Punjab

StateCommission

A/281/2018

Bajaj Allianz General Insurance Co. Ltd. - Complainant(s)

Versus

Harcharan Singh - Opp.Party(s)

Rajesh Verma

29 Apr 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH

 

  First Appeal No.281 of 2018    

             

Date of Institution  :    14.05.2018

Date of Reserve              :    24.04.2019

Date of Decision     :    29.04.2019

 

Bajaj Allianz General Insurance Ltd., having its registered office GE Plaza, Airport Road, Yerwada, Pune-411006 (INDIA), through General Manager/ Authorized Signatory.

Through its authorized person Sarpreet Kaur Ahluwalia, Assistant Manager Claims, Office of Bajaj Allianz General Insurance Ltd., SCO 158-159-160, Sector -9, Chandigarh.

…..Appellant/Opposite party

Versus

Harcharan Singh, aged 57 years, S/o Mukhtiar Singh S/o Sh.Sampooran Singh, R/o Kingra Road, Village Danewala, Tehsil Malot, District Sri Muktsar Sahib, Mobile : 88726-18864.

….Respondent/Complainant

First Appeal against the order dated 15.01.2018 of the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib.

Quorum:- 

                Mr.J.S.Klar, Presiding Judicial Member

                 Mr.Rajinder Kumar Goyal, Member                      

Present:-

          For the appellant       :  Sh.Rajesh Verma, Advocate

          For the respondent   :  Sh.Sukhmeet Singh, Advocate

RAJINDER KUMAR GOYAL,  MEMBER

            The instant appeal has been filed by the appellant/opposite party against the order dated 15.01.2018 passed by District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (in short, ‘District Forum’), whereby the complaint filed by the complainant was allowed and opposite party was directed to pay $16736 Australia Dollars equivalent to its Indian Currency, spent by the complainant on his treatment in Australia along with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 13.09.2017 till realization.  Opposite party was further directed to pay Rs.5,000/- as compensation and Rs.3,000/- as litigation expenses to the complainant.

          It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

2.      Brief facts, as averred in the complaint are that the complainant is a resident of village Danewala, Tehsil Malout, District Sri Muktsar Sahib. The complainant visited Australia on 30.12.2015 to meet his sons living and working in Australia. He purchased Travel Policy bearing No.OG-16-1202-9910-00003996 from 28.12.2015 to 26.06.2016 i.e. about six months. During his stay he got another policy for the period 16.08.2016 to 11.02.2017 bearing No.OG-17-1203-9910-00001424, Travel Prime Individual Silver 50000 USD and complainant stayed in Australia upto 06.10.2016.  Before departing to Australia, the complainant was thoroughly medically examined by Kansal Clinic, at Mohali. For this he spent a sum of Rs.2800/- on the medical examination. The said doctor was legally entitled and duly authorized by the Australian High Commission to conduct the medical for the visitor, who want to visit Australia. On 18.08.2016, the complainant was admitted in Innisfail Hospital, 87, Rankin Street, Innisfal Q1D 4860 and remained there upto 22.08.2016. Further, on 22.08.2016, the complainant was admitted in Emergency Department of Cairns Hospital, The Esplanade Queensland 4870, Post Box 902 and remained admitted there upto 25.08.2016. During his stay in the hospital, the complainant spent $17,000 Australian Dollars on his treatment, which comes to Rs.8,50,000/- in Indian currency, being the charges of hospital and test of clinical laboratories, medicines and transportation charges of the hospital of Queensland. Despite various requests the officials of the opposite party had not admitted his claim and lingering on the claim of the complainant one pretext or the other.  It was further averred that the complainant is still under treatment and has suffered much hardships and tension due to the wrongful act on the part of the opposite party. Thereafter, a legal notice dated 13.06.2017 was served upon to the opposite party with the request to make the payment of the amount spent by the complainant, to which no reply has been received. Alleging deficiency in service on the part of the opposite party, the complainant filed the complaint seeking the following directions against the opposite party before the District Forum:-

i)        to pay $17,000 Australian Dollar i.e. Rs.8,50,000/- in       Indian currency.

ii)       to pay Rs.1,50,000/- as compensation for causing          mental agony and harassment; and

iii)      to pay Rs.20,000/- as litigation expenses.

3.         Notice was issued to the opposite party at the address given in the complaint; but none appeared on behalf of the opposite party. Accordingly, the opposite party was proceeded against ex-parte vide order dated 29.11.2017.

4.         The complainant produced evidence in support of his respective averments before the District Forum, which after going through the same and hearing learned counsel appearing on his behalf, allowed the complaint, vide impugned order. Hence, this appeal filed by the appellant/opposite party with a prayer to set aside the impugned order.

5.         Notice of this appeal was issued to respondent being complainant.

6.         We have heard the learned counsel for the parties and have carefully gone through the records of the case.

7.         Learned counsel for the appellant / opposite party argued that the order passed by the District Forum is arbitrary on the face of it, which caused manifest error to the appellant.  The order passed by the District Forum needs to be set aside as no opportunity to appear in the case  and file the written statement and defend it effectively as no notice was served upon the appellant/opposite party. The presumption taken by the District Forum is wrong in the eyes of law as no notice was received by the appellant/opposite party. Even no AD has been received back by the District Forum. The address given in the complaint is the general address given in the insurance policy, whereas, the address appearing on the policy, of the office which issued the policy serving office was to be written. On the other hand, on merit, the District Forum has not gone into the terms and conditions of the policy that would falsify the claim of the complainant that his claim is not maintainable under the mandatory terms of the policy, as the complainant was suffering from pre-existing disease.  The complainant was consulted for treatment of Cholecystitis and Cholangitis and as per the medical records, the complainant had history of complaints since two weeks i.e. prior to the policy, in question. Non-declaration of the pre-existing ailment is violation of Principle of Insurance Contract i.e. utmost good faith. The District Forum has failed to appreciate that the complainant concealed the material facts of pre-existing disease while taking the policy. There is no deficiency in service or unfair trade practice on the part of the appellant/opposite party. The counsel finally prayed to accept the appeal and to dismiss the complaint.

8.         On the other hand, learned counsel for the respondent/complainant argued that there is no material irregularity and illegality in the order of the District Forum.  The District Forum has allowed the complaint of the complainant by fully examining the record. The appellant/opposite party are blaming on the District Forum that the District Forum has ignored the terms and conditions of the contract, whereas the appellant/opposite party itself has not appeared before the District Forum, despite service to rebut the evidence or to file the written statement. The order passed by the District Forum is a well reasoned and justified order and there is no need of any interference in it. The appeal filed by the appellant/opposite party be dismissed.

9.         We have given our thoughtful consideration to the contentions of both the parties.

10.       Admittedly, the appellant / opposite party initially issued an insurance policy bearing No.OG-16-1202-9910-00003996 namely Travel Elite Silver policy for benefits upto 50000 USD for the policy period 30.12.2015 to 26.06.2016 and again issued another policy Travel Prime Individual Silver 50,000 USD for Medical Expenses and Evacuation upto USD 50000 for the period 16.08.2016 to 11.02.2017. The complainant visited Australia and during his stay in Australia on 18.08.2016 was admitted firstly to Innisfail Hospital and remained there upto 22.08.2018 and further on 22.08.2018 was admitted into Emergency Department of Cairns Hospital and remained upto 25.08.2016.  During his stay in the hospital, the complainant spent 17000 Australian Dollars. The opposite party did not admit his claim alleging deficiency in service, hence the complainant filed a consumer complaint in the District Forum, Sri Muktsar Sahib.

11.        The contention raised by the appellant is that service was not effected on appellant before the District Forum in accordance with law.  Counsel for the respondent in this appeal rebutted it by arguing to the contrary.  We find that registered notice was sent to the appellant at the registered office given in the policy. There is no mismatch of addresses on the policy, Ex.C-4 and the complaint filed in the District Forum, Sri Muktsar Sahib.  Section 28-A of the Consumer Protection Act, 1986 states that the respondent can be summoned by means of registered post and whereby registered notice was properly addressed, pre-paid and duly sent by registered post and it is not received back either served or unserved within 30 days period from the date of issuance of notice then it will be declared to be a valid service under law. On the basis of law laid down under Section 28-A of the Consumer Protection Act, 1986, the contention of the appellant is not accepted that the appellant/opposite party was not properly served, in this case.

12.       The complainant filed the consumer complaint in District Forum, Sri Muktsar Sahib, whereas there is no evidence proving the territorial jurisdiction of Sri Muktsar Sahib, District Forum.  Both the policies were issued from the registered office of the opposite party at Pune and the Branch Office of the opposite party is at Ludhiana.  The cause of action occurred in Australia.  There is no evidence that the payment of the premium have been made within the territorial jurisdiction of Sri Muktsar Sahib.  So, the District Forum, Sri Muktsar Sahib, is not the appropriate Forum to decide the instant complaint.  We are of the view that as per Section 11 of the Consumer Protection Act, 1986, the territorial jurisdiction of the Fora is described as under:-

“(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 voluntarily resides or 2[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 3[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 4[carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

 

13.       Further, we are fortified with the judgment of Hon’ble Apex Court reported in 2009 (IV) CPJ 40 titled as Sonic Surgical Versus National Insurance Company Ltd., wherein a fire broke out in Ambala, Insurance Policy was issued by Branch Office, Ambala and the complaint was filed in State Commission, Chandigarh. The Hon’ble Apex Court decided to file the complaint in State Commission, Haryana as the Branch Office where the cause of action arose is in the State of Haryana and not the U.T. Chandigarh.

14.       Sequel to the above, the appeal filed by the appellant is allowed and the order passed by the District Forum, is set aside as well as the complaint filed by the complainant before the District Forum, Sri Muktsar Sahib is dismissed with the liberty to the complainant before the appropriate Forum.

15.       The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another amount of Rs.5,00,000/- vide receipt No.643244 in compliance of the order dated 17.05.2018. Both these sums, along with interest which has accrued thereon, if any, be remitted to the appellant/opposite party, after the expiry of 45 days of the sending of certified copy of the order to them.

16.       Arguments in this appeal was heard on 24.04.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.

17.       The appeal could not be decided within the statutory period due to heavy pendency of the court cases.

 

 

                                                        (J.S.KLAR)

                                       PRESIDING JUDICIAL MEMBER       

 

                                          (RAJINDER KUMAR GOYAL)

                                                          MEMBER 

April 29, 2019                                              

parmod