Anoop Kumar Mendiratta, Member

Present Revision Petition has been preferred on behalf of Bajaj Allianz General Insurance Co. Ltd. (opposite party no. 2 in the complaint) challenging Order dated 19.05.2017 passed by the Learned State Commission in FA No. A/251/2016, whereby appeal preferred by OP-2 against Order dated 28.01.2016 passed by the Learned District Forum was partly allowed and the Insurance Company/OP-2 was directed to pay to the complainant sum of Rs.2,00,000/- as insurance benefit with interest @ 9% p.a. w.e.f. 30.01.2013 (date of filing of complaint) with litigation cost of Rs.5,000/-.

2. In brief, deceased Suman Chatterjee was maintaining Savings Bank Account under Salary Power Privilege Scheme with zero balance benefit at Axis Bank Limited, Howrah Branch (OP-1). Demat and online trading account was also linked with the said Savings Bank Account as Non-House Beneficiary. Unfortunately, Suman Chatterjee expired on 10.03.2011 in a fatal road accident at Delhi Road near Dankuni PS, Hooghly. Since the life of the deceased was covered by free accidental insurance of Rs.2,00,000/- with M/s Bajaj Allianz General Insurance Co. Ltd. (OP-2), a claim was raised by the complainant (being nominee of deceased) with OP-2 as advised by Axis Bank (OP-1). However, the claim was rejected by Insurance Company/OP-2 on the ground that since AQB (Average Quarterly Balance) was not maintained by the deceased account holder, he is not entitled to benefit of insurance cover.

3. As per the complainant, claim had been wrongly repudiated by Insurance Company disregarding the fact that the account was under Salary Power Privilege Scheme with zero balance benefit. Further, the account was actively operated by the deceased account holder whereby debit/credit summation of Rs. 1,35,863/- was recorded from 01.12.2010 to 28.02.2011 and Rs.2,18,186/- for 01.03.2010 to 28.02.2011 before the accidental death on 10.03.2011. Therefore, the complainant, re-approached OP-2 vide letter dated 21.08.2011 for re-consideration of the insurance claim but the repudiation was re-confirmed by OP-2. It was further informed by OP-2 that the waiver of AQB for SAPPR account started only w.e.f. 01.04.2011.

4. Aggrieved against the repudiation, complainant approached the Banking Ombudsman but her complaint was rejected vide letter dated 27.11.2012 with advice to approach another authority under law for the redressal of the grievance.

5. In the aforesaid background, complaint was preferred by the complainant before the Learned District Forum, which was allowed vide Order dated 28.01.2016 as under:-

                   'That the C. C. Case No. 18 of 2015 (HDF 18 of 2013) be and the same is allowed on contest against the o.p. no. 2 with costs of Rs. 60,000/- out of which the petitioner would get Rs. 10,000/- and the rest Rs. 50,000/- would be deposited by the o.p. in the Legal Aid Fund and dismissed against the o.p. no. 1 without costs.

                   The petitioner is entitled to the claim amount of Rs. 2 lakhs on account of the death of her son with interest @ 9% from the death of date of her son i.e. 10.3.2011 till realization and she is also entitled to Rs. 25,000/- as compensation for the harassment and mental agony she had to suffer being an old citizen and weaker section in our society and also she is entitled to litigation costs of Rs. 10,000/- out of Rs. 60,000/- and rest Rs. 50,000/- be deposited in the Legal Aid Fund and the o.p. no. 2 is to pay the above within 30 days from the date of this order failing the petitioner would be at liberty to put the order in execution and also the whole amount to carry interest @ 9% per annum.'

6. The Order passed by the learned District Forum was further challenged by OP-2 (Insurance Company) before the Learned State Consumer Disputes Redressal Commission, West Bengal which was partly allowed directing the payment of insurance claim from the date of filing of complainant instead of date of death of deceased account holder.

7. (Axis Bank/OP-1) took a stand that the contract of insurance was primarily between the complainant and OP-2 and at the time of opening the account, each customer is sent an account opening/welcome kit along with cheque book debit card etc., which contains all the mandatory details regarding the account along with insurance coverage. It was further submitted that since the insurance benefit was granted to deceased account holder free of cost, complainant does not fall within definition of 'consumer'.

8. Insurance Company/OP-2, on the other hand justified the repudiation of claim on the ground that deceased account holder prior to his death failed to maintain the requisite Average Quarterly Balance (AQB) for two quarters and non-fulfilment of the said condition was violation of the terms and conditions of the policy. Complainant is stated to have been duly informed of the aforesaid reason for non-consideration of her claim and any deficiency on the part of the Insurance Company was denied.

9. Learned State Commission held that complainant falls within ambit of 'consumer' and allowed the complaint for the reasons recorded as under:-

                   'It is noteworthy here that the account in question was a Salary Savings account with Zero balance facility As we know, if one is to maintain the prescribed minimum balance in respect of the account concerned, the very purpose of having zero balance' facility gets virtually defeated. Be that as it may, it is of paramount importance that one is duly apprised of the imperativeness of such pre-condition in uncertain terms. However, neither the Appellant nor the Respondent No. 2 has filed copy of Debit Card booklet concerned to show that Complainant's son, since deceased, was duly apprised of the fact that insurance benefit in respect of his Salary Savings account with zero balance facility was available subject to fulfillment of this condition as harped upon by the Appellant.

                   Unless the terms and conditions of an insurance policy is duly explained/made known to the beneficiary concerned in unequivocal terms by the Insurance Company or its agent, to our mind, the Insurance Company cannot renege on its commitment to indemnify the peril concerned. There being nothing to show that this vital aspect was duly discharged by the Respondent No. 2, being the Principal, we feel, the Appellant cannot escape its vicarious liability for such act of omission and commission by the Respondent No. 2.

                   In view of this, we find that the Learned District Forum rightly allowed the complaint. However, in the facts and circumstances of the case, we deem it fit and proper to modify the same to some extent as under. ''

10. Learned counsel for the petitioner Insurance Company/OP-2 reiterates the contentions raised before the Learned State Commission and also filed written submissions on record. He urged that since the insurance was extended by the bank to the account-holder without any consideration, complainant does not fall within the definition of 'consumer'. He further contended that the primary responsibility lay with the Bank to make its consumers/account holders aware of the benefits and exceptions of coverage of insurance and the Insurance Company could not be saddled with liability. He emphasized that the complainant cannot be permitted to show ignorance of the terms and conditions belatedly. Learned Counsel pointed out that the deceased apparently failed to maintain AQB for consecutively two quarters and, as such, both the Learned District Forum as well as Learned State Commission erred in allowing the complaint. In support of the contentions, reliance was further placed upon Bajaj Allianz General Insurance Co. Ltd. v. Axis Bank Ltd. & Ors., II (2016) CPJ 611 (NC).

Learned Counsel for OP-2 pointed out that since the deceased account holder had expired in a motor vehicular accident, complainant must have received compensation. Relying upon Noorjadi Khatoon & Anr. v. Pintu Yadav & Ors. (United India Insurance Co. Ltd.), 2015 SCC OnLine 9949, he contended that having received compensation on account of motor vehicular accident, the claim could not be raised for Personal Accident Cover and the same needs to be deducted from compensation.

11. We have given considered thought to the contentions raised.

A mere reference to Section 2(1 (d) of the Consumer Protection Act, 1986 as well as Section 2(7) of Consumer Protection Act, 2019 reflects that 'consumer' not only includes a person who hires or avails of the services for consideration but also includes the beneficiary of such services, when services are availed of with the approval of the person who hires or avails of the services.

The complainant in the present case may not be directly privy to the contract of insurance between the Insurance Company (OP-2) and Axis Bank (OP-1) but apparently OP-1 had taken the insurance policy for the benefit of the account holders. Being the beneficiary of the contract of insurance, the account holders in the Bank are covered under the definition of 'consumer', both under the Consumer Protection Act, 1986 as well as Consumer Protection Act, 2019. The objection raised on behalf of the petitioner/OP-2 contending that complainant does not fall within the definition of 'consumer', is without any merits since the complaint is filed by mother of deceased account holder as nominee.

12. The case of the complainant is that since the insurance policy was opted by the Bank for the benefit of all the account holders (falling in a specified category), the same could not have excluded the beneficiary account holder with privilege of maintaining 'zero balance' in the account, without being apprised of the terms and condition of maintaining minimum balance for two consecutive quarters.

It is pertinent to observe that insurance contracts are special contracts based on principle of utmost good faith, whereby both the 'insured' as well as the 'insurer' are duty bound to disclose the material particulars. The principle of utmost good faith imposes meaningful reciprocal duties on both the insured as well as the insurer. The benefit by way of insurance coverage facilitates the Banks for encouraging the customers to maintain the accounts with Bank while drawing the benefit from the account holders by way of regular deposits in their accounts. Any exclusion clause which deprived the benefit of personal accident insurance cover to an account holder with facility of maintaining 'zero balance' with the Bank, was bound to be disclosed to the deceased account holder, either by the Bank or Insurance Company.

13. There are concurrent findings of fact both by the learned District Forum as well as learned State Commission that no cogent evidence has been led on behalf of opposite parties to prove that the deceased account holder was apprised of the terms and conditions of the policy by any mode. In the facts and circumstances, we are not inclined to interfere in the concurrent findings of fact arrived at by the learned District Forum and learned State Commission.

14. The facts and circumstances in the present case are also squarely covered by Anju Kalsi v. HDFC ERGO General Insurance Company Limited and Another, (2022) 6 SCC 394, wherein it was held that the terms of the insurance cover have to be specifically communicated to the account holder and he has to be put on notice, if the insurance cover would become available only on a specific condition.

In the aforesaid case, the son of the appellant, who was an account holder with the respondent Bank was a beneficiary of an insurance cover under a policy called the 'Cardsure Package Policy'. Since the account holder died in a road accident, the claim was filed with Insurance Company. However, the claim of the appellant was repudiated by the insurer on the ground that deceased had not undertaken a 'non ATM transaction' in the three months immediately preceding the accident, which was imperative for seeking benefit of the insurance policy. Hon'ble Apex Court considered the necessity of proper and specific communication thereof to the beneficiary of such insurance contract and held that insurer is required to effectively communicate terms of insurance to the beneficiary of such insurance.

15. The judgments referred and relied upon by learned counsel for the petitioner/opposite party are distinguishable on facts.

Bajaj Allianz General Insurance Company Limited v. Axix Bank, (supra) relied upon by learned counsel for Insurance Company is distinguishable since the burden placed on the complainant to prove and substantiate that terms and conditions of the policy were not apprised to deceased, was not discharged. However, in the present case, there are concurrent findings of fact by the learned District Forum and learned State Commission that there is no cogent evidence on record to show if the deceased account holder was apprised of the policy and exclusion thereof, in case of non-maintenance of AQB for two consecutive quarters.

Noorjadi Khatoon & Anr. v. Pintu Yadav & Ors. (United India Insurance Co. Ltd.) (supra), relied upon by learned counsel for the Insurance Company is in a different context and deals with the proposition that the amount paid by the employer under any group personal accidental policy towards accidental death is liable to be deducted from the amount of compensation to be received from Motor Accident Claims Tribunal.

16. For the foregoing reasons, we do not find any material irregularity or jurisdictional error in the impugned Order and does not call for interference in the exercise of Revisional jurisdiction. However, Insurance Company (OP-2) shall be at liberty to work out its remedy against the respondent Bank (OP-1). Revision Petition is accordingly dismissed with costs of Rs.25,000/- (Rupees Twenty Five Thousand Only). Pending applications, if any, also stand disposed of.

A copy of this Order be provided to both the parties, by the Registry.