IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 28th day of March, 2023.
Filed on : 13.10.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.247/2022
between
Complainant:- Opposite parties:-
Smt. Anila.D.S 1. HDFC Bank Ltd
W/o Suresh.D Rep. by its Branch Manager
Karthika Allisseril Branch Office, Convent Square Jn.
Punnapra.P.O, Alappuzha HPO, Alappuzha
Alappuzha-688004 Pin-688001
(Adv. Jose.Y.James) (Adv. C. Parameswaran)
2. HDFC Ergo General Insurance Co. Ltd
Rep by its Branch Manager
Branch Office, 2nd Floor, Chicago
Plaza, Rajaji Road, Near KSRTC
Bus stand , Kochi-682004
(Adv. Saji Issac. K.J
O R D E R
C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainant’s case is as follows:-
The complainant is the mother of the deceased Shri. Balu.S who died due to accidental drowning on 18/12/2021 at about 12 PM at Panayilkadavu Kayal due to the accidental overturning of yacht while he was on police duty in order to arrest an accused who was absconding. Regarding the death of Balu, Anchuthengu Police Station had registered a criminal case as Crime No. 1508/202. The post-mortem of Balu.S was conducted by the Medical Officer, MCH Trivandrum and the report shows that the cause of death was due to drowning .
1st opposite party is a leading private sector bank which provides multiple facilities/offers to their customers. Attracted by the facilities and offers provided by the 1st opposite party complainant son decided to open a SB Bank Account at 1st opposite party bank. According to the complainant while opening the account 1st opposite party duly provided a jet privilege card free of cost and also assured and provided a base cover of free accidental death insurance coverage to the holder of jet privilege card for Rs. 5 lakhs and additional accelerated personal accidental death cover upto Rs. 20 lakhs subject to usage of above debit card at retail or online stores at least once every 30 days to keep the free 20 lakhs personal death insurance coverage on their debit card active. For that premium is duly paid by the 1st opposite party by getting benefit of transactions of bank account of the account holder and the group accident policy was issued by the 2nd opposite party. The complainant who is nominee of the account holder Balu.S from the 1st opposite party bank through post along with welcome letter which includes details, features, offers and details of death insurance coverage of the debit card holder. At the time of issuance of jet privilege card the 1st opposite party neither provided policy copy and policy conditions of the 2nd opposite party to the complainant’s son. The accidental death was duly intimated to the 1st opposite party’s office on the next working day by the complainant. And 1st opposite party assured the complainant that they will duly register complainant’s claim with 2nd opposite party. Thereafter, the complainant approached 1st opposite party branch office at Alappuzha and lodged a written application to the branch manager for getting the assured amount. As per the instruction of 1st opposite party the complainant immediately approached 2nd opposite party’s office at Ernakulam for getting the assured amount. As per the policy 2nd opposite party issued a claim form and instructed the complainant to submit FIR and FIS, Final Report, Viscera Report, legal heir ship certificate and bank account details of the nominee along with duly filled claim form. The 2nd opposite party on that day assured the complainant that after getting the required documents they will disburse the assured amount to the nominee bank account within short time. Accordingly complainant submitted legal heir ship certificate and FIR to the 2nd opposite party. Further wants the chemical analysis report for completing the claim process. On 15/7/2022 complainant submitted chemical analysis report to the office of 2nd opposite party. But the 2nd opposite party turned their stand against the assurance given by them earlier, stating that complainant son’s death was not covered under the policy, which was first time informed by the 2nd opposite party which itself shows deficiency in service and unfair-trade practice from their side.
The said unexpected response from the 2nd opposite party was duly intimated to the 1st opposite party by the complainant. But no action was taken by the 1st opposite party to honor complainant’s valid claim. The act of 1st opposite party amounts to un-trade practice and deficiency in service from their part. The act of opposite parties caused mental agony to the complainant for that opposite parties jointly and severally liable to pay compensation. Hence the complaint seeks following reliefs from the opposite parties.
1. To direct the opposite parties to pay an amount of Rs. 25 lakhs the amount covered in the policy along with interest @ of 12% per annum from the date of rejection of the claim till realization.
2. To direct the opposite parties to pay an amount of Rs. 2 lakhs for mental agony and pain and for the loss of valuable time of complainant due to the act of the opposite parties and cost of the proceedings.
2. 1st opposite party filed aversion mainly contenting as follows:-
The complaint is not a consumer as defined u/s 2(7) of the Act. The dispute raised is not a Consumer Dispute as defined in the Consumer Protection Act. There was no consideration to the opposite parties by the complainant for the alleged insurance policy. The deceased account holder was fully aware of the scope of the coverage under the policy at the time of issuance of Jet Privilege card. As per the terms of the policy the coverage is limited to the accidental death due to Air, Road and Rail. The alleged mishap was caused due to a boat accident and hence the same is outside the scope of the policy of insurance. In view of the above the repudiation of the claim is quite legal and valid. The averments and allegations contained in paragraphs 1,2,3,4,5,6 and 7 of the complainant are false and hence denied. No assurance or promise was ever given to the deceased Balu.S by the 1st opposite party. The deceased Balu.S had opened the SB account with the 1st opposite party. Hence the deceased Balu was provided with a Jet privilege card free of cost. The terms and conditions and scope of coverage under the privilege card was put to the notice of the deceased account holder and the deceased account holder accepted the terms and conditions under the Jet privilege card. Infact, complainant has admitted in her complaint that they have received the card along with welcome letter which includes details, features, offers and details of death insurance coverage etc. Hence they cannot claim that terms and conditions of the card was not known to them. As submitted above the complainant is not entitled to claim Rs. 25lakhs from the opposite parties. The claim of the complainant was rejected properly and the stand taken by the opposite party is legal and valid. There is no deficiency in service on the part of the opposite party in the matter. There is no unfair-trade practice done by the opposite party as alleged. The allegation that the act of opposite parties caused mental agony to the complainant is untenable and unsustainable. Hence the complaint is devoid of any merits.
3. Version filed by the 2nd opposite party is as follows:-
The above complaint is not maintainable as the complainant is not a consumer of the 2nd opposite party. The complainant has not filed any documents to show that the complainant or her son had availed any service from the 2nd opposite party. Even according to the complainant the complainant’s son had not paid any premium to the 2nd opposite party. Hence the complaint is liable to be dismissed in limine. The allegations in the complaint regarding the assurance given by the 1st opposite party to the son of the complainant are not known to this opposite party.
The allegation in para 4 of the complaint regarding the insurance coverage assured by the 1st opposite party is not known to this opposite party and is denied. The complainant has not adduced any evidence nor has she given the details of the policy. In the absence of any details regarding the policy issued by the 2nd opposite party, this opposite party is not able to track any details with regard to the policy.
The complainant has stated that her son has received the details of the insurance coverage, but the said details are not stated in the complaint. This opposite party had filed IA.No. of 2022 to direct the complainant to furnish the copy of the policy issued by the 2nd opposite party. The complainant has not furnished the details of the policy. It is clearly stated in the cover note issued to the deceased that policy was covered by and was subject to the terms, conditions and exclusions therein contained or otherwise expressed in the said policy. Had the terms and conditions applicable to the policy not been supplied to him, the deceased , he being an educated person, would atleast have written a letter to the insurer, claiming that the said terms, conditions and exclusions had not been supplied to him. Since no such letter was written by him, the inference would be that the terms and conditions applicable to the policy were either supplied to him or were brought to his notice and that is why he did not write any such letter to the insurer. The allegation in para.4 of the complaint that as per the policy of 2nd opposite party they are liable to pay the assured base accidental death coverage amount of Rs. 5 lakhs and additional accelerated PA cover of Rs. 20 lakhs to the complainant who is the nominee of account holder Balu.S is false and hence denied. There has been no illegality or deficiency in service on the part of the 2nd opposite party. The allegation that there has been unfair trade practice on the part of the opposite parties is false and hence denied.
That without the policy number or the details of the policy this opposite party is not in a position to ascertain the details of any policy even if issued. That the onus is on the complainant to furnish the details. The HDFC Bank and HDFC ERGO General Insurance Co. Ltd are two different entitles governed by their respective regulators. The details of any card issued by the 1st opposite party is not within the knowledge of this 2nd opposite party the insurer. This opposite party cannot track any details with the account number of the card number as these are personal and confidential information which will not be shared by any bank.
4. The points that arose for consideration are as follows:-
1. Whether 2nd opposite party has to indemnify the complainant?
2. Whether opposite parties committed deficiency in service?
3. Reliefs and costs?
5. The complainant adduced oral evidence as PW1 and Ext.A1 to A13. Rw1 was examined from the side of the opposite parties and Ext.B1 to B3 &X1 were marked. Heard both sides.
6. Point nos.1 to 2:-
The complainant’s case is that she is the mother of deceased Balu.S, a Police Constable who died due to an accidental overturning of the yacht while he was on police duty. Regarding the death of Balu, the Anchuthengu police station registered a criminal case and Ext.A1 is the true copy of FIR & FIS and Ext.A2 is the copy of the final report. His post-mortem was conducted by MCH Trivandrum and the true copy of the post-mortem report is Ext.A3. Ext. A4 is a copy of the chemical analysis certificate. As per the above said documents the cause of death was confirmed as “due to drowning”. The deceased Balu opened an SB account with the 1st opposite party and Ext.A6 is the cheque leaf issued by the said Bank for the said account. At the time of opening the account, 1st op issued Ext. A5, the jet privilege card free of cost and also provided a base Personal Accident Death insurance Coverage for a sum of Rs.5lakhs and also provided additional Accelerated Personal Accident Death Cover up to Rs.20 lakhs for the cardholders. Along with Ext.A5, Ext.A8 welcome letter , Ext.A9 terms and conditions,Ext.A10 code of bank commitment to customers booklet ,Ext A11 the pamphlet and cover, Ext. A12 Net banking pin form and Ext. A13 the details of documents enclosed are also issued by the 1st opposite party. The premium is duly paid by 1st opposite party and the group policy was issued by the 2nd opposite party. In which the complainant is the nominee and Ext.A7 is the copy of the legal heirship certificate. But the 1st opposite party did not provide the policy copy and its terms and conditions of the 2nd opposite party to the complainant’s son. Even though the complainant submitted all the relevant documents to the 2nd opposite party, the 2nd opposite party stated that the death of the complainant is not covered under the policy. According to the complainant, the 2nd opposite party is liable to pay the assured base accidental death coverage amount and the amount for additional accelerated PA cover to the complainant who is the nominee of the deceased Balu.S. The response from the 2nd opposite party was duly intimated to the 1st opposite party by the complainant. But no action was taken by them to honour the complainant’s valid claim. The above acts of opposite parties amounts to deficiency in service and unfair trade practice. Hence this complaint.
The 1st opposite party contended that the deceased was fully aware of the scope of the coverage under the policy. As per the terms and conditions of the alleged policy the coverage is limited to the accidental death due to the Air , Road and Rail. Here, the alleged accident occurred in water it was a a boat accident. Hence the same is outside the scope of this policy. Hence the repudiation of the claim is valid. The deceased account holder accepted the terms and conditions under the jet privilege card issued by the 1st opposite party to him. It is denied that the death was duly intimated to the 1st opposite party on the next working day as claimed by the complainant. The claim of the complainant was rejected properly and the stand taken by the opposite party is legal and valid. Hence there is no deficiency in service on their part.
The 2nd opposite party contended that the complainant is not a consumer of them. There is no service availed from them and the complainant’s son had not paid any premium to the 2nd opposite party. The insurance coverage assured to the complainant’s son by the 1st opposite party is not known to this opposite party. The complainant has not adduced any details of the policy nor has she produced the policy. Therefore they are unable to track the details concerning the policy. There is no deficiency in service on their part.
Admittedly, the complainant’s son was holder of the Jet privilege card(A5) issued by the 1st op. Rw1 admitted that as per Ext.A5, Personal Accident(PA) cover is provided to the cardholders through the 1st op by the 2nd op, the insurance company. Even though the 2nd op denied the said contention, it seems that Ext.X1 is the policy and its conditions. It is a Card sure package policy provided by the 2nd op to the 1st op and the cardholders of the 1st op bank are the beneficiaries of the policy. The complainant alleged that said policy documents and its terms and conditions were not communicated to the complainant’s son. Rw1 deposed that the privilege card was active at the time of the mishap. So the complainant pleaded that being the mother of the deceased she is eligible for the amount of Rs. 25 lakhs as per PA coverage in the Ext.X1 policy. But the learned counsel appearing for the 1st op pointed out that their definite case is that the death of the complainant’s son Balu.S was due to drowning so the said the accident is not covered by the policy. On perusal of Section. II (A) in Ext. X1 and in Ext. B3 mentioned that Accidental death in Air/Rail/Road accidents is under PA coverage. But it has been confirmed that Balu’s death was due to drowning in the water. In view of that, the said mishap was outside the scope of the policy. But the complainant alleged that the terms and conditions of the policy were not supplied to them therefore said condition is not bound to the compt. To substantiate their part the learned counsel for the complainant placed a decision rendered by Hon’ble SC in Anju Kalsi. Vs. HDFC Ergo General Insurance Company Ltd and Another (2022 SCC ONLINE SC 226). The facts of the said case and the case at hand are almost the same. In both cases, the policy was purchased by the bank to protect its customers. In this case, the claim was repudiated by the insurer on the ground that the deceased had not undertaken a 'non-ATM transaction’ for three months immediately before the date of the accident and hence, the condition or precedent for a claim under the policy has not been fulfilled and repudiated the claim. But the complainant has taken a stand that ops 1&2, the insurance company and the bank never communicated the policy or its number, terms and condition and the related documents to the account holder till date. The Hon’ble Apex Court observed that “ The special conditions of the policy which was issued by the first respondent to the second respondent were drawn to the notice of the account holder for whose benefit and insurance cover extended, the claim ought not to have been rejected”.
Even though the facts in both cases have similarities, it is to be noted that the disputed point of the case at hand is different. The issue in this case is not whether the mandatory condition is fulfilled or not. The main dispute here is whether the accident is covered by the policy, here the accident occurred in water and is not covered by the policy .As 'drowning’ is not covered under the policy, the above said decision has no relevance in this case. In light of above mentioned discussions, we could not find any unfair trade practice or deficiency in service on the part of the ops. Hence, there is no merit in this case.
7. Point. No. 3:-
In the result, the complaint is dismissed. No order as to costs.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 28th day of March 2023.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Anila.D.S (complainant)
Ext.A1 - True copy of FIR & FIS
Ext.A2 - True copy of Final Report
Ext.A3 - True copy of Post Mortem Certificate
Ext.A4 - True copy of Chemical Analysis Report
Ext.A5 - Original Jet Privilage card of deceased Balu. S
Ext.A6 - True copy of cheque leaf of deceased Balu.S
Ext.A7 - copy of Legal Heir shipt certificate.
Ext.A8 - Original welcome letter received along with jet privilege Card.
Ext.A9 - Original Terms and Conditions received along with platinum debit card
Ext.A10 - Original code of banks commitment to customer booklet along with
jet privilege card
Ext.A11 - Original pamlets Nos. & original Cover received along with platinum debit
Ext.A12 - Original Net banking pin from received along with jet privilege card
Ext.A13 - Original documents enclosed details mentioned paper received along with
Jet privilege card.
Evidence of the opposite parties:
RW1 - Soni Jose Kurian(witness)
RW2 - Girishn Babu.G (Witness)
Ext.B1 - copy of Account Opening Form
Ext.B2 - Statement of Account
Ext.B3 - Signature Debit Card Usage Guide
ExtX1 - Policy document
Ext.X2 - Account Statement
Ext.X3 - Group Personal Accident/ AIR accident Claim Form
Ext.X4 - Statement of Account
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
