Tamil Nadu

South Chennai

CC/454/2015

M/s.Minor Rafa - Complainant(s)

Versus

M/s.Axis Bank Ltd - Opp.Party(s)

M/s.John Basco

22 Jul 2022

ORDER

Date of Complaint Filed : 27.02.2015

Date of Reservation      : 01.07.2022

Date of Order               : 22.07.2022

 

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.454/2015

FRIDAY, THE 22^nd DAY OF JULY 2022

1. Minor Rafa,

    D/o. Yasin Sufiyan,

 

2. Minor Md. Kasim Afis,

    S/o. Yasin Sufiyan,

 

3. Minor Ahamed Mohideen,

    S/o. Yasin Sufiyan,

   Minors represented by their guardian/grandfather,

   Mr.Habeeb Mohamed Siddique,

   S/o. Hamid Mohideen,

   No. 53, Veerabadran Street,

   Nungambakkam, Chennai - 600 034.                                                                                                                        ... Complainant                               

 

..Vs..

1. The Manager,

    Axis Bank, Corporate Office,

    Bombay Dyeing Mills Compound,

    Pandurang Budhakar Mark, Worli,

    Mumbai - 400 025.

 

2. The Manager,

    Axis Bank Ltd.,

    No. 1374, Anna Salai, Teynampet,

    East Coast Centre,

    Chennai - 600 018.

 

3. The Manger,

    Claim HUBMROI,

    The New India Assurance Co. Ltd.,

    No. 87, M.G. Road, Fort,

     Mumbai- 400 001.                                                                                                                                                      ...  Opposite Parties

******

Counsel for the Complainant                        : M/s. J.John Bosco

Counsel for the 1^st & 2^nd Opposite Parties       :M/s. R.Palani Kumar Ramesh

Counsel for the 3^rd Opposite Party                 :M/s. S. Dhakshnamoorthy

          

        On perusal of records and after having heard the oral arguments of the Complainant and the Counsel for the Opposite Parties, we delivered the following:

ORDER

Pronounced by the Member-I,Thiru. T.R.Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.2,00,000/- under each debit cards totally a sum of Rs.4,00,000/- with 12% interest from the date of claim and to pay a sum of Rs.1,00,000/- towards deficiency of service and to pay Rs.1,00,000/- towards negligence and to pay Rs.3,00,000/- towards deficiency in service and mental agony caused to the Complainants.

2.     The averments of Complaint in brief are as follows:-

The Complainant states that their father Mr.Yasin Sufiyan met with an accident near Valamasurvillaku, Thirupalaikudi, Ramanathapuram District and died on 12.07.2012. Due to that accident leaving behind the Complainants herein as his legal heirs. The mother of the Complainant also died on 23.5.2011. When his father was alive he had an account relating to his Debit Card No. 406222900166418 and 48629000672633 with the 1st and 2^nd Opposite Parties with an insurance policy linked thereof vide Policy No. 11270046121300000004 (as referred in the letter of New India Assurance, the 3^rd Opposite Party herein dated 02.08.2013) and Actual policy No. 1127004611100000001. The 1^st Opposite Party is the corporate office of the 2^nd Opposite Party hence made as a party to the present complaint. The Insurance policy covered under the above said two debit cards assures the payment of Rs.2,00,000/- for each debit card to the legal heirs of Mr.Yasin Sufiyan under these two conditions, i. The death of the deceased due to an accident and ii. The deceased ought to have used his debit card at least once at Merchant Establishment to avail of the personal accident cover of upto Rs. 2,00,000/- under this unique insurance policy. These two conditions were fully satisfied in the case of Complainant father, since he died on 12.07.2012 due to an accident and during his lifetime he used his debit card of 1st and 2^nd Opposite Parties for a purchase at Merchant Establishment on 02.07.2011 for Rs.1995/- after the issue of two debit cards on 11.06.2011 and 13.06.2011. It evidently entitles his legal heirs to receive Rs. 2,00,000/- under each debit card. Mr.Habeeb Mohamed Siddique who is the guardian and grandfather of Complainant submitted the claim form before the 1^st and 2^nd Opposite Parties for payment of Rs. 2,00,000/- for each debit card enclosing all necessary documents , but the 1^st and 2^nd Opposite Parties had washed off their hands saying that they are not doing any business in insurance and their remedy is solely before the 3^rd  Opposite Party only. The 3^rd Opposite Party also refused the Complainants claim papers and observed that there was no purchase (POS) appearing in the bank statement and since there was no POS made by the card holder in proceedings 180 days of the incident, the claim fell out of the purview of the policy. This alleged condition of the 3^rd Opposite Party was not at all informed to the father of the Complainant at the time of taking debit cards and Insurance policies. His father did not have any contact with the officials of the 3^rd Opposite Party at that time and never signed any papers with the insurance company. It is the 1^st and 2^nd Opposite Parties who collected required forms for the debit cards and policies welcoming him with open arms. At the time of taking debit cards 1^st and 2^nd Opposite Parties issued two letters dated 11.06.2011 and 13.06.2011 to Mr.Yasin Sufiyan informing about the eligibility condition to avail insurance coverage of Rs. 2,00,000/- for each card , moreover Mr.Yasin Sufiyan was having a credit card bearing Card No. 4718600100417254 from 1^st and 2^nd Opposite Parties and he had purchased using the card till 09.07.2012 within 180 days preceding his date of death on 12.07.2012. If he had been informed about the alleged condition of the 3^rd Opposite Party he would have certainly used those debit cards to satisfy these conditions. Since the Opposite Parties remain uncharacteristically quiet over the issues raised before them and even Opposite Parties never reacted for the representation of the Complainant. Hence the Complaint.

3.  Written Version filed by the 1^st and 2^nd Opposite Parties in brief are as follows:-

They cannot carry on "Insurance Business" as per the provisions of Banking Regulations Act, 1949 and hence does not offer insurance products. The policy which is the subject matter of this complaint was issued by 3^rd  Opposite Party and hence the complaint cannot be maintained nor relief sought by the Complainant be ordered against us. Without prejudice its right and contention submitted that they acted only as facilitator between the Complainant and 3^rd Opposite Party. The duly filled insurance form by the Complainant was forwarded to the 3^rd Opposite Party, satisfied with the particulars furnished in the Insurance form, 3^rd Opposite Party issued Cover Note and also Insurance Policy to the Complainant. The 1^st and 2^nd Opposite Parties part are over with the issuance of Cover Note and Insurance Policy by the 3^rd Opposite Party to the Complainant . If any issues arise in regard to cancellation or claim of the Insurance Policy as stated in the Complaint is purely between 3^rd Opposite Party and Complainant they are nothing to do with the same.

Opposite Party 1 & 2 states that As per (i) Settled principle of law U/S 230 of Indian Contract Act that an agent can neither sue nor be sued except under the special circumstances mentioned therein. For ready reference Section 230 of Indian Contract Act "In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases:

(1) where the contract is made by an agent for sale or purchase of goods for a merchant resident abroad;

(2) where the agent does not disclose the name of his principal

(3) where the principal, though disclosed, cannot be sued. The perusal of the above provision indicates that none of the circumstances envisaged therein have been pleaded as existing in the instant case in any of the paras of the complaint in question. Therefore on this sole ground alone the complaint is liable to be dismissed.

(ii) Further, we refer and rely upon the ratio in the Judgement passed by Andhra Pradesh State Commission Judgement dated 30.07.2010 in the matter of Andhra Bank, Credit Card Division vs. Mrs.DinasVervatwala and another wherein, it was held that banks cannot be fastened with Insurance liability.

The death of the Complainant father having Debit Card facility, issuance of Insurance policy, Benefit of the Insurance Policy on death of the Card Holder, the conditions stipulated for getting the benefit of Insurance Policy on the death of the Card Holder, are all matter of record which they don't possess or maintain the same. The 1^st & 2^nd Opposite Parties admitted the submission of claim form by the Guardian of the Complainant and informed that they have nothing to do with the Claim Form and the same has to be submitted before the 3d Opposite Party and reputation of claim are within the knowledge of the Complainants. Hence the complaint is to be dismissed against them.

4.   Written Version filed by the 3^rd Opposite Party is as follows:-

There was no privity of contract between the Complainant and the Insurance Company as the policy was taken by the 1^st & 2^nd Opposite Party as per the agreed term and conditions under the policy, hence the Complainant does not have the locus standi to file this complaint. The complaint is not maintainable either in law or on the facts of the case. The 3^rd Opposite Party submits that instead they acted as per the terms & conditions but the present complaint is filed on mere conjectures and surmises. They have issued a Master policy to M/s. Axis Bank to cover the Debit card holders of the Axis bank. vide Policy Number 11270046111300000001 for a period effective from 15.04.2011 to 14.04.2012 and subsequently the policy was renewed effective from 15.04.2012 to 14.04.2013 vide policy No. 1127004612130000004 and it is submitted as a master policy on the name of Axis Bank, not in the name of individual cardholder. As per the terms and conditions of the policy the "Eligibility Criteria" for the personal accident cover to the Debit card holder based on the category of the card used by them. As per the said stipulation, the card holder ought to have made a POS transaction within 6 months prior to the date of the mishap. In this case the debit card holder died on 12.07.2012 and there were no POS transactions for 6 months prior to the accident and hence the 3^rd Opposite Party has rightly repudiated the claim. Moreover the Complainant has not produced any document to substantiate that the debit card was used within 6 months prior to the accident. This Opposite Party has clearly stipulated this condition of "Eligibility Criteria". Further they cannot be made liable for any statement made by the 1^st & 2^nd  Opposite Party with the Debit card holder without their knowledge, henceforth the insurer cannot settle any claim going beyond the scope of cover and even the Complainant has submitted that there is no privity of the deceased card holder with the insurer and entire communications with regard to the eligibility conditions was explained only by the 1^st and 2^nd Opposite Party to the Complainant.  The insurance policy was issued in the name of Axis Bank i.e 1^st & 2^nd Opposite Party to the card holders alongwith policy document terms & conditions, scope of coverage, eligibility criteria etc. under the policy. Hence the complaint is to be dismissed.

5.     The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-16 were marked. The 1^st and 2^nd  Opposite Parties had submitted Proof Affidavit and Written Arguments and on the side of 1^st and 2^nd Opposite Parties no documents were marked. The 3^rd Opposite Party had filed his Proof Affidavit and Written Arguments and on the side of 3^rd Opposite Party Ex.B-1 alone was marked.

6.     Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

 

Point No.1:-

On careful reading of the Complaint, Written Versions and Exhibits filed on the side of the Complainant and the Opposite Parties, it is clear that the 3^rd Opposite Party when rejected the claim on the ground that “POS transaction within 6 months prior to the date of mishap” was not met out as mentioned in the Eligibility Criteria applicable to personal accident, had failed to prove that the Debit Cards of the Deceased Mr.Yasin Sufiyan, being NRI International Debit Card would attract the said clause, as the said clause would attract to  Premium Debit Cards – Gold, Gold Plus, Business Gold & Priority Banking Debit Card, which were found listed separately in Annexure -I in page no.15 of Ex.B-1 and NRI International found listed separately in Annexure -I in page no.15  of Ex.B-1 and hence the ground of rejection relying the above said clause would not apply to the Debit Cards of the deceased Mr.Yasin Sufiyan. Further in Ex.A-1 and A-2 the 2^nd Opposite Party had clearly mentioned that the Debit Card should be utilised at least once at a Merchandise Establishment, as mentioned in the Eligibility Criteria for Non premium Debit Cards and smart privilege/SB Prime Debit Card, as the Debit Cards of the deceased Mr.Yasin Sufiyan would fall under the category of Non premium Debit Cards and smart privilege/SB Prime Debit Card, the 2^nd Opposite Party would have mentioned the applicable clause from the Eligibility criteria and as such from Ex.A-3 the statement of Accounts issued by the 2^nd Opposite Party, it is found that a POS Merchandise transaction was made on 02.07.2011, hence the contention of the 3^rd Opposite Party that there was no POS transaction within 6 months prior to the date of Mishap is not sustainable and the rejection made relying on said ground is not legally sustainable.

The Judgments relied upon by the 3^rd Opposite Party of Hon’ble Supreme Court decided in Civil Appeal No.6277 of 2004, United India Insurance Co. Ltd Vs- Harchand Rai Chandan Lal, on 24.09.2004, as well as of Hon’ble National Consumer Disputes Redressal Commission, decided in Revision Petition No.2795 of 2012 in Japji Kaur Chemma Vs- ICICI Home Finance Co. Ltd, on 05.11.2012, would not apply to the instant case as the rejection of claim was made on a wrong clause.

And the 1^st and 2^nd Opposite Parties being a Banker, who stood as facilitator between the Card Holder, deceased Mr.Yasin Sufiyan, the father of the Complainants and the 3^rd Opposite Party, and further as per Clause 6 of the terms and conditions of the Policy, found in Page No.11 of Ex.B-1 in Payment of Claim : “The Company shall only make payment under this policy to the Insured or the Name Insured”, and on the Judgment relied upon by the 1^st and 2^nd Opposite Parties of Hon’ble National Consumer Disputes Redressal Commission, decided in R.P.No.3521-3522 of 2013, Bajaj Allianz General Insurance Company Ltd Vs- Axis Bank Ltd & 2 others and another, and in R.P.No.1127 -1128 of 2014, Axis Bank Ltd Vs- Ramachandra Thakorlal Gandhi & 2 others and 2 Others, on 05.11.2012, wherein it is held that Bank is not liable for any decision taken by the Insurance Company and when the card holder failed to comply the terms and conditions of the policy for availing benefit of the policy, Bank cannot held liable, would apply to the 1^st and 2^nd Opposite Parties in the instant case, it is clear that the 1^st and 2^nd Opposite Parties has not committed any deficiency of service.

Therefore, on above discussions, we are of the considered view that the 3^rd Opposite Party being the Insurer, who is solely liable and responsible to pay the insurance claim, had committed deficiency of service by rejecting the legal claim of the deceased Mr.yasin Sufiyan, made by the Complainants. Accordingly Point No.1 is answered against the 3^rd Opposite Party.

Point Nos.2 and 3:-

As discussed and decided Point No.1 against the 3^rd Opposite Party, the Complainants are entitled for the claim amount of Rs.4,00,000/-, being sum assured of Rs.2,00,000/- under Debit Card No.40622900166418 and sum assured of Rs.2,00,000/- under Debit Card No.48629000672633 pertaining to Deceased Mr,Yasin Sufiyan together with interest at the rate of 6% from the date of the Claim Form submitted to the 3^rd Opposite Party i.e, from 18.03.2013 till the date of this order, and entitled for a sum of Rs.50,000/- towards deficiency of service and mental agony and also entitled for a sum of Rs.3,000/- towards costs.

In the result, the complaint is partly allowed. The 3^rd Opposite Party is directed to pay a sum of Rs.4,00,000/-(Rupees Four lakhs only) (being sum assured of Rs.2,00,000/- under Debit Card No.406222900166418 and sum assured of Rs.2,00,000/- under Debit Card No.48629000672633 pertaining to deceased Mr.Yasin Sufiyan) together with interest at the rate of 6% per annum from the date of claim form submitted to the 3^rd Opposite Party, i.e., from 18.03.2013 till the date of this order,  to pay a sum of Rs.50,000/-(Rupees Fifty Thousand Only) towards deficiency of service and mental agony to the Complainant, and to pay a sum of Rs.3,000/- (Rupees Three Thousand Only) towards cost, within 8 weeks from the date of the order, failing compliance, the Complainants are entitled to recover the above amounts with interest at the rate of 6% per annum from the date of the order till the date of realisation.    

In the result the complaint is allowed.      

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on  22^nd day of July 2022.  

 

 

S. NANDAGOPALAN                                                        T.R. SIVAKUMHAR                                                                B.JIJAA

         MEMBER II                                                                         MEMBER I                                                                  PRESIDENT

 List of documents filed on the side of the Complainant:-

Ex.A1	11.06.2011	Letter from 1st Opposite Party to father of Complainants (Debit card No.4862929000672633)
Ex.A2	13.06.2011	Letter from 1st Opposite Party to father of Complainants (Debit Card No.4062299001664418)
Ex.A3	-	Statement of account of yasiyan suffiyan
Ex.A4	19.12.2012	Death certificate of yasiyan suffiyan
Ex.A5	26.09.2012	Legal heir certificate of yasiyan suffiyan
Ex.A6	24.01.2013	Order in GWOP No.15/2012
Ex.A7	18.03.2013	Claim form before the 3rd Opposite Party with enclosures
Ex.A8	02.08.2013	Letter from 3rd Opposite Party to guardian of Complainants
Ex.A9	15.04.2014	Legal notice to Opposite Parties with acknowledgement cards.
Ex.A10	22.04.2014	Reply notice from 2nd Opposite Party
Ex.A11	22.04.2014	Letter from 2nd Opposite Party to claims Hub Mroi, Mumbai
Ex.A12	06.05.2014	Reply notice from 3rd Opposite Party `
Ex.A13	20.06.2014	Legal notice to 3rd Opposite Party
Ex.A14	06.05.2014	Reply notice from 3rd Opposite Party for the notce dated 20.06.2014
Ex.A15	15.10.2014	Legal notice to Opposite Parties with acknowledgement cards & returned cover
Ex.A16	24.10.2014	Reply notice from 2nd Opposite Party

List of documents filed on the side of the 1^st and 2^nd Opposite Parties:-

 

NIL

 

List of documents filed on the side of the 3^rd Opposite Party:-

 

Ex.B1

15.04.2011

Policy document comprising-schedule, terms and conditions

 

 

 

 

S. NANDAGOPALAN                                                               T.R. SIVAKUMHAR                                                         B.JIJAA

         MEMBER II                                                                              MEMBER I                                                             PRESIDENT