents received by us.
We have gone through all the documents submitted by you and observed that late Mr. Deepak Kalsi has died due to accident on 30-10-2013. In the bank statement provided there is absence of non ATM Transaction during the last three months immediately preceding the date of accident 30-10-2013.
As per the policy wording special conditions.
'Claims on the policy would be admissible subject to a minimum of non ATM swipe/transaction within thee months of the insured event.
Since the losses claimed under are not covered as per above policy wording, we treat the claim as No Claim and closed in our records.”
The pleading of the opposite party No. 1 is that the opposite party No. 2 provided a debit card usage guide with the said card and this fact is clearly mentioned in the covering letter i.e. 'For details and terms and conditions, please refer to the usage guide closed and there is further specifically mentioned that 'conditions apply'. Ex. C-3 is the covering letter of debit card usage guide wherein it has been mentioned that :-
“Do spend few minutes reading the Debit Card Usage Guide which has the details of benefits, terms and conditions pertaining to your HDFC Bank Platinum Debit Card. Kindly turn overleaf for details on your exclusive benefits.”
The opposite party No. 1 has not placed on record the Debit Card Usage Guide to show that actually the special condition under which the opposite parties have repudiated the claim of the complainant has been supplied to the complainant. Moreover, the usage guide referred by the opposite parties must be containing the documents for guidance for use of Platinum Card otherwise the opposite party No. 1 must have produced the same on file.
The opposite party No. 1 has also placed on file insurance policy in question Ex. OP-1/1. A perusal of this document shows that the said policy alongwith terms and conditions has been sent to opposite party No. 2. Sh. Pankaj Kumar, Manager Legal, Authorized Signatory of opposite party No. 2 in his affidavit Ex. OP-1/2 has deposed in para No. 3 that the opposite party No. 2 purchased the insurance policy from the opposite party No. 1 named as Cardsure Package Policy bearing No. 2999200570315100000 and the opposite party No. 1 sent the entire terms and conditions alongwith the policy to the opposite party No. 2 and the said group insurance policy purchased by opposite party No. 2 to protect its account holders who were interested to avail the benefits of platinum debit card etc., Thus, admittedly this policy alongwith terms and conditions was not sent to the complainant. Hence, the complainant is not bound by the terms and conditions which were never supplied to the deceased account holder. In this regard, the support can be sought by the law laid down by the Hon'ble National Consumer Disputes Redressal Commission, Delhi, in case titled M/s. Hundi Lal Jain Cold Storage and Ice Factory Pvt. Ltd. Vs. Oriental Insurance Co. Ltd., 2004(3) CPR 3 (NC) wherein it has been held :-
“....claim for compensation for loss resisted on plea that claim was fraudulent and that insured failed to follow condition of maintaining temperature in the chambers- Insurance Co. had failed to supply policy to insured which itself amounted to deficiency in service and it could not press its contention that insured committed breach of conditions of policy.”
Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered opinion that the opposite parties did not pay the genuine claim of the complainant and repudiated the same on flimsy grounds which amounts to deficiency in service on their part. In this regard, the support can be sought by the precedent laid down by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, in case titled The Oriental Insurance Co. Ltd.& Another Vs. M/s Puneet Pasricha, First Appeal No.1579 of 2004, decided on 05.03.2010 wherein the Hon'ble State Commission has held that :-
“......The appellants cannot be permitted to frustrate the insurance claim on the technicalities.”
The Insurance Regulatory and Development Authority vide its Circular Ref. No. IRDA/HLTH/MISC/CIR/216/09/2011 dated 20-09-2011 issued special guidelines to the Insurance Companies in this context. The relevant portion of the said circular is reproduced here under :-
“...To All Life Insurers and non-life Insurers
Re : Delay in claim intimation/documents submission with respect to
i) All life insurance contracts and
ii) All Non-life individual and group insurance contracts
....The Insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.”
The Hon'ble Supreme Court in the case 2004(3) RCR ( Civil) titled H N Shankara Shastry Vs. The Asst. Director of Agriculture, Karnatka has held :-
“.....The very object of the Act is to protect the consumer from clever traders and manufacturers – It is a beneficial legislation to be given liberal interpretations in favour of the consumer which held carrying out its object not to defeat the same.”
Now, so far as the entitlement of the complainant is concerned, as per insurance Ex. OP-1/1 “Accidental Death – Platinum Word and Business Card (Air/Rail/Road – Maximum Sum Insured – Rs. 10,00,000/- per card including base cover of Rs. 5,00,000/-. For every Rs. 1/- spent on purchases through the Platinum Debit Card, sum insured increases by five times. Since the complainant has not placed on file any account statement to show the transactions of Platinum Card in question, the complainant is only entitled to the base cover amount of Rs. 5.00 Lacs.
In the case in hand admittedly opposite party No. 1 sent the policy in question to opposite party No. 2, the complainant denied receipt of policy and its terms and conditions and opposite party No. 2 despite dasti service of notice did not appear before this Forum to contest the complaint. This act of opposite party No. 2 shows that opposite party No. 2 failed to deliver the policy alongwith terms and conditions to complainant and thus intentionally did not appear before this Forum. Moreover, the opposite party No. 1 who opened the account and provided Platinum Debit Card to the consumer with facility of insurance, to get some benefit, is duty bound to make aware its consumers each and every terms and conditions of cards as well as insurance and not to keep the consumers in dark after opening the account whereas in the case hand, the bank i.e. opposite party No. 1 left the consumer to run pillar to post to get the insurance claim.
With utmost regard and humility to the authorities cited by the learned counsel for the opposite party No. 1, they are distinguishable on facts.
In view of what has been discussed above, this complaint is accepted with Rs. 20,000/- as compensation and cost against both the opposite parties. The opposite party No. 1 is directed to pay Rs. 5.00 Lacs being the claim of deceased account holder Deepak Kumar Kalsi, to the complainant alongwith interest @ 9 % p.a. w.e.f. 1-2-2014 (i.e. three months from the date of death of insured) within 45 days from the date of receipt of copy of this order.
The amount of compensation and cost will be paid by both the opposite parties in equal share to the complainant.
The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which an amount of Rs. 5.00 Lacs plus interest will yield further interest @9% p.a. till realization.
A copy of this order be sent to the parties concerned, free of costs and the file be consigned to the record.
Pronounced in open Forum
16-07-2014
(Vikramjit Kaur Soni)
President
(Sukhwinder Kaur)
Member
(Jarnail Singh )
Member
