Andhra Pradesh

Nellore

CC/11/2014

Danisetty Ravikumar - Complainant(s)

Versus

The Manager HDFC Bank - Opp.Party(s)

V.Chandrashekarreddy

12 Feb 2016

ORDER

                                                             Date of filing       :  27-06-2013

                                                             Date of disposal  :  12-02-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Friday, this the 12th day of  FEBRUARY, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

                                          C.C.No.11/2014

1)Danisetty Ravikumar,

   S/o.Krishna Murthy,

 

2) Danisetty Seshamma,

   W/o.Ravi Kumar,

   Hindus, aged 50 and 45 years,

   Both residing at 15/464, Subedarpet,

   Nellore City.

                                                                            …         Complainants

                      Vs.

1. The Manager,

HDFC Bank,

17/126, Trunk Road,

Nellore.

 

2. D.Sireesha Lakshmi,

W/o.Srinivas,

H.No.11, Flat No.47,

Badam Saroor Nagar Apartments,

Saroor Nagar, Hyderabad.                        …            Opposite parties

 

This matter coming on  28-01-2016   before us for final hearing in the presence of Sri V.Chandrasekhar Reddy, Advocate for the complainant and    Sri I.V.Rama Sastry, Advocate for the  1^st opposite party and the 2^nd opposite party remained absent and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

      This Consumer Case is filed by the complainants against the opposite parties 1 and 2 to direct them to pay an amount of Rs.5,00,000/- towards personal accident benefit and of Rs.49,999/- lying in the savings bank  account which bearing covered under account no 04731070061013 to the complainants along with interest at 12% p.a., from the date of death of deceased on 17-4-2009 till its payment; to grant costs of the complaint and also grant such other relief or reliefs as the Hon’ble Consumer Forum may pleased to deemed it fit and in the circumstances of the case in the interests of justice.

The factual matrix leading to filing of this consumer case is as stated as hereunder:

 

I.(a) It is the case of the complainants that their younger son by name Mr.Danisetty Dinesh who is the account holder in 1^st opposite party’s bank which bearing customer no.I.D.No.28074824 (Account No.04731070061013).  There was a balance of an amount of Rs.41,991-90 as on 01-07-2008 in his said account.  It is also further submitted by the complainants that if the account-holder dies in an accident, the 1^st opposite party-bank, is liable to pay Rs.5,00,000/- towards  personal accident benefit.  While so, the son of the complainants by name said late Danisetty Dinesh was intended to marry one Sireesha Lakshmi and engagement had took place, but the said marriage was not solemnized.  After the said engagement, their son had shown that the name of the said Sireesha Lakshmi as a nominee under the said savings bank account.

 

    (b) It is also further submitted by the complainants in para-5 at page no.2^nd

    of their complaint that unfortunately the said Dinesh was killed by some   

    offenders on 17-04-2009 near Varigonda.  After his death the said Sireesha

    Lakshmi married another person by name Srinivas on 24-04-2012 at   

    Annavaram, East Godavari District. So, she is not the wife of the deceased

    late Dinesh and not at all the legal heir of him.  She is not entitled to

    succeed to his  estate.  The complainants are being parents of the deceased

    who is  unmarried, are entitled to receive the balance amount lying in his

    savings bank account and also the amount  due under personal accident

    benefit as promised by  the 1^st opposite party-bank.

 

( c ) It is also further submitted by the complainants in the same para-5 at page no.2 of their complaint that they had made a representation              dt.30-04-2009 to the 1^st opposite party enclosing a copy of FIR, P.M.Report and Inquest report and family member certificate and requested the 1^st opposite party to pay the said amount due covered under said bank account.  But, the 1^st opposite party had failed to give any reply to the said representation and having no other go, the complainants had got issued a legal notice             dt.30-03-2011 to the 1^st opposite party calling upon him to pay the said amount.  The 1^st opposite party had received the said legal notice and sent a reply dt.09-03-2011, admitting the receipt the notice dt.30-03-2011 but denied his obligation to pay the amounts covered under the said savings bank account.  The 1^st opposite party had also further contended that he is only liable to pay the amount due under the said account.  The 1^st opposite party had also further contended that he is only liable to pay the amount due under the said account to the nominee.  He had also further contended that the said benefit is only available for an accident death claims subject to the fulfillment of the terms and conditions as applicable thereto.  The 1^st opposite party-bank had also further contended that he is only a facilitator between the legal representatives of the customer and insurance company and that the liability fastens upon the insurance company whether to accept or reject the claim and the said contentions are not correct. The complainants/petitioners had obtained a copy of the terms and conditions of the said account which clearly shows that the death cover by Air-road, the assured sum is Rs.5,00,000/-.  Though, the account holder was killed and died, it is an accident as per the decisions rendered by the Hon’ble Court and Hon’ble Supreme Court of India.

 

(d) It is also further submitted by the complainants in paras 6 and 7 at page no.2 and 3 of their complaint that the said Sireesha Lakshmi is not at all the wife of the deceased and not a legal heir and she is not entitled to receive the amounts lying in the credit of the savings bank account of the deceased Dinesh or the accidental benefit.  They are the sole legal heirs of the deceased, only entitled for the said amount.  As the 2^nd opposite party was shown as nominee as she is not the legal heir of the deceased and shown as pro-forma opposite party to put her on notice of this litigation and no relief is claimed against her.  The complainants are Consumers within the meaning of the C.P.Act, 1986.  This Hon’ble Consumer Forum has got jurisdiction to entertain this Consumer Case/complaint since the insurance policy was issued by the 1^st opposite party at his branch at Nellore.  There is a clear deficiency in service on the part of the 1^st opposite party in not settling the claim within in time due to their negligence.  Hence, the complaint.

 

II.  DEFENCE:

  The written version/counter was filed by the 1^st opposite party:

 The 1^st opposite party was resisted the complaint by denying the allegations of the complainants in their complaint, filed a detailed written version/counter dtd.28-08-2015 after obtaining several adjournments right from the beginning of its turn, and further stated that the complaint is neither just nor maintainable either at Law or on facts.  The allegations of the complainants against 1^st opposite party, are all false except those that are specifically admitted to be true and put them to strict proof of the same.

 

(i)It is also further submitted by the 1^st opposite party in paras 2 to 4 of its written version/counter that the 1^st opposite party is not aware of that the complainants are parents of late D.Dinesh.  The available balance in his account is Rs.45,016.14 as on 09-04-2014.  The 1^st opposite party was not aware of any intended marriage solemnization between D.Dinesh with Sireesha Lakshmi i.e., opposite party No.2.  But, it is further stated that as per records the account held in the name of late D.Dinesh who was provided with nomination.  It (1^st opposite party) had came to know that D.Dinesh got murdered and upon receipt of the said information that his account was blocked and frozen all further transactions in his account.  It is well-known fact that the public is very well aware that upon the death of the customer of bank had an obligation to pay the amount, if any, lying in the account of the deceased to the nominee, if provided by the deceased account-holder and in the course of such late D.Dinesh had opted for nomination mentioning D.Sireesha Lakshmi as his nominee.

 

(ii) It is also further submitted by the 1^st opposite party in paras-5 to 7 its written version/counter that the complainants had neither made any representation nor submitted any copy of FIR, P.M. report, Inquest report and family members certificate or approached the 1^st opposite party bank.  It is further submitted by 1^st opposite party that the benefit of insurance is only available for an accident death claim subject to fulfillment of terms and conditions as applicable thereon.  It is apparently clear that late said Dinesh was killed by some offenders.  The 1^st opposite party is in no way connected with personal accident benefit and only a mere facilitator between legal representatives of the customer and insurance company.  The 1^st opposite party, upon receipt of documents could forward the details to the insurance company and it is up to the insurance company whether to accept or reject the claim.  The insurance is not a product of the bank (1^st opposite party) and it is the subject-matter of solicitation with the insurance company.  So, 1^st opposite party is not liable to pay any sum to the claimants (complainants herein).

 

(iii)  It is also further submitted by the complainants in paras 8 and 9 of its written version/counter that the personal Law will only come into play in case of non-availability of nomination and when nomination facility is opted by the deceased customer, role of personal Law and legal heirs do not come into picture and the amount held in the deceased customer’s account shall be paid to the nominee.  The marriage invitation card which was filed by the complainants’ shows that marriage date as       24-04-2012. It will create a suspicion about the claim of the complainants.  So, the complainants are not entitled to claim before this Hon’ble Consumer Forum as there is personal Law involved regarding the legal heir, successor and nominee.  This Forum has no jurisdiction to entertain the said claim.  So, there is no deficiency in service on the part of 1^st opposite party.  It is therefore prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint and further grant huge costs for filing the frivolous complaint and defaming the Bank.

 

III. The 1^st complainant had filed his chief-affidavit on 03-08-2015 as PW1 and also documents were marked as Exs.A1 to A12 whereas Mr.P.Sridhar, Branch Manager of 1^st opposite party had also filed his affidavit dt.28-08-2015 and written arguments dt.15-12-2015 in support of the case.  There were no documents marked on behalf of the opposite parties. The written arguments were also filed on behalf of the complainants on 11-08-2015 in support of their case.

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

 

V.  POINTS 1 AND 2:

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainants have once again reiterated the facts of the case, basing on their complaint and documents filed herein. It is nothing but repetition of them once again in their complaint.

 

Oral Submissions by the learned counsel for the complainants:

   Sri Venati Chandra Sekhar Reddy, the learned counsel for the complainants has vehemently argued that the material facts of the case are not in dispute between the parties.  He has also further argued that personal accident benefit of Rs.5,00,000/- is payable to the complainants by the 1^st opposite party-bank.  The 2^nd opposite party is not legally wedded wife of late D.Dinesh who is the customer of the 1^st opposite party.  The complainants are being the legal heirs of their younger son by name D.Dinesh, entitled to receive the amount lying in his account and also the said amount due under personal accident benefit from the 1^st opposite party. 

 

Narration of documentary evidence:

 The said learned counsel for the complainants has further urged that during his oral arguments of the case that Ex.A1; is the First Information Report in Crime no.36/2009, S.I. of Thotapalli Gudur Police Station of the deceased D.Dinesh, Ex.A2; is the Inquest Report        dt.17-04-2009; Ex.A3; is the post-mortem report dt.19-04-2009 and also Forensic Science Laboratories, Report/opinion; Ex.A4 is the charge-sheet; Ex.A5 is the original legal notice dt.30-03-2011 issued on behalf  of the complainants by the said learned counsel to the 1^st opposite party; Ex.A6 is the reply notice dt.09-03-2011; Ex.A7 is the HDFC Insurance cover sum assured is Rs.5,00,000/-; Exs.A8 and Ex.A9 Photostat copies of death intimation of D.Dinesh by his father to the Manager of HDFC i.e. 1^st opposite party (30-04-2009 and 15-04-2011); Ex.A10 is another photocopy of requisition letter dt.23-11-2012 by the father of the late Dinesh to the  1^st opposite party; Ex.A11 is the photocopy of Family Member’s Certificate and Ex.A12 is the Original wedding card which established the marriage card between the said 2^nd opposite party and one Mr.Srinivas dt.24-04-2012.  These documents are may be read as part and parcel of complaint by the complainants.

 

    He has also cited the decisions of Hon’ble Supreme Court of India, New Delhi and Hon’ble A.P.State Commission, Hyderabad for applicability of its ratio to the case on hand. (Cases: 2000 ACJ 801; 2012(1) C.P.R.93 A.P.).  The Hon’ble High Court of A.P. in its decision which reported in 2005(2) L.S.203(d.B), is another case relating to nomination aspect and referred for its applicability to the facts of the case on hand.  He has also further contended that as on 09-04-2011 a sum of Rs.45,016-14ps. is available in the savings bank account of late Dinesh as it is admitted by the 1^st opposite party.  The account holder/the deceased Dinesh was admittedly killed by some offenders and died.  He has also stressed much that 2^nd opposite party is not the legally wedded wife of the deceased Dinesh as per Ex.A10, the said Sireesha Lakshmi was married with one Mr.Srinivas.  The 2^nd opposite party was shown as nominee in the savings bank account of the deceased Dinesh.  Finally, the said learned counsel for the complainants has contended that there is a clear deficiency in the service on the part of the 1^st opposite party in not settling the claim and is liable to pay interest @ 12% p.a., from the date of the death of the deceased Dinesh on 15-04-2009 and prayed further that the Hon’ble Consumer Forum may be pleased to  allow the complaint as prayed for.

  

Oral Submissions by the learned counsel for the 1^st opposite party:

               On the other hand, the learned counsel for the 1^st opposite party Sri I.V.Ramasastry has also vehemently argued that the written version/counter, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also further argued that the 1^st opposite party is not aware of that the complainants are the parents of the late Dinesh.  As usual, it is said that the material facts of the case are not disputed by the 1^st opposite party.  He has also further contended that it is no way concerned with personal accident benefit and it is only a mere facilitator between the legal representative of the customer and insurance company.  The 1^st opposite party after receipt of the documents from the complainants, forwarded them to the insurance company and it is upto the insurance company whether to accept or reject their claim.  He has also further contended that personal Law is only to come into play in case of non-availability of the nomination and when the nomination facility is opted by the deceased customer Dinesh, role of personal Law and legal heirs do not come into the picture and amount was held in the name of the deceased Saving Bank account shall be paid to the nominee.  Finally, the said learned counsel has further contended that the complainants/claimants are not entitled to the claim before this Hon’ble Consumer Forum as there is personal Law involved in the legal heir, successor and nominee.  There is no deficiency in the service on the part of the opposite party towards the complainants  and it is therefore prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint and grant huge costs for filing the frivolous complaint and the defaming the bank.

     

                        Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits.  The complainants are alone filed the documentary evidence and established their case.  One who seeks equity from the Forum/Courts must come with clean hands to seek reliefs. Each case has to be judged on its own facts.  It is cardinal principle of Law that one makes an allegation is required to prove it beyond any doubt – 2011 CTJ 627(NC).

    This consumer case is a peculiar, strange and simple one.  It is crystal clear that the 2^nd opposite party is no more entitled to the claim as a nominee and when she herself married the alleged Srinivas, as per Ex.A12.  She is not legally wedded wife of the deceased Dinesh.     Even though, her name had appeared in the column ‘nominee’ in the savings bank account of the deceased, will not entitled to get the claim amount because the subsequent events that took place by marring a stranger Srinivas, dis-entitled her claim to the said amount.  The 1^st opposite party, nowhere stated in counter that which insurance company had received the premium from the said deceased Dinesh, but Ex.A7 is the HDFC insurance which covered a sum of Rs.5,00,000/- assured in the case of death of insured.

 

CASE–LAW:

1. The basic facts of this consumer case are not disputed and hence they are not reproduced here. 

2) Very interesting law point that has arisen in this consumer case, is that murder is an accident according to complainants contention under the said circumstances of the case. For these aspects, it requires for our consideration.

   

     The decision of our A.P.Hon’ble State Commission in its order which reported in 2005(1)CPR, 329(AP)=2005(3) ALT6(CPA) – case – Aravapalli Omkaram Vs. United India Insurance Co.Ltd., their Lordhisps held that “where insurance policy-holder was kidnapped and murdered, the insurance company could not avoid its liability on a plea of clause in the policy that only when death was caused by violent and visible means, it could be held liable as death resulting from such events could be deemed to be an accident. 

 

Accident includes murder:  A suitable decision on the subject, it is an another decision of our A.P.State Commission, Hyderabad which reported in 2000(1) ALD(cons) 42,  wherein it was held that “burden lies on the insurance company to prove the exceptions and the death was occurred solely due to an accident caused by external violence.  So, the insurance company is liable to pay.  A decision of the Hon’ble Supreme Court of India which was reported in 2000 ACJ 409 – case- Rita Devi and others Vs.New India Assurance Co.Ltd. and another where in it was held that – if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor where if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any felonious act then murder is an accidental murder”.  Another decision which was reported in 2006 CTJ 983(CP)NC case is that Prithvi Raj Bhandrai Vs. LIC of India Ltd and others, wherein it was also held that if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor”.  Hence, these said three decisions are clarification in nature on the subject of murder is an accident and they are applicable to the facts of the case on hand.  So, HDFC insurance company and its bank (1^st opposite party) are liable to pay the insured amount to the complainants who are the natural guardians/parents as per I Class legal heirs.  The marriage was between 2^nd opposite party with late D.Dinesh, not solemnized but only an engagement that took place between them, because of, out of anxiety in advance before marriage the deceased D.Dinesh, with love and affection towards 2^nd opposite party might had put her name as a  “nominee” in savings bank account which maintained by the 1^st opposite party.  Later on, after his death, 2^nd opposite party had conveniently was married another person by name Srinivas as per Ex.A12.  It is clearly appears to us that when she had married with him at the moment she lost her right to claim the said amounts as a ‘nominee’.  We have to take it into consideration of those aspects which cropped up subsequently after their engagement prior to 2^nd opposite party’s marriage with another person.  It is evident on the record.  The 2^nd opposite party is no more ‘nominee’ to the said S.B.account of the deceased and then the Family members Certificate (Ex.A11) which discloses us that the complainants are only the legal heirs to claim the amounts from the 1^st opposite party.  These are the reasons to conclude the order of this consumer case.

        On perusal of documentary evidence on record and also hearing of the oral arguments of the learned counsel/for both sides and considering the facts and Law of the case, while the  Forum/Court is exercising sovereign function of dispensation of justice, it is worthwhile to remember once that the proceedings before the Consumer Fora are inquisitorial  and not adversary.  Primarily, the C.P.Act, 1986 is for the Protection of the consumer the matters are required to be decided by having a rational approach and non-technical one that is mandate of Law.  This is made clear in the case of Indian Photographic Co.Ltd., Vs. HD.Shourie(1999)6 SCC 428.  The insurance claim is to be settled within two months of submission of material documents otherwise insured is entitled to interest @9% - 2005(2)CPR 640. That has not been done by 1^st opposite party for the reasons best known to it.

   We have bestowed our best of consideration to the rival oral submissions of the parties.  The Consumer Forum is primarily would function on the principles of natural justice, equity and good conscience.  It is crystal clear that 1^st opposite party had adopted so far a dogmatic, diffident and unhelpful approach in denying the rightful claim to the complainants 1 and 2.  Repeated deficiency in service of the Service Provider amounts to gross-deficiency in its service for which the Consumers herein have to be adequately compensated.  There is a force in the contentions of the said learned counsel for the complainants.  We have convinced with his oral arguments of the case.  The 1^st opposite party has miserably failed in its attempt to convince us. Mental agony of the complainants cannot be measured in terms of money.  Justice is rendered in accordance with the law.  Section 14 of the Consumer Protection Act, 1986 permits award of interest on refund of money depending on the facts of the case – 2006(3) CPR 37(NC). These two points are held in favour of the complainants and against the 1^st opposite party, accordingly.

 

  POINT NO.3 In the result, the complaint is allowed in-part, ordering the 1^st opposite party to pay the complainants of an amount of Rs.5,00,000/- (Rupees five lakhs only) towards personal accident benefit; to pay them the amount which is lying in the said account bearing covered no.04731070061013 with interest @9%(nine) p.a. from the date of the complaint i.e.,27-06-2013 till its realization and also payable of Rs.3,000/- (Rupees three thousand only) towards costs of complaint, within  one month from the date of receipt of the order from the Hon’ble Consumer Forum. The complaint against the 2^nd opposite party is dismissed but without costs. The point is ordered accordingly.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 12th day of FEBRUARY,                           2016.    

 

             Sd/-                                                                             Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANTS:

 

PW1

03-08 -2015

:

Danisetty Ravikumar, S/o.Krishna Murthy, Hindu, aged about 50 years, residing at 15/464, Subedarpet, Nellore City.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

28-08-2015

:

Pusarla Sridhar, S/o.Kameswar Ro, aged about 43 years, Hindu, branch manager of the opposite party No.1, residing in Nellore City.

                                                                              

EXHIBITS MARKED FOR COMPLAINANTS:

 

Ex.A1	17-04-2009	:	Photostat copy of the FIR.
Ex.A2	18-04-2009	:	Photostat copy of the inquest report.
Ex.A3	19-04-2009	:	Photostat copy of the P.M. report along with report/opinion.
Ex.A4	09-02-2010	:	Photostat copy of charge sheet.
Ex.A5	30-03-2011	:	The office copy of the legal notice along with postal receipt no.3011.
Ex.A6	03-09-2011	:	The reply letter from the opposite party repudiating the claim.
Ex.A7	-	:	The features & benefits of the account holder of the HDFC Bank obtained through internet.
Ex.A8	30-04-2009	:	The Photostat copy of death intimation.
Ex.A9	15-04-2011	:	The Photostat copy of the letter.
Ex.A10	23-11-2011	:	Copy of letter, postal receipt with acknowledgment.
Ex.A11	07-12-2009	:	The family member certificate issued by Tahsildar, Nellore.
Ex.A12	24-04-2012	:	The wedding card of Sireesha Lakshmi (2nd opposite party) with Srinivas.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

N I L -

 

          Id/-                                                                                                   PRESIDENT(FAC)

 

 

Copies to:

 

1. Sri V.Chandrasekhar Reddy, Advocate, Ramesh Reddy Nagar, Nellore.
2. Sri I.V.Rama Sastry, Advocate, 16/516, Pogathota, Nellore-524 001.

3. D.Sireesha Lakshmi,W/o.Srinivas,H.No.11, Flat No.47,

Badam Saroor Nagar Apartments, Saroor Nagar, Hyderabad.        

          

 

Date when order copies are issued: