IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

CASE No.CC/51/2013.

 Date of Filing: 23.04.2013.                                                                      Date of Final Order: 06.04.2017

Complainant: Hasane Imam, S/O- Golam Mostafa,

                         Vill.- Kadoya(Miapara),P.O.- Bahutali,

                        P. S. -Suti, Dist.- Murshidabad. Pin- 731221.

-Vs-

Opposite Party: Branch Manager, City Branch Office-2,

                          The Oriental Insurance Co. Ltd,

                             Gurduwara Building, Sevok Road, Siliguri-1.

 Asraf Hossain. Ld. Advocate .…………………….…. for the complainant.

Mr. Siddhartha Sankar Dhar. Ld. Advocate………………………..for the Opposite Party

                       Present:   Sri Anupam Bhattacharyya …………………. President.                              

                                         Sri Samaresh Kumar Mitra ……………………..Member.           

FINAL ORDER

Sri Samaresh Kumar Mitra, Member.           

            This complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for an order directing the OP to repair the said damaged vehicle or return the insured priced of the said vehicle along with the other charges approx a  sum of Rs.8,00,000/- .

            The case of the complainant, in brief, is that he purchased a mini truck TATA -207 DI having Chassis No. MAT 478011A9G21888 and Engine No. 497SP28GZY629958 with financial assistance of TATA Motors, Siliguri Branch for commercial use and the registration number of the vehicle was WB-57A-7563. The said vehicle was insured with the OP having Policy No. 313207/31/2011/1979. On 24.02.2011 at about 4.30 a.m. his car met with an accident at State highway 12A, Siliguri to Jalpaiguri Road near Kortowa, P.S.- Rajganj in the district of Jalpaiguri when the car was being driven by Ebrahim Sekh, the concerned driver. As a result his driver succumbed to his grievous injury on the spot. The vehicle was totally damaged. Thereafter, an FIR was lodged with P.S.- Rajganj and P.S. Case No. 40/11 dt. 24.02.2011 u/s 279/337/338/304(A) IPC was started. The damaged vehicle was seized by Rajganj P.S. and was lying there. On the very next day the complainant informed the OP and the R.T.A, Murshidabad  about the incident and  the OP was requested to survey the damaged vehicle and to pay him Rs.8,00,000/- . The complainant many a times requested the OP to pay the insured amount but the OP made delay and on 27.02.12 sent a letter to the complainant with a positive view of payment but lastly on 10.07.12 this complainant received a letter with a request to repair the said damaged vehicle and claim on repair basis by submitting bill or cash memo. Those two letters are contradictory. The complainant is an unemployed person and could not repair the said damaged vehicle due to lack of money. Ultimately, the OP Company repudiated the claim. There is deficiency in service on the part of the OP. On 02.07.2012 then OP dispatched a letter upon the complainant’s residence within the jurisdiction of this Forum with request to repair the vehicle which amounts to refusal of payment of insured amount.  Hence, the instant complaint petition.

            The case of the OP, in brief, is that alleged accident took place within P.S.- Rajganj and the vehicle was said to have been insured at City Branch Office- 2, Siliguri. So, this Forum has no jurisdiction to try this case. The Insurance Company under any policy has a liability to indemnify the loss sustained by the owner of the vehicle. But if the vehicle is not repaired at all, then the Insurance Company has no liability to pay any amount. The Insurance Company requested the complainant to repair the vehicle and to submit the bills. But the complainant never submitted any bill. So, the Insurance Company cannot pay the amount. This case is premature one and this life Insurance Company has no liability. This OP Company cannot pay any amount of compensation on the basis of a quotation. As such this case should be rejected with cost.   

            Complainant has filed Evidence by way of affidavit, written argument, Certificate of Registration in respect of his vehicle, some letters addressed to him by the OP Company, Motor Insurance Certificate cum Policy schedule issued by the OP. He has also filed xerox copy of a reported decision.

            On the other hand, the OP Company has filed written argument.

            In his evidence the complainant assailed that his vehicle met an accident at Kortowa, P.S. - Rajganj in the district of Jalpaiguri. His vehicle was insured with the OP Nos. 1. He also deposed that on several times he requested the OP to pay the insured amount but he could not get the same. He also stated that he is an unemployed person and the vehicle was his only source of income. He is unable to repair the said damaged vehicle due to lack of money. The OP No.1 repudiated the claim on the grounds stated therein and as such there is deficiency in service on the part of OP.

            Argument as advanced by the agents of the parties heard in full. During the period of argument the agent on behalf of the OP argued that the complaint lacks territorial jurisdiction and referred the decisions of Hon’ble National Commission and Hon’ble Supreme Court in that regard.

        From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1.         Whether the Complainant Hasne Imam is a 'Consumer' of the opposite party?

2.         Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3.         Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service      towards the Complainant?

DECISION WITH REASONS

In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

1).Whether the Complainant Hasne Imam is a 'Consumer' of the opposite party?

              From the materials on record it is transparent that the Complainant is a "Consumer" as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986 as he insured his vehicle before the OP Insurance Company . The complainant herein is the consumer of the OP, as he received policy of insurance of his vehicle by paying premium regularly so he is entitled to get service from the OP.

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

           The complainant is a resident of Murshidabad and the address of the OP is Siliguri within the district of Darjeeling and the accident took place at Kortowa, P.S.-  Rajganj, Dist.-Jalpaiguri. But this complaint filed at Murshidabad.

          The complainant assailed in his complaint petition that cause of action arise on 02.07.2012 when OP dispatched a letter upon the complainant’s residence within the jurisdiction of this Forum with request to repair the vehicle which amounts to refusal to payment of insured amount.

 The OP in his written version assailed that alleged accident took place within P.S.- Rajganj and the vehicle was said to have been insured at City Branch Office- 2, Siliguri. So, this Forum has no jurisdiction to try this case.

          During the period of argument the complainant referred a case decision of Hon’ble State Commission, WB (2008) 3 WBLR (CPSC) 470, Sk. Ibrahim Haque Vs. United India Insurance Co. Ltd &ors in which the only question is whether the existence of a mere branch office of the OP will serve the purpose of the requirement of the provisions of section 11 of the Consumer Protection Act,1986 to the effect that a case may be filed before a District Forum within the territorial jurisdiction of which the OP Company has a branch office.  The CDRF has taken the view that this clause in section 11 of the Act means in effect that a branch office must be one in which there must be some transaction in dispute by the complainant and if no such transaction takes place, mere existence of the branch alone will not be taken into account for the purpose of determination of territorial jurisdiction. Hon’ble State Commission, WB observed that according to sec. 2(1)(aa) of the Consumer Protection Act,1986  the words ‘Branch Office” have been described as a branch Office means any establishment described as a branch by the OP or any establishment carrying on either the same or substantially the same activity as are carried on by the Head Office by the establishment. So we apply this yardstick, there cannot be any doubt that the branch, which has been made a party in the complaint and due to the existence of which in the district and the case has been filed before the Forum of that district, is an establishment carrying on the same activities as are carried on by the Head Office of the Insurance Company. There is no difference of opinion on this. In view of such admitted position and such definition of the words’ Branch Office” we have absolutely no reason to draw any inference as has been drawn by the Forum. And Hon’ble State Commission made a finding that the CDRF has misdirected itself by resorting to such an interpretation of the words ‘Branch Office’ occurring in section 11 of the Act. The CDRF has appears to have full territorial jurisdiction to try this case and the findings of the Forum are found to be erroneous and cannot be sustained.

       We may refer a case of Hon’ble State Commission, HP, 2013(4) CPR 43(HP), Regional Centre (ECHS) Cantt & Othrs Vs. Ram Kumar Sharma it is decided by the Hon’ble State Commission that mere location of a branch/or office of the Opposite Party within area of particular Forum does not confer territorial jurisdiction upon Forum for that area and jurisdiction would vest in such a Forum if a part of cause of action is also shown to have accrued in that area.

       It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability.

       The Hon’ble Supreme Court relying on the decision of ONGC ( 1994 AIR, SCW 3287), explained the concept of cause of action as ; It is clear from the above judgement that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case, acts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer jurisdiction on the court concerned.

         The agent on behalf of the OP referred a case of Supreme Court, Sonic Surgical Vs. National Insurance Company Ltd (2010)3 WBLR (SC) 58 in which it is held that mere location of a branch/ or office of the opposite party within the area of particular Forum does not confer territorial jurisdiction upon the Forum for that area. Jurisdiction would vest in such a Forum if a part of the cause of action is also shown to have accrued in that area. The Hon’ble Apex Court also hold that an interpretation has to be given to the amended section 17(2) of the act, which does not lead to an absurd consequences. The complainant can file a claim petition even in Tamilnadu or Guwahati or anywhere in India where a branch office of the Insurance Company is situated. It will lead to absurd consequences and lead to branch hunting. Court is also in the opinion that the branch office in the amended section 17(2) would mean 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 to avoid absurdity.

        We respectfully agree with the view taken by the Calcutta High Court in the aforesaid decision of IFB Automotive Seating and System Ltd. and others Vs. Union of India, AIR 2003 Calcutta,80 with the question as to the meaning of the expression ‘cause of action’. Hence we find after perusing the case record that no part of the cause of action in the present case arose at Murshidabad district.

      The Complainant in his complaint petition stated that the Oriental Insurance Company Ltd has also another branch at Berhampore, Dist.- Murshidabad, which is within the jurisdiction of this Forum. It does not mean that the address of the OP branch at Berhampore, Murshidabad is sufficient to attract the jurisdiction of this Forum.

        From the above discussion we may safely conclude that the cause of action did not arise within the Murshidabad district and the address of the OP is not within the district, Murshidabad thus the complaint petition lacks territorial jurisdiction.

 3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

       This issue is taken up for consideration. After disposal of the issue No.2 it is crystal clear that we have no opportunity to interfere or entertain whether OP acted any deficiency in service which leads to unfair trade practice or not since this Forum has no jurisdiction. Thus, this issue is disposed off.

ORDER

Hence, it is ordered that the application u/S 12 of C.P. Act, 1986 filed before this Forum has no territorial jurisdiction. Accordingly the petition of complaint along with its annexure be returned to the complainant or his advocate to file to the appropriate Forum with a liberty to make necessary modification only in respect of filing the same to the appropriate Forum without changing the nature and character of this complaint. Office is directed to hand over the complaint with its annexure to the complainant or the filing advocate positively by 24.4.2017.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

Dictated and corrected by me.

                  Member,                                                                                   President,