Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellant/OP No. 2 challenging the judgment and order dated 19.09.2014 passed by the Ld. District Forum, Birbhum in Complaint Case No. CC/38/O/2013 allowing the complaint on contest against the OPs in the Complaint Case with the directions as under:-
“that C.F Case No. 38/13 be and the same is allowed on contest against the OPs.
The OPs are jointly and severally directed to pay a sum of Rs.2,00,000/-(rupees two lakhs) with 9% interest thereon from the date of accident i.e. on and from 24.07.2011 to the date of actual payment. They are also directed to pay litigation cost of Rs. 2,000/-. The above payment shall be made within one month from the date of this order failing which the Complainant shall be at liberty to resort to due process of law and procedure.”
The Appeal No.A/1255/2014, arose out of the same impugned order being identical in nature and character, was given an analogous hearing.
The case of the Respondent No. 1/Complainant, on the instant occasion, was that Akshar Ali Khan, the husband of the Respondent No. 1/Complainant, now deceased, was holding a debit card under Axis Bank which made Mr. Khan entitled to a comprehensive Personal Accident Insurance coverage of Rs. 2,00,000/-, free of cost, under certain terms and conditions. Akshar Ali Khan died an accidental death on 24.07.2011. The Respondent No. 1/Complainant, being the wife of the deceased, submitted the claim as per entitlement envisaged under the fore-mentioned insurance coverage. The claim was not settled for a long time in spite of persuasion including legal notices being served upon the Appellant/OP No. 1 and Respondent/OP No. 2. Ultimately, the Respondent/OP No. 2 communicated a letter of repudiation to the Complainant.
The Respondent No. 1/Complainant, being aggrieved, filed the Complaint Case before the Ld. District Forum. Impugned judgment and order which has been put under challenge in the instant Appeal, originates from the said Complaint Case.
Heard Ld. Advocates appearing on behalf of all sides.
The Ld. Advocate appearing on behalf of the Appellant/OP No. 1 pleaded his client’s innocence saying that the claim, on receipt from the Respondent No. 1/Complainant, was forwarded to the Respondent/OP No. 2. The Ld. Advocate continued to submit that the prime conditions to be fulfilled for sanction of the insurance claim were as under:-
- In case of International Debit Cards of Insurance coverage of Rs. 2,00,000/-, the reporting was to be done within 60 days.
- There should be at least one point of sale within (POS) transaction at any merchant outlet in preceding 90 days of the accident.
As he continued, the deceased fulfilled the first condition. The non-fulfilment of the second condition, in fact, led to the repudiation of the claim by the Respondent/OP No. 2.
The above conditions, as the Ld. Advocate continued, was well within the knowledge of the Respondent No. 1/Complainant who, because of her husband being bound down by a contractual agreement, should not have challenged the repudiation due to non-fulfilment of the agreed terms and conditions of the Insurance.
With the above submission, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondent/OP No. 2, while making submissions, agreed to the reasons for repudiation as explained by the Appellant/OP No. 1 but refused to accede to the terms of Agreement which, as he stated, was an Agreement with the Appellant/OP No. 1 and the deceased husband of the Respondent No.1/Complainant keeping his client outside its purview.
As he continued further, even if the Agreement was taken cognizance of, the Complainant—the deceased wife of the insured—cannot be a party to it since her husband and not her had entered into the agreement. As contended, the Respondent No. 1/Complainant being a beneficiary, should not have any right to enjoy the same status of the Consumer.
The Ld. Advocate further pointed out that the deceased husband of the Complainant had undertaken point of sale (POS) on 15.11.2010 when he died by a motor accident on 24.07.2011. The POS was transacted, as he continued, far beyond the permissible period of 90 days. The repudiation, being in accordance with the terms of Agreement, had no reason to be challenged, as submitted.
The Ld. Advocate, in view of the above, prayed for the Appeal to be dismissed setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondent No. 1/Complainant, per contra, submitted that both the Appellant/OP No. 1 and Respondent/OP No. 2, took part in the promotional activities providing the debit card holders of the Bank an additional facility of insurance coverage.
Admittedly, the deceased had the debit card with insurance coverage facility since the year 2010 and the debit card holder died an accidental death on 24.07.2011.
As he continued, the Respondent No. 1/Complainant was aware of the insurance issue related to the subject debit card owned by her deceased husband. The subject insurance coverage which was initiated in the year 2010 with a different Insurance Company was stated to have two prime criteria to be fulfilled for sanction of the claim.
- There should be an average quarterly balance of Rs. 5,000/- for Metro/urban centers and Rs. 2,500/- for semi urban/rural centers in last quarters from the date of accident.
- There should be at least one point of sale (POS) at any merchant outlet in preceding 365 days of the accident.
The Appellant/OP No. 1, replacing the Insurance Company, tied up subsequently with Respondent/OP No. 2 Insurance Company which laid down the prime criteria to be fulfilled by the insured as under with effect from the year 2011 for sanction of the insurance claim.
- In case of International Debit Cards of Insurance coverage of Rs. 2,00,000/-, the reporting was to be done within 60 days.
- There should be at least one point of sale (POS) transaction at any merchant outlet in preceding 90 days of the accident.
As continued the Respondent/OP No. 2 claimed to have sent the copy of the new criteria for sanction of the insurance claim to all the takers of the debit cards since the date of introduction of the new criteria.
The Ld. Advocate contended that the change of the Insurance Company was not brought to the notice of the deceased and Respondent No. 1/Complainant was equally in dark about the changed criteria of sanction of claim since her husband’s debit card was issued prior to the introduction of the new criteria through the Respondent/OP No. 2 replacing the earlier one and the new terms and conditions were communicated to the holders of the debit card issued much later than that issued in favour of the deceased husband of the Respondent No. 1/Complainant. So, as he continued, the criteria introduced since 2011 should not be applicable on the instant occasion.
Therefore, the Respondent No.1/complainant fulfilled two prime criteria as under for having a favourable view in respect of sanction of her claim.
- She had Rs.15,203/- as quarterly closing balance which was in excess of the permissible ceiling of Rs. 5,000/- for metro/urban centers and Rs. 2500/- for semi urban/rural centers to the minimum.
- She had at least one POS of Rs. 140/-on 15/11/2010 which was very well within 365 days prior to the date of death of the husband of the Respondent No. 1/Complainant.
The Ld. Advocate concluded saying that the impugned judgment and order does not deserve any intervention as the Ld. District Forum passed a justified order on proper appreciation of the case.
Perused the papers on record and considered submissions on behalf of both sides. I don’t agree with argument of the Ld. Advocate appearing on behalf of the Respondent/OP No.2 as to the status of the Respondent No. 1/Complainant who, as submitted, being the beneficiary of the insurance should not have any claim to enjoy the status of the consumer. The fact, however, was contradictory as the Respondent No.1/Complainant, being the wife of the deceased one under coverage of the Personal Accident Insurance, had definite right to claim compensation for her deceased husband who died an accidental death, if she was found otherwise eligible.
It was also apparent that the Respondent/OP No.2 replaced the previous Insurance Company under a fresh tie up with the Appellant/OP No.1in a Debit Card Package Insurance Policy w.e.f. 15/04/2011 to 14/04/2012 beyond the knowledge of the deceased and also beyond the knowledge of the Respondent No.1/Complainant.
The new policy, therefore, came into being in the year 2011 and the policy documents were admittedly sent to the Account holders along with Debit Cards. We did not find any evidence in the record showing any communication to the deceased about any such change of policy conditions. It was not possible also as the debit card was issued in the name of the deceased in the year 2010, that is, much before the new policy was introduced in the year 2011.
Based on the above observation, I intend to draw the conclusion that the new policy conditions which were effective from the year 2011 were not applicable in case of the Respondent no 1/ complainant, as the debit card for her deceased husband was issued in the year 2010.
Such being my observation and there being contributory negligence on the part of both the Appellant/OP No.1 and Respondent/OP No.2, I find reasons for the impugned order to be left uninterfered with.
Hence,
Ordered
that the Appeal be and the same stands dismissed. The impugned Judgment and Order stands affirmed. No order as to costs.
The Appeal under No. A/1255/2014, being identical in nature and character, the instant order shall apply mutatis mutandis to the Appeal No. A/1255/2014 and accordingly shall be similarly governed by the instant order.
