Ld. Advocate(s)
For Complainant: Mr.Subhashis Ray and Mr. Md. Baharuzzaman
For OP/OPs : Avijit Gope
Date of filing of the case :21.06.2019
Date of Disposal of the case :29.05.2024
Final Order / Judgment dtd.29.05.2024
The basic fact of the case of the complainant is that the complainant Debarshi Dutta is an employee of LICI at Krishnagar Branch-II as a development officer. The complainant is covered under a corporate Insurance Policy being no. 12070034180400000006 year 2018 with sum assured Rs.50,00,000/- of the New India Assurance Company Limited where by the proposer is Life Insurance Corporation of India, the premium whereof being borne by the complainant and which is paid up to date. The son of the complainant namely Debarpan Dutta is covered under the said insurance policy of New India Insurance Company limited. The said Debarpan Dutta was hospitalised at NH Narayana Multispeciality Hospital, 78 Jessore Road(s), Barasat, North 24 Parganas, Pin-700127 for treatment of acute calculus cholecystitis on and from 27.06.2018 to 30.06.2018 and undergone surgical intervention. Complainant incurred the treatment charge for Rs. 54,948/- for the said Debarpan Dutta and instituted a claim for the said amount with the insurer, the OP no.1 New India Insurance Company Limited also submitted all the documents in original on 17.07.2018. OP no. 2 Heritage Health Insurance TPA Private Limited is an agent of OP no. 1 of New India Assurance Company limited. Accordingly, the claim of the complainant had to be settled by the OP no. 2 Heritage Health Insurance TPA Private Limited. OP no. 2 issued a claim status enumerating the receipt date of the claim on 05.09.2018 despite submission of all the original documents the OP did not acknowledge the receipt thereof. So, the claim was not yet settled even after complying with or meeting with the queries. The complainant contacted with OP by letter dtd. 06.08.2018 addressed to the Chief Manager, LICI, Krishnagar Branch-II, E-mail representation dtd. 12.09.2018 addressed to the Heritage Health Insurance TPA private Ltd, E-mail dtd. 22.11.2018, 11.12.2018, representation dated 17.12.2018 addressed to the Admn. CEO, Heritage Health Insurance TPA private Ltd, representation dtd. 19.01.2019 addressed to Chief Manager, LICI, Krishnagar Branch-II. OP no. 2 caused inordinate delay in disposal of the claim for which the complainant was frustrated and suffered damage and losses. The said delay in settlement of the claim tantamount to deficiency in service. So the complainant sent a notice to the OP on 18.02.2019. The complainant is a bonafied customer. OP no. 1 caused deficiency in service to the complainant. Despite receipt of the notice dtd. 18.02.2019. OP did not reply, so the present case is filed. Cause of action arose from 18.02.2019. The complainant therefore, prayed for an award for the sum of Rs. 5,80,000/- for compensation for deficiency in service, along with interest at the highest bank rate and other relief to meet the ends of justice.
OP no. 1 (a) and OP no. 1 (b) contested the case by filing W/V wherein they denied the major allegation of the complainant. The OP no.1 (a) and (b) challenged the case as not maintainable on the ground that it is barred by pecuniary jurisdiction and territorial jurisdiction, bad for mis-joinder and non-joinder of the necessary and proper party. The OP contended that the complainant is not a consumer. The Positive defence case of the OP no. 1 and 2 is that if there is any violation of the terms and condition, the party cannot claim any relief since the insurer under takes to indemnify the loss suffered by the insurer on account of risk covered by the policy, the complainant has already got his claim amount and also received the same with no objection. So the present vexatious complaint should be rejected. OP claimed that the case is liable to be dismissed with cost.
OP no. 2(a) preferred not to contest the case as per the case record. The case has been decided to be heard ex-parte against the both the OP no. 2 (a) and 2(b). The conflicting pleading of the parties led this commission to ascertain the following points in dispute for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the case is barred under the provision of C.P.Act.
Point No.2.
Whether the case is bad for mis-joinder and non- joinder of necessary party.
Point No.3.
Whether the complainant is entitled to get the relief as prayed for .
Points NO. 4. To what other the relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1 and 2
Both points no. 1 and 2 relate to the basic point as to the maintainability of the case. The OP challenged the case as not maintainable on the ground that the present case is barred u/s 11 of the CP Act 1986. Ld defence counsel argued that the present case is filed u/s 11 of the C. P. Act. All the parties in this case are resident outside of the jurisdiction of this commission, so this commission does not have any power to tie this case since the case is barred by territorial jurisdiction.
Ld Adv for the complainant did not advance any argument against the same. He however, submitted that the case made out in the complaint should be treated as the argument of the complainant.
After going through the submission of both the parties the commission finds that the present case is filed u/s 11 of the C.P.Act 1986. Section 11 of C.P.Act 1986 provides for that
Section 11. Jurisdiction of the District Forum:-
(1) Subject to the other provisions of this Act, the District forum shall have jurisdiction of entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees five lakhs’].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution, of the complaint, actually and voluntary resides or [ carries on business or has a branch office] or personally works for gain or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [ carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the ease may be, acquiesce in such institution; or
(c) The cause of action, wholly or in part arises.
Thus as per section 11 of the C. P. Act a complaint shall be instituted within the local limits of whose jurisdiction. The OP or any of the OPs resides or the cause of action arises.
In the instant case OP no. 1 and 2 Mrs. New India Insurance Company is situated at 87 M.G.Road, Fort, Mumbai, Maharastra, Pin. 400001and Regional Manager of New India Insurance Company Limited, 1st floor, Mango Lane, Kolkata-700001, OP no.2 (a) Heritage Health insurance TPA PVT. Ltd. is situated at McLEOD house, 3 N.S. Road, Kolkata-700001 OP no. 2 (b) Corporate Office at NICCO house, 5th Floor, 2 Hare Street, Kolkata-700001.
Thus all the parties and their office are situated in Mumbai and Kolkata. These OPs are either resident or having office and carries on business at a place which is outside the jurisdiction of this District Commission (D.C.D.R.C) so this Commission does not have territorial jurisdiction to try the case and as such the case is barred u/s 11 of C.P.Act 1986.
Ld. Defence counsel further argued that the present case is also barred u/s 11 of C.P.Act 1986 on the ground that the total amount of claim and value of the goods exceeds Rs. 5,00,000/- .
As per section 11(1) of C.P.Act 1986. The District Forum shall have jurisdiction to entertain complaint where the value of the goods or service and the compensation if any claim does not exceed Rs. 5,00,000/-.
In the instant case the complainant has categorically stated that the total amount of insurance value is Rs. 50,00,000/-. The complainant prayed for relief for compensation of Rs. 5,80,000/- towards compensation for deficiency in service along with interest at the highest bank rate. Thus the total amount of value of the goods + the relief claimed is 55,80,000/- + interest which is more than the pecuniary jurisdiction of Rs. 5,00,000/- as restricted by the CP Act 1986.
Accordingly, the present case is barred u/s 11 (1) of the C.P.Act since this Commission does not have power to grant the said amount of relief.
Accordingly, the present case is barred u/s 11(1) of C.P.Act due to not having pecuniary jurisdiction.
The OP also pleaded that the case is barred for non-joinder and mis-joinder of the parties.
Ld. Defence Counsel advanced argument to the effect that the complainant raised grievance against the LICI and is an employee of LICI as development officer and as such he is covered under the corporate the insurance policy of Rs. 50,00,000/-. So without impleading the said LICI as a party to this case, it should be treated that the case is bad for defect of necessary party.
The complainant could not advance any argument against the said specific defence case of the complainant.
After going through the pleading of the party and having considered the fact and circumstance of the case it transpires that the complainant is an employee of LICI from where he is covered under the corporate insurance policy. It further transpires that the complainant by a letter dtd. 06.08.2018 to the Chief Manager LICI Krishnagar Branch-II raised his grievances against the OPs. The complainant further submitted representation on 19.01.2019 to the chief manager LICI Krishnagar Branch II. So in order to proper adjudication of the case the presence of LICI of Krishnagar Branch II is necessary party and as such the said LICI Krishnagar Branch II ought to have been made party to this Case.
In absence of the said LICI Krishnagar the present case suffers from defect of parties accordingly, in the backdrop of the aforesaid observation it is held that the present case is bad for non joinder of necessary party. However, the complainant is at liberty to make the LICI as party to this case if he is so interested to file any case against OPs afresh.
Thus in the light of the aforesaid discussion of point of law the commission reasonably holds that the present case is barred u/s 11 (1) (2) of the C.P.Act and bad for non joinder of necessary party.
Points no. 1 and 2 are accordingly, decided against the complainant in negative.
Point No.3&4.
These 2 points have close nexus with each other and as such these are taken up together for brevity and convenience of discussion.
These points relate to question as to whether the complainant is entitled to get the relief prayed for.
Previously in deciding point no. 1 and 2 the commission has come to the conclusion that the present case is barred under the provision of C.P.Act 1986. The entitlement of any relief by any complainant depends upon the facts of the case as well as the points of law which either allows or disallows to have any relief. In the instant case there is little scope to decide the merit of the case in as much as this commission is prohibited under the provisions of C.P.Act to entertain the claim. Previously it has been held that the present case is barred under the C.P.Act for not having pecuniary jurisdiction and territorial jurisdiction of this Commission. That being the state of affairs and the position of law so this Commission has not power to grand any relief to the complainant or to decide the merit of this case in the giving facts and circumstance.
Accordingly, the commission comes to the finding that the complainant is not entitled the get the relief in the instant case. However, the complainant is at liberty to file the case afresh after removing the defect and if the law permits him to file a case afresh.
Accordingly, points no. 3 and 4 are answered in negative and decided against the complainant.
In the result the complaint case failing on contest without cost.
Hence, It is
Ordered
That the complaint case no.CC/176/2019 be and the same is dismissed on contest against the OP no. 1 (a) (b) and ex-parte against OP no. 2 (a) and (b) without any cost.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
