BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.69/2008

Dated this the  17^th  day of November 2016

(Date of Institution: 11.08.2008)

R. Latha, wife of late Anbajagane                   

No.28,  I Cross, Jaissinagar,             

Pondicherry.

….     Complainant

vs

Managing Director                            

M/s Royal Sundaram Alliance Insurance Company Ltd.

Sundaram Towers                            

No.45 and 46, Whites Road,

Royapettah,            

Chennai – 600 014.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru M. Sulaiman,  Advocate      

FOR THE OPPOSITE PARTY:  Thiru B. Mohandoss, Advocate

O R  D  E  R

(by Thiru V.V. Steephen, Member)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Party to pay Rs.10,00,000/- to the complainant as assured in the complainant's husband insurance certificate as per the terms and conditions of the Personal Accident Insurance Policy; to pay interest at 12% from 24.02.2007 i.e. from the date of death of the complainant's husband till the realisation of the entire amount; to pay a sum of Rs.1,00,000/- for indulging in unfair trade practice and to pay a sum of Rs.25,000/- as compensation for mental agony and hardship sustained by the complainant and for cost of this complaint. 

2.  The case of the complainant is as follows:

          The complainant stated that her husband K.T Anbajagane S/o Thangavelan had taken Personal Accident Insurance policy under the scheme of accident shield policy with the Opposite Party and paid premium amount of Rs. 1935/- under policy No. PAS BIG 0010 and certificate No. PS 00060432000100 covering the period from 16.11.2006 to 15.11.2007.  The said policy had been proposed and declared by the complainant’s husband under receipt No. 0600294422 dated 16.11.2006 and also certified  by the opposite party on 17.11.2006 and the same has been intimated to the complainant’s husband through a letter dated 20.11.2006.  The complainant came to understand that her husband had taken the said policy which is an accident shield insurance policy would cover the complainant also and therefore the nomination of husband and wife has been fixed vice versa.  The complainant further states that her husband had accepted the terms and conditions of the insurance policy which is written on the overleaf the terms and conditions of the insurance policy throughout.  Unfortunately the complainant’s husband sustained fatal injury in a road accident on 23.02.2007 at about 23.30 hrs at Puducherry and he succumbed to death at Government General Hospital Puducherry on the next day.  The complainant intimated orally about the short life of her husband to opposite party and claimed the death benefits assured Rs. Ten lakhs in the said insurance policy.  Instead of honoring the claim as assured with the claimants’ husband, the opposite party  falsely alleged in a letter addressed to complainant’s husband on 17.03.2007 wherein it is stated that the complainant’s husband had requested the opposite party to cancel the said insurance policy and hence the opposite party had refunded the premium amount of Rs. 968/- with some deductions best known to the opposite party and the same has been forwarded to the complainant’s bank account.  The complainant stated that if it is taken to be considered as fact the refund of the said premium is a forged one and contra to the agreement entered with the deceased.    The complainant further stated that the benefit assured in the said policy in case of accident death the amount would be Rupees Ten lakhs.  In order to defeat the claim of the complainant the opposite party dishonestly stated in the above said letter that the insured had requested to cancel his policy.  As per the terms and conditions the opposite party has earmarked that alleged insurance certificate may be cancelled at any time by the insured person on 14 days notice in writing sent under registered post acknowledgement due then only the insured person shall be entitled to the return of premium less premium at company short period rates for the period the certificate in force.   The vulnerable clause has been blown for the convenience of the opposite party.  The high handed and dishonest activity of the opposite party became a breach of trust, violation of contract and illegal.  If the complainant husband actually intended to cancel the insurance policy as alleged by the opposite party then the terms of contract has to be extinguished by fortnight on prior notice.  Actually no notice of cancellation of the policy had been given by the complainant's husband because the complainant’s husband died on 24.02.2007.  Therefore the complainant issued legal notice to the opposite party on 12.08.2007 claiming benefit of Rs. 10,00,000/- with necessary interest and cost.  The opposite party miserably failed to discharge his obligations as per terms and conditions as assured by the opposite party in the said accident insurance policy to the complainant's  husband.  On the other hand the opposite party representing falsely as indicated above this amounts to unfair trade practice.  The complainant assumed that the opposite party have prepared false record in order to gain the assured sum of  Rs. 10,00,000/-.  The opposite party has acted negligent manner in dealing the compensation amount to the insured person and so the complainant has suffered in great mental agony and hence the complainant is entitled to claim compensation.  The opposite party was guilty of false representation amounting to unfair trade practice, committed breach of contract and played extremely foul game in honouring the right claim of the complainant.  Hence, this complaint. 

3. The reply version filed by the opposite party briefly discloses the following:

               The complaint is not maintainable either in law or on facts.  This opposite party had issued a personal accident No.PS 00060432000100 in the name of
Mr. Anbalagan for the period commencing from 16.11.2006 to 15.11.2007 covering the insured for a sum of Rs. 10 lakhs after receiving proposal for insurance from M/s SBI Cards through whom the insured had taken the policy since insured was holding  SBI Credit card.  The deceased insured had requested the SBI Cards and Payments Services to cancel the above said policy on 19.01.2007 and upon receipt of such request from SBI Cards this opposite party cancelled the policy with immediate effect and refunded the premium of Rs. 968/- on prorate basis as per the policy terms.  It is submitted that premium refund had been categorically reflected in the credit card statement sent to the insured by the SBI cards in the month of January 2007 and which only conclusive proves that the deceased insured had consented for cancellation of the policy issued by the opposite party.  Suddenly the complainant made a claim under the cancelled policy stating that the insured had died due to some road accident on 24.02.2007 in the month of March 2007 and the opposite party replied to the said claim on 17.03.2007 by stating that as per the request received from the deceased this opposite party had cancelled the policy as per the scheme devised under the policy terms and conditions this answering opposite party had refunded the premium on pro-rata basis i.e.  968 in the month of January itself after cancelling the policy as per the request of the deceased insured and the same was reflected in the credit entry of the SBI credit card statement received by the deceased insured and complainant in the month of January 2007.  The complainant had made sweeping, alluring, deceptive allegations without any justification in the complaint with regard to the cancellation, which was only done as per the instructions and communication of the deceased insured.  This being the factual situation the allegation that this answering opposite party has cancelled the above said policy only with the intention to evade the payment of the insured amount is totally false and baseless.  It is ridiculous on the part of complainant to allege that only because of the claim being lodged this opposite party had cancelled the policy since it is needless to state that neither the officials of  opposite party nor any other living being can perceive the death of another being insured before hand as personal accident policy in this instant case has been cancelled one month before the alleged death of the insured.  The complainant without any proper justification has brought this vexatious litigation before this Hon’ble forum only to gain unlawfully.  Therefore the complainant has come before this forum with unclean hands only with the sole intention of harassing this opposite party.  The complainant has come before this Hon’ble forum without any cause of action.  The complaint made by the complainant is premature as the complainant has not established any deficiency of service against this opposite party. The complainant had failed to show any reason as to why  the reliefs as prayed for in the complaint should be granted favour of the complainant and as such this instant case  should be dismissed with exemplary costs.  The complainant fails to establish any deficiency of service against this answering opposite party the same deserves to be dismissed against this answering opposite party.  This answering opposite party is not liable to pay any damages to the complainant. Hence, prayed for dismissal of the complaint.

4.       The complainant was examined as CW1 and Exs.C1 to C10 were marked through CW1, the complainant's father was examined as CW2 and Ex.C11 was marked through him.  The Opposite Party examined one G. Vinay Prakash, Senior Executive, Legal as RW1 and Ex.R1 was marked through him and Mr. Vipin Thomas, Manager, SBI Cards was examined as RW2 and Exs.R2 to R4 were marked through RW2. 

5.       Points for determination are :

1. Whether the Complainant is a Consumer?
2. Whether the opposite party has adopted any unfair trade practice and committed any deficiency of service?
3. Whether the complainant is entitled for any relief?

6. Point No.1:

          The complainant's husband K.T.  Anbalagan has taken a personal accident insurance coverage policy for an assured sum of Rs.Ten Lakh from the Opposite Party  and paid a premium amount of Rs.1935/- under policy No. PAS BIG 0010 and certificate No. PS 00060432000100 covering the period from 16.11.2006 to 15.11.2007 (Ex.C1) and the policy has insurance coverage for the complainant also and further the complainant was proposed as a nominee for the insurance policy (Ex.C1) obtained by the complainant's husband.  Hence, on the facts referred above, the complainant is considered to be a consumer as against the Opposite Party.  This point is answered accordingly. 

          7.  Point No.2:

The complainant submitted that the complainant's husband K. T. Anbalagan has taken a personal accident insurance policy from the Opposite Party, having insurance coverage for both the complainant's husband and the complainant on payment of premium amount of rs.1935/- under the policy No. PAS BIG 0010 and certificate No. PS 00060432000100 covering the period from 16.11.2006 to 15.11.2007 (Ex.C1).  The complainant's husband sustained a fatal injury in a road traffic accident occurred on 23.02.2007 and a complaint was lodged before the SHO, Traffic PS in Crime No. 160/2007 on 23.02.2007 (Ex.C3).  It is submitted by the complainant that the fact of the death of the complainant's husband was intimated to the Opposite Party thereby claiming the death benefit assured under the policy (Ex.C1) but the Opposite Party sent a letter dated 17.3.2007 (Ex.C6) to the complainant's address stating that the insurance policy taken by the complainant's husband was cancelled on the request of cancellation of policy received from complainant's husband K.T. Anbalagan.  It is further submitted by the complainant that in order to defeat the insurance claim of the complainant, the Opposite Party has dishonestly stated that the complainant's husband had requested to cancel the policy and hence, the complainant suspecting the foul play by the Opposite Party, this complaint was filed against the OP for adopting unfair trade practice and for claiming other reliefs. 

8.       On the other hand, the Opposite Party submitted that the insurance policy was cancelled only on the request of the cancellation of the policy from the complainant's husband and denies all the allegations leveled against the Opposite Party by the complainant and prayed for dismissal of the complaint.

          9. Both side records and evidence were carefully perused and observes as follows:

          10. The complainant's husband has taken a personal accident insurance policy vide PAS BIG 0010 and certificate No. PS 00060432000100 covering for  the period from 16.11.2006 to 15.11.2007 from the Opposite Party on payment of premium amount using the credit card of  SBI Cards and Payment Services Limited.  The complainant submitted that her husband died in a road traffic accident on 23.2.2007 and intimated the fact to Opposite Party for claiming the death benefit assured under the policy Ex.C1 but the Opposite Party denied by sending a letter dated 17.03.2007 (Ex.C6) stating that the policy was cancelled as per the request of cancellation received from the complainant's husband.  It is pertinent to note that Ex.C6 is only a letter dated 17.03.2007 addressed to complainant's address wherein, it mentions that the insurance policy Ex.C1 was cancelled on the request of the cancellation of the policy from the complainant's husband and it is not a letter of request of cancellation of policy sent by the complainant's husband and the Opposite Party has not produced any document before this Forum to prove that the complainant's husband K.T. Anbalagan has sent a letter of request for cancellation of policy to the  Opposite Party.  On the perusal of the terms and conditions of the policy Ex.C2, it is observed by the Forum that whenever the insured intends to cancel the policy, 14 days prior notice in writing by the insured should be sent to the Opposite Party under the registered post with acknowledgement due.  The condition of the insurance policy mentioned in Rule 6 of Ex.C2 in page No.8 is as follows:

          "The company may at any time by giving 14 days notice in writing terminate the Certificate, provided that the Company shall in that case return to the Insured Person, the then last paid premium less a pro-rata thereof for the portion of the insurance period which shall have expired.  Such notice shall be deemed sufficiently given if posted by Registered Post Acknowledgement Due and addressed to the Insured Person at the address last registered in the Company's books and shall be deemed to have been received by the Insured Person at the time when the same would be delivered".

(or)

The Certificate may be cancelled at any time, by the Insured Person on 14 days notice in writing sent under Registered Post Acknowledgement Due." 

It is pertinent to note that the Opposite Party  has not produced any letter of cancellation from the complainant's husband which is a pre-requisite condition for the cancellation of the policy as per the terms and conditions mentioned in Ex.C2.  Further, during the cross-examination of RW1, it is admitted by the RW1 that deceased Anbalagan has not sent any notice of cancellation of policy to the Opposite Party.  The evidence of RW1 is as follows:

      "The cancellation of the policy is only in between the two persons.  In Ex.C2 in Col. CONDITIONS  and sub clause (6) it is narrated as the certificate may be cacnelled at any time by the insured person on 14 days notice in writing sent under RPAD.  Whether the deceased Anbalagan has sent any notice to your company within fourteen days notice?  Reply No.  We have not received any such notice from the deceased Anbalagan."…….

Hence, from the facts narrated above, it is clearly proved the act of cancellation of the policy by the Opposite Party is unilateral and arbitrary. 

11. It is further contended by the Opposite Party that the policy was cancelled on the request by the SBI Cards and Payments Services Ltd.  On the perusal of the records and evidence, it is pertinent to note that the SBI Cards and Payment Services is neither a branch office of the Opposite Party or the collection agent of the Opposite Party and it is only a Credit Card Holders Service Office wherein, the complainant was user of the Credit Card issued by the office of the SBI Cards and Payments Services Ltd., through which the payment was made for obtaining the insurance policy Ex.C1 and the SBI Cards and Payments services was not assigned with any role by the Opposite Party to act for and on behalf of the Opposite Party and further the SBI Cards and Payment Services have not produced any document to show that SBI Cards are the agent of the Opposite Party company and hence, in this context the contention raised by the Opposite Party, the policy (Ex.C1) was cancelled on the request of the complainant's husband received through the office of SBI cards and payment services Ltd. cannot be taken into consideration and does not have any evidentiary value.     An insurance policy between the two parties is based on the principle of utmost good faith and it is acted upon the terms of contract of insurance and it is not an oral agreement.  Privity of contract is only between the parties to the contract and the third party has no role to play in it and if any clause of the terms of the agreement of the policy of insurance is varied to the convenience of one party, then such act amounts to breach of terms of contract of insurance.  In the present case, it is observed by the Forum that the act of the Opposite Party cancelling the policy without following the conditions of the policy Ex.C2 is a clear violation of terms of contract of insurance leading to unfair trade practice which is not maintainable before law. 

11.     It is further observed by the Forum that even otherwise taking into consideration the contention of the OP that the policy was cancelled on the request by the complainant's husband received through SBI Cards Office on 19.01.2007, the Opposite Party has sent the intimation of cancellation of policy Ex.C6 only on 17.03.2007 and that too only on the receipt of date of death message of the complainant's husband from the complainant's father through the office of Opposite Party on 17.03.2007.  It is pertinent to note that the date of intimation of cancellation of policy to the complainant (Ex.C6) and the alleged date of receipt of intimation of death of the complainant's husband from the complainant's father refers to the same date i.e. on 17.03.2007.  The evidence of RW1 is as follows:

          "The office has received message on 17.03.2007 by one Ramalingam through Mobile Phone No. 9444174646 stating that his son-in-law was met with an accident and he wanted to know the claims procedure.  It is true that Ex.C6 was issued on 17.03.2007……"

          In the light of the facts referred above, it is observed by the Forum that the Opposite Party have adopted unfair acts in the process of cancellation of the policy of the complainant  and it is further observed by the Forum that the act of delay in intimating the cancellation of the policy to the complainant inspite of the message of request for cancellation of the policy alleged to have been received from the complainant's husband on 19.01.2007 through office of SBI Cards deprived the right of chance of complainant's family members to protest the act of issuance of  cancellation of the policy by the Opposite Party thereby  amounting to deficiency of service by the OP.

12. It is further pertinent to note that the Opposite Party has not produced the cancelled original policy supposed to be retained by the Opposite Party in the event of cancellation of the policy requested by the complainant's husband as alleged by the Opposite Party and these facts clearly establish that Opposite Party has cancelled the policy (EX.C1) without adhering to the terms and conditions of the policy (EX.C2) which is unilateral and arbitrary amounting to unfair trade practice. 

13. It is further observed by the forum that, adding to the woes and misery undergone by the complainant due to the loss of life- partner, the sole bread- winner of the family, the act of Opposite Party dishonestly denying the claim of the insurance policy of the complainant would have further caused great mental agony and hardship to the complainant. Hence to meet the ends of justice this forum deems fit and necessary to pass an award of reasonable amount of compensation to the complainant towards the mental agony and hardship undergone due to act of OP. 

          14.  In view of the discussions in the points aforementioned it is held that the opposite party is liable to pay compensation for the hardship and mental agony suffered by the complainant due to the Deficiency of the Service of the opposite party and for unfair trade practice adopted in the cancellation of the policy (EX.C1) by the Opposite Party and the complainant is entitled to claim the policy amount as per Ex.C1 and since the relief of the claim of interest on the policy (Ex.C1) is considered under the relief of compensation, a separate relief cannot be considered towards the claim of interest on the policy Ex.C1.    This point is answered accordingly.

15. Point No.3:

           In result, the complaint is hereby allowed and the Opposite Party is directed

a) to pay the complainant, a sum of Rs.10.00 lakhs as assured in the complainant's husband insurance certificate Ex.C1.

b) to pay a sum of Rs.1,00,000/- as compensation towards mental agony and hardship suffered by the complainant due to the deficiency in service and for unfair trade practice adopted by the Opposite Party.

                   c) to pay a sum of Rs.5000/- towards cost of this complaint.

Dated this the 17^th  day of  November 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           08.04.2010           R. Latha         

CW2           20.09.2010           R. Ramalingam

OPPOSITE PARTY'S WITNESS:

RW1           09.01.2012           G. Vinay Prakash

RW2           17.12.2013           Vipin Thomas, Manager, SBI Cards and Payments

Services Pvt Ltd., Puducherry.

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER