Punjab

Fatehgarh Sahib

CC/108/2016

Kirpal Kaur - Complainant(s)

Versus

Iffco Tokio Gene Insurance comp - Opp.Party(s)

Sh G S Saini

08 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No. 108 of 2016

                                           Date of institution : 17.11.2016                                  

                                              Date of decision    : 08.02.2018

Kirpal Kaur wife of Sh. Narinder Singh resident of village Behlolpur Tehsil and District Fatehgarh Sahib.

……..Complainant

Versus

1. IFFCO TOKIO General Insurance Co. Ltd., Bhatha Sahib Gurdwara Chowk, SCO-C-861/862, Main Road, Ropar.
2. Balpreet Singh No.28000004 Agent of IFFCO-TOKIO General Insurance Co. Ltd., Shop No.51, New Grain Market B.K. Sirhind, Tehsil and District Fatehgarh Sahib.

…..Opposite Parties

Complaint under Sections 12 to 14 of the Consumer Protection Act.                                               

Quorum

Sh. Ajit Pal Singh Rajput, President                                            Sh. Inder Jit, Member

 

Present :  Sh.G.S.Saini, Adv. for the complainant.                                         Sh. Amit Gupta, Adv.Cl. for OP No.1.

               Opposite party No.2 exparte.

             

ORDER

 

By Ajit Pal Singh Rajput, President.

                      Complainant, Kirpal Kaur wife of Sh. Narinder Singh resident of village Behlolpur Tehsil and District Fatehgarh Sahib, has filed this complaint against the Opposite Parties ( hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                   The complainant got insured her Tractor, Arjun 555, with OP No.1 through OP No.2, vide policy bearing No.1-3 NABHOQ-P400 Policy 93000030 dated 29.01.2015, which was valid upto 28.06.2016.  The said tractor met with an accident on 06.10.2015 and OP No.2 was informed in time.  The officials/Surveyor of OPs came to inspect the said tractor but OPs failed to make the payment/claim to the complainant. An FIR No.165 dated 07.10.2015 was also got registered at P.S.Fatehgarh Sahib in this regard.  Thereafter, the complainant got repaired her tractor from M/s International Tractor and Automobiles, G.T.Road Phillaur and spent an amount of Rs.1,18,464/- for the repair of the same. The complainant also served a legal notice upon the OPs but all in vain. The act and conduct of the OPs amounts to deficiency in service on their part. Hence, this complaint for giving directions to the OPs to pay Rs.1,18,464/- i.e. amount spent for the repair of the tractor and Rs.1,00,000/- as compensation for damages, physical pain and sufferings.

3.                   Notices of the complaint were issued to the OPs but OP No.2 chose not to appear to contest this complaint. Hence, OP No.2 was proceeded against exparte.

4.                   The complaint is contested by OP No.1, who filed its written reply. In reply to the complaint, OP No.1 raised certain preliminary objections, inter alia, that the complainant has not come to the Court with clean hands and is intentionally concealing the material facts from this Forum;  this Forum has got no jurisdiction to entertain the present complaint and the same is not maintainable. As regards the facts of the complaint, OP No.1 stated that on 07.10.2015 the complainant intimated regarding damage to her insured tractor and accordingly, OP No.1 appointed Sh. K.P.S.Oberoi, Surveyor and Loss Assessor to assess the loss, who submitted his report dated 22.03.2016. The claimants have submitted the driving license No.PB-2320100038063 of Narinder Singh issued by Licensing Authority, Fatehgarh Sahib.  The said driving license was not valid for driving tractor in question at the time of said accident. Moreover, the vehicle in question was driven for commercial purpose and without permit also. Accordingly, the claim lodged by the complainant was rightly repudiated vide letter dated 30.06.2016. Hence, there is no deficiency in service on their part. After denying the other averments made in the complaint, OP No.1 prayed for dismissal of the complaint.

5.                   In order to prove her complaint, the complainant tendered in evidence her affidavit Ex. C-1, attested copy of FIR Ex. C-2, Postal receipt and legal notice Ex. C-3 & C-4, policy Ex. C-5, retail invoice Ex. C-6, attested copy of RC Ex. C-7 and closed the evidence.  In rebuttal OP No.1 tendered in evidence affidavit of Vimal Kumar Ex. OP1/1, affidavit of K.P.S.Oberoi Ex. OP1/2, true copies of documents i.e. insurance policy with terms and conditions Ex. OP1/3, RC Ex. OP1/4, Driving License Ex. OP1/5, DL report Ex. OP1/6, survey report Ex. OP1/7, letter dated 30.06.2016 Ex. OP1/8, FIR Ex. OP1/9 and closed the evidence.

6.                    Learned counsel for OP No.1 at the outset, emphasized that his preliminary objection, as regard to the territorial jurisdiction be decided before going into the merits of the case. He submitted that the OP are not having any branch office within the territorial jurisdiction of this Forum and the Policy was issued from the branch office situated at Ropar (Ex.OP-1/3). Learned counsel vehemently contended that simply because the agent resided and vehicle met with accident within territorial jurisdiction of this Forum will not entitle the complainant to file complaint before this Forum. He further contended that in view of Section 11(2) of the Act this Forum does not have territorial jurisdiction.

7.                   On the other hand, learned counsel for the complainant objected to the submissions made by the learned counsel for OP No.1. He submitted that this Forum has the jurisdiction to decide the present case on merits and the contentions of the learned counsel for OP No.1 cannot be considered at this stage. He argued that part of cause of action arose to the complainant, as the agent of OP is residing within territorial jurisdiction of this Forum. Learned counsel further argued that the vehicle was plying and met with accident within jurisdiction of this Forum, thus this Forum has the territorial jurisdiction to adjudicate upon the present complaint.  

8.                   We have heard the learned counsel for the parties and have gone through the material placed on record by the parties. We find force in the submissions made by the learned counsel for OP No.1. It is established from the copy of Policy(Ex.C-5) that the Policy was issued by the branch office of OP at Ropar and the claim was repudiated by the head office of the OP situated at New Delhi. Further it is also established that no branch office is situated within territorial jurisdiction of this Forum. Merely because the agent resides and the vehicle met with accident within territorial jurisdiction of this Forum will not entitle the complainant to file complaint before this Forum.

9.                    Moreover as per Section 11(2) of the Act the present complaint cannot be entertained by this Forum. The relevant part is reproduced below:

 Section:11; (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 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 case may be, acquiesce in such institution; or

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

10.           The Hon’ble Supreme Court in Sonic Surgical Vs National Insurance Company Ltd.(2010)1 SCC 135   elaborately discussed that where the complaint can be filed on the basis of arising of cause of action, relevant part of the judgment is reproduced;   “In our opinion, an interpretation has to be given to the  amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati 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 consequences and lead to bench hunting. In our opinion, the expression '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 (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]”

11.                Similarly the Hon’ble National Commission in case titled as Raj Kumar Dhiman Vs M/s.Automotives Pvt Ltd & Anr, Revision petition No.2290 of 2012 decided on 19/2/2013 and in another case M/s.Stan Auto Pvt.Ltd Vs Beant Singh passed by Hon’ble State Commission, Punjab in FA No.881 of 2012 decided on 30.9.2013, the view taken was that the jurisdiction is to be determined as observed by the Hon’ble Supreme court,in Sonic Surgical Vs National Insurance Company Ltd.(Supra).

12.                 Accordingly, in view of the aforesaid discussion and the judgment of Hon’ble Apex Court in case of Sonic Surgical Vs National Insurance Company Ltd.(Supra), this Forum does not have the territorial jurisdiction to adjudicate upon the present complaint. Hence without going into the merits of the case, we direct that the present complaint be returned to the complainant, so that the complainant can seek redressal of her grievances before the Forum having territorial jurisdiction. Complainant is also entitled to the benefit of the observation of the Hon’ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute II(1995) CPJ 1 (SC) : 1995 3 SCC 583 for the purpose of exclusion of time spent before this Forum.

13.             The arguments on the complaint were heard on 06.02.2018 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 08.02.2018

(A.P.S.Rajput)              

           President

 

(Inder Jit)                 

       Member