Delhi

StateCommission

CC/1895/2017

HARKISHAN SHARMA - Complainant(s)

Versus

SBI GENERAL INSURANCE CO. LTD. & ANR. - Opp.Party(s)

T.K. MUKHERJEE

23 Nov 2020

ORDER

 IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :23.11.2020

Date of Decision : 25.11.2020

COMPLAINT NO.1895/2017

In the matter of:

 

Harkishan Sharma,

S/o. Late Shri Nand Kishore Sharma,

Nominee and Father of the Insured deceased,

Lt. Shri Tarun Sharma,

R/o. H.No.27, CAD Colony,

Jor Bagh, Lodhi Colony,

New Delhi-110003.                                                                                     Complainant

 

Versus

                                                                       

1. SBI General Insurance Co. Ltd.

Through its Managing Director,

7-B, Ground Floor, Rajendra Park,

Pusa Road, Opposite Metro Pillar No.153,

New Delhi-110060.      

 

Also at:

SBI General Insurance Co. Ltd.,

Through its Managing Director,

CIN .U.66000MH2009PLC190546

Corporate & Registered Office

Natraj 101, 201 and 301

Junction of Western Express Highway &

Andheri Kurla Road,

Andheri East, Mumbai-400069 (Maharashtra)

 

2. Shri Mick Miller,

Consulting Vice President (Claims),

Corporate & Registered Office

Natraj 101, 201 and 301

Junction of Western Express Highway &

Andheri Kurla Road,

Andheri East, Mumbai-400069 (Maharashtra)

 

3. State Bank of India,

Through its Branch Manager,

Rajiv Gandhi Bhawan,

Airport Authority of India,

Safdarjung Airport,

New Delhi.                                                   ……Opposite Parties

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present :           Shri Niklesh Jain, AR of Complainant..

                        Shri N.K. Chauhan, counsel for OP-1.

OP-3 already exparte.

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The complainant is father of the insured. He has  come forward on the allegations that his son Shri Tarun Sharma died on 22.11.15, he is nominee of the insured. OP-1 is Group  Company of SBI/ OP-3 and is dealing with General Insurance and is having mutual tie up with OP-3. Op-1 offers exclusive policies of general insurance of personal accident, healh and home insurance to account holders of OP-3.
2. The insured was having saving account no. 20229378166 with OP-3. He was offered personal accident insurance policy of Rs.20 lakhs on premium of Rs.1,000/- per annum. He signed the necessary papers which included OTM (one time mandate) for automatic renewal of the said policy and deduction of the premium of the same from his saving account which he was holding with OP-3. Renewal of the policy and deduction of the premium was to be done automatically on yearly basis  unless the insured informed in writing to discontinue the same. On 05.08.14 Rs.1,000/- was deducted from his saving account  towards premium and OP-1 issued certificate no.24508116 master policy no.150421-0000-00. The said policy became effective from 05.08.14 and had to continue till stopped by insured. Premium of Rs.1,000/- was deducted automatically from his saving bank account on19.11.15 by OP-3 based on one time mandate given by the insured.
3. Unfortunately the insured expired on 22.11.15 in Apollo Hospital due to injuries suffered in road accident. The complainant filed telephonically claim with the OPs which was acknowledged vide letter dated 15.12.15. The OP forwarded condolence  and allotted SBI General Claim no.223098 and asked for filing up SBI General Claims Form alongwith prescribed documents. The complainant did the needful. OP-1 vide letter dated 31.08.16 mischievously and illegally informed the complainant  that policy became effective from 19.11.15, the occurrence of loss is out of coverage period and repudiated  the claim. OP-1 sent through post, certificate of insurance cum  receipt of premium dated 23.11.16 to the insured for renewal of the policy in continuity, even one year after the death of the insured and that too after rejection of claim.
4. Complainant sent legal notice dated 01.12.16. OP-2 replied the said notice vide letter dated 20.12.16. Hence this complaint for directing OPs to pay Rs.20 lakhs being the sum insured, Rs.7,12,000/- towards interest @18% p.a. from 22.11.15, Rs.5 lakhs for compensation for suffering harassment, mental pain and agony due to unlawful rejection of the claim. He has also sought Rs.50,000/- as cost.
5. OP-2 was directed to be deleted from the array of parties at the time of admission itself vide order dated 05.12.17. OP-1 and 3 were summoned. OP-1 appeared through its counsel on 23.08.18 and OP-3 appeared through its Dy. Manager, Shri  Vijay Kumar Harsh. Copies of complaint  were supplied to both the parties and they were directed to file WS within 30 days. OP-3 did not appear from next  date i.e. 26.04.19 and has been proceeded exparte vide order of the even date.
6. OP-1 filed WS on 02.03.19, alongwith application for condonation of delay in filing WS. The delay in filing WS was condoned vide order dated 26.07.19 subject to payment of Rs.5,000/- as cost. OP-1 did not pay the said cost on 11.10.19 or 25.02.20 or  14.10.20. Hence its WS was taken off the record vide order dated  14.10.20.
7. The complainant filed  rejoinder to WS of OP-1 and his own affidavit in evidence.
8. Since WS of OP-1 has been taken off record, the replication filed by the complainant losses relevance. Still I am referring to some paras of the WS as they reflect light on facts. According to it the policy  expired on 04.08.15. Had the insured intended to get the same renewed, he would have made attempt to do so between 04.08.15 and 12.11.15/ the date of accident.  Immediately after he met with the accident and keeping in mind critical situation  of the insured, consent was shared for issuance of policy. OP-1 issued fresh policy on 19.11.15 with different policy number and master policy number.
9. On 23.11.20 the counsel for  OP-1 moved an application  for review of order dated 14.10.20 taking WS off the record. The said application has been rejected vide order of the even date on the ground that this Commission has no power of review as per decision of Hon’ble Supreme Court in Rajiv Hitender Pathak (2011) 9 SCC  541. The counsel for OP-1 tried to make out that power of review has been conferred by Consumer Protection Act, 2019 which came into force on 21.07.20. The said argument did not find favour  with this Commission as this complaint was filed in the year 2017 under the old Consumer Protection Act, 1986. So the provisions of old Act have to be applied and not the new Act.
10. I have gone through the material on record and heard the arguments. The AR of the complainant drew my attention towards Annexure-A to the complaint which is at 25 of the bunch of complaint. It is copy of the passbook of deceased insured. It shows debit entry of Rs.1,000/- on 05.08.14 towards premium of insurance. Thereafter there is no entry of presentation of one time mandate by the OP on 05.08.15 or subsequent dates till 18.11.15. The said passbook shows that there was sufficient balance in the account to honour the onetime mandate of debiting Rs.1,000/-.  Balance from 25.06.15  till 19.11.15 when the next premium was debited was Rs.3,308/-.
11. The AR of the complainant submitted that OP has not specifically denied the fact that there was one time mandate for debiting the premium annually. It has tried to make out that the next premium was debited with the consent of the insured which was taken after accident on 12.11.15.  But it has failed to file said consent. I asked the counsel for OP-1 whether he can produce the said consent now. He replied that the consent must be with the bank/ OP-3. I am unable to appreciate the arguments. OP-3 is none else but the bank which is referring insurance business to its allied company / OP-1. OP-1 could have and should have collected the said consent and file the same to show that it was unable to collect/ debit the premium earlier in time in August, 2015.
12. The AR of the complainant further drew my attention towards certificate of insurance from 19.11.16 copy  of which is Annexure-E at page 28 of the bunch of complaint. He urged and rightly so that even if it is presumed for a moment and for the sake of argument that insured gave the consent on 15.11.15 after accident, it is not clear as to who gave the consent for renewal in November, 2016. The insured has already expired by that time. Thus it strengthens the plea of the complainant that there was one time mandate for debiting the premium annually. That mandate was used by OP-1 for debiting the premium in November, 2016.
13. The plea of OP-1 that it issued fresh policy on 19.11.15 with different policy member and master policy number is manipulation. It is not the case of OP-1 that insured ever applied for fresh policy or filled up any new proposal form.
14. Non debiting of the premium in August, 2015 is nothing but a negligence/ lapse on the part of OP-1. OP-1 cannot be allowed to take advantage of its wrong and come forward with the plea that the policy  stood lapsed due to non payment of premium.
15. In the above background I find that repudiation of claim by OP-1 is unjustified. OP-1 is directed to pay Rs.20 lakhs towards the sum insured alongwith interest @9% p.a. from the date of filing the  complaint i. e. 18.11.17 till the date of payment.
16. Copy of the judgement be sent to both the parties free of cost.
17. File be consigned to record room.

 

(O.P. GUPTA)                                             MEMBER (JUDICIAL)

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