BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Mr. Justice R. SUBBIAH PRESIDENT
Tmt Dr. S.M.LATHA MAHESWARI MEMBER
F.A.NO.107/2014
(Against order in CC.NO.25/2008 on the file of the DCDRC, Chennai (South)
DATED THIS THE 25th DAY OF AUGUST 2021
1. M/s. United India Insurance Co. Ltd.,
Rep. by its Authorised Signatory
Mr. Gajapathy, Branch Office – 021 001
2. M/s. United India Insurance Co. Ltd.,
Rep. by its Deputy Manager
Ms. K. Anita Rajaram M/s. Nageswaran & Narichania
No.24, Whites Road Counsel for
Chennai – 600 014 Appellants / Opposite parties
Vs.
A. Mohamed Jamal,
Rep. by M.J. Jaseem Mohamed M/s. J. Jaseem Mohammed
No.121, Thambu Chetty Street Counsel for
1st Floor, Chennai – 600 001 Respondent/ Complainant
The Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.17.1.2014 in CC.No.25/2008.
This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the insurance company as against the order dt.17.1.2014 passed by the District Commission, Chennai (South), in CC.No.25/2008, directing the appellants/ insurance company to pay a sum of Rs.1,00,000/- alongwith interest @7% p.a., from 18.1.2008 to till date of payment, on the ground that there is negligence on the part of the insurance company.
2. The brief facts of the complaint before the District Commission are as follows:
The complainant took a Pravasi Bhartiya Bima Yojana Policy bearing No.021001/48/05/67836 valid for a period of two years from 6.10.2005 to 5.10.2007, insuring him for a sum of Rs.2 lakhs against personal accident and other medical and hospitalization expenses. Thereafter he left India for employment to Kuwait. During the course of his employment he met with a grievous accident, resulting in dislocation of bone and fracture leading to chest pain etc. He was admitted in the hospital at Kuwait on 21.3.2006, where he was treated as an inpatient for many days. The breakup details of expenses incurred by the complainant are as follows:
- Air fare (2).. 133.25 kd (2) Medicine in Kuwait.. 360.00 kd
- House rent .. 100.00 kd (4) Local transportation .. 450.00 kd
Converting the above expenses into Indian rupee will come to Rs.1,49,852/-. As per the policy, the complainant is entitled for the above said amount. Hence, as soon as he arrived at Chennai, he contacted the 2nd opposite party and narrated his pathetic condition who in turn furnished the application form for claiming compensation. The 2nd opposite party retained the copy of application, and directed the complainant to independently forward a copy to 1st opposite party at Mumbai. Though the complainant forwarded the application, there was no response from the 1st opposite party. Therefore, reminders dt.1.3.2007, 24.3.2007 and 24.7.2007 were sent. Finally on 13.7.2007, the 1st opposite party called upon the complainant to send the bills of Alsaba Hospital, Kuwait. Inspite of furnishing the original policy documents, completed claim form, employment letter, original air ticket, original medical reports, employment and a copy of passport, the opposite parties have not disbursed the policy amount. The complainant was made to run from pillar to post. Inspite of all his efforts he could not get any fruitful reply. Therefore, the complainant filed a complaint before the District Commissiom praying for refund of the expenses incurred at Rs.1,49,852/- alongwith compensation for mental agony @ Rs.2,00,000/- and for deficiency in service @ Rs.1,00,000/- and cost.
3. The claim of the complainant was resisted by the insurance company by filing version as follows:
The complainant obtained a Pravasi Bharathiya Bhima Yojana Policy through Easy Finance Services. The policy period was from 6.10.2005 to 5.10.2007 which was subject to the terms and conditions. The policy was issued in favour of the insured based on the Memorandum of Understanding. As per the said MOU, Easy Finance Services has to remit the premium within 3 days to the opposite parties. The opposite parties received the claim form from the complainant on 29.6.2006 for reimbursement of medical and Hospitalisation expenses without any documents. The necessary documents were forwarded only on 26.3.2007 vide letter dt.24.3.2007. The claim was rejected on 24.3.2008 on the ground of violation of 64VB. The premium was also not remitted within 3 days as per MOU, thus the statutory requirement of the policy was void and there is no policy at all. Therefore, absolutely there is no deficiency in service.
By filing additional version before the District Commission, the appellant/ opposite parties raised a defence that the policy had been obtained from the 1st opposite party situated at Mumbai. Since the cause of action took place at Mumbai, the courts at Mumbai will only have jurisdiction to entertain the complaint. Thus prayed for dismissal of the complaint.
4. Before the District Commission the Respondent/ complainant had filed his proof affidavit alongwith 23 documents which are marked as Ex.A1 to A23, on the side of the opposite party 5 documents were filed and marked as Ex.B1 to B5.
5. After analysing the evidence, the District Commission had come to the conclusion that there is deficiency in service on the part of the opposite parties and thus awarded compensation of Rs.1 lakh alongwith interest. Aggrieved over the same, this present appeal is filed by the appellants/ opposite parties.
6. Before this commission the grounds raised for allowing the appeal are of three fold. The first objection raised by the learned counsel for the appellant is that the insurance policy was issued by the Head Office at Mumbai. Therefore for any claim or grievance the complainant has to approach the 1st opposite party, and the courts at Mumbai only have jurisdiction to entertain any complaint.
7. The second fold is that there was a tie up between the insurance company and M/s. Easy Finance Services. As per the MOU entered into between the appellants and the Easy Finance Services, the premium has to be remitted within three days from the date of policy. Since the complainant failed to comply with the condition, there was a violation of Insurance Act.
8. The third fold is that the complainant had not filed any proof for the expenditure. Therefore he is not entitled for the claim.
9. We have heard the learned counsel appearing on either side, perused the documents, lower court records, the order impugned and raised the following points for consideration to decide the appeal.
1. Whether the District Commission has got jurisdiction to entertain the complaint?
2. Whether there is any deficiency in service on the part of the appellants/ opposite parties?
10. POINT NO.1
As far as the jurisdiction point is concerned the 1st opposite party has its Registered & Head Office functioning at Mumbai. The 2nd opposite party is the Head Office functioning at Chennai. As per the Consumer Protection Act 1986 the jurisdiction of the District Forum is given U/s.11(2) as 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 or voluntarily resides or carries on business or has a branch office or personally works for gain;.
As per sec.2(1)(aa)(ii) of the Consumer Protection Act 1986 Branch office means “ any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment”.
In this regard, the learned counsel appearing for appellant drew our attention to a judgement of the Hon’ble Apex Court reported in (2010) 1 SCC 135. As per the above citation, the insurance policy was taken at Ambala and the fire broken out also at Ambala, but the complainant had filed a complaint before the Consumer Fora at Chandigarh. Therefore, the Apex court has held that since the cause of action also arose at Ambala, the complaint cannot be maintainable at District Commission, Chandigarh.
Whereas, in the case on our hand, the process for policy was taken in Chennai as seen from Ex.B2, and the claim form was also submitted with the 2nd opposite party at Chennai. As per the instruction of the 2nd opposite party, the claim had been submitted to 1st Opposite party at Mumbai. Therefore, a part of cause of action arose at chennai, thus the complaint filed in District Commission at Chennai is maintainable. In this regard, the District Commission also has rightly held that the complaint is maintainable before the District Commission at Chennai. Point No.1 answered accordingly.
12. POINT NO.2:
The main contention of the appellants is that the complainant had violated the condition in Sec.64VB of Insurance Act. The relevant portion of the Act reads as:
64VB. No risk to be assumed unless premium is received in advance.—
(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.
The appellants would submit that the complainant had obtained the policy through Easy Finance Services. As per the MOU, the Easy Finance has to remit the premium within 3 days to the opposite parties. Since the premium was not remitted within the time specified, the policy becomes invalid.
In this regard, the District Commission has held that the Agreement/ MOU entered into between the 1st opposite party and the Easy Finance Services will not bind the complainant.
A perusal of document would show that there is no proof produced by the appellants/ opposite parties to show that the MOU entered into between the parties were shown to the complainant while applying for the policy. A perusal of the policy also would show that there is no mention that the alleged policy was issued based on the MOU entered into between the opposite parties and M/s.Easy Finance Services. Therefore, as was rightly held by the District Commission that when the complainant was not a party to the MOU, and when he is unaware about the terms of MOU, he cannot be held liable. Moreover, as per the statement of the appellants/opposite parties, the premium has to be remitted within three days by the Easy Finance Services. If at all, for non-payment of premium in time, the Easy Finance alone is responsible. Therefore the delayed payment of premium by the Easy Finance Services will not make the insurance policy void.
12. Further the Learned counsel for the Respondent/ Complainant had vociferously argued by inviting the attention of this court by citing clause C and D and would submit that the complainant cannot come under the purview of this clause. As far as Clause C is concerned it speaks about the treatment taken in India, and Clause D speaks about the termination of employment abroad.
But it is pertinent to note here that absolutely there was no pleading in the version filed by the appellants before the District Commission, by referring the above clauses of the policy. It is well settled principle that any amount of evidence without pleading is inadmissible. Therefore, the defence taken by referring the above clauses is only an after thought and cannot be considered.
Moreover, the repudiation of the policy was made only by referring Sec.64VB of Insurance Act i.e., which speaks about the payment of premium. As discussed above, the complainant cannot be held responsible for delayed payment of premium. Therefore we concur with the findings of the District Commission that there is deficiency in service on the part of the appellants/opposite parties. Point No.2 answered accordingly.
13. As far as the award of compensation is concerned, though the complainant had not proved the exact amount of expenditure he spent in Kuwait for his hospitalisation, a perusal of the documents under Ex.A11 to A22 would show that he had undergone treatment for heart ailment, and subsequently after returning India continued the treatment for his orthopaedic problem. Therefore, collectively awarding Rs.1 lakh for the expenditure and mental agony is justifiable. Therefore we do not find any compelling circumstances, warranting us to interfere with the findings of the District Commission, accordingly appeal fails.
11. In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.25/2008 dt.17.1.2014. There is no order as to cost in this appeal.
S.M.LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
Rsh/dRSJ/ ORDERS
