Andhra Pradesh

Nellore

CC/34/2013

Pinnamreddy Raghavareddy - Complainant(s)

Versus

1. National Insurance Company Limited,Rep by its Managing Ditector - Opp.Party(s)

T.Kotaiah

20 Nov 2015

ORDER

 

Date of Filing     :11-02-2013

                                                                                                Date of Disposal:20-11-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Friday, this the 20^th day of  November, 2015

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.34/2013

 

Pinnamreddy Raghava Reddy ,

S/o.Srinivasulu Reddy, Aged about 57 years,

Residing of Cherloyedavalli Village,

Atmakur Mandal, S.P.S.R.Nellore District,

Andhra Pradesh.                                                                                  ..… Complainant  

                                                                           Vs.

National  Insurance  Company Limited, Represented by it’s Branch Manager, Nellore.                                                                                               …..Opposite party

                                                              .  

            This complaint coming on 12-11-2015 before us for hearing in the presence of                Sri T.Kotaiah, advocate for the complainant and                                                                     Sri N. Kodanda Rami Reddy,  advocate for the opposite parties  and having stood over for consideration till this day and this Forum made the

 following:

 

ORDER

(ORDER BY  Sri N.S. KUMARA SWAMY, MEMBER)

 

This complaint  is filed under Section-12 of Consumer Protection Act, 1986  to pay the claim amount of Rs.10,00,000/- with  interest at 12%  from the date of complaint, Rs.10,00,000/- towards damages   apart from the cost of damaged parts and such other further reliefs.

 

2.         The brief averments of the complaint  are that the complainant purchased  TATA HITACH Ex-70 on 06-11-2008 from one Mr.B. Giri Babu for a sale consideration of Rs.12,00,000/-  through a sale letter dated 06-11-2008 alongwith invoice issued by  TELCO Dharwad, which stands in the name of  seller B. Giri Babu.alongwith finance clearance certificate issued by Indus Bank Limited.  Thereafter the complainant took insurance policy from opposite party by paying premiums for the years of  2009 and 2010 under policy Nos.9500002571 and 9500004628 respectively in Nellore.  While the vehicle went for work in Karnataka State, the said vehicle met with an accident on            07-07-2010 at Kaduru of Chikkamangalur, Karnata State within the P.S. limits of Kaduru.  The Kaduru police registered a case for the offences under Section-279 and 337 I.P.C.  which ended with conviction by imposing fine of Rs.1150/- against the driver of the said vehicle and the said vehicle sustained damage to its parts worth                         Rs.6,34,315-50ps. as estimated by the authorized surveyor of  TELCON                    dated 12-07-2010.  The complainant got the vehicle repaired by spending his own money.  Thereafter, the complainant made a claim with all original documents for the damages caused to the opposite parties .  But the opposite parties did not give proper reply and evading payments of damages.  On account of which, the complainant got issued legal notice to the Managing Director, National Insurance Company Limited, Division XV, Kolkota-1, West Bengal on 07-07-2012 which was received by the  opposite parties on 13-07-2012.   But the said opposite parties did not arrange to send the amount as per their promise  and kept silent for about 56 months old.  Since, there is dereliction and rendering not proper service within proper time , the complainant incurred heavy loss and damage for which opposite parties were held responsible for all the damages incurred.  Hence, the complaint is filed  for claim of Rs.10,00,000/- alongwith interest  at 12% p.a. from the date of complaint and also compensation of Rs.10,00,000/- and costs.

          

            3.         The 1^st opposite party filed memo adopting  written version of the 2^nd  opposite party  in all material particulars.

 

            4.         The 2^nd opposite party filed counter / written version denying  all the allegations made in the complaint.

 

            The opposite parties specifically denied that complainant is the owner of TATA HITACH EX-70  which was purchased from one  B.Giri Babu on 06-11-2008 as per  the complainant’s statement but  the same was mentioned  in his legal notice  to the effect that  the same was purchased from the  financier  on 23-07-2005 and hence there were controversial statements  which has to be proved. The opposite party further denied the damages sustained to the machinery to an extent of Rs.6,34,315-50ps. due to an accident occurs on 07-07-2010 and also work loss to an extent of  Rs.10,00,000/-.

 

            5.         The opposite party submits that eventhough  a letter dated 29-07-2011 issued to the complainant  to forward  the receipt copy of monetary claim  lodged to the carrier and also  damages certificate issued by the carrier in order to take action against the carrier for recovery, the complainant did not comply the letter contents and also not co-operated     with the opposite  party in settling the claim.  The legal notice issued to the 1^st opposite parties in which the 2^nd opposite party was not a party and the opposite parties constrained to repudiate the claim for non-compliance of the letter contents issued             dated 29-07-2011.  The opposite parties  further contended that soonafter intimation  of the accident, a surveyor namely  Sri H.M. Somasekhar  appointed  to inspect the machinery on the spot and he issued report.  Further, final survey was  done by the surveyor S.A. Jagadeesh on 14-02-2011, who assessed  the total loss of Rs.1,42,127/- as against the  estimation of the complainant  and the opposite parties has done all necessaries  within time  but the claim was not settled  for want of the required certificates from the complainant.  As such, there is no deficiency of service at any point of time on the part of opposite parties.  Further, the claim cannot be entertained by this Hon’ble Forum as there is large amount of difference between the claim and that of the assessment made by the surveyor  for which the Civil Court  is only competent to take account and deal with accounts in settling the matter.  Hence, the complaint may be dismissed  with costs as there is no deficiency of service on their part.

 

6.         The points for  determination  would be for consideration  is

 

1. Whether this Forum is having territorial jurisdiction to entertain the complaint?
2. Whether the complaint is filed  within a period of limitation?
3.  Whether there is deficiency of service on the part of opposite parties, if so, whether the complainant is entitled for the relief as prayed for ?
4. To what relief?

 

            7.         In order to substantiate  the complainant averments, complainant filed evidence on affidavit  as P.W.1 and marked Exs.A1 to A14.  On the other hand,   the opposite party filed chief affidavit as R.W.1 and marked Exs.B1 to  B3.  Both parties filed written arguments.  Heard on both sides.

 

            8.         POINT No.1 to 3 :  Before proceeding to decide the case on merits,  we are inclined to proceed on the point of territorial jurisdiction and also  on the point of limitation for which the office also taken the above said  objections and the objections were complied by the complainant, which are not in any way suitable  for establishing  his case as follows:

 

            9.         It is an admitted fact that  the vehicle TATA HITACH EX-70 was met with an accident on 07-07-2010 at Kaduru of Chikkamangaluru Karnataka State.  The complainant took an insurance policies from the opposite party namely National Insurance Company Limited, represented by  Managing  Director, Division  XV, Kolkota-1, West Bengal.  Further, the said vehicle was purchased  from one Giri Babu for a sale consideration of Rs.12,00,000/- under a sale letter dated 06-11-2008 alongwith invoice issued by TELCO Dharward with finance clearance certificate issued by  Indus Bank Limited, Chennai.  Due to non-payment of insurance claim by the opposite parties, the complainant got issued legal notice  to the opposite parties 1 and 2 (namely  National Insurance Company Limited, Kalkatta-1, West Bangal and also National Insurance Company Building, 1^st floor-8, India, West Bengal state, which is marked as  Ex.A10.   According to the complainant, the registered legal notice were  issued to the opposite parties, who are residing  in Kalkatta, West Bengal which is situated out of State of Andhra Pradesh. 

 

            10.       There is no separate notice issued to  National Insurance Company represented by Branch Manager, Nellore and no transactions  were made to the above said opposite party with regard to insurance claim.  Absolutely, there is no iota of evidence placed in the pleadings to prove the same.  It is very clear that  only for the purpose of jurisdiction  of this Forum, the complainant shown the above said opposite party as 2^nd opposite party in the cause title of the complaint by striking out  the name already shown as the 2^nd opposite party of  West Bengal, Kolkata.

 

            11.       Further the accident took place on 07-07-2010 at Kaduru of Chikkamangalore of Karnataka State within the P.S. Limits of Kaduru Police Station.  It is therefore clear that the accident occurred at Karnataka State and also clearance certificate of finance issued by the Indus Bank Limited, Chennai to the vehicle which were not within the territorial jurisdiction of this Forum.  The said finance given to Mr.B. Giri Babu of Papanaidupet, Chittoor District at the time of purchasing the vehicle, who inturn handedover the same to the complainant through sale letter dated 06-11-2008. Thereafter the complainant took the insurance policies from the opposite party, which is situated in West Bengal State.

 

            12.       In this context, the Hon’ble Supreme Court, New Delhi observed in a case  between Sony Surgicals Vs. National Insurance Company Limited reported in 210 CTJ, Page 2 SC (CP), wherein it was held that

           

“The Learned counsel for the appellant  submitted that the respondent-Insurance Company has a Branch Office at Chandigarh and hence under the amended Section 17(2), the complaint would have been filed in Chandigarh.  We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended section 17(2)(b) of the Act, which does not lead to absurd consequence.  If the contention of the learned counsel for the appellant is accepted, it will mean  that  even if cause of action has arised in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Guwahati or anywhere in India where a  Branch Office of the  Insurance Company is situated.  We cannot agree with this contention.  It will lead to absurd consequence and lead to bench hunting.  In our opinion, the expression “Branch Office”  in the amended Section 17(2) would mean  of the Branch Office, Where the Cause of action has arisen.  No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act, but such departure is sometimes necessary (as it is in this case) to avoid  absurdity (vide G.P.Singh’s Principles of Statutory  Interpretation Ninth Edition  2004 page 79).

In the present case, since the cause of action arose at Ambala, the State Consumer Disputes Redressal Commission, Haryana alone  will have jurisdiction to entertain the complaint”.

In view of the above decision, it is very clear that the complainant has to file the complaint where the  cause of action  arose.

As per Sec.11 of Consumer Protection Act, 1986 the complainant has to file the complaint only where the opposite party is residing or carry on business: or the cause of action, wholly or in part arises”.

 

            13.       The above case is clearly applicable in the instant case.  On perusal of the records and the complaint disclosed that the complainant issued registered notices to the opposite parties, who are residing at Kolkata, West Bengal State.  Hence, it is very clear that the opposite party has no branch at  Nellore but in the cause title shown that there was branch at Nellore in which place no cause of action was arisen. Hence, the opposite party No.2 i.e., National Insurance Company Limited, Represented by it’s Manager at Nellore said to be shown  by strikingout of the insurance company, West Bengal State only for the purpose of jurisdiction which is nothing but  bench hunting as per the Hon’ble Apex Court decision.  Further the policy was issued at Kolkata and the accident took place in Karnataka State.  Hence, no cause of action arose at Nellore and as such this Forum lacks jurisdiction.

 

            14.       Further the accident took place on 07-07-2010 at Kadur of Chikmangalur of Karnata State and the complaint is filed on 11-02-2013  before this Forum after expiry of period of limitation of two years.  For which the complainant contended that he has waited for the settlement of the claim up to a longer period  and as there is no settlement of claim  and did not retain the promise evenafter 56 months,  the complainant is entitled for the relief  as it is within time.   

 

            15.       The Hon’ble National  Consumer Disputes Redressal Commission, New Delhi observed in a case Ganpat Rama Madhavi-Petitioner Vs.  New India Assurance Company Limited-Respondent reported in IV (2011) CPJ 210 (NC).

           

It was held in paras No.5 “If the  Insurance Company had not repudiated the claim as it did s(within 2 years of the date of the peril) and taken more than two years to take a decision on the claim, the aggrieved insured could not have waited indefinitely and would have had to file a consumer complaint within two years from the date of occurrence of the peril”.

 

            16.       The above said decision, is applicable to the  facts of this case.  In the instant case,  according to the complainant, he got issued  legal notice belatedly after occurrence of the accident to the opposite parties  on 07-07-2012  requesting to settle the claim but the opposite party did not settle the claim  for want of certain documents and therefore the complaint is filed within the period of limitation.  There is no substance in the complaint as the complainant took  initiation of filing the complaint belatedly and mere correspondence with the opposite party up to a longer period from the date of accident  will not save the limitation.  Without waiting for the reply, the   complainant could have filed the complaint within time but the complaint filed  before this Forum after expiry of limitation period of  two years.  Hence, the contention of the complainant on this point also cannot be accepted.  Therefore, we are of  opinion that  the doors are shut at District Consume Forum, Nellore on the above said two points.

 

            17.       In this aspect, it is very significant to make a note herein that lack territorial jurisdiction and also not filing the complaint  within a period of limitation extinguished the right of claim of the complainant.  There is no convincing explanation given by the complainant to establish his case.  In view of the discussions and decision taken  at our end from the points 1 and 2, no need to proceed further to go into the merits of the case of point No.3. Hence, the complainant is not entitled for any relief as prayed for in the complaint and is liable to be dismissed.

 

18.       POINT No.4:In the result,  the complaint is dismissed, without costs.

 

Typed to the dictation to the Stenographer, corrected  and pronounced by us in the open  Forum, this the  20^th day of  November, 2015.

 

 

                 Sd/-                                                                                           Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

20-06-2014

Sri Pinnamreddy Raghava Reddy,  S/o.Sriniasulu Reddy, Nellore District (Chief Affidavit filed)

 

Witnesses Examined for the opposite parties

 

R.W.1  -

30-12-2014

Sri B. Manmadha, S/o.B. Praveen, Nellore Town  (Affidavit filed)

                                                 EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	23-07-2005	Photocopy of  Sales Invoice-cum-Despatch Memo  in favour of B. Giri Babu, Andhra Pradesh India.
Ex.A2  -	11-07-2008	Photocopy of  certificate in favour of  B. Giri Babu,             S/o.B. Munirathnam Naidu, Chittoor.
Ex.A3  -	13-07-2005	Photocopy of  Delivery Order  to the Telco Construction Equipment Company Limited, Nellore-524 003.
Ex.A4  -	06-11-2008	Photocopy of  Sale Letter  in favour of Bathala Giribabu, S/o.Munirathnam Naidu, Chittoor District.
Ex.A5  -	23-12-2010	Photocopy of letter in Noc.No.NOC/E/09/00000009171  issued by Magma Fincorp Limited.
Ex.A6  -	07-07-2010	Photocopies of  First Information Report No.0201  in Kadur Police station, Karnataka and another.
Ex.A7  -	09-12-2010	Photocopy of Form Q (Rule 21,  Account Rule, 1967) receipt for money received.
Ex.A8  -	12-07-2010	Photocopy of  Quotation for Spares for EX-70 (Quotation Letter No.ACE/SPARES/GEN/05/4295/2010) in favour of complainant issued by  Telcon, Ace,  Associated Construction Equipment
Ex.A9  -	-	Photocopy of Service Report (For HE/HC/WE)  in favour of  complainant  issued by  Associated Construction Equipment,  New Mangalore-575 010.
Ex.A10  -	-	Photocopy of  letter from   complainant’s advocate                             M. Venkateswarlu to the opposite parties.
Ex.A11  -	-	Photocopy of four registered post receipts in one paper.
Ex.A12  -	-	Photocopies of  four postal acknowledgements  sent by the complainant.
Ex.A13  -	-	Photocopies of fourteen pages of Cash / Credit Bills,  Spares Enquiry List, Estimates, Memo sheet, Quotations,  Labour bill and letter from Varun Motors, Sri Malleshwara Automobiles, Hassan-573 201.
Ex.A14  -	12-12-2008	Photocopies of Special Contingency Policy Nos.9500002571, 9500004628  in favour of complainant and cash receipt for Rs.42,850/- in  MR No.3817186, dated 20-02-2009.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

Ex.B1  -	-	Certificate in respect of compliance of Section 64  VB of Insurance Act, 1938  in favour of complainant issued by the opposite party.
Ex.B2  -	29-07-2011	Photocopy of letter from  opposite party to the complainant.
Ex.B3  -	08-01-2013	Photocopy of  letter  from opposite party to the complainant.

 

 

                                                                                                                            Id/-

                                                                                                                        PRESIDENT(FAC)

 

Copies to:

1.	Sri T. Kotaiah, Advocate, Karnala Street, Nellore-524 001.
2.	Sri N. Kodanda Rami Reddy,  Advocate, Nellore.

Date when free copy was issued: