Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This is an appeal filed by the Insurance Company against the judgement and award passed by District Consumer Forum, Pune in consumer complaint No.33/2005 decided on 03/03/2010.  While allowing the complaint partly, O.Ps. have been jointly  and severally  directed  to  refund  amount  payable  under  the  policy of Rs.1 Lakh to the complainants with interest @ 9% p.a. from the date of filing of the complaint till realization.  O.Ps. have been also directed to pay Rs.1,000/- as cost of litigation.  Aggrieved by this order, org. O.P.No.2/The Oriental Insurance Company Ltd. has filed this appeal.

          The facts to the extent material may be stated as under :-

          Complainant Mr.Anil Madhavrao Deshpande and Smt.Sandhya Anil Deshpande, both resident of Pune had filed consumer complaint in the Forum below seeking  direction  to  pay  a sum of Rs.1,17,000/- to the complainants with interest @ 18% p.a. and cost of the complaint.  Complainants alleged that their son Sawan was the holder of Sapnay – “Supplementary” credit card bearing No.5543-7480-4009-3327.  Said credit card was valid from February 2004 to March 2007.  At the time of availing card facility it was represented by O.P.No.1/Standard
Chartered Bank and Insurance Company/O.P.No.2 that said credit card facility provided accidental death benefit by way of insurance cover.  Relying on the said assurance, complainants’ son availed the facility of said supplementary credit card.  O.Ps. had assured that in case of personal accident, insurance protection coverage would be available against loss of life due to vehicular accident on road or rail.  The assured amount for the loss of life was Rs.1 Lakh and said amount was enhanced with effect from 01/10/2003 from Rs.50,000/-.  Son of the complainants Sawan met with an accident on 02/04/2004 and he died on the spot.  O.Ps. were immediately informed and were requested to freeze further transactions on said credit card  by way of abundant precaution.  The complainants pleaded that they requested O.Ps. to pay the claim of insurance amount.  O.Ps. supplied to the complainants claim form and they submitted the same to the Insurance Company at Jaipur Office.  Thereafter, representative of the Insurance Company visited the house of the complainants, verified the correctness of the information and confirmed that the death was due to road accident and informed the complainants that he would submit his report to the Insurance Company recommending grant of compensation.  However, complainant No.2 received a letter from the Insurance Company on 24/06/2004 that the accidental death benefit was not available to the category of credit card held by their son.  O.P. informed that insurance coverage was available from Royal Sunderam, a partnership or collaboration between Sunderam Finance and the Royal & Sun Alliance. Complainants stated that they suffered serious mental agony and harassment.  According to them, O.P. had assured that there would be insurance coverage to Sapnay Credit Card holder with effect from 01/10/2002.  O.P. did not pay the amount under the insurance cover.  Hence, complainants issued a legal notice calling upon the O.Ps. to pay the insured amount.  O.Ps. issued a false reply stating that said insurance facility had been discontinued from 01/12/2003. Complainants pleaded that they were not informed about discontinuation of policy.  They pleaded that not giving insurance amount as per credit card facility availed by their son amounts to deficiency in  service on the part of O.Ps. and therefore, they claimed  amount of Rs.1 Lakh with interest @ 18% p.a. and also cost of litigation.

          O.P.No.1/Standard Chartered Bank appeared and filed written statement and raised preliminary point of jurisdiction and pleaded that under Clause No.22 of the Rules and Regulations of O.P.No.1, jurisdiction is at Bangalore.  O.P.No.1 further pleaded that complainants’ Late son Sawan was holder of Sapnay Supplementary Credit Card and card was valid from February 2004 to March 2007.  The Credit card facility provided accidental benefit by way of insurance cover.  O.P.No.1 pleaded that O.P.No.1 was only facilitator and actual service provider was concerned Insurance Company.  Copy of Gold Card Booklet of O.P.No.1/Bank clearly stated that all the claims must be filed directed with the Insurance Company and will be cleared at their discretion.  O.P.No.1 specifically relied upon clause 7(1) of the Credit Card Member Rules and Regulations.  O.P.No.1 pleaded that while issuing Cash Credit Card to the complainants’ son, he had relied on condition No.7(1) of the Rules & Regulations of the Credit Card Members. O.P.No.1 pleaded that it was the Insurance Company who is liable to make payment and complainants failed to implead Insurance Company as necessary party and O.P.No.1 has no concern whatsoever regarding the policy and O.P.No.1 would not be held responsible for any compensation.  Therefore, complaint should be dismissed as against O.P.No.1.

          O.P.No.2, however, was subsequently added in the complaint.  Notice was issued to them and they appeared and filed their written statement.  O.P.No.2 pleaded that no policy card holder was given benefit in case of accidental death.  The cover was given to the holder of the Gold Card, Executive Card, Classic Card and Sapnay Card for the said period.  O.P.No.1/Standard Chartered Bank by their letter dated 20/10/2003 intimated O.P.No.2 that they had decided to make certain changes in the policy bearing No.241100/48/2004/176 with effect from 01/12/2003.  As per their letter, insurance benefit is available to the active card holders and primary cardholders only.  The benefit of the policy was withdrawn for supplementary add on card holders with effect from 01/12/2003.  By letter dated 20/10/2003 O.P.No.1 asked O.P.No.2 to make such changes and accordingly, O.P.No.2 passed the endorsement No.241100/48/2004/176 end-001.  Said endorsement was effective from 01/12/2003 to 30/09/2004.  Said changes were made through written endorsement by mutual agreement between O.P.No.2 and O.P.No.1.  By the said endorsement, benefit mentioned for the supplementary card holders in the original policy schedule stands withdrawn from 01/12/2003 and copy of the said endorsement was sent to O.P.No.1 and it was duty of the insured to informed its card holders for whose benefit the policy was taken about any such changes effected.  Therefore, son of the complainants being card holder of Sapnay Supplementary Credit Card he should have been informed by the Standard Chartered Bank about these changes.  They admitted that son of the complainants died in the accident on 02/04/2004 on the spot.  O.P.No.2 pleaded that son of the complainants was holding Sapnay Supplementary Credit Card.  As such he was not covered under the policy after 01/12/2003 as per amended changes of the policy and O.P.No.2 has rightly informed by letter dated 24/06/2004 to the complainants about their inability to consider the claim as son of the complainants was not covered under the policy.  O.P.No.2 stated that the claim under this policy is payable to those Card holders of O.P.No.1 who were covered under the policy and not to every card holders specifically Sapnay Supplementary Card holders with effect from 01/12/2003.  In the circumstances, O.P.No.2 pleaded that complaint should be dismissed with costs since there was no deficiency in service.

          Relying on the affidavits and documents placed before it, Forum below has framed five issues.  First issue was regarding the jurisdiction and it was answered in the affirmative.  Second issue was whether O.Ps. proved that their liability is not covered.  This was answered in the negative and it was held that both O.Ps. were liable to pay the amount under the policy.  Third issue was whether there was deficiency in service on the part of O.P.Nos.1&2 and answer given was in the affirmative.  Fourth issue was regarding accidental death of the complainants’ son.  This issue was also answered in affirmative and fifth issue was whether complainants are entitled to get reliefs from the O.Ps.  This issue was also answered in favour of the complainants and ultimately, Forum below passed the order against the O.Ps. to pay Rs.1 Lakh to the complainants with interest @ 9% p.a. and also directed them to pay jointly and severally an amount of Rs.1,000/- towards cost of litigation.  Aggrieved by this order, Insurance Company has filed this appeal.

          We heard submissions of Mr.R.P. Bafna, Advocate for the appellant/Insurance Company and Mr.V.A. Abhyankar, Advocate for respondent Nos.1&2/org. complainants. 

Respondent No.3 is Standard Chartered Bank.  Though the Bank is not served, appeal can be disposed of because contest is between the appellant on the one hand and respondent Nos.1&2 on the other hand.  The award was also passed against the Standard Chartered Bank.  We do not know whether Bank has filed any appeal challenging the said award.  But, in this appeal, which is between the Insurance Company and respondent Nos.1&2/org. complainants, presence of respondent No.3/Bank need not be secured.  We are disposing of this appeal at the stage of admission itself.

We are finding that the respondents were entitled to get compensation in respect of accidental death of their son only if their son would have been a Gold or Executive or Classic Card holder of Standard Chartered Bank.  Deceased son of respondent Nos.1&2 was holder of Sapnay Supplementary Credit Card.  It is true that when he purchased this card, this facility of insurance policy was available to his category also.  However, with effect from 01/12/2003 certain changes were made between org. O.P.No.1/Bank and appellant herein/Insurance Company as a matter of policy.  In terms of that policy, both O.Ps. decided that insurance cover would be available only to Gold Card, Classic Card and Executive Card, but the fourth category was deleted from the policy.  In other words, persons who were holders of Sapnay Supplementary Credit Card were not given insurance cover with effect from 01/12/2003 and to this effect a letter was sent by O.P.No.1 to O.P.No.2.  So, it was primarily Standard Chartered Bank who decided to withdraw the insurance cover facility in favour of one category of card holder i.e. those card holders who were possessing Sapnau Supplementary Credit Cards.  This facility was withdrawn with effect from 01/12/2003 and letter to that effect was sent by the Bank to the Insurance Company.  In the circumstances, when actually the son of respondent Nos.1&2 died in road accident on the spot, on that date, he was not covered under the policy.  Because, he was holder of Sapnay Supplementary Credit Card for which insurance cover was already withdrawn with effect from 01/12/2003.  This fact was totally lost sight by the Learned District Consumer Forum while allowing the complaint jointly and severally against the Standard Chartered Bank and the Insurance Company.  We are of the view that the Learned District Consumer Forum erred in law in fastening liability on the appellant/Insurance Company herein despite the fact that son of the complainants was holder of Sapnay Supplementary Credit Card for which there was no insurance cover available from the appellant with effect from 01/12/2003.  It is for this reasons, no liability can be fastened on the appellant/Insurance Company to pay the death claim of Sawan, son of respondent Nos.1&2.  For this purpose, appeal will have to be allowed to quash and set aside the order passed by District Consumer Forum only against the appellant herein.  Advocate Mr.V.A. Abhyankar fairly conceded this legal position available in this case and therefore, we pass the following order :-

                   -: ORDER :-

1.       Appeal is allowed.  The impugned order dated 03/03/2010 is quashed and set aside only as against appellant herein.  The complaint stands dismissed only against the Insurance Company/appellant herein. Rest of the award as against Standard Chartered Bank stands as it is.

2.       Appellant has deposited Rs.25,000/- in this Commission while filing this appeal.  Said amount be refunded back to the appellant forthwith.

3.       Parties are left to bear their own costs.

4.       Copies of the order be furnished to the parties.