Punjab

StateCommission

FA/12/1590

OIC Ltd. - Complainant(s)

Versus

Lachhmi Devi - Opp.Party(s)

Ashwani Talwar

03 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,  PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

 

  First Appeal No.1590 of 2012

                                                        

           Date of institution  :    30.11.2012.  

Date of decision     :    03.03.2015

 

 

Oriental Insurance Company Limited, through its Deputy Manager, SCO No.109-111, 17-D, Chandigarh.

…….Appellant/Opposite Party No.3

Versus

1.      Lachhmi Devi W/o Late Malkiat Singh, R/o H.No.883, Bajwa    Colony, Patiala.

                                                                    …Respondent/Complainant

2.      Dena Bank, Branch Dharampura Bazar, Patiala, through its     Manager. 

3.      Dena Bank, Cards Management Department, CTS-261,          opposite Kamani, LBS Marg, Kurla (West), Mumbai, through its          Chief Manager.

                                         …Respondents/Opposite Parties No.1 & 2

 

First Appeal against the order dated 20.09.2012 of the District Consumer Disputes Redressal Forum, Patiala.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

 

          For the appellant            : Shri Rahul Sharma, Advocate.

          For respondent No.1      : Shri M.S. Randhawa, Advocate.

          For respondent No.2&3 : Shri Sumit Batra, Advocate.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                   Malkiat Singh, husband of Lachhmi Devi, complainant, opened Saving Bank Account No. SB/GEN/5821 in his name in opposite party No.1-Bank in the year 2008 and was also issued ATM-cum-Debit Card.  Debit cardholders were given the benefit by that bank of insurance. He died in a roadside accident on 09.10.2008; regarding which, FIR No.471 dated 09.10.2008 was got registered in Police Station Sadar, Patiala under Section 283, 304-A IPC. The postmortem examination on his dead body was conducted  in Rajindra Hospital, Patiala. After his death, the claim under the insurance policy, issued in favour of the bank by opposite party No.3-Insurance Company, was made by the complainant, which was not entertained by it, on the ground that the intimation regarding the death of Malkiat Singh was given very late.  Feeling aggrieved, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”) before the District Consumer Disputes Redressal Forum, Patiala (In short, “District Forum”), in which she alleged that at the time of the issuance of the debit card, opposite party No.1-Bank had informed her husband that insurance policy bearing No.121100/48/2008/7161 for a sum of Rs.2,00,000/- has been issued to him and the said amount would be payable to his nominee, in case of his accidental death. At the time of the accidental death of Malkiat Singh, his personal belongings, including the wallet were lost; which were never found. She had been visiting the opposite parties and requesting them to make the payment of the insured amount of Rs.2,00,000/- and had also provided the documents to them, but they had been putting off the matter on one pretext or the other. She also served a legal notice dated 03.08.2011 upon the opposite parties with a request to make payment of that amount, to which false and vague reply dated 07.09.2011 was given. Thus, the opposite parties indulged in malpractice and unfair trade practice and are guilty of deficiency in service. As a result thereof, she suffered mental agony, tension, harassment, inconvenience and humiliation; for which she is entitled to Rs.50,000/-, as compensation. She prayed for the issuance of following directions to the opposite parties:-

 

i)        to pay Rs.2,00,000/-, along with interest @ 18% per annum     from the date of death of the deceased;

ii)       to pay Rs.50,000/-, as compensation; and

iii)      to pay Rs.5,000/-, as litigation expenses.

 

 

2.           Opposite parties Nos.1 & 2 filed joint written reply before the District Forum, in which they admitted that Malkiat Singh had opened Saving Bank Account  in the bank and had also got issued the ATM-cum-Debit Card. They also admitted the issuance of the insurance policy to the deceased and that he died in roadside accident and that after his death, the claim was made by the complainant, which was duly processed and sent to opposite party No.3, for the settlement thereof. They also admitted the receipt of the legal notice dated 03.08.2011 from the side of the complainant through her advocate and that they replied the same, vide letter dated 07.09.2011. While denying the other allegations, made in the complaint, they pleaded that the deceased allegedly died on 09.10.2008, whereas the claim was received by them on 06.06.2009, which was in vernacular language and the copy of the debit card was not submitted along with the same. The papers, so submitted by the complainant, were returned to her for translating the same in English, vide letter dated 08.06.2009. Thereafter, those papers were received on 30.07.2009, which were duly processed and sent to the insurance company on 08.09.2009. While processing the claim, it was found that there was an entry of withdrawal of the amount of Rs.300/- from the ATM, after the death of the deceased on 15.10.2008; which was against the procedure for debit cardholders.  Thus, there was erroneous use of that card. They had asked the complainant to submit the original ATM card or the copy thereof, vide letters dated 26.02.2010 and 31.10.2010, but she neither gave any reply to those letters nor submitted that card. While giving the reply to the legal notice, the complainant was asked to make direct correspondence with the insurance company and to complete the formalities regarding the policy, but she failed to comply the requisition, as mentioned in that reply. They never indulged in any malpractice or deficiency in service, as the claim of the complainant was rejected by the insurance company and they had forwarded the claim of the complainant, after duly processing the same. The complainant herself was at fault, for not complying with the conditions of the policy and not bringing the factum of the accident to the notice of the insurance company immediately. They also took up the plea that the District Forum has no jurisdiction, as all the disputes pertaining to the debit card, as per clause-4 of the terms and conditions, are in the inclusive jurisdiction of the court at Mumbai. They prayed for the dismissal of the complaint with costs.
3.           Opposite party No.3, in its written reply, admitted that the recommendations were made to repudiate the claim made by the complainant and received through the bank, as “No Claim”. It denied the other allegations made in the complaint, made against it and pleaded that the complainant is not its consumer, as Malkiat Singh had not purchased anything from it and, as such, the District Forum has no jurisdiction to entertain and try the complaint. The complainant could have approached opposite party Nos.1 & 2 immediately after the death of the deceased, along with the insurance policy, debit card and other relevant papers and the same were to be forwarded to it immediately to settle the claim, if any. The letter was received from the bank only on 09.12.2009, without complete papers. When those papers were processed, it was found that the same had been received after one year and it was on that ground that recommendation was made for repudiation of the claim, as “No Claim”. There was violation of the terms and conditions of the policy, as the card, in question, had been used for the withdrawal of Rs.300/- even after the death of the deceased, by using the Personal Identification Number, which was in the inclusive knowledge of the deceased. It also prayed for the dismissal of the complaint with costs.
4.           Parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide order dated 20.09.2012 and directed opposite party No.3 to make payment of Rs.2,00,000/-, the sum insured in the policy, along with interest @ 9% per annum from the date of legal notice i.e. 03.08.2011 till the date of final payment and to pay Rs.4,000/-, as costs. Feeling aggrieved by that order, the present appeal has been preferred by said opposite party No.3, for setting aside the same.
5.           We have heard learned counsel for the parties and have also carefully gone through the records of the case.
6.           It was submitted by the learned counsel for the appellant/opposite party No.3 that it was wrongly concluded by the District Forum that the condition, regarding lodging of intimation in respect of the death of the policyholder, is unconscionable and has no application to the legal heirs of the policyholder. When such a condition was contained in the policy and as per the settled law, the terms and conditions thereof were to be construed strictly, such a finding could not have been recorded by the District Forum. As per the condition of the policy and which was proved on the record as Ex.R-13, the written notice, with full particulars, was required to be given by the policyholder/complainant/bank within one calendar month after the death of the deceased. From the evidence produced on the record, it stands proved that such intimation to opposite party No.3 was given almost after one year and, as such, the claim was correctly repudiated.  The finding recorded by the District Forum, to the contrary, is liable to be set aside.
7.           On the other hand, it was submitted by the learned counsel for the complainant that after considering the evidence produced on the record and the law applicable to the facts of the present case, it was correctly concluded by the District Forum that the claim made by the complainant could not have been repudiated, on the ground mentioned in the repudiation letter Ex.R-7. It was correctly held by the District Forum that such a condition, contained in the policy, is unconscionable and was not applicable.  There is no ground for allowing the appeal.
8.           We do agree with the submissions made by the counsel for opposite party No.3 that the District Forum committed an illegality, while recording the finding that the condition, contained in the policy, is unconscionable. It is now well settled that the contracts of insurance are to be construed strictly and once such a contract is entered into between the parties, they are bound by the terms and conditions thereof.  The Foras under the Act cannot substitute any such term or condition, nor can hold any such term and condition to be unconscionable.   
9.           No doubt, it was pleaded by opposite parties Nos.1 & 2 in their written reply that the claim, in respect of the death of Malkiat Singh, was received  by it on 06.06.2009, to which an objection was taken, being in vernacular language and that English translation papers were submitted on 30.07.2009 and after processing the same, those were sent to the insurance company on 08.09.2009, but it is to be noticed that as per the letter dated 25.02.2010, proved on the record by the complainant, the bank itself had informed the insurance company that the death claim was received within time and that the case of the complainant be reconsidered. Once such a letter was written, it does not lie in the mouth of opposite parties Nos.1 & 2 to say that the claim was not made by the complainant within time.
10.           At the time of arguments, the counsel for opposite party No.3 referred to the terms and conditions, proved before the District Forum, as Ex.R-13 and the condition so referred by him, is contained in this document. It is pertinent to note that these terms and conditions refer to “Policy for Individual Personal Accident”. The policy, which was obtained by the bank for the benefit of the debit cardholders, was proved on the record, as Ex.R-10. A perusal thereof shows that it was “Special Contingency Insurance Policy”. The opposite parties themselves proved on record the handbook, containing the rights and liabilities of the cardholders, as Ex.R-4. As per the contents thereof, the cardholders were offered various insurance benefits by opposite parties-Bank from time to time, through a tie-up with an insurance company. It was in pursuance thereof that the insurance policy Ex.R-10 was obtained. It is mentioned under the policy itself that the same was subject to the terms and conditions, clauses, warranties and endorsements as per the forms attached.  No such form is attached therewith. The terms and conditions, which were meant for “Personal Accident Insurance Policy”, cannot be read as terms and conditions under this policy; which was “Special Contingency Insurance Policy”.  The risk covered thereunder was not only regarding the death due to accident, but it also covered the death due to air crash, purchase protection cover and loss of card liability. Terms and conditions applicable to such policy were never proved on the record. The terms and conditions of the other insurance policy, which had no application to such insurance policy, could not have been invoked by opposite party No.3, in repudiating the claim of the complainant. When opposite parties No.1 & 2-Bank itself is coming to the rescue of the complainant that the claim was made within time, opposite party No.3 could not have repudiated her claim, on the ground that the same was not made within time. Moreover, as per the circular, recently issued by the I.R.D.A. (Circular No.IRDA/HLTH/MIS C/CIR/216/09/2011 dated 20.09.2011), the claim of the complainant could not have been repudiated, merely on the ground of delay.
11.           From our above discussion, we conclude that there is no merit in this appeal, though while recording the findings in favour of the complainant, we have not adopted the reasoning as given by the District Forum. The same is dismissed accordingly and the order of the District Forum is upheld.
12.           The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
13.           The arguments in this case were heard on 27.02.2015 and the order was reserved.  Now, the order be communicated to the parties.
14.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                       PRESIDENT  

                                                         

 

 

                                                        (BALDEV SINGH SEKHON)

                                                                         MEMBER

                                                         

 

 

                                                      (MRS. SURINDER PAL KAUR)

March 03, 2015                                  MEMBER

(Gurmeet S)