State Consumer Disputes Redressal Commission
Oriental Bank Of Commerce vs Paramjit Kaur on 18 August, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.791 of 2016
Date of Institution : 18.10.2016
Order Reserved on: 17.08.2017
Date of Decision : 18.08.2017
Oriental Bank of Commerce, Branch Bughipura, Tehsil and District
Moga through its Manager.
.....Appellant/opposite party no.2
Versus
1. Paramjit Kaur aged 44 years w/o Sh. Gurdeep Singh r/o
Village Lande Ke, Tehsil and District Moga.
.....Respondent no.1/complainant
2. Chairman-cum-Managing Director, Oriental Insurance Co. Ltd.,
Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002.
.....Respondent no.2/opposite party no.1
First Appeal against order dated
16.08.2016 passed by the District
Consumer Disputes Redressal Forum,
Moga.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Kanwar Rajan, Advocate For respondent no.1 : Sh. Ajay Pal Singh Bhullar, Advocate For respondent no.2 : Sh. B.S. Taunque, Advocate ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 16.08.2016 of District Consumer Disputes Redressal Forum Moga (in short the 'District Forum'), allowing the complaint of the complainant by directing OP nos.2 and 3 to pay Rs. 2,00,000/- as insurance claim of deceased son of complainant alongwith interest at the rate of 9% per annum from 13.10.2015, since when they repudiated the claim of complainant till final realization. The District First Appeal No.791 of 2016 2 Forum further directed them to pay Rs.5,000/- (Five thousand only), as compensation to complainant for harassment and mental agony suffered by her besides Rs.3,000/- (Three thousand only) as litigation expenses. Respondent no.1 of this appeal is complainant in the complaint before the District Forum, respondent no.2 is opposite party no.1 therein and appellant is this appeal is opposite party no.2 therein and and they be referred as such herein after for the sake of convenience.
2. The complainant instituted complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that on dated 01.06.2015 her son Avtar Singh s/o Sh. Gurdip Singh (deceased) had opened an account no.202621610033701 with Oriental Bank of Commerce, Branch Bughipura, Tehsil & District Moga OP no.2 and OP no.2 asked Avtar Singh to get registered himself with the Pardhan Mantri Suraksha Bima Yojna. After due assurance given by the officials of the OP no.2 bank, the complainant and his son opted for the said scheme on the same day and deposited Rs.1050/- in the said account. It was further averred that bank had not deducted the premium on the same day, rather same was auto-debited on next day i.e. on 02.06.2015, which was clearly a deficiency in service on the part of OP bank. The OPs gave policy no.271700482016203 of Oriental Insurance Co. Ltd., but did not give any insurance policy document. Avtar Singh son of complainant was insured for an amount of Rs.2,00,000/- and in the event of any mishap, the nominees/heirs of First Appeal No.791 of 2016 3 the deceased were entitled to get the insurance amount from the OPs to the tune of Rs.2,00,000/-. Avtar Singh son of complainant expired on 16.06.2015 due to electrocution and D.D.R no.16 dated 16.06.2015 was lodged with the Police Station Sadar, Moga in this regard. OP no.2 was also duly informed by complainant regarding the death of her son Avtar Singh. Thereafter, complainant contacted OP no.2 for the claim/payment of the insurance amount, being nominee. It was further averred that on 13.10.2015, she got intimation from the main branch of OP bank that her claim was rejected due to the reason that death of Avtar Singh occurred out of the policy period. The Public Information Officer of Oriental Bank of Commerce, Ludhiana has also informed under RTI that death occurred outside the policy period. OP no.3 also provided under RTI, letter dated 15.03.2016 alongwith Consent-cum-Declaration Form, Claim form and PMSBY Claims Procedure. It was further averred that OPs were unable to explain the said reason that how the death occurred out of the policy period, as insurance company had issued him policy no.271700482016203 before 14 days of his death. The requisite premium amount has already been auto debited in the bank account and OP no.2 never forwarded the case of complainant to the concerned insurance company, which was essential, as per the claim procedure of scheme, rather they rejected the claim on their own level. The complainant alleged deficiency in service on the part of OPs, as they illegally and wrongfully retained the amount of Rs.2,00,000/- of the complainant for causing wrongful loss to her First Appeal No.791 of 2016 4 and for making wrongful gain to themselves. It was further averred that OP no.2 knowingly violated the PMSBY claims procedure (clasue-5) by not forwarding the case to the insurance company concerned within 30 days of the submission of the claim. The complainant prayed that OPs be directed to pay Rs.2,00,000/-, as claim of insurance of her deceased son alongwith interest @18% per annum from the date of rejection; further to pay Rs.2,00,000/- as compensation for mental harassment; and to pay Rs.22,000/- as litigation expenses.
3. Upon notice, OP no. 1 filed written reply by raising preliminary objections that the complaint is not maintainable. The complainant is not consumer of OP no.1. The complainant has no locus-standi to file the present complaint against OP no.1. The complainant has no cause of action against OP no.1. It was further averred that complainant did not file any insurance claim or any other document in connection with the alleged policy to reveal any liability of the answering OP, thus, OP no.1 is not liable to pay any claim. It was further averred that OP no.1 is unable to reply the facts without seeking the documents relating to them. OP no.1 reserves its right to file the amended written statement on later stage as and when some new material facts comes to the light and knowledge of it. OP no.1 neither received the claim form nor any other documents relating to the claim till today nor the complainant filed any document relating to OP no.1 in the Forum. It was denied that there is any deficiency in service on its part. OP no.1 has been impleaded falsely. First Appeal No.791 of 2016 5 It was further averred that the claim of the complainant has been rightly repudiated by OP no.2, as per the policy's terms and conditions no.5, which states as under:
"I agree that the cover shall commence from the 1 of the month subsequent to the date of st enrolment in the scheme".
The compliant was contested by OP no.1 even on merits denying other averments of the complainant and prayed for dismissal of the complaint.
4. OP nos.2 & 3 filed written reply by raising preliminary objections that the complaint is not maintainable. The complainant has no locus-standi to file the complainant against answering OPs. The complainant has not come with clean hands before Forum. It was further averred that as per rules and regulations, the said policy was to be effective w.e.f. 01.07.2015 after one month from the date of purchase of policy. The policy was purchased on 02.06.2015 and same was to be operated on 01.07.2015 and death occurred on 16.06.2015, thus the complainant is not entitled to any relief, as claimed. The complainant has concealed the material and patent facts from this Forum, while filing the complaint which ipso-facto disentitles her to seek any relief against OPs. The complaint is alleged to be false, frivolous, baseless, vague and malicious. The complaint was contested by OP nos.2 and 3 even on merit. They denied the all other allegations made in the complaint and prayed for dismissal of the complaint with special costs.
First Appeal No.791 of 2016 6
5. Complainant Paramjit Kaur tendered in evidence her duly sworn affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-17 and closed the evidence. To rebut above evidence of complainant, OP no.1 tendered in evidence affidavit of Sh.Muneesh Nagpal, Branch Incharge, Oriental Insurance Co. Ltd. Ex.OP-1/1 and closed the evidence. OP nos.2 & 3 tendered in evidence affidavit of Sh.Asheesh Mehta s/o Sh. Kewal Krishan, Manager, Oriental Bank of Commerce Ex.OP-2,3/1 alongwith copies of documents Ex.OP-2,3/2 to Ex.OP-2,3/5 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint as referred to above. Aggrieved by above order, OP no.2 now appellant has directed this appeal against the same.
6. We have heard the learned counsel for the parties and also examined the record of the case. Pleadings of the parties have been perused by us minutely. Evidence on the record is required to be referred to by us for settlement of this controversy. Ex.C-1 is the affidavit of complainant Paramjit Kaur on the record. This witness stated that her son Avtar Singh had opened an account no.202621610033701 with Oriental Bank of Commerce, Branch Bughipura, Tehsil & District Moga OP no.2 and its officials asked her son Avtar Singh and herself to get them registered with the Pardhan Mantri Suraksha Bima Yojna. The complainant and his son opted for the said scheme on the same day and deposited Rs.1050/- in the said account. This witness further stated that bank had not deducted the premium on the same day, rather same was auto debited on next First Appeal No.791 of 2016 7 day i.e. on 02.06.2015, which was clearly a deficiency in service on the part of OP bank. This witness further deposed that OPs gave policy no.271700482016203 of Oriental Insurance Co. Ltd., but did not give any insurance policy document. This witness further testified that her son Avtar Singh was insured for an amount of Rs.2,00,000/-. Avtar Singh son of complainant expired on 16.06.2015 due to electrocution and D.D.R no.16 dated 16.06.2015 was lodged with the Police about this incident. This witness further deposed that OP no.2 was duly informed by complainant regarding the death of her son Avtar Singh. The complainant submitted claim form with OPs, being nominee, but the same was rejected due to the reason that death of Avtar Singh occurred out of the policy period. Ex.C-2 and C-3 are copies of passbook of Avtar Singh showing the debited amount of Rs.1038/- on 02.06.2015. Ex.C-4 is the copy of death certificate of Avtar Singh. Ex.C-5 is the copy of information under RTI to the effect that the policy was not operative at the time of death of insured Avtar Singh and it was commenced from first of the month subsequent to the date of enrolment of the scheme. Ex.C-6 is the document produced on record by the complainant. This document is signed by Avtar Singh, the holder of the account, who opted for Pradhan Mantri Suraksha Bima Yojana. There is an undertaking by Avtar Singh in Ex.C-6 that he agrees that the cover shall commence from the 1st of the month subsequent to the date of enrolment in the scheme. Avtar Singh insured since deceased agreed in Ex.C-6 that the insurance cover shall commence from the first of the month subsequent to the First Appeal No.791 of 2016 8 date of enrolment in the scheme. He was enrolled in the scheme on 02.06.2015 and died on 16.06.2015. The complainant cannot back out of the terms of this agreement. This consent-cum-declaration form duly signed by Avtar Singh in English. Ex.C-7 and C-8 are the copies of claim form. Ex.C-9 is the copy of claim procedure. Ex.C-10 is the post mortem report of Avtar Singh proving his death on account of asphyxia. Police report no.16 dated 16.06.2015 is Ex.C-11 on the record. Ex.C-12 to C-14 are the statements of witnesses recorded by police regarding above incident. Ex.C-15 is the copy of letter from ASI of Police Station Sadar Moga to Doctor of Govt. Hospital Moga regarding sending the post mortem report of Avtar Singh. The Government Hospital provided information to the police vide Ex.C-16. Ex.C-17 is the enquiry report of police. In rebuttal of this evidence, OP no.1 tendered in evidence affidavit of Munish Nagpal, Branch Incharge Ex.OP-1/1. He testified that there is no deficiency in service on the part of OPs. Affidavit of Ashish Mehta, Manager on behalf of OP nos.2 and 3 is Ex.OP2,3/1 on the record. He stated that Avtar Singh purchased the above policy on 02.06.2015, which were operative from 01.07.2015 and his death occurred on 16.06.2015 and hence complainant got no benefit from this policy, which was not operative on the date of death of Avtar Singh i.e. 16.06.2015. The OPs mainly relied upon document Ex.OP2,3/2 dated 15.03.2016 to the effect that claim has been repudiated on the ground that policy was to commence on the first day of the month subsequent to date of enrolment of the scheme. First Appeal No.791 of 2016 9 Mere reliance of OP nos.2 and 3 is on Ex.OP2,3/3, which consent- cum-declaration form, wherein Avtar Singh insured specifically agreed that cover shall commence from first of the month subsequent to the date of enrolment in the scheme. This document is duly signed by Avtar Singh. It cannot be said that he was not aware about consent form. Claim form is Ex.OP2,3/4 and Ex.OP2,3/5 on the record.
7. From hearing the respective submissions of counsel for the parties and perusal of the record, we find that Avtar Singh got himself registered for Pradhan Mantri Suraksha Bima Yojana on 02.06.2015. The premium was deduced by the Bank on 02.06.2015 of Rs.1038/- for that purpose from his account. This fact is proved on record vide passbook Ex.C-2 and C-3 on the record. Avtar Singh died on 16.06.2015, vide Ex.C-4 on the record. The entire case hinges around this point as to whether the policy was effective on the date of his death on 16.06.2015. The District Forum observed that terms and conditions of the policy were not supplied to insured and hence complainant is not bound by the same. We do not find any force in it. It was a Pradhan Mantri Suraksha Bima Yojana. Insured Avtar Singh specifically agreed in consent-cum-declaration form Ex.C-6 that cover shall commence from first of the month subsequent to the date of enrolment in the scheme, which was signed by both the parties and it takes the shape of agreement between the parties. We cannot interpret Ex.C-6 against its spirit as the interpretation is based on the principle of ejusdem generis. It has First Appeal No.791 of 2016 10 categorically established on the record that the policy is to commence from first of the month subsequent to the date of enrolment to the scheme. The policy was taken on 02.06.2015 by the insured and he died on 16.06.2015. As per Ex.C-6 consent-cum- declaration form duly signed by both the parties, the policy was to commence from 1st July 2015. Had this document Ex.C-6 not been signed by the complainant, then matter would have been different. Avtar Singh was duly aware of this fact that policy was to commence from first day of the subsequent month of enrolment in the scheme. It cannot be said that this fact was not within the knowledge of the insured, as document Ex.C-6 substantiates this inference. On the basis of document Ex.C-6 and Ex.OP2,3/3, the cover was to be enforced with effect from 1st July 2015. Death of insured Avtar Singh took place on 16.06.2015 before the commencement of the policy. Avtar Singh deceased was not covered under the above policy at the time of his death on 16.06.2015, as this fact is amply established on record by Ex.C-6 and Ex.OP2,3/3. The Apex Court has held in "General Assurance Society Limited Vs. Chandmull Jain, 1966(3) SCR-500 that "in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves." Similarly, it has been held in "Oriental Insurance Corporation Limited Vs. Samayanallur Primary Agricultural Co-op. Bank" 1999(8) SCC-543 by the Apex First Appeal No.791 of 2016 11 Court that "the insurance policy has to be construed having reference only to the stipulations contained in it and no artificial farfetched meaning could be given to the words appearing in it". The Apex Court also held in case titled as "Polymat India Private Limited Vs. National Insurance Corporation Limited"
2004(4)CPJ-49 that "change cannot be made without mutual consent of both the parties. The terms and conditions could not have been changed without mutual consent of both the parties." In this view of the matter, there is express agreement by insured Avtar Singh, vide Ex.C-6 that the cover note would be effective from first day of subsequent month of joining the Pradhan Mantri Suraksha Bima Yojana, hence the claim of the complainant is not covered by the insurance policy, which was not in force at the time of death of Avtar Singh, which took place on 16.06.2015. The District Forum was swayed in coming to the conclusion erroneously that the terms and conditions of the policy were not supplied. Ex.C-6 negates the reasoning of the District Forum, which has been specifically agreed upon by both the parties that cover note would effective on the fist day of subsequent month from the date of joining above Pradhan Mantri Suraksha Bima Yojana.
8. As a result of our above discussion, we find that order of the District Forum is erroneous and unsustainable and hence it is ordered to be reversed in this appeal. We accept the appeal of the appellant by setting aside the order of the District Forum, resulting into dismissal of the complaint of the complainant. First Appeal No.791 of 2016 12
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited the amount of Rs.1,20,600/- in compliance with order of this Commission. These amounts alongwith interest, which accrued thereon, if any, be remitted by the registry to the appellant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.
10. Arguments in this appeal were heard on 17.08.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER August 18, 2017 MM