Per Hon’ble Mr.Narendra Kawde, Member
[1] Complainant has raised two separate issues by filing this consumer complaint against the opponent no.1 and 2, namely, ICICI Lombard and American Banking Corporation by clubbing two separate cause of action.
[2] The first issue against the opponent no.1 is about issuing Accident Insurance Policy for Rs.1 Crore each [complainant and his spouse] and subsequently cancelling without notice and non-refund of the premium paid after cancellation of the policy. Second issue against the opponent no.2 is about alleged failure of the opponent no.2 to observe the terms and conditions for free travel by Kingfisher Airlines on the strength of holding American Express Card. On both these counts, the complaint has been filed alleging deficiency in service against both the opponents for not meeting their obligations.
[3] Case of the complainant in brief is summarized hereinafter:-
On persuasion from the Executives of the opponent no.1 insurance company, the complainant agreed to subscribe to the Accident Insurance Policy with sum assured Rs.1 Crore each [complainant himself + his spouse] and agreed to remit the amount of premium through the Credit Card issued by the opponent no.2. Amount of Rs.29,616/- was paid as premium under both the policies [complainant and his spouse]. After having deducted this premium in advance through the Debit Card, the complainant and his wife was required to go for medical examination for which the complainant had agreed. According to the complainant, it was well within the knowledge of the opponent no.1 insurance company that the complainant and his wife were already insured with personal Accident Policy for Rs.1 Crore each under the Insurance Coverage of Tata AIG. In spite of this fact, the opponent insurance company pursued the complainant for subscribing another policy of equal amount [Rs.1 Crore sum assured each for the complainant and his wife]. Policies were also issued without undertaking the medical examination and later on cancelled and no premium amount has been refunded. It is the case of the complainant that the Personal Accident Policy subscribed at the behest of the opponent no.1 was on misrepresentation and misspelling of the insurance product by the opponent no.1, their agents and advisors. Without verifying the information required for processing the insurance proposal as required under the provisions of Insurance Regulatory And Development Authority Act, 1999 [hereinafter referred to as ‘IRDA Act’] within a period of 15 days, the policies were issued and later on cancelled by the opponent no.1 without notice. No terms and conditions whatsoever were sent or made known to the complainant and his wife. After pursuit to get the refund of the amount of premium paid, the opponent no.1 did not respond favourably. Reeling under mounting pressure of the business, the complainant was made to run from pillar to post to follow the opponent no.1 for refund of the premium and to know reasons for cancelling the policies. Since no favourable reply came forward, the complainant was compelled to take up alleged mal-practice of the opponent no.1 in misspelling the insurance product by filing complaint with IRDA highlighting the unfair trade practice and misselling of insurance policies. Since the grievance of the complainant did not get redressed by the opponent no.1, this consumer complaint has been filed claiming compensation for Rs.15 lacs for loss against each opponent of repudiation and mental agony, refund of Rs.29,616/- on account of premium paid, additionally refund of Rs.23,300/- for renewal debit.
[4] Complainant availed credit card attaching certain benefits issued by the opponent no.2. Complainant claimed deficiency in service against the opponent no.2 for not providing agreed benefit of refunding the air fare as per the terms and conditions attached. It is the grievance of the complainant that on few occasions, he and his wife travelled by Indian Airlines. However, he opponent no.2 failed to refund the air fare as provided in terms and conditions. All his efforts to get his grievance redressed proved futile. All the monetary claims prayed for is to carry interest @36% p.a. on compounding basis except the amount of compensation for mental agony.
[5] Both the opponents contested the claim of the complainant by filing written version. Opponent no.1 stated that they have not adopted any unscrupulous method to convince the complainant for subscribing personal accident insurance policy. When it was noticed that the complainant and his wife is already covered with personal accident policy of Rs.1 Crore issued by Tata AIG and the maximum liability of the insurer is restricted to Rs.1 Crore in each case irrespective of number of policies held by the insured, the policies issued were cancelled. Complainant is trying to pursue two different causes of actions for two different persons i.e. himself and his wife in the same complaint. He is seeking relief for his wife as well as for himself. Therefore, complaint is not tenable and deserved to be dismissed.
[6] Opponent no.2 has denied that air fare charges attached to the American Express Kingfisher Credit Card were ever denied to the complainant and his spouse as per the terms and conditions attached to the credit card, only the basic air fare is payable and not entire amount of costs of the air fare. Terms and conditions were sent along with American Express Kingfisher Credit Card and reliance was placed on Clause 11.9 of the said terms and conditions which provided free ticket limited to basic fare of the ticket. The complainant had undertaken air journey of Kingfisher but failed to submit air tickets. The role of the opponent no.2, as stated in the written version, was limited to the issue of membership of Kingfisher Credit Card. Credit card was issued with the consent of the applicant. Benefits available under the credit card have been explained in the terms and conditions. Amount deducted from the complainant’s account on towards premium for the policy subscribed by the complainant was subsequently refunded and credited to the account of the complainant. Therefore, no deficiency in service can be attributed against them, as issue of policy and cancellation thereof is perfectly within the domain of the opponent no.1.
[7] Heard the complainant in person, the learned counsel Ms.Varsha Chavan for the opponent no.1 and the learned counsel Mr.Ashwin Havelikar for the opponent no.2.
[8] It is argued by the complainant himself that though the opponent no.1 were fully aware about existing Personal Accident Policy filed by the complainant and his wife for Rs.1 crore each issued by Tata AIG, yet opponent no.1’s officers and agents and advisors constantly pursued for availing other such policy of like amount. The complainant was never taken to the medical examination nor further details were obtained, buy policies came to be issued. On the decision of the opponent no.1 to cancel the said policy on the ground that the complainant and his wife were already insured for the like policy, no refund of premium deducted from the credit card of the complainant has been made. Selling of policy is a case of unfair trade practice on the part of the opponent no.1. No terms and conditions were supplied along with policies as the policy was never received by the complainant. It is further argued by the complainant that the power of attorney on behalf of the opponent no.2 is invalid as there was no resolution authorizing the person to sign as authorized person to appoint Power of Attorney. The complainant relied on the authority of the Hon’ble Supreme Court in the matter – Nirmjit Singh Hoon vs.State of West Bengal – 1973 (3) SCC 753. On the basis of the invalid power of attorney, opponent no.2 cannot take defence and therefore it should be declared as invalid.
[9] Learned advocate of the opponent no.1 argued that their policy is not linked with the credit card held with the complainant, though premium was paid through credit card in advance. Under the terms and conditions of the personal accident policy maximum coverage is permitted to Rs.1 Crore for one person. Since the complainant was already covered to the maximum sum insured under the policies issued by the TATA AIG, the policies issued by the opponent no.1 were cancelled and premium was refunded. Learned advocate fairly conceded that there is no proposal form yet the policies came to be issued. It was also conceded on behalf of the opponent no.1 that though the policy was issued without proposal form, provisions of Regulations 4(4) of the Regulation 4(4) of the IRDA [Protection of the Policy Holders] Regulations, 2002 were not complied with by obtaining information from the complainant within a period of 15 days. Our attention was drawn to the documents showing refund of premium of Rs.29,616/- which was credited to the account of the complainant. Complainant has mixed two different cause of actions in this consumer complaint i.e. one against the opponent no.1 and another against the opponent no.2. Moreover, wife of the complainant is not a party to the consumer complaint. Therefore, the consumer complaint deserved to be dismissed.
[10] Learned advocate of the opponent no.2 admitted to have issued American Express card to the complainant, but denied of any unfair trade practice while dealing with account of the complainant. On the instructions from the opponent no.1, an amount of Rs.29,616/- was deducted from the account held by the complainant and accordingly debit entries were shown. Subsequently, on the instructions from the opponent no.1, again amount of premium deducted has been credited by transaction entry dated 15/05/2010 and the advocate relied on the document in the complaint compilation [at page 318]. The allegation of the complainant that the air fare was not refunded for undertaking journey by Kingfisher Airlines is not sustainable as according to the terms and conditions of the American Express Credit Card, limit of free ticket to the basic fare only. Complainant failed to produce air fare ticket. Therefore, no action could be taken as contemplated by the complainant. To strengthen his arguments, leaned advocate relied on the Clause 11.9 of the terms and conditions of the credit card, which according to him, were sent to the complainant. No other allegations whatsoever are made out against the opponent no.2 as argued by the learned advocate.
[11] We have gone through the voluminous record, documents with the help of the complainant and the learned advocate of the opponents. The contentions raised by the complainant about validity of the power of attorney are not sustainable in as much as it is duly signed by the authorized person of the opponent no.2 and verify by the Registrar of this State Commission. At the same time, the objections raised by the opponent no.1 about clubbing the cause of actions is not sustainable since both the opponents are directly involved in the transactions of debiting the payment of premium on instructions of the opponent no.1 by the opponent no.2 through credit card of the complainant. Clubbing cause of action cannot be faulted with as it reduced the scope of multiple litigations.
[12] Admittedly, the complainant consented for availing the Personal Accident Policy of Rs.1 Crore each for himself and his wife issued by the opponent no.1. Premium amount of Rs.29,616/- was duly deducted at the instance of the opponent no.1 by the opponent no.2 by using credit card held by the complainant. Since the terms and conditions of the Personal Accident Policy provides settlement of claim limited to Rs.1 crore only irrespective of number of such policies availed by the complainant. The policies issued to the complainant and his wife were cancelled without notice. Since the complainant and his wife were covered under the Personal Accident Policy for Rs.1 Crore each by the Tata AIG was well within knowledge of opponent no.1, yet opponent no.1 without verification of further information issued policies and cancelled without notice. As rightly pointed out by the complainant, opponent no.1 were under obligation to verify the information recorded on phone in the proposal form within 15 days as per IRDA [Protection of Policy Holders’ interest] Regulation 2002. However, opponent no.1 failed to do so.
[13] It is the case of the complainant consistently that it was within opponent no.1’s knowledge that the complainant was covered with personal accident policy with maximum amount issued by Tata AIG since it was disclosed to the representative of the opponent no.1. Without formal proposal, policies were issued by the opponent no.1 that too without confirming later on the information within a period of 15 days as provided under Regulation 4(4) of the IRDA [Protection of the Policy Holders] Regulations, 2002. Policies were cancelled at the behest of the opponent no.1 without notice. It is perfect case of misselling which amounts to unfair trade practice u/s.2(1)(d)(ii)(r) of the Consumer Protection Act, 1986. The conduct of the opponent no.1, per se, incurs deficiency in service to the complainant though at later date, the policies were cancelled and premium was refunded. Though not admitted by the complainant, documents establish that the amount of premium deducted has been refunded and duly credited to the account of the complainant.
[14] Opponent no.2, though dealing with credit card and the benefits attached thereto, failed to send terms and conditions of the benefits available under the credit card as there is no document to show such terms and conditions were received by the complainant. Therefore, opponent no.2 has incurred deficiency in service vis-à-vis refund of air fare ticket to the complainant. In view of the aforesaid observations, we are of the considered opinion that both the opponent no.1 and 2 were deficient in rendering services and opponent no.1 for unfair trade practice. Complainant has discharged the initial burden of establishing his claim against both the opponents. However, certain compensation and compound interest @36% p.a. is not justified with any documentary evidence. Therefore, we are inclined allow partly the consumer complaint with following directions.
ORDER
- Complaint is partly allowed.
- Opponent no.1 and 2 are, jointly and severally, directed to pay an amount of Rs.2,00,000/- (Rupees Two Lakhs) towards mental agony to the complainant within a period of 45 days from date of this order, failing which the amount will carry interest @9% p.a. from date of filing the complaint i.e. 25/03/2011 till realization.
- Certified copies of this order be furnished to the parties.
Pronounced
Dated 19th November 2014.
