Tamil Nadu
South Chennai
CC/171/2019
Rajendra Munje - Complainant(s)
Versus
HDFC general Insurance - Opp.Party(s)
N B N Swamy
21 Feb 2023
ORDER
Date of Complaint Filed : 26.06.2019
Date of Reservation : 27.01.2023
Date of Order : 21.02.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No. 171/2019
TUESDAY, THE 21st DAY OF FEBRUARY 2023
Rajendra Munje,
S/o Late Sriram G Munje,
Aged 58-years,
Residing at B1, Anmol Andal,
20 Ranjith Road,
Kotturpuram,
Chennai-600 085. ... Complainant
..Vs..
1.HDFC Ergo General Insurance Company Ltd,
Represented by its General Manager,
Registered and Corporate office:
1st Floor, HDFC House,
165-166, Backbay Reclamation,
H.T.Parekh Marg,Churchgate,
Mumbai-400 020.
2.HDFC Ergo General Insurance Company Ltd.
Represented by its Manager,
538, Old No.559,
2nd Floor, Anna Salai,
Teynampet,
Chennai-600 018. … Opposite Parties
******
Counsel for the Complainant : M/s. N.B.N.Swamy
Counsel for the Opposite Parties : M/s. M.B Gopalan Associates
On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, we delivered the following:
ORDER
Pronounced by Member-I. Thiru. T.R. Sivakumhar., B.A., B.L.,
1. The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to pay a sum of Rs.1,00,000/- being the reimbursement of loss incurred by him along with interest @18% p.a on the said amount from the date of rejection of claim i.e., 28th May 2019 till the date of payment along with cost.
2. The averments of Complaint in brief are as follows:-
The Complainant is an account holder with the 3rdOpposite Party Bank with Savings account No.00821130003578 and holding a debit card No.5129-708-0597-2796. On 05.03.2019 he received continuous messages within a span of 10 minutes on his mobile that sums of Rs.49,000/-, Rs.1,000/-, Rs.2,000/-, Rs.48,000/-, Rs 19,000/-, Rs 19,000/- Rs.1,000/-, Rs 10,000/-, Rs.5,000/- Rs.5,000/- has been withdrawn and Rs. 1,000/-, Rs.48,000/- and Rs.10,000/- has been reversed from his bank account, whereby a total of unauthorized transaction of Rs.1,00,000/- was made, when in fact he had not made any of the said transactions either through using his Debit card or E-Wallet transaction or online transaction where One Time Password (OTP) needs to be generated to make such transaction and no OTP was either requested by him or provided/generated by the 3rd Opposite Party. Immediately thereafter the Complainant on 05.03.2019 at 3 PM visited the 3rdopposite party and informed him of the said unauthorized transactions made in his account through his card number by some third party, though the card was very much with him only and to stop further fraudulent transactions in the said account the 3rd Opposite Party blocked his debit card No.5129-708-0597-2796 on the same day at 3.22 PM. On 07.03.2019, he had submitted card holder dispute form/letter to the 3rdOpposite Party of the unauthorized transaction of Rs.1,00,000/- made in his account on 05.03.2019.On 07.03.2019, he had also submitted a complaint to the Inspector of Police, Bank Fraud Wing Team XXXL Central Crime Branch, Vepery, Chennai-600007 of the said unauthorized transaction of Rs.1,00,000/- made in his account on 05.03.2019. He having come to know that the on line fraudulent transactions has happened in his account through a Paytm account holder, complained of the said fraudulent transactions in his bank account to the Cybercell of Paytm and they on investigation have the disputed amounts and transactions complained of has been transacted by their holder of account No.918167792593 and as having found fraud having been committed the said account is blocked by them to prevent perpetration of further frauds and damage and requested to share the details with the respective Cyber cell crime cell of the jurisdiction. Further they have intimated that as the amounts have already been utilized, it is not refundable. As he being an account holder of savings bank with the 3rd Opposite Party and all their accounts are insured by them with the 1stand 2nd Opposite Parties, the 3rdOpposite Party provided him to prefer an insurance claim of the amount lost from his account through the said fraudulent transactions and accordingly on 09.05.2019 he informed of the same and preferred the claim on 13.05.2019 for reimbursement of the said lost amounts through the said fraudulent transactions and the 3rdOpposite Party recommended his case as the claim was genuine. His claim was well within the insured amount assured by the 1stopposite party for reimbursement of the said amounts of Rs.1,00,000/- lost through the said fraudulent transactions and the insurance valid for the period up to January 2024 and the said fraudulent transactions occurred during the validity of the said policy and he is entitled for reimbursement of the same from the 1st and 2ndOpposite Party as the said bank account of his was insured against unauthorized online transactions. The 1stopposite party on receipt of the claim of the Complainant assigned his claim as Claim no. 4221411 on 24.05.2019 and also intimated that incase of any clarification and/or additional documents required they would revert within seven days thereof. The1st opposite party through their email dated 1stJune 2019 intimated that his claim was rejected on 28.03.2019 on the ground that the disputed transaction were done through UPI (Mobile wallet which is not covered under the policy and that the policy covers losses due to debit/credit cards skimming/phishing/counter feitinternet banking only and therefore they have treated his claim as "NO CLAIM" and closed the records, whereas Section 4 of the terms and conditions of the said policy of the 1stand 2ndOpposite Parties defined Unauthorised Online Transactions, as “If you suffer loss as a direct result of the fraudulent use of your Bank Account and/or credit/debit cards and/or E-Wallets by a third party for purchase made over the interest, we will indemnity you maximum upto the amount of the sub limit set forth under "Unauthorised Online Transaction" on the Policy Schedule fora) Any Unauthorised Online Transactions that are charged to your Credit/Debit card or Bank Account or E-Wallets that are legally unrecoverable from any other sources, b) Any lost wages due to time taken off from work, not exceeding 7 days solely for the purpose of meeting the relevant organizations and authority to amend or rectify records regarding your true name or identity as a result of the Unauthorised Online Transactions. If you are self employed ost wages will be based on your tax returns in the prior year and limited to wages lost within 12 months upon discovery of the theft. c) Costs of telephone calls, postage and bank charges to resolve the breach of payment. Provided that:1. The specified event occurred on the internet during the Period of Insurance;2. You lodge an FIR detailing the Unauthorised Online Transactions within 72 hours upon discovery of the breach by you,3. You notify to the issuing bank and/or Credit/Debit Card and/or E-Walletprovider within 72 hours upon discovery of the breach by you, 4. You provide evidence that the bank is not reimbursing you for the fraudulent transactions; 5. You provide evidence of lost wages; What we will not cover under this section: In addition to the General Exclusions, We will also not pay any claim in respect of1. Reimbursement by the bank for the transaction.2. Cash advance (or cash withdrawn through an ATM or Bank Account)made through your stolen Bank Accounts and/or Credit/Debit Cards. Hence, he was shocked to see the rejection of his claim and the reason for which it is rejected though it is well within and falls within the ambit of the relevant policy condition, which amounts to deficiency of service by the Opposite Party and also amounting to unlawful trade practice to make unlawful gains to deprive the claim of the Complainant of the lost amount.Hence the complaint.
3. Written Version filed by the Opposite Parties 1 and 2 in brief is as follows:-
The Complaint has no substance and is not maintainable either in law or in facts. The Complainant has based the complaint on the terms of Policy which has not been issued to him and suppressed the actual Insurance document in order to suit his case/claim. He has not disclosed from where and how he had taken insurance for which has been not produced any proof for the same. He has neither filed the Certificate or Policy or the terms and conditions of Card Package Insurance under which he was insured. The complaint is liable to be dismissed solely on this ground. M/s. One Assist Consumer Solutions Pvt. Ltd had obtained Card Package Policy vide Master Policy No.2999200816729104000. The Complainant who was holding a HDFC Bank Account Card was covered under the said Card Package Insurance held by One Assist. The Complainant was not insuredunder E@Secure Policy although he has filed the terms of the same. No document was produced by the Complainant to show that Complainant took the said Policy or even made any claim under the same. The only claim was made through One Assist under the Card Package Insurance which did not cover E-Wallet payments and the claim was therefore repudiated. The conduct of the Complainant in filing mere terms of E@Secure Policy and alleging as though the repudiation was contrary to the terms of the same is nothing but a fraud being played on this Hon'ble Forum. For this very reason the complaint is liable to be dismissed with exemplary costs. A claim was made for loss suffered by the Complainant to the extent of Rs.1,00,000/- in respect of certain unauthorized transactions through Paytm UPI. The said claim was lodged under the Card Package Insurance through One Assist as it was the Master Policy Holder and the Complainant had to present any claim through them. Transactions online happen though various means such as Internet Banking, transfer through Debit/Credit Cards by direct access to the account/ card or through UPI such as Paytm using Mobile/E-Wallets linked to the bank account/card. Each of them is a different mode and method of transaction which cannot be construed as one and the same. The Paytm transaction is entirely different from the direct access to the bank account/card (internet banking/ use of credit card).On examination of the documents submitted by the Complainant, it was found that the unauthorized transactions were done through Paytm UPI. The unauthorized transfers were from the UPI/Paytm which is not a transaction covered by the Policy. The Card Package Insurance issued to the Complainant covers only losses due to debit/credit card phishing, counterfeit, internet banking. UPI/E-Wallets (Mobile Wallets) are outside coverage of the Card Package Policy. The Complainant has made a fraudulent claim citing a wrong Policy i.e. E@Secure Policy though in reality it was Card Package Policy that was issued to him. The Opposite Parties acted bonafide and repudiated the claim vide letter dated 28.05.2019 for valid reasons based on the terms and conditions of the Card Package Policy which was the Policy issued to the Complainant. The Complainant has made no mention of the fact that he was using a Paytm account with Mobile Wallet and the losses have occurred due to misuse of the same even if debited from his bank. The misuse having occurred in the mobile wallet/UPI the Complainant cannot have any direct claim on the bank or the Policy issued on the basis of bank account with HDFC Bank. Evidently, realizing that his wrongful claim against the Opposite Parties would be exposed the Complainant has deleted the Bank though the complaint originally appears to have been filed against them. The Bank and One Assist are necessary parties to the complaint without whose presence the complaint cannot be decided. The complaint is therefore liable to be dismissed for this reason alone. The Complainant has to prove the source of the alleged messages. The attempt of the Complainant to vaguely portray the same as "debit card or e-wallet transaction or online transaction is deliberate and mischievous. The Complainant must establish which form of transaction was made unauthorizedly as the Card Package Policy does not cover all such transactions. Having alleged against the 3rd Opposite Party, the Complainant has deliberately deleted the bank which is supposed to have been approached for the unauthorized transactions. It is clear that the Complainant has left out the bank from the picture to avoid full facts from being revealed. The Complainant has not even produced the complaint alleged to have been given to Police which again amounts to suppression of material facts in the Complaint. The allegations in paragraph 3(1) are specifically disputed and there are not borne out by records. The Complainant has deliberately made vague allegations about the details of insurance. Except to allege that there was insurance as account holder of 3rdOpposite Party (which is not arrayed in the complaint) the Complainant has not mentioned the nature of Policy, number or period of the same. Even along with complaint he has merely filed the terms and conditions of E Secure Policy. No certificate or schedule to show that the Complainant is insured has been filed. The Complainant is thus attempting to indulge in misleading and false allegations based on which no relief can be granted to him. It is denied that there was any insurance covering the alleged unauthorized transactions. The Opposite parties have rightly declined liability for the claim as they have not insured E-wallet transactions. The terms of Policy extracted in paragraph (1) at page 4 are neither relevant nor applicable to the Complainant as he has not taken the E-Secure Policy but only a Card Package Insurance. Hence no claim can be based on those term mentioned. The allegations that Complainant being shocked or that the Opposite Parties have committed deficiency in service are all baseless and unsustainable since the Complainant has not even produced or quoted the correct terms of the Policy applicable to him. The various reliefs sought are unsustainable, exaggerated and without basis. There is no cause of action for the Complaint against the Opposite Parties.Hence prayed to dismiss the complaint.
4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as Ex.A-1 to Ex.A-9. The Opposite Parties submitted its Proof Affidavit and Written Arguments. On the side of Opposite Parties documents were marked as Ex.B-1 to Ex.B-2. Originally HDFC Bank Ltd has been arrayed as 3rd Opposite Party and subsequently deleted by the Complainant.
Points for Consideration
1. Whether there is deficiency in service on the part of the Opposite Parties?
2. Whether the Complainant is entitled for reliefs claimed?
3. To what other reliefs the Complainant is entitled to?
Point No.1:
The contentions of the Complainant are that he is an account holder with the 3rd Opposite Party Bank with Savings account No.00821130003578 and holding a debit card No.5129-708-0597-2796. On 05.03.2019 he received continuous messages within a span of 10 minutes on his mobile that sums of Rs.49,000/-, Rs.1,000/-, Rs.2,000/-, Rs.48,000/-, Rs 19,000/-, Rs 19,000/- Rs.1,000/-, Rs 10,000/-, Rs.5,000/- Rs.5,000/- has been withdrawn and Rs. 1,000/-, Rs.48,000/- and Rs.10,000/- has been reversed from his bank account, whereby a total of unauthorized transaction of Rs.1,00,000/- was made, when in fact he had not made any of the said transactions either through using his Debit card or E-Wallet transaction or online transaction where One Time Password (OTP) needs to be generated to make such transaction and no OTP was either requested by him or provided/generated by the 3rd Opposite Party. Immediately on 05.03.2019 at 3 PM he visited the 3rdopposite party and informed about the said unauthorized transactions made in his account through his card number by some third party, though the card was very much with him only and to stop further fraudulent transactions in the said account, the 3rd Opposite Party blocked his debit card No.5129-708-0597-2796 on the same day at 3.22 PM. On 07.03.2019, he had submitted card holder dispute form/letter to the 3rdOpposite Party of the unauthorized transaction of Rs.1,00,000/- made in his account on 05.03.2019.On 07.03.2019, he had also submitted a complaint to the Inspector of Police, Bank Fraud Wing Team XXXL Central Crime Branch, Vepery, Chennai-600007 of the said unauthorized transaction of Rs.1,00,000/- made in his account on 05.03.2019.Further contended that he having come to know that the on line fraudulent transactions has happened in his account through a Paytm account holder, complained of the said fraudulent transactions in his bank account to the Cybercell of Paytm and they on investigation have found the disputed amounts and transactions complained of has been transacted by their holder of account No.918167792593 and as having found fraud having been committed the said account is blocked by them to prevent perpetration of further frauds and damage and requested to share the details with the respective Cyber cell crime cell of the jurisdiction. Further they have intimated that as the amounts have already been utilized, it is not refundable. Further contended that as he being an account holder of savings bank with the 3rd Opposite Party, HDFC Bank Ltd, and all their accounts are insured by them with the 1st and 2nd Opposite Parties, the 3rd Opposite Party provided him to prefer an insurance claim of the amount lost from his account through the said fraudulent transactions and accordingly on 09.05.2019 he informed of the same and preferred a claim on 13.05.2019 for reimbursement of the said lost amounts through the said fraudulent transactions and the 3rd Opposite Party recommended his case as the claim was genuine. His claim was well within the insured amount assured by the 1stopposite party for reimbursement of the said amounts of Rs.1,00,000/- lost through the said fraudulent transactions and the insurance valid for the period up to January 2024 and the said fraudulent transactions occurred during the validity of the said policy and he is entitled for reimbursement of the same from the 1st and 2nd Opposite Party as his said bank account was insured against unauthorized online transactions. Further contended The 1st Opposite party on receipt of the claim of the Complainant assigned his claim as Claim no. 4221411 on 24.05.2019 and also intimated that incase of any clarification and/or additional documents required they would revert within seven days thereof. The 1st Opposite party through their email dated 1st June 2019 intimated that his claim was rejected on 28.03.2019 on the ground that the disputed transaction were done through UPI (Mobile wallet which is not covered under the policy and that the policy covers losses due to debit/credit cards skimming/phishing/counter feit internet banking only) and therefore they have treated his claim as "NO CLAIM" and closed the records. Further contended referring Section 4 of the terms and conditions of the E@secure insurance Policy of the 1st and 2nd Opposite Parties that defines Unauthorised Online Transactions, as “If you suffer loss as a direct result of the fraudulent use of your Bank Account and/or credit/debit cards and/or E-Wallets by a third party for purchase made over the interest, we will indemnity you maximum upto the amount of the sub limit set forth under "Unauthorised Online Transaction" on the Policy Schedule fora) Any Unauthorised Online Transactions that are charged to your Credit/Debit card or Bank Account or E-Wallets that are legally unrecoverable from any other sources, b) Any lost wages due to time taken off from work, not exceeding 7 days solely for the purpose of meeting the relevant organizations and authority to amend or rectify records regarding your true name or identity as a result of the Unauthorised Online Transactions”. Hence, he was shocked to see the rejection of his claim and the reason for which it is rejected though it is well within and falls within the ambit of the relevant policy condition, which amounts to deficiency of service by the Opposite Party and also amounting to unlawful trade practice to make unlawful gains to deprive the claim of the Complainant of the lost amount.
The contentions of 1st and 2nd Opposite Parties are that the Complainant has based the complaint on the terms of Policy which has not been issued to him and suppressed the actual Insurance document in order to suit his case/claim. He has not disclosed from where and how he had taken insurance for which has been not produced any proof for the same. He has neither filed the Certificate or Policy or the terms and conditions of Card Package Insurance under which he was insured. M/s. One Assist Consumer Solutions Pvt. Ltd had obtained Card Package Policy vide Master Policy No.2999200816729104000. The Complainant who was holding a HDFC Bank Account Card was covered under the said Card Package Insurance held by One Assist. The Complainant was not insured under E@Secure Policy though he had filed the terms of the same. No document was produced by the Complainant to show that he took the said Policy or even made any claim under the same. The only claim was made through One Assist under the Card Package Insurance which did not cover E-Wallet payments and the claim was therefore repudiated. Further contended that the conduct of the Complainant in filing mere terms of E@Secure Policy and alleging as though the repudiation was contrary to the terms of the same is nothing but a fraud being played on this Hon'ble Forum. Further contended that a claim was made for loss suffered by the Complainant to the extent of Rs.1,00,000/- in respect of certain unauthorized transactions through Paytm UPI. The said claim was lodged under the Card Package Insurance through One Assist as it was the Master Policy Holder and the Complainant had to present any claim through them. Transactions online that happen through various means such as Internet Banking, transfer through Debit/Credit Cards by direct access to the account/ card or through UPI such as Paytm using Mobile/E-Wallets linked to the bank account/card. Each of them is a different mode and method of transaction which cannot be construed as one and the same.Further contended that the Paytm transaction is entirely different from the direct access to the bank account/card (internet banking/ use of credit card).On examination of the documents submitted by the Complainant, it was found that the unauthorized transactions were done through Paytm UPI. The unauthorized transfers were from the UPI/Paytm which is not a transaction covered by the Policy. The Card Package Insurance issued to the Complainant covers only losses due to debit/credit card phishing, counterfeit, internet banking. UPI/E-Wallets (Mobile Wallets) are outside coverage of the Card Package Policy. Further contended that the Complainant had made a fraudulent claim citing a wrong Policy i.e. E@Secure Policy though in reality it was Card Package Policy that was issued to him. They acted bonafide and repudiated the claim vide letter dated 28.05.2019 for valid reasons based on the terms and conditions of the Card Package Policy which was the Policy issued to the Complainant.Further contended that the Complainant has not mentioned the fact that he was using a Paytm account with Mobile Wallet and the losses were occurred due to misuse of the same even if debited from his bank. The misuse having occurred in the mobile wallet/UPI the Complainant cannot have any direct claim on the bank or the Policy issued on the basis of bank account with HDFC Bank. Having realized that his wrongful claim against the Opposite Parties would be exposed the Complainant has deleted the Bank though the complaint originally appears to have been filed against them. The Bank and One Assist are necessary parties to the complaint without whose presence the complaint cannot be decided. The Complainant has to prove the source of the alleged messages. The attempt of the Complainant to vaguely portray the same as "debit card or e-wallet transaction or online transaction is deliberate and mischievous. The Complainant must establish which form of transaction was made unauthorizedly as the Card Package Policy does not cover all such transactions. Having alleged against the 3rdOpposite Party, the Complainant has deliberately deleted the bank which is supposed to have been approached for the unauthorized transactions and he had left out the bank from the picture to avoid full facts from being revealed. Having failed to produce the complaint alleged to have been given to Police amounts to suppression of material facts. The Complainant has deliberately made vague allegations about the details of insurance, except to allege that there was insurance as account holder of 3rdOpposite Party and he had not mentioned the nature of Policy, number or period of the same. Even along with complaint he had merely filed the terms and conditions of E Secure Policy, without filing the certificate or schedule to show that he was insured. Hence he was attempting to indulge in misleading and false allegations based on which no relief can be granted to him. The alleged unauthorized transactions was not covered in the Insurance policy. They had rightly declined liability for the claim as they have not insured E-wallet transactions. The terms of Policy extracted neither relevant nor applicable to the Complainant as he has not taken the E-Secure Policy but only a Card Package Insurance. Hence no claim can be based on those term mentioned. The allegations that Complainant being shocked or that the Opposite Parties have committed deficiency in service were baseless and unsustainable since the Complainant has not even produced or quoted the correct terms of the Policy applicable to him. The Complainant is entitled for various reliefs sought as the same are unsustainable, exaggerated and without basis.
On discussions made above and on perusal of records, as per Ex.A-1, Bank Statement of the Complainant, a sum of Rs.49,000/-, Rs.1,000/-, Rs.2,000/-, Rs.48,000/-, Rs 19,000/-, Rs 19,000/- Rs.1,000/-, Rs 10,000/-, Rs.5,000/- Rs.5,000/- found to be withdrawn from his bank account and a sum of Rs. 1,000/-, Rs.48,000/- and Rs.10,000/- found to reversed to his bank account. As per Ex.A-2 Cardholder Dispute Form dated 07.03.2019 submitted by the Complainant to HDFC Bank (who was arrayed as 3rd Opposite Party and deleted by the Complainant), which was acknowledged by HDFC Bank on 07.03.2019, wherein the Complainant had disputed the transactions found to be made in Ex.A-1. Ex.A-3 is the Police Notice dated 07.03.2019 issued by Inspector of Police, Bank Fraud Team XXXI, Central Crime Branch, Vepery, Chennai, to the Complainant, based on the complaint lodged by the Complainant. Ex.A-4 is the Email dated 05.04.2019 sent by the Cyber Cell, Police Department, to the Complainant, for the alleged fraudulent transactions the Police Department had shared the details of the transactions made in his account, reported for further investigation. Ex.A-5 is the Claim Form dated 13.05.2019 submitted to HDFC Bank, Nungambakkam Branch, Chennai. Ex.A-6 is the Emails dated 24.05.2019 and 01.06.2019 sent by One Assist to the Complainant, acknowledging the documents submitted in regard to the claim towards fraudulent transaction which got registered on 09.05.2019 and the claim made by the Complainant under reference No. 4221411 was rejected by the Insurance Company. Ex.A-7 is the Claim Repudiation Letter dated 28.05.2019 sent by the 1st and 2nd Opposite Parties to One Assist Consumer Solutions Private Ltd, wherein the rejection was found to be made on observation that the disputed transactions were done through UPI (Mobile Wallet) which is not covered under the policy and since the policy covers losses due to debit/credit cards skimming/ phishing/ internet banking only, as the incident described as per claim documents does not fall under the purview of skimming/phishing/counterfeit/internet banking. Further since the losses claimed were not covered as per above policy wording, we treat the claim as “No Claim” and close the same in our records. Though the Opposite Parties 1 and 2 had denied the reference of E@secure Insurance made by the Complainants as the terms and conditions of the policy that was not issued to their Master Policy holder or the Complainant, it is to be noted that the E@Secure Insurance, Ex.A-8 is the policy wordings to show the Fraudulent transactions referred in Ex.B-1 the Card Package Policy. As per Ex.B-1 the name of Insured/Insured person was mentioned as One Assist Consumer Solutions Private Ltd and under special conditions to the policy issued, though the Policy covers Card liability, whereas it is found in Page No.3 of Ex.B-1, Fraudulent transactions done by person known to the Cardholder are specifically excluded, further under Extensions for cover under Section I : Card Liability Cover, as found in Page No.5 of Ex.B-1, in sub clause (b) Coverage for Loss on the cards due to Unauthorized Usage / Skimming / Counterfeit / Duplication / Phishing / Compromised Cards, it is mentioned that “ it is hereby agreed and declared that not withstanding anything stated to the contrary, in the printed exclusions of this policy, the insurance is extended to cover the following: (a) any fraudulent use of Bank Card(s) where property, labor or services are sold and delivered by a merchant to an individual purporting to be the cardholder using telephone, fax machines, postal services or a computer based system or network.” It is clear from the complaint and the claim lodged by the Complainant that fraudulent and/or unauthorized transaction was taken place by using his debit card though such fraudulent and/or unauthorized transaction taken in UPI/Paytm mode, it was not done by the Complainant as evidenced from Ex.A-4 mail dated 05.04.2019 issued by Cyber Cell with details of transactions taken place on 05.03.2019 from the Bank Account of the Complainant. Further as per Ex.A-2 Cardholder Dispute Form dated 07.03.2019 the Complainant had intimated about the fraudulent/Unauthorized transaction taken place from his account, in time as required under the Policy issued by the 1st and 2nd Opposite Parties. Even the Claim was found to be made through One Assist Consumer Pvt Ltd with whom the 1st and 2nd Opposite Parties had issued Master Policy securing the Card of the Complainant. As per the definitions of the Policy issued by the Opposite Parties 1 and 2, “Card” means any credit card/ debit card /ATM or any similar cards issued by the Bank mentioned in the Schedule, and “Cardholders” means such person’s to whomcredit card/ debit card /ATM or any similar cards issued by the Insured. (Bank/Financial Institution). Further “Cover period” means the period from commencement of insurance cover to the end of the Insurance cover as per the Schedule, and “Insured” means the Bank / Financial Institution as named in the Schedule, “Insured Person(s) means the beneficiaries / members / card holders / customers & account holders of the Bank / Financial institutions as named in the Schedule. Though the claim of the Complainant sent through One Assist Consumer Private Ltd and the same was repudiated by the 1st and 2nd Opposite Parties, as a beneficiary of the debit card and account holder of the Bank / Financial Institution and having admitted thatthe Complainant was holding a HDFC Bank Account Card was covered under the said Card Package Insurance held by One Assist Consumers Pvt Ltd. Hence the Complaint filed by the Complainant as Cardholder being the beneficiary as an Insured person is maintainable and it is not necessary that One Assist Consumers Private Ltd to be impleaded as a party to the proceedings nor the deletion of HDFC Bank, initially arrayed as 3rd Opposite Party is not a necessary party to the Proceedings when the claim of the Complainant is substantiated by material evidence, hence the contentions of the Opposite Party that deletion of HDFC Bank and inclusion of One Assist Consumers Pvt Ltd, is not sustainable.
Further the Policy wording produced under E@secure Insurance by the Complainant as found in Ex.A-8 and as per Section 4 of the said policy wordings “Unauthorized Online Transaction” defined as “If you suffer loss as a direct result of the fraudulent use of your Bank Account and/or credit/debit cards and/or E-Wallets by a third party for purchase made over the interest, we will indemnity you maximum upto the amount of the sub limit set forth under "Unauthorised Online Transaction" on the Policy Schedule fora) Any Unauthorised Online Transactions that are charged to your Credit/Debit card or Bank Account or E-Wallets that are legally unrecoverable from any other sources, b) Any lost wages due to time taken off from work, not exceeding 7 days solely for the purpose of meeting the relevant organizations and authority to amend or rectify records regarding your true name or identity as a result of the Unauthorized Online Transactions”. Though the same could not be considered as the said policy was not issued to the Complainant nor the insured. The Complainant had relied upon a Judgment of the Hon’ble Apex Court passed in Civil Appeal No. 8249 of 2022 in M/s.Texco Marketing Pvt Ltd Vs- TATA AIG General Insurance Company Ltd & Others, while approving the terms of Insurance Contract are unfair, particularly the exclusion clause, and that the Insurance Company has indulged in unfair trade practice and directed the Insurance Companies to comply with Clause (3) and (4) of the IRDA Regulation, 2002 and held that any non-compliance on the part of the Insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included therein. In the given circumstances of the instant case, the judgment relied upon would not apply to the present case, where the Opposite Party has not repudiated the claim of the Complainant on any exclusion clause.
As discussed earlier even as per the conditions of the Policy terms and conditions of the 1st and 2nd Opposite Parties on Card Liability, the repudiation made on 28.05.2019 on the claim made by the Complainant through the Insured, One Assist Consumers Pvt Ltd, is not legally sustainable. Therefore, this Commission is of the considered view that the Opposite Parties 1 and 2 had committed deficiency of service and caused mental agony to the Complainant. Accordingly Point No.1 is answered against Opposite Parties 1 and 2.
Point Nos.2 and 3:
As discussed and decided Point No.1 against the Opposite Parties 1 and 2, the Opposite Parties 1 and 2 are jointly and severally liable to pay a sum of Rs.1,00,000/- being the reimbursement for the loss incurred by the Complainant together with interest @9% p.a from the date of rejection of claim, i.e., from 28.05.2019 to till the date of this order, also to pay a sum of Rs.10,000/- towards deficiency of service and mental agony along with cost of Rs.5,000/-. And the Complainant is not entitled for any other relief/s. Accordingly Point Nos. 2 and 3 are answered.
In the result, the complaint is allowed in part. The Opposite Parties 1 and 2 are directed jointly and severally to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) being the reimbursement for the loss incurred by the Complainant together with interest @9% p.a from the date of rejection of claim, i.e., from 28.05.2019 to till the date of this order, also to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards deficiency of service and mental agony along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of receipt of the order, failing which the above said amount of Rs.1,00,000/- shall carry interest @9% p.a from the date of the date of receipt of this order till the date of realization.
In the result this complaint is allowed.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 21st of February 2023.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 05.03.2019 | Account Statement |
Ex.A2 | 07.03.2019 | Card holder Dispute Form |
Ex.A3 | 07.03.2019 | Complaint to Bank Fraud Team |
Ex.A4 | 05.04.2019 | Email of Cybercell of Paytm |
Ex.A5 | 13.05.2019 | Claim Form |
Ex.A6 | 01.06.2019 | Email of first Opposite Party intimating rejection of claim |
Ex.A7 | 28.05.2019 | Letter of rejection of claim |
Ex.A8 |
| Terms and conditions of the Policy |
Ex.A9 | 30.03.2017 | RBI advisory on E-Wallets |
List of documents filed on the side of the Opposite Parties:-
Ex.B1 | - | Card package mater Policy with terms and conditions |
Ex.B2 | - | Cover issued to Complainant |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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