DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 289/2014
Date of Institution : 22.12.2014
Date of Decision : 13.08.2015
Nasib Kaur aged about 50 years widow of Jagdev Singh son of Karnail Singh resident of Patti Bhatha Bholia, VPO Sehna, Tehsil Tapa, District Barnala, Punjab.
…Complainant
Versus
1. New India Insurance Company Limited, Divisional Office, Near Ranbir College, Sangrur through its Divisional Manager.
2. New India Insurance Company Limited, Third Floor, A-Wingh, Axis House, Bombay Dyeing Mills Compound, PB Marg Verly, Maharashtra through its M.D.
3. AXIS Bank Limited, B-XII/443, Meghraj and Sons Building, College Road, Barnala.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Rishu Garg counsel for the complainant with complainant.
Sh. Vinay Kumar Jindal counsel for opposite parties No. 1 and 2
Sh. A.K. Jindal counsel for opposite party No. 3.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(MS. VANDANA SIDHU MEMBER):
Smt. Nasib Kaur widow of Jagdev Singh has filed the present amended complaint No. 289/2014 under Section 12 of the Consumer Protection Act, 1986 against opposite parties No. 1 to 3.
2. As per complaint husband of complainant named Jagdev Singh son of Karnail Singh opened a Krishi Savings Account No. 913010037825432 having customer ID No. 849917619 with opposite party No. 3 AXIS Bank Limited situated at B-XII/443, Meghraj and Sons Building, College Road, Barnala and personal accident insurance cover of Rs. 2,00,000/- was granted to said Jagdev Singh. Jagdev Singh died on 14.9.2013 in a motor vehicle accident. About this accident DDR No. 23 dated 14.9.2013 was issued at P.S. Nehia Wala District Bathinda.
3. As per the facts of the complaint complainant is only legal heir of above stated deceased as per nominee in regard of the above stated account and she approached opposite party No. 3 i.e. AXIS Bank and requested to close the said account standing in the name of deceased Jagdev Singh and to make the payment of amount standing to the credit of said Krishi Savings Account and pay insurance amount of Rs. 2,00,000/- due to death of said Jagdev Singh. Legal notice also served to the opposite party No. 3. Opposite party also gave reply of the above stated legal notice and submitted that the opposite party No. 3 issued an insurance cover to deceased of Rs. 2,00,000/- and in reply by opposite party No. 3 it was informed to the complainant that if she raised any claim on account of death of Jagdev Singh then the complainant should contact to the opposite parties No. 1 and 2. On 27.11.2014 complainant sent a legal notice to opposite parties but they did not give any reply. Hence it is deficiency in service of the opposite parties.
Relief claimed.-
1)The opposite parties be directed to pay Rs. 2,00,000/- with interest of insurance cover.
2) To pay Rs. 50,000/- as compensation for humiliation and harassment of the complainant.
3) To pay Rs. 10,000/- on account of litigation expenses.
About jurisdiction the office of opposite party No. 1 and 3 are at Barnala and complainant also resides within the territorial jurisdiction of this Forum. That is why this Forum has the jurisdiction to try and entertain the above stated complaint.
4. Upon notice the opposite parties No. 1 and 2 appeared and filed their version taking legal objections interalia on the ground that the complainant filed this complaint only to injure the goodwill and reputation of replying opposite party. Complaint is false, frivolous and vexatious. It is pertinent to mention here that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under Consumer Protection Act and appropriate remedy if any lies to the complainant only in the civil court. Moreover complainant did delay to giving intimation to the opposite party No. 1 to 3 about date of accident and death of deceased which is more than 257 days. Complainant is not consumer of the replying opposite parties. The insurance policy was issued in the name of the opposite party No. 3. Complainant has no locus standi or cause of action to file the present complaint. The above stated complaint is bad for non joinder of necessary parties. There is no deficiency in service on the part of the opposite parties. It is submitted that complainant violated the terms and conditions and exclusion of insurance contract which was agreed by deceased with opposite party No. 3.
5. On merits, the opposite parties admitted this fact that deceased was insured towards personal accident benefit of Rs. 2,00,000/- with answering opposite parties under credit card package group insurance policy No. 11270046131300000002 with effect from the period of 15.4.2013 to 14.4.2014 subject to terms and conditions and exclusion incorporated therein contract of insurance with opposite party No. 3. As per contract of insurance with opposite party No. 3 debit card and account holder of opposite party No. 3 must be reported to New India Assurance Company Limited, Regional Office-1, Claim Hub, 12th Floor, new India Center, 17-A, Cooperage Road, Mumbai alongwith claim form and all the required documents within 90 days from the death of account and debit card holder. Detail of name and address and email of incharge person of New India Assurance Company Ltd. Mumbai is already mentioned in contract of insurance to whom claim form with all the documents should be submitted within 90 days by the person insured and legal representative of the deceased. As per terms and conditions of insurance contract with opposite party No. 3 eligibility criteria of claim is that there must be one POS transaction in preceding 180 days of incident. But in the present case claim was not intimated to answering opposite parties immediately and papers were not submitted to answering opposite parties within stipulated time as mentioned in contract of insurance with the opposite party No. 3. Claim intimation was received by the opposite parties No. 1 and 2 on 27.5.2014 i.e more than 257 days from the date of alleged accident/death. Here is an ordinary delay in submission of claim papers i.e. 257 days. Moreover, intimation was given regarding accident death of deceased by Gurpreet Singh but complainant did not give any intimation. So answering opposite parties closed the claim file of the deceased Jagdev Singh as no claim. The complainant has violated the terms and conditions of insurance and policy. The answering opposite parties has rightly repudiated the claim of complainant vide letter dated 19.8.2014. Repudiation letter of 19.8.2014 sent by the opposite parties at the correct address of deceased which was received by the representative of the deceased and this fact is concealed by the complainant intentionally from this Forum. Even otherwise it is settled law that insurance policy is contract between the parties and both the parties are bound by the terms and conditions thereof. It is submitted that in case the said policy with terms and conditions was not supplied by opposite party No. 3 to the beneficiaries and intimation was not given by the complainant or opposite party No. 3 to the replying opposite parties No. 1 and 2 as per terms and conditions of the policy then no claim is payable by the replying opposite parties. However, in case any amount is held payable, only in that case the liability to pay is only of opposite party No. 3 and not of replying opposite parties. It is also submitted by opposite parties No. 1 and 2 that Jagdev Singh is died on 14.9.2013 in a motor vehicle accident. This fact is denied by opposite parties No. 1 and 2 for want of knowledge. The complainant has to strictly prove this fact by leading evidence. It is further submitted that complainant has not impleaded all the legal heirs in this complaint intentionally so the complaint is not maintainable. The complainant has not issued any legal notice to the replying opposite parties. In prayer clause the opposite parties prayed that the complaint of the complainant be dismissed with costs.
6. As per version of opposite party No. 3 legal objections were taken against complaint i.e. complainant has got no locus standi or cause of action to file the present complaint against the opposite party No. 3. Opposite party in its reply submitted that Jagdev Singh was insured with the answering opposite parties when he used/swiped ATM card at the time of opening the saving account with the opposite party No. 3 bank. The answering opposite party No. 3 is not in the business of insurance nor it can carry under law on the business of insurance. It is further submitted that the role of opposite party No. 3 was only a facilitator/corporate agent merely introducing the parties and insurance company one another and the actual insurance issued by opposite parties No. 1 and 2. Therefore the opposite party No. 3 is not liable to pay any amount to the complainant. It is also submitted that complaint falls under Section 26 of the CPA Act. Further, it is submitted that under legal objections that as per Section 230 of Indian Contract Act that an agent can neither sue nor be sued. So opposite party No. 3 was only the corporate agent of the insurance company.
7. On facts it is submitted that on 1.1.2015 complainant issued a legal notice by her legal counsel and opposite party No. 3 served reply about it by its counsel whereby counsel for opposite party No. 3 clearly mentioned that the arrangement between New India Assurance Company Limited and Axis Bank Limited. It is further submitted that the nominee of the card holder will be submit/ inform to the New India Assurance Company within 15 days from the date of incident leading to the claim and an fulfillment of other conditions of insurance. The same has been communicated to all the customer including Jagdev Singh deceased through the Debit Card Key to usage booklet provided alongwith the Debit card in the Welcome Kit. As per the terms of the insurance policy, all claims have to be intimated to the insurance company within 15 days of the occurrence of the event. Claim shall not be admissible after this period. The Zero Lost Card Liability/Purchase Protection/personal accident (death cover only) coverage is provided to card holders by The New India Assurance Company Limited, whose terms, conditions and decisions for which Axis Bank is not liable, will apply. Axis Bank does not hold any warranty and/or make representation about quality, delivery of the cover, claims processing or settlement of the claim by the New India Assurance Company Limited in any manner whatsoever. In prayer clause the opposite party No. 3 also prayed for the dismissal of the complaint with costs.
8. In order to prove her case, the complainant has tendered in evidence copy of account passbook Ex.C-1, copy of ATM card Ex.C-2, copy of letter of Axis Bank Ex.C-3, copy of death certificate Ex.C-4, copy of DDR Ex.C-5, reply of Axis Bank Ex.C-6, copy of notice Ex.C-7, postal receipt Ex.C-8, affidavit of Nasib Kaur complainant Ex.C-9 and closed the evidence.
9. To rebut the case of the complainant opposite parties No. 1 and 2 tendered in evidence affidavit of M. Dhawal Ex.OP-1.2/1, copy of letter dated 19.8.2014 Ex.OP-1.2/2, copy of application dated 18.4.2014 Ex.OP-1.2/3, copy of intimation letter dated 21.5.2013 Ex.OP-1.2/4, copy of police proceedings dated 14.9.2013 Ex.OP-1.2/5, copy of death certificate of Jagdev Singh Ex.OP-1.2/6, copy of insurance policy alongwith cover note Ex.OP-1.2/7, copy of insurance cover on Axis Bank Debit Card key features Ex.OP-1.2/8, and evidence of opposite parties No. 1 and 2 was closed by order of the above stated Forum dated 17.6.2015. The opposite party No. 3 tendered in evidence affidavit of Vishal Batra Ex.OP-3/1, copy of booklet of usage of debit card Ex.OP-3/2, copy of reply of notice Ex.OP-3/3 and closed the evidence. Further, in additional evidence opposite party No. 3 tendered in evidence copy of statements of account of Jagdev Singh Ex.OP-3/4 and closed the evidence on behalf of opposite party No. 3.
10. We have heard the learned counsel for the parties and have gone through all the record minutely on the file.
11. We observed the above stated complaint is not maintainable due to these reasons that though as per Ex.O.P1/2, name of complainant has mentioned as claimant of account holder late Jagdev Singh son of Karnail Singh resident of Batha Bhollia Patti Sehna, Barnala, but she was failed to give intimation to Axis Bank i.e. opposite party No. 3 within the stipulated time as mentioned in policy and as per merit of reply by opposite party No. 3 it was particularly mentioned that as per the terms of insurance policy, all claims to be intimated to the insurance company within 15 days of the occurrence of event. So as per policy terms claim shall not be admissible after that period. In the said complaint complainant herself did not give information about the date of accident or death within time. Moreover as per Ex. O.P.1-2 /3, intimation of death of policyholder Jagdev Singh is received by opposite party no.3 only son of deceased Jagdev Singh named Gurpeet Singh. It is also pertinent to mention here that the date of death is 14.9.2013. Due to accident on same day of Jagdev Singh, whereas the opposite party get information on 27.5.2014. So there is an inordinate delay in submission of claim papers of almost 257 days. In this regard the repudiation letter issued by answering opposite parties is Ex. OP.1-2/2.
12. It is also held by the Hon’ble National Commission, New Delhi in Revision Petition No. 1133 of 2013 titled as Sunita versus Reliance General Insurance Company Limited and others reported in Consumer Protection Cases 2014 (3) page-600 in which it has been held that :-
“Consumer protection Act ,1986 – Section 14 (1) (d) and 21 (b) – Insurance claim – Death of insured – intimation– Complainant delayed intimation death of her husband by 14 months–Immediate information was necessary under the terms of insurance contract–Fora below rightly dismissed claim of the petitioner who had violated the terms of policy–Repudiation of claim justified – Petition dismissed (Para 5)”
Case referred :- Sh. V.N. Shrikhande(Dr.) versus Anita Sena Fernandes, 2010 (3) CPC -397 S.C.
13. In the light of Judgment of National commission New Delhi in Revision Petition no. 1424 of 2008 –Rajinder Kumar Versus United India Insurance Co. Ltd. And Anr. -
Consumer Protection Act, 1986 – Section 14 (1) (d) & 21 (b)–Insurance–Death of buffalo– Repudiation of claim–Complainant filed a claim for insurance amount as his buffalo covered under the policy had died – Insurance company was not intimated just after alleged death of buffalo so that the actual fact could be confirmed by inspecting the carcass of animal which was not done–Insurer could not determine whether died animal was covered under the policy or not due to delayed information–Petition stands dismissed. (Paras6-7)
14. In light of another decided Revision petition no. 4166 of 2011 of Hon’ble National Consumer Redressal Commission, New Delhi In ICICI Lombard General insurance Co. Ltd. And others – petitioners versus Sh. Pawan Kumar –Respondent
Consumer protection Act, 1986 Section 15,17,19 and 21 – Damage to insured vehicle in accident – Complainant not lodged FIR – Insurance company was intimated after 12 days of accident–Complaint allowed by State Commission – Revision – Held as driver of vehicle was not holding a valid driving licence at the time of accident and there was delay in intimation to insurance company and not lodging FIR – Thus, complainant violated terms and conditions of Insurance policy – District forum rightly dismissed complaint – Impugned order set aside – Revision allowed . (paras no. 7 to 10).
15. We keen to prefer this judgment of Hon’ble Supreme Court of India in Civil Appeal no. 1375 of 2003 : M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd. And another-
A. Insurance Contract – Breach of a condition of Insurance policy by insured – Damage of goods in Transit – Insurance not liable to pay claim.
16. It is also pertinent to mention here that papers for claim not submitted by the complainant to the answering opposite party in a stipulated period, which is mentioned in contract of insurance with the opposite party No. 3. Moreover according to merits of reply by opposite parties No. 1 & 2 it is submitted by the opposite parties that Jagdev Singh son of Karnail Singh husband of the complainant opened a Krishi Saving Account No. 913010037825432 having a customer ID No. 849917619 with the opposite party No. 3 is a matter of record, but the answering opposite parties admitted this fact that deceased was insured towards personal accident benefit of Rs. 2,00,000/- with answering opposite parties under credit package group insurance policy No. 11270046131300000002 w.e.f 15.4.2013 to 14.4.2014. According to opposite parties No. 1 & 2 claim documents should be submitted within 90 days by the person insured and the legal representative of the deceased, but in this case delay of 257 days in submission of claim papers, as per Ex.O.P1-2/1 i.e. affidavit of Sh. M. Dhawal, Sr. Divisional Manager. So that's why opposite parties closed the claim file of the deceased Jagdev Singh as “no claim”. As per fact complainant has violated the terms and conditions of the insurance and policy. So as per Ex.O.P1-2/2, opposite party No. 3 regret the liability to settle the claim. Further it is necessary to mention here that as per Ex.O.P1-2/3 one person named Gurpreet Singh moved an application to Manager New India Insurance Company Limited Barnala that he is son of Jagdev Singh and claim above stated policy should be given to him. So here is new question arise to whom the alleged claim should be given. So by this way Ex.O.P1-2/3 leads to this fact that the above stated complainant is bad for mis-joinder of necessary parties i.e. complainant did not make Gurpreet Singh son of Jagdev Singh Village Sehna Tehsil Tapa District Barnala who is a necessary party in the above stated complaint. Ex.O.P1-2/8 itself proves that where policy is concerned with personal accident cover within 90 days of loss. And as per Ex.OP-1.2/8 the complainant should intimate the answering opposite parties on the following address within 90 days and intimation should be given to the answering opposite parties. As per Ex.O.P3/1 i.e. affidavit of Vishal Batra Branch Head of Axis Bank Branch Barnala it is specifically mentioned in his affidavit that in regard of claim nominee of card holder will be submit documents/inform to the New India Assurance Company within 15 days from the date of incident leading to the claim and an fulfillment of other conditions of insurance the same has been communicated to all the customers including Jagdev Singh deceased through the debit card key to usage booklet provided alongwith the debit card in the welcome kit. Moreover opposite party No. 3 proves itself as an agent and as per affidavit of Vishal Batra Head of Axis Bank that under Section 230 of Indian Contract Act that an agent can neither sue; nor be sued except the special circumstance mentioned therein. As per affidavit none of the circumstance envisaged therein have been pleaded as existing in the instant complaint in any of the Para's of the complaint in question. Further according to Ex.O.P3/1 opposite party No. 3 Bank cannot carry on insurance business as per the provision of banking regulation Act 1949 and hence does not offer insurance product. As per affidavit i.e. Ex.O.P3/1 deceased Jagdev Singh insured with the New India Assurance Company Limited and insurance cover given to the ATM/Debit Card holder's is an additional facility by the Bank through the insurance company and therefore there exist no privity of contact between the complainant and the opposite party Bank to claim the insurance from the O.P Bank. As the insurance cover is provided with free of charge.
17. In view of the above discussion in our view there is no merit in the present complaint and the same is dismissed. There is no order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
13th Day of August 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
