PRESENT SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT

Friday, 27^th August 2010

Badem Ruben, S/o Mark, aged about 66 years,

Gudem Cheruvu Village and Post, Jammalamadugu Mandal,

Kadapa District.                                                                          ….. Complainant.

Vs.

 

1)   The Branch Manager, UTI Bank (Axis) Bank,

2)   Bajaj Allianze, Rep. by its Manager, 3^rd floor,

3)   The Branch Manager, UTI (Axis) Bank, Proddatur town,

                                                                                                                                     

 

 

This complaint coming on this day for final hearing on 18-8-010 in the presence of Sri K. Guru Murthy, Advocate, for complainant and Sri P. Raghunadha Reddy, Advocate for R1 & R3 and Sri D. Rajasekhara Reddy, Advocate for R2 and upon perusing the material papers on record, the Forum made the following:-

 

 

 

1.                Complaint filed under section 12 of the Consumer Protection Act 1986.

 

2.                The brief facts of the complaint are as follows:- The complainant is the father of late Badem Santha Kumar of Gudem Cheruvu, Jammalamadugu Mandal, Kadapa District. The complainant’s son was working at Ahammadabad and died accidentally on 5-4-2008. R1 is a bank engaged in the business of banking and other allied services. The R1 represented that, they have floated a debit card scheme entitles its holders to a comprehensive insurance coverage free of cost to a tune of Rs. 2,00,000/-  personal accidental coverage.   His son was an account holder of R1 bank vides his account No. 003010100858007. This debit card was issued by R1 covering the risk of accidental benefit of Rs. 2,00,000/- and the complainant is the nominee to the deceased. In case of accidental death, R1 has to pay Rs. 2,00,000/- towards personal accident benefit to the nominee i.e. complainant.   During the currency of the debit card, the son of the complainant met with an road accident on 31-3-2008 in Ahamadabad city of Gujarat state and died on 5-4-2008 while undergoing treatment. A case in Cr. No. 158/2008 under section 279, 337, 177 and 184 of M.V. Act was registered in Vejalpur police station. The complainant submitted claim for payment of debt card insurance amount with R1 along with required documents vide his letter dt. 15-4-2008. The R1 has not responded his request immediately. On 11-8-2008 the respondent informed that they cannot entertain the claim and endorsed and the same copy of his request letter and denied the payment of accidental insurance coverage amount. The Respondents are liable to pay accidental coverage amount of Rs. 2,00,000/- since his son, who is the card holder died accidentally. The R2 is the insurance company covering the debit cards of R1 bank. R3 is the branch office of R1 located at Proddatur of Kadapa District within the territorial jurisdiction of this Hon’ble Forum. There is a grate deficiency of service and unfair trade practice on the part of R1. The ground averred i.e. “no transaction at merchant establishment” for not entering the claim by R1 is false and untenable in law.   The complainant filed this complaint requesting this forum to allow his complaint and the respondents may be directed jointly and severally to pay 1) Rs. 2,00,000/- along with interest @ 24% p.a. from the date of accident till realization, 2) Rs. 50,000/- towards compensation for mental agony and   3) Rs. 5,000/- towards costs of the complaint.  

 

3.                R1 & R3 filed a single counter stating that they denied all allegations, contention and statement made by the complainant in the aforesaid complaint which is contrary to and or inconsistent with what is stated herein below and the complainant is put to strict proof thereof.   The present complaint has been filed by the complainant is nothing but an abuse of process of law. The complainant has suppressed the material facts and seek equity as allegedly claimed in the present complaint and therefore, the said complaint other wise also is required to be dismissed on the ground alone. The role of the respondent bank is only a corporate agent and the actual insurance is issued by the insurance company i.e R2 and as such petition cannot be filed against R1 and R3 and on this ground the complaint is liable to be dismissed.   It is settled principle of law under section 230 of Indian Contract Act that agent can neither sue nor be sued except under the special circumstances. In fact Badem Santha Kumar son of the complainant had opened S.B. Account with R1 branch on 15-1-2007 bearing No. 003010100858007 and thereafter as per procedure he was issued a debit cum ATM card No. 5267010030259986.   This debit card was having an accidental insurance coverage for an amount of Rs. 2,00,000/- and the said insurance coverage is provided by R2 under the arrangements with the R1. R2 confirms that all debit card holders of R1 are insured with the insurance company.  However, the insurance covered under the said debit card can be claimed only on fulfillment of certain terms and conditions.   It is clarified that the terms and conditions for availing the said insurance are available in the debit card – Key to usage booklet and the same is forwarded to all the customers by R1 bank at the time of availing the debit card facility.  As informed by the complainant account holder was expired on 5-4-2008 and claimed the personal accident insurance covered under the debit card scheme issued by R2. As seen from the statement of account it is revealed that the deceased person never used debit card at least once at a merchant establishment which is mandatory terms in order to claim insurance coverage.  The R2 is also entitled to repudiate the claim of the complainant on this ground if at all the claim is submitted within the stipulated time. As per arrangements between the insurance company i.e. R2 and the legal heirs or nominees of the card holders will be entitled to the insurance subject to the conditions interalia, amongst the others that, 1) the death should be accidental,       2) the customer should have used the debit card at Merchant Establishment at least once prior to his death to active the Personal Accident Insurance Cover.   Therefore, the complainant may be directed to seek redressal of his grievance from R2 without involving R1 and R3. The complainant has no right to file this complaint as the entire cause of action arose at Ahamadabad of Gujarath state and this Forum has no jurisdiction to entertain the complaint.  Therefore, the Respondents have requested to dismiss the case against R1 & R3 in the interest of justice. 

 

4.                R2 filed a counter stating that the claim is not maintainable either in law or on facts of the case. The Complainant  is not a consumer as defined under section 2 (d) of C.P. Act and the petition filed by the complainant does not come under the purview of consumer dispute envisaged in section 2 (e) of the Act Hence, this forum has no jurisdiction to entertain the petition and the contract of insurance does not fall under the purview of sale of goods act as defined under section 2 (i).   Hence, the complaint ought to have been liable for dismissal.   According to section 24 A of the C.P. Act The District Forum, State Commission or National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the present complaint the cause of action arose on the date of the insured met with an alleged accident on 31-3-2008 and died on 5-4-2008 and the complaint was filed on 16-4-2010, which is well beyond the prescribed period of two years. Thus the complaint is barred under the law of limitation and liable to be dismissed on this ground.   The complaint is not maintainable as the office of R1 is located at Ahmadabad and No. office of R2 is in Kadapa District.   There is no cause of action to file this complaint against R2 at Kadapa. In view of the citation of the Hon’ble National Commission reported in CPR VII – 1995 (2) page 499, the petition is not maintainable this Hon’ble Forum on the ground of lack of territorial jurisdiction to entertain the petition and the petition may be dismissed against R2 with exemplary costs. The relationship between R1 and R3 with R2 is governed the terms and contract and if the beneficiary does not fulfill the terms and conditions of the policy, the Opposite parties are not liable to pay compensation. From the contents of the complaint it is understood that the son of the complainant was a debit cum ATM card holder of O.P. No. 1. The card holders will be under the Personal Accidental coverage and in the event of the death of card holders his / her nominee will be paid by the agreed benefits. However, the payment is subject to the terms and conditions of special contingency policy covering their debit card holders maintaining minimum average quarterly balance of Rs. 5,000/- for metro & urban branches and  Rs. 2,500/- for semi urban and rural branches and makes at least one POS transaction in the financial year.  In fact debit card holders gets insurance coverage from R2 only when he / she makes use the debit card at any merchant establish atleast once. However it is the duty of the O.P. No. 1 to submit the reasons for repudiation. There is no deficiency of service and unfair trade practice on the part of R2 and the complainant is not entitled to the claim of compensation from R2 as alleged in the complaint. R2 requested to dismiss the complaint against R2 with exemplary costs in the interest of justice. 

 

5.                On the basis of the above pleadings the following points are settled for determination. 

i.                   Whether the complainant is entitled to the relief as prayed for?

ii.                 To what relief?

 

6.                On behalf of the complainant Ex. A1 to A12   were marked and on behalf of the respondent Ex. B1 to B4  were marked.  The complainant filed written arguments also. Oral arguments were heard from both sides.

 

 

7.                Point No. 1.  Ex. A1 is the Photostat copy of UTI Bank master card issued to B. Santha Kumar. Ex. A2 is the Photostat copy of letter dt. 15-1-2007 issued by UTI Bank to the deceased. Ex. A3 is the Photostat copy of death certificate of Santha Kumar. Ex. A4 is the Photostat copy of application of the complainant dt. 15-4-2008 along with endorsement to R1, dt. 11-8-2008. Ex. A5 is the statement of bank account in the name of B. Santha Kumar from 4-1-2008 to 31-3-2008. Ex. A6 is the Photostat copy of Panchanama dt. 31-3-2008 in English. Ex. A7 is the Photostat copy of inquest panchanama, dt. 5-4-2008 in English. Ex. A8 is the Photostat copy of Post mortem report dt. 6-4-2008. Ex. A9 is the Photostat copy of statement of witnesses dt. 1-4-2008 (4 Nos.) Ex. A10 is the Photostat copy of complaint dt. 31-3-2008 in English. Ex. A11 is the Photostat copy of order of A.P. State Commission, Hyderabad in F.A. No. 677/2008 against C.C. No. 429/2007 of District Consumer Forum – II, Hyderabad along with court order in C.C. No. 429/2007, counter and complaint. Ex. A12 are the Photostat copies of criminal records dt. 2-8-2005 in Gujarati. Ex. B1 is the Photostat copy of transaction enquiry of account No. 003010100858007 in the name of B. Santha Kumar from 5-4-2008 to 1-2-2007 issued by Axis Bank Ltd., Proddatur branch (R3). Ex. B2 is the Photostat copy of usage conditions of debit card issued by Axis Bank Ltd., Proddatur bank (R3). Ex. B3 is the Photostat copy of Ex. A4. Ex. B4 is the Photostat copy of special contingency policy covering debit card holders attested by Bajaj Allianz General Insurance Co. Ltd., Hyderabad. 

 

8.                As could be seen from the documentary evidence on record it is a fact that the son of the complainant by name B. Santha Kumar was having S.B. Account in R1’s bank bearing No. 003010100858007 and this account holder was issued a debit card by R1 covering the risk of accidental benefit of Rs. 2,00,000/- in the event of accidental death and the complainant being the father is the nominee of the deceased. It is also on record that the said card holder B. Santha Kumar met with an road accident on 31-3-2008 in Ahamadabad, Gujarath State and died on 5-4-2008 at about 6.30 hours while undergoing treatment.  A criminal case was registered by the concerned police, inquest and postmortem was conducted and also obtained post mortem report from the concerned.  There is no dispute with regard to the death of the son of the complainant that was not an accidental death because the son of the complainant died due to accidental death only. 

 

9.                The contention of R2 that his office is at Ahamadabad and there is no branch of his office in Kadapa District as such this forum has no jurisdiction to entertain the complaint. The contention of R1 and R3 that the account holder was having Saving account in the bank of R1 at Ahamadabad and there is no branch in Kadapa District as such this complaint cannot be entertained by this forum. The contention of all the Respondents have no legs to stand before the truth because the names of R1, R2 and R3 find place in the complaint and the branch office of R1 is situated at Proddatur (R3) as such this forum can entertain this complaint. 

 

10.              Another objection raised by the Respondents is that the alleged accident took place on 31-3-2008 and the deceased card holder died on 5-4-2008. This complaint was filed on 13-4-2010 after expiry of two years prescribed time and the complaint is time barred as such the complaint is not maintainable. Perusal of Ex. A4 and Ex. B3 indicates that the complainant made a representation to R1 on 15-4-2008 with a request to settle the claim by enclosing the required documents. But R1 made an endorsement on this letter stating that they cannot send the claim to R2 as there is no transaction at merchant establishment. There is a signature along with seal of R1 under the bottom of this endorsement dt. 11-8-2008. Though the deceased card holder met with an accident on 31-3-2008 and subsequently died on 5-4-2008, the complaint was filed on 13-4-2010 is maintainable for the reason that Ex. A4 and Ex. B3 were presented to R1 by the complainant on 15-4-2008 and received an endorsement on 11-8-2008. In view of this endorsement two years period of cause of action commences from 11-8-2008 and not from 5-4-2008. The R2 is the insurance company covering the debit card of R1 and there is no dispute on this transaction. The claim was rejected on the ground of no transaction at merchant establishment and the complainant relied on Ex. A11 in which the Hon’ble State Commission of A.P. Hyderabad in F.A. No. 677/2008 a case of appeal preferred by United India Insurance Co. Ltd., against Smt. Ashwatha and HDFC Bank, in which the Hon’ble State Commission observed “the learned counsel  for the appellants contended that since the credit card was not put in usage, he was not entitled to any compensation. We are unable to accede to the contention in  view of the facts that we could not see such a pre condition for payment of the policy amount. We are of the opinion that the insurance company having satisfied all the requisite formalities are fulfilled and issued the gold credit card, which has a personal accident benefit.  If accident had taken place, immediately on its issuance, he was entitled to the amount covered under the policy. On that score, the complainant could not be denied the amount covered under the policy. We have perused the entire record in this case and we do not find any irregularity or error in the order passed by the District Forum. We do not see any merits in the appeal. In the result, the appeal is dismissed with costs of Rs. 1,000/-. Time for compliance four weeks.

 

11.              In view of the order of the Hon’ble A.P. State Commission, relied by the complainant, the complainant deserves consideration on the ground if the accident had taken place, immediately needs insurance. He was entitled to the amount covered under the policy, on that score, the complainant could not be denied the amount covered under the policy. 

 

12.              Point No. 2 In the result, the complaint is allowed, directing the Respondents 1 to 3 jointly and severally liable to pay Rs. 2,00,000/- (Rupees Two Lakh Only) along with interest @ 9% p.a. from the date of accident till the date of realization, Rs. 5,000/- (Rupees Five Thousand Only) towards mental agony and  Rs. 2,000/- (Rupees Two Thousand Only) towards costs, payable within 45 days from the date of receipt of this order. 

                   Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 27^th August 2010

 

 

 

Witnesses examined.

For Complainant    NIL                                                  For Respondent :     NIL

Exhibits marked for Complainant : -  

 

Ex. A1         P/c of UTI Bank master card issued to B. Santha Kumar. 

Ex. A2         P/c of letter dt. 15-1-2007 issued by UTI Bank to the deceased.

Ex. A3         P/c of death certificate of Santha Kumar. 

Ex. A4         P/c of application of the complainant dt. 15-4-2008 along with

endorsement to R1, dt. 11-8-2008.

Ex. A5         Statement of bank account in the name of B. Santha Kumar from

4-1-2008 to 31-3-2008. 

Ex. A6         P/c of Panchanama dt. 31-3-2008 in English. 

Ex. A7         P/c of inquest panchanama, dt. 5-4-2008 in English. 

Ex. A8         P/c of Post mortem report dt. 6-4-2008. 

Ex. A9         P/c of statement of witnesses dt. 1-4-2008 (4 Nos.) 

Ex. A10       P/c of complaint dt. 31-3-2008 in English. 

Ex. A11       P/c of order of A.P. State Commission, Hyderabad in F.A. No. 677/2008

 against C.C. No. 429/2007 of District Consumer Forum – II, Hyderabad

Ex. A12       P/c of criminal records dt. 2-8-2005 in Gujarati. 

 

 

Ex. B1         P/c of transaction enquiry of account No. 003010100858007 in the

name of B. Santha Kumar from 5-4-2008 to 1-2-2007

Ex. B2         P/c of usage conditions of debit card issued by Axis Bank Ltd.,

Proddatur bank (R3). 

Ex. B3         P/c of Ex. A4. 

Ex. B4         P/c of special contingency policy covering debit card holders attested by

Bajaj Allianz General Insurance Co. Ltd., Hyderabad.

 

 

 

1)     Sri K. Guru Murthy, Advocate for complainant.

2)     Sri D. Rajasekhar Reddy, Advocate, for R2.

3)     Sri P. Raghunadha Reddy, Advocate for R1 & R3.

2) Copy was dispatched on      :

3) Copy of delivered to parties :