Andhra Pradesh

Chittoor-II at triputi

CC/47/2013

Smt B.Swathi W/o. Late Bala Raju - Complainant(s)

Versus

The Senior Manager, Credit Card Division, - Opp.Party(s)

E.Shanmugam

15 May 2015

ORDER

                                                                                     Date of filing      : 16.08.2013

                                                                                    Date of Disposal : 15.05.2015

 

 

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

PRESENT: Sri.M. Ramakrishnaiah, President

    Smt.T. Anitha, Member

                                  

FRIDAY THE FIFTEENTH DAY OF MAY, TWO THOUSAND AND FIFTEEN

 

C.C.No.47/2013

 

Between

 

Smt.B.Swathi,

Aged about 31 years, W/o. Sri. Balaraju,

D.No.6-15-70, Housing Board Colony,

Tirupati.                                                                                                ...Complainant.

 

And

 

1. The Senior Manager,

CREDIT CARD DIVISION,

Andhra Bank, Head Office, Koti, Hyderabad.

 

2. The Chief Manager,

CREDIT CARD DIVISION,

Andhra Bank, Beri Street, Tirupati.

 

3. M/s. United India Insurance Company Limited,

Divisional Office IX rep by its Senior Divisional

Manager, Office at No.2-6&207, IInd Floor,

Sapathagiri Towers, Begum pet, Hyderabad-500016.

 

4. Sri. BHUPATHI REDDY S/o. B.Ranga Reddy

H.No.2-77, Hindu, aged about 35 years,

Pachikapallam Village & Post,

Vedurukuppam Mandal, Chittoor District.

                                                                                   

                                                                                                        …Opposite parties.

 

 

            This complaint coming before us for final hearing on 28.04.2015 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.E.Shanmugam, counsel for the complainant and A.Surendra Naidu, counsel for the opposite party No. 1& 2, Sri.prem Kumar Karanam, counsel for the opposite party No.3 and opposite Party No.4 remained exparte and having stood over till this day for consideration, the Forum made the following.

                                                   

 

 

                                                               ORDER

                                    DELIVERED BY T.ANITHA, MEMBER

ON BEHALF OF THE BENCH                                                                                                                                                                                                                                   

           

             This complaint is filed under Section-12 of Consumer Protection Act 1986, complaining the deficiency of service on part of the opposite parties for not considering the insurance claim due to death of first complainant’s husband and father of the second complainant. 

            2.  The brief facts of the case are:-  The complainants submit that the 1^st complainant is the wife and the 2^nd complainant who is a minor daughter of one Mr.Bala Raju w ho met with an accident on 31.10.2004 and on account of the head injury sustained by him in the above accident he died on 23.04.2005 after taking treatment in several hospitals in CMC, vellore, SVIMS Hospital and SVRRGH in Tirupati. During his life time he worked as Assistant Engineer in APSDCL, Tirupati and  he obtained a credit card from  opposite parties  1&2s bank with insurance benefit of Rs.5,00,000/-and he had been using the above credit card and he stood one Bhupathi Reddy who is non other than his brother as a nominee. The complainants submit that they are the legal representative of the deceased Bala Raju. Immediately after his death the complainants approached the 2^nd opposite party who asked the first complainant to submit the claim forms. The 1^st  opposite party has  addressed a letter to the 3^rd opposite party on 17.06.2005 requesting to send claim forms to the nominee i.e. the 4^th  opposite party herein and copy of the same was forwarded to the complainant  since the claim was not settled by the opposite parties bank.  The complainants ultimately filed a complaint in C.C.No.58/2012 on the file of this Honorable Forum. In the above said case the opposite parties 1&2 have clearly pointed out that they are only the facilitators  and the  insurance company (Opposite Party.No.3) is liable to pay the amount and the claim should be made to the insurance company and  that till today i.e. more than 8 years there is no record to show that, what action was taken by the insurance company to process the claim, if the insurance company has not sent any claim , it is duty of the opposite parties 1&2 to take initiation to settle the claim by opposite party No.3. In this case being a facilitator the opposite parties 1 and 2 fails to take any initiation to settle the claim of the complainant. Hence on that score there is a deficiency of service and the above complaint is allowed on 01.05.2013 with a finding that there is a deficiency of service on part of the opposite party No.1&2 for not promptly facilitating the complainant with regard to the settlement of the claim and directed the opposite parties 1&2 to pay a sum of Rs.15,000/-(fifteen thousand rupees only) towards compensation and costs of Rs.2,000/- (Two thousand rupees only).\and  further  directed that the complainants are at liberty to make a claim to the insurance company and if any decision is given, they are at liberty to take appropriate legal action. The complainants further submits that after passing an order in CC.58/, the complainants have issued a registered legal notice to the third opposite party on 04.07.2013, Calling upon to settle the insurance claim  pertaining to the credit card of her husband. After receipt of the said notice the opposite party No.3 sent a reply on 30.07.2013 by denying the allegations made in the notice and stated that they are not a party in the above said proceedings in CC.58/2012. Hence till today the opposite party No.3 has not taken any action to settle her claim and also opposite party 1&2 are failed to comply the order of this Forum. Hence this complaint is filed by the complainants praying this Forum to direct the opposite parties 1 to 3 to pay the claim of Rs.5,00,000/-(Five lakhs only) and to pay sum of Rs.10,000/-(ten thousand rupees only) towards compensation and to pay costs.

          3.  The opposite parties came in to appearance and filed their written version. The opposite parties No.1 filed the written version with an adoption memo of second opposite party by denying the allegations made in the complaint and stated that the allegations made in the complaint are nothing but the repetition of the version in the complaint in CC.58/2012 and hence they are not tenable. And also stated that the accident of the complainant’s husband took place on 30.10.2004 and on account of head injury sustained to him in the accident he was shifted to SWIMS, CMC VELLORE &SVRRGH in Tirupathi, finally he died on 23.04.2005. But the deceased Balaraju applied for credit card on 05.11.2004 which is after the accident and also in the said application he has shown the name of his own brother B.Bhupathi Reddy as his nominee. Hence the complainants are not entitled to the claim of the insurance as if after the accident that the deceased obtain the credit card. So in order to get wrongful gain the complainants filed this complaint. And also stated that they are only the facilitators for the settlement of the insurance claim. Hence they are not liable to pay the claim and also as per the statement of the accounts the card could not be used even for single transaction and it is against the provisions of the card issued. And after long gap of more than 7 years the complainant approached this Honorable Forum without any delay condone petition. Hence this complaint is time barred, and again stated that the Honorable Forum passed an order in CC.58/2012 on 01.05.2013 by allowing the complaint in part and gave a finding that there is a deficiency of service on part of opposite parties 1&2 in not promptly facilitating the claim of the complainant and directed  the opposite  1&2  to pay a sum of Rs.15,000/-(fifteenth thousand rupees only) towards compensation and to pay costs of Rs.2,000/(two thousands)And further found that the claim should have made to the insurance company and the complainant is at liberty to make a claim to the insurance company and if any decision given they are at liberty to take appropriate legal action. Aggrieved by the said order the opposite party No.1&2 preferred an appeal before the State Commission, Hyderabad in F.A.No.4610 of 2013 and obtained stay. Now the complainant has once again come up with the present complaint claming a sum of Rs.5,00,000/-(five lakhs only) again opposite Party 1to3 jointly and severally payable under credit card together with interest @ 18% per  from the date of the death of Mr.Balaraju and  pray this forum to directing the third opposite party to pay 10,000/-(ten thousand rupees only) to the complainants. It is also stated that it is nothing but the self same relief sought for in CC.58/2012 with same cause of action.  

          4.  Hence as per the order of the Honorable Forum the complainant is at liberty to proceed against the insurance company, instead the complainant once again came up with above complaint on the self same cause of action against the opposite party No.1&2 also and hence as such the present complaint is not maintainable. Hence the complaint is liable to be dismissed against them.          

            5. The opposite party no.3 filed a written version and stated that as per the contention of the complainant, the credit card holder deceased Bala Raju met with an accident on 31.10.2004 and he was admitted in CMC Hospital Vellore on 31.10.2004 and he under went surgery on 01.11.2004 and he is under ICU Care for one week and he took long term rehabilitation care even after the accident, to that effect the complainant produced a letter dated 08.11.2004. So from 31.10.2004 to 09.11.2004 he underwent different surgeries to his head and he has been taken treatment even on 08.11.2004 and as such is the case, how the deceased submitted an application for obtaining credit card which was received by the authorities of the opposite party No.2 on 05.11.2004. Hence alleged allegations of the complainant, that the deceased obtained credit card are created by the complainant to have wrongful gain. The opposite party No.3 further submitted that as per the application the said BalaRaju appointed as one B.Bhupati Reddy who is a younger brother as his nominee and also stated that the said credit card was obtained when the said Bala Raju has been hospitalized. The opposite party No.3 further submits that no married person mentioned the name of the others in the nomination column when he was having a wife and minor daughter, but in the present case the name of the brother of the credit card holder was mentioned in nomination column as nominee of the deceased Balaraju. And further contended that when the person suffered with head injury who  has been hospitalized and under went number of surgeries in Neuro Surgery Unit-II  of CMC, Vellore and under gone treatment in coma, how he can subscribed his signature in the credit card application and mention the name of his brother as nominee. Hence the crystal clear that the alleged credit card  application was submitted by some other person in order to get wrongful gain  with the  name of  the deceased Balaraju  when he was in coma and taking treatment in CMC Vellore.

            6. The opposite Party No.3 further submits that as per the case of the complainants, they are the legal heirs of the deceased Balaraju, but as per the application the said Balaraju clearly mentioned his brother name B.Bhupati Reddy as his nominee in the credit card. Hence this complainant is not having any locus stand to file this complaint as there is no privity of contract between the complainant and opposite parties No.1 to 3 to question the non settlement of the claim under the said credit card, because one B.Bhupati Reddy stood as a nominee. Hence the question of deficiency of service on part of the opposite parties does not arise.

          7. The opposite Party No.3 further submits that the Honorable Forum was already decided on merits in CC.58/2012 for the deficiency of service. Hence the present complaint is not maintainable and the same is hit by law of ‘Resjudicata’.  The Honorable Forum passed an order by directing the complainants are at liberty to make a claim to the insurance company and if any decision is given, they are at liberty to take appropriate legal action. This complaint is barred by limitation because the present complaint is filed after the lapses of eight years from the date of the accident. The complainant has no locus standee to file this complaint and even if the complainants wants to claim any right of the estate of the deceased than the nominee, they have to file a  suit or application for succession certificate to declare them as his successors  from a competent court of law and this Forum cannot decide the legal heir ship or succession of the complainant. Hence fair trial with elaborate evidence has to be required. Hence there is no deficiency of service on part of them hence the complaint is liable to be dismissed                

          8. On behalf of the 1^st complainant B.Swathi filed  her evidence on affidavit and got marked Ex.A1 to A3 and on behalf of the opposite party 1&2 T.Gopalakrishnan S/o.V.Venkataswamy, Manager, credit card centre regional office filed his evidence on affidavit and got marked Exs.B1 to B4, on behalf of the opposite party no.3 one Smt.M.Banumathi, W/o. Sri. U.V.Subramanyam Divisional Manager, Ms. United India Insurance Company, Tirupati filed her evidence on affidavit and got marked Ex.B5 to B12. Written arguments were filed by both complainants and opposite parties and oral arguments were heard.

            9.     Now the points for consideration are:-

           (i). Whether the credit card obtained by the husband of the first complainant and father of the second complainant was genuine and legally binding upon them?

           (ii). Whether the complaint is barred by limitation?

            (iii). whether there is any deficiency of service on part of the opposite parties?

           (iv). whether the complainants are entitled for the reliefs as prayed for?

            (v). To what result?

            10.  Point No.(i):- As per the contention of the complainant her husband deceased Balaraju was obtained credit card from the opposite party no.1&2 on 05.11.2004 and he met with an accident on 31.10.2004, due to the accident he sustained severe head injuries and he has taken treatment in SVIMS on 31.10.2004 and again he shifted   to CMC Vellore on 01.11.2004, after getting surgeries to the head he discharged on 18.11.2004. Again he shifted to SVIMS for follow on treatment and finally he died on 23.04.2005. In the written version the  opposite party No.3 stated that the date which is mentioned in credit card application i.e.Ex.B1 is 05.11.2004 and alleged that in the said date the husband of the complainant is in ICU in CMC Vellore because he undergone brain surgery  and in order to prove his contention the opposite party no. 3 filed Ex.B11 the investigation report along with the said discharged summary  clearly manifest that the patient was admitted on 01.11.2004 and he discharged on 18.11.2004, when the person is in admission of CMC Vellore, from 01.11.2004 to 18.11.2004 and he under gone some brain surgery is it possible for the same person to obtain the credit card. Hence the application form of the credit card itself is suspectable.  But the complainant failed to prove her contention that the deceased himself was subscribed his signature in the said credit card application with any documentary evidence hence it cannot be acceptable.  Hence by perusing all the documentary evidence placed before this forum by both the parties, we came to the conclusion that the said credit card was fabricated and forged the signature of the deceased in order to get wrongful gain. Hence this point is answered against the complainant.

            11.  Point No.(ii):-  As per the contention of the complainant, the accident took place on 31.10.2004 and  the deceased was died on 23.04.2005  the cause of action arises when the husband of the complainant died i.e. 23.04.2005. But in this case the complainant filed the present complaint on 16.08.2013 i.e. after long gap of 8 years. And the opposite party contended that after the long gap of 8 years filed the above case and it is barred by limitation. But in CC.No.58/2012 this Forum itself passed an order on 01.05.2013 with a finding, ‘the complainant is at liberty to make a claim to the insurance company and if any decision is given they are at liberty to take appropriate legal action’. Hence again the cause of action starts from 01.05.2013 when the forum gave a finding to the complainants to submit their claim to the insurance company i.e. opposite party no.3. Hence this complaint is well within limitation.

         12.  Point No.(iii):-  The 1^st complainant stated that her husband met with an accident on 31.10.2004 and he sustained head injury and he has taken treatment in several hospitals CMC Vellore, SVIMS, SVRRGH in Tirupati. After prolonged illness and even though several surgeries was done, finally he died on 23.04.2005. As per the contention of the complainant, her husband  in his life time he obtained a credit card  with  insurance benefit of Rs.5,00,000/-  with the opposite Party no.1&2 bank on 05.11.2004 and he appointed his brother  B.Bhupati Reddy as his nominee. After death of her husband the complainants approached the second opposite party who asked the 1^st complainant to submit the claim forms to the said effect. But she came to know that the 1^st opposite party addressed a letter to the 3^rd opposite party on 17.06.2005 to send the claim forms to the nominee namely the 4^th opposite party herein. Since the claim was not settled by the opposite party 1&2 she filed the complaint CC.No.58/2012 in the file of this Honorable Forum. The same was allowed by giving the finding to the opposite parties 1&2 being facilitators has not processed her claim to the opposite party no. 3 the insurance company. Hence they opined that there is a deficiency of service on part of the opposite party no.1&2. Since they failed to take any action for processing her claim and directed the opposite parties to pay a sum of Rs.15,000/- (fifteen thousand rupees only) towards mental agony and Rs.2,000/-(two thousand rupees only) towards costs.

          And also this Forum gave a finding that “the complainant is having at liberty to make a claim to the insurance company and if any decision is given they are liberty to take appropriate legal action.” After passing the order in C.C.58/2012 this complainant issued legal notice to the 3^rd opposite party on 04.07.2013 calling upon to settle the death claim of insurance. But after the receipt of the said notice also the 3^rd opposite party fail to settle the claim of the complainants. And further stated that there is clear deficiency of service on part of the 3^rd opposite party for not settling her claim and also the opposite party no.1&2 failed to obey the order  of this Forum dated 01.05.2013 in CC.No.58/2012. Hence the complainant prayed that the opposite parties 1 to 3 are failed to take appropriate action to process her insurance death claim of her husband. The opposite party 1&2 stated that the credit card obtained by the husband of the 1^st complainant in the said application he mentioned his brother Bhupati Reddy as a nominee. Hence the complainants are not entitled for the insurance claim and also stated that during the above said credit card the deceased never used for single transaction during the credit card as much against the provisions of the credit card. The second complainant also stated that  by aggrieving the order of this Forum i.e. CC.No.58/2012 and  preferred an appeal in F.A.No.35/2014  in the Honorable State Commission which was decided on 11.12.2014 with a result the order was passed in CC.58/2012 of this Forum was set aside and there is no deficiency on part of opposite parties 1&2 and also gave a finding the complainants are at liberty to take action against the opposite party no.3. Hence once the appeal was allowed by set aside the order of the Forum passed against the opposite party no.1&2, hence we need not discuss again when it is already decided. Hence there is no deficiency of service on part of the opposite parties 1&2.

        The opposite party no.3 stated that after receiving the intimation of death of the deceased by 2^nd opposite party by way of letter dated 17.06.2005 i.e. Ex.B5 they sent a letter dated 21.06.2005 under Ex.B6 to the nominee  Bhupati Reddy who is the 4^th opposite party to submit the documents  to process the claim. As there is no response from the nominee, after lapse of 6 months the 1^st opposite party sent a reminder letter dated 05.12.2005 under Ex.B7 to submit the required documents. After receiving the said documents the 3^rd opposite party appointed an investigator to investigate the said claim which is suspectable. The investigator filed his report under Ex.B11 with discharge summaries of the hospitals where the deceased took treatment. In his report he opined that on 31.10.2004 the husband of 1^st complainant while riding the motor cycle he was in drunken condition at the time of accident. Again immediately after the accident the deceased shifted to the SVIMS Hospital with severe injuries to his head on 31.10.2004 again he shifted to CMC Hospital Vellore on 01.11.2004 and he under went surgeries to his head and he was in the said Hospital in ICU from 01.11.2004 to 18.11.2004 and discharged on 18.11.2004 with instruction to continue medical services to him. Accordingly he was shifted to SVIMS hospital, Tirupati and again shifted to SVRRGH, Tirupati. The deceased under Coma from the date of the accident and he never recovered from Coma and he died while under going treatment. And also stated that when the patient was under Coma how he obtained credit card on 05.11.2004. Hence opposite party no.3 stated that the signature in the credit card by the deceased was suspicious and  in order to get wrongful gain they have obtained the credit card by the name of the deceased. In order to prove their contention the Opposite Party No.3 filed Ex.B5 to B12. In Ex.B11 with investigation report he file discharged summary of CMC, Vellore dated 18.11.2004 clearly reveals that the patient was in vegetative stage and he has under Coma and also it is mentioned that the deceased admitted on 01.11.2004 and discharged on 18.11.2004. When the patient was in admission in the Hospital of CMC from 01.11.2004 to 18.11.2004 how is it possible for the person who is under the treatment with severe head injuries with coma can obtained credit card on 05.11.2004. In order to prove their case the complainant fails to prove any documentary evidence that by 05.11.2004, the 1^st complainant’s husband was hale and healthy to obtain the credit card. Hence the issuance of credit card itself is a question and suspectable.  Hence there is no deficiency of service on part of the opposite parties no.3, because as per the rules they have processed the claim and in order to elicit  the facts  and to prove their bonafides  they have appointed the investigator and by scrutinizing the investigation report they rejected the claim.. Hence there is no deficiency of service on part of the opposite party no.3. Hence this point is answered against complainant.

          13.  Point No. (iv):- Already point no. (i)  to (iii)  was decided against the complainants, that there is no deficiency on part of the opposite parties 1 to 3 the entitlement of the reliefs should not arise. Hence the complainant is not entitled for the reliefs as prayed for. Hence this point is answered against the complainant.

          14. Point No.(v): In the result, the complaint is dismissed. No Costs.

             Typed by the stenographer, to the dictation and corrected by me and pronounced in the Open Forum this the 15^th day of May, 2015. 

       Sd/-                                                                                                            Sd/-

Lady Member                                                                                                    President

                                                 

                                                    APPENDIX OF EVIDENCE

  WITNESSES EXAMINED ON BOTH SIDES

 

 

PW-1: Smt B.Swathi (Chief Affidavit filed).

RW-1: T.Gopalakrishnaiah(Chief Affidavit filed)

RW-2: T.Gopalakrishnaiah(Chief Affidavit filed)

RW-3: Smt M.Bhanumathi (Additional Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1	True copy of Order Dt: 01.05.2013 passed in C.C.No.58/12 by the District Consumer Disputes Redressal Forum-II, Tirupati.
2.	Office copy of legal notice issued to the Senior Divisional Manager (III Opposite Party) Divisional office-IX, Hyderabad-16 with Postal Receipt. Dt: 04.07.2013.
3.	Reply notice issued by the 3rd Opposite Party to the notice of complainants. Dt: 30.07.2013.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Description of Documents
Ex.B1	A photo copy of credit card applications of deceased Bala Raju. Dt: 05.11.2004.
2.	A photo copy of Statement of Account vides Credit Card No. 4539926004529895.
3.	A photo copy of terms and conditions.
4.	Office copy of approval grounds in FASR 4610/13.
5.	A Photo copy of the letter addressed to the third Opposite Party by the first and second Opposite Party filed on behalf of the Opposite Party No.3. Dt: 17.06.2005.
6.	A Photo copy of the letter addressed to the nominee of the card ie., fourth Opposite Party by the third Opposite Party  filed on behalf of the Opposite Party No.3. Dt: 21.06.2005.
7.	A photo copy of the letter addressed to the nominee of the card i.e., fourth Opposite Party by the second Opposite Party  with a copy marked  to the third Opposite Party filed on behalf of the opposite party No.3. Dt: 05.12.2005.
8.	A photo copy of the covering letter addressed to the third Opposite Party by the second Opposite Party with a copy marked to the third Opposite Party filed on behalf of the Opposite Party No.3. Dt: 29.12.2005.
9.	A photo copy of the covering letter addressed to the third Opposite Party by the second Opposite Party filed on behalf of the Opposite Party No.3. Dt:  03.05.2006.
10.	A photo copy of the covering letter addressed to the third opposite party by the nominee under the said credit card ie., fourth Opposite Party herein along with documents sent along with the said letter filed on behalf of the Opposite Party No.3. Dt: 26.12.2005.
11.	A Photo copy of the investigation report of the investigator of the third Opposite Party along with documents sent along with the said letter filed on behalf of the Opposite Party No.3. Dt: 05.05.2006.
12.	A photo copy of the letter of repudiation to the first opposite party sent by the third opposite party filed on behalf of the Opposite Party No.3. Dt: 22.06.2006.

 

 

                                                                                              Sd/-

                                                                                                             President

                 

 

                                                               // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

                                                     Dist. Consumer Forum-II, Tirupati

 

 

Copies to: - 1. The Complainant.

                   2. The Opposite parties.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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