Delhi

North East

CC/94/2019

Sunita - Complainant(s)

Versus

Manager, State Bank of India - Opp.Party(s)

05 Nov 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 94/19

 

In the matter of:

	Smt Sunita W/o Naresh R/o-H.no. B-2/176, Main 25 Futa Road Near Lakki Public School Harsh Vihar,  Mandoli North East, Delhi-110093	Complainant
	Versus
1       2	State Bank of India 234, Govind Ashram, G.T. Road Shahdara, Delhi-110032   SBI General Insurance Co. Ltd. Corporate & Registered Office: ‘Natraj’ 101, 201 & 301, Junction of Western express Highway & Andheri-Kurla Road, Andheri(East) Mumbai-400069	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

21.10.2019 05.11.2019 05.11.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. The complainant has filed the present complaint claiming relief against OPs for non-payment of death claim insurance of Rs. 10 Lacs against policy no. 143820-0000-01/SBI General Claim No. 401504 of her deceased husband (died on 07.03.2017 in Road Traffic Accident) who was using the Visa Classic Debit Card no. 45915000242291942 issued by OPs, paying annual premium and complainant being nominee / beneficiary thereof. The complainant made several correspondences with OPs in this regard and RTI queries between July 2019 September 2019 and lastly received reply dated 23.09.2019 from OPs stating that no insurance was provided on the subject Visa Classic Debit Card.

In course of preliminary arguments on admission, the complainant was put to specific query and directions to file the complete user guide and terms and conditions with respect to the issuance and features provided therein i.e. benefits, insurance coverage etc. however the complainant submitted that he has filed the claim of Rs. 10 Lacs alongwith interest @12% thereon and compensation of Rs. 50,000/- each towards mental harassment and litigation charges totaling to Rs. 19,60,000/- on the basis of news paper article dated 10.02.2017 of financial express wherein it was advertised that ATM card can provide insurance upto Rs. 10 Lacs and therefore she is claiming the maximum insurance coverage relief on assumption that her deceased husband by virtue of holding and using the subject debit card was entitled to the said amount post accidental death. The complainant further submitted/admitted that she does not have in possession for the usage guide of the debit card, however did not deny that the same was never enclosed or received alongwith the said card.

2. We have perused the complaint and heard preliminary arguments on admission.

There is no specific averment in the complaint that the usage guide was not enclosed alongwith the forwarding letter whereby the debit card guide was sent. More pertinently it is not in dispute by the complainant that such usage manual / guide was indeed supplied to her deceased husband alongwith the debit card. The complainant however has filed the present complaint on mere conjecture and surmise of assumption insurance coverage of Rs. 10 Lacs having being extended as facility alongwith the said card. It is a cardinal principle of law that ordinarily the burden of proving the fact rests on the part who asserts the affirmative issues and not on the part who denies it. Nevertheless, there is distinction between the phrase ‘burden of proof’ and ‘onus of proof’. Explaining the said fine distinction, in A. Raghavamma and Another Vs A. Chenchamma and Another, 1963 AIR 1964 SC 136, a three judge Bench of the Hon'ble Supreme Court held that “there is essential distinction between burden of proof and onus of proof. Burden of proof lies on the person who has to prove a fact and it never shifts, bit the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.” The Hon'ble National Commission has also laid down in catena of judgments that mere averment in a complaint by no stretch of imagination can be said to be evidence by which the case of complainant can be said to be proved. It is therefore the obligation of the complainant to provide facta probanda as well as facta probantia.

3. The present case is squarely covered by the judgment of Hon'ble National Commission in Anju Kalsi Vs HDFC Ergo General Insuance Co. Ltd III (2017) CPJ 95 (NC) decided on 24.03.2017 in RP No. 2974-75/2016 in which the Hon'ble National Commission was dealing with a similar complaint where no usage guide with respect to the debit card was enclosed and held that in the absence of a specific averment denying the usage of usage guide by a debit card holder, the plea taken during the course of arguments cannot be accepted more so when the forwarding letter was duly received by the debit card holder alongwith the debit card which letter expressly refers to usage guide and request the debit card holder to go through the contents thereof. Therefore the inevitable assumption of the receipt of usage guide was made by Hon'ble National Commission in the said case. The Hon'ble National Commission ruled that in view of the complainant having withheld the usage guide from the District Forum, it can be safely presumed that its production would have supported the Bank’s case and dismissed the Revision Petition filed by the complainant against order of Hon'ble SCDRC Chandigarh which had dismissed the complaint.
4. We have given our anxious consideration to the complaint, documents attached therewith and arguments addressed and our guided by the views of Hon'ble National Commission in the afore cited case and have no hesitation therefore in dismissing the complaint in limine in view of complainant having willfully withheld the usage guide from the Forum which was received by the deceased debit card holder i.e. her husband from the Bank and has instead filed the complaint on assumption and presumption, having failed to discharge the onus of proof on which the complaint was to withstand.
5. Ordered accordingly.      
6.  Let a copy of this order be sent to the complainant free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on  05.11.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member