BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.18/2011

Dated this the  6^th  day of January 2017

(Date of Institution: 04.04.2011)

Sheik Noor Mohamed, son of Abdul Hameed            

Old No.155, New No. 5/75 Mariamman Koil Street

Panankuppam, Villupuram – 605 601.

….     Complainant

vs

1. M/s Bajaj Allianz General Insurance Company Ltd.,

    rep. by its Authorised person, Divisional Office

    No.25/26, Prince Towers, 4^th Floor, College Road,

    Nungambakkam, Chennai – 600 006.

2.  The Branch Manager

     Bajaj Allianz General Insurance Co., Ltd.,

     Villianur Road (near Indira Gandhi Statue)

     Pondicherry – 605 005.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru M. Sulaiman,  Advocate      

FOR THE OPPOSITE PARTIES:  Thiru B. Mohandoss, Advocate for OP1

                                                          OP2 Ex parte

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties to pay a sum of Rs.10.00 lakh as compensation as per the terms and conditions of the Personal Accident Insurance Policy;  to pay interest at 12% per annum from 07.01.2006 i.e. from the date of accident till realisation of entire amount; to pay a sum of Rs.25,000/- towards compensation for mental agony and for costs of this complaint. 

2.  The case of the complainant is as follows:

          The Complainant is the registered owner of LMV Load Carrier Vehicle bearing Regn. No. TN 32 C 3445 and the vehicle has covered under policy No. OG-06-1501-9961-00044184 valid from 30.08.2005 to 29.08.2006 for declared value at Rs.1,94,000/- and paid premium for Rs.4,498/-.  The complainant stated that on 07.01.2006 he drove the vehicle along with co-driver by name Badurajaman, loaded with vegetable bags to Pondicherry market.  When the vehicle was proceeded in Sellipattu road at the junction of Sellipattu and Pillaiyarkuppam village, near the Sellipattu bridge, one cyclist by name Sandhanam with influence of alcohol, measured the road in zigzag manner was coming on the other side.  The complainant was alerted and applied sudden brake to avoid the drunker from contract his vehicle, but the vehicle was capsized on the right side and thereby complainant's right leg was caught beneath his vehicle and sustained crush injury and his ankle below his knee was hanging and lost his sensation.  Immediately, he was taken to General Hospital, Pondicherry for first aid and then to General Hospital, Chennai and admitted as inpatient from 8.1.2006 to 20.03.2006 and his right leg was amputated on 8.1.2006.   The primary BK amputation surgery was done on 28.01.2006 and its revision was done on 11.03.2006.  The complaint further stated that he was holding valid driving licence at the time of alleged accident.  The said cyclist Santhanam lodged a complaint before Traffic Police, Villianur which ended in acquittal.  The said Santhanam also filed MACTOP No. 563/2006 which was also settled through Lok Adalat.   The complainant further stated that he submitted his claim form claiming the damages caused to his vehicle.  But the opposite party refused to indemnify the damages as this complainant holds invalid driving licence through letter dated 14.1.2006, the said letter was duly replied by the complainant on 21.08.2007 narrating non-violation of contract of insurance.  But the opposite party did not entertain the claim application.  Therefore, the complainant issued legal notices to the first opposite party on 12.08.2009 and 05.07.2010, for which there was no response from the opposite parties.  The complainant being the insured, the opposite parties have to indemnify for the injuries caused to him for the use of the vehicle under the terms and conditions of the opposite parties.   The opposite parties have acted almost slack manner in dealing the compensation amount to the insured person and so the complainant has suffered in great mental agony and hence, he is entitled to claim compensation.  The opposite party is guilty of false representation amounting to unfair trade practice, committed breach of contract.  The opposite parties have branch office at Puducherry and the accident took place at Villianur police limit and hence, this Forum has jurisdiction to entertain this complaint.  Hence, this complaint. 

          3. The second opposite party remained absent and set ex parte.

4. The reply version filed by the first opposite party briefly discloses the following:

          While admitting the averments in the complainant that the complainant is the registered owner of L.M.V. Load Carrier Vehicle bearing Regn. No. TN 32 C 3445 and the insurance policy covered for the period of 30.08.2005 to 29.08.2006 for declared value of Rs.1,94,000/- and also the accident occurred on 07.01.2006, all other allegations are denied by this opposite party.  It is stated by this opposite party that the claim made by a third party against owner as well as the insured of a motor vehicle before a claims tribunal stands in a different footing when compared to a claim made by owner of the vehicle himself against his insured as a policy holder.  Further stated that on private investigation, they came to know that the complainant was holding only learner's licenses at the time of accident authorizing him to drive Light Motor Vehicle and he was not authorised to drive a commercial vehicle.  The accident involved vehicle is a tempo which is a commercial vehicle.  Hence, there is breach of policy condition and therefore, this opposite party has to be exonerated from liability to pay compensation.   The complainant did not produce any documents to proved that the damages on account of injuries sustained by him.  Further it is not pointed out by the complainant with the relevant terms and conditions as to how he is entitled to claim for damages for his personal injuries under the policy filed by him.  The complainant had at no point of time intimated the insurance company of the claim and thus had deprived the insurance company from assessing the veracity and cause of the incident.  This opposite party further stated that the complaint is barred by limitation.  The alleged accident occurred on 7.1.2006 and the claim of the complainant was repudiated on 14.06.2006.  As per section 24-A of the Consumer Protection Act, a complaint should be filed within two years from the date of repudiation.  The complaint is filed in the year 2010.  Hence, the complaint is barred by limitation.  This opposite party further stted that the claim made by the owner of the insured vehicle against the insurer as a party to the contract of insurance cannot be settled when there is violation of policy conditions.  It is further stated by this opposite party that there is no deficiency in service on the part of the opposite parties and hence, the complaint has no cause of action against them.  Hence, prayed for dismissal of the complaint. 

5.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C18 were marked.  One Badurjama was examined as CW2 and one Kaliaperumal, Sub Inspector of Police was examined as CW3.  On the side of first opposite parties, no witness was examined and no documents were marked.

6.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the complaint is barred by limitation?
3. Whether this Forum is having Territorial Jurisdiction to adjudicate the complaint?
4. Whether the opposite parties attributed any unfair trade practice and deficiency in service?
5. To what relief the complainant is entitled for?

7.  Point No.1:

The complainant has taken an insurance policy with the first opposite party vide Ex.C3 for his vehicle LMV Loan Carried bearing Regn. No. TN 32 C 3445 under policy No. OG-06-1501-9961-00044184 valid from 30.08.2005 to 29.08.2006 for sum insured Rs.1,94,000/- and had paid a premium of Rs.4498/-.    Hence the Complainant is the Consumer for the opposite parties as per the Consumer Protection Act.

8. Point No.2:

          Prior to going for discussion, it is pertinent to state that initially the complaint was filed on 24.08.2010 and the registry has returned the same for want of  territorial jurisdiction and barred by limitation.  After due representation, the learned predecessor has taken the case on file on 05.05.2011.   Since the opposite parties were set ex parte, the complaint was allowed and ex parte order was passed on 07.03.2012.  Aggrieved by the same, the opposite parties preferred appeal before the Hon'ble State Consumer Disputes Redressal Commission at Puducherry in F.A. 7/2014 and the same was allowed on 11.09.2014 setting aside the order passed by this Forum and remanded back with a direction to dispose the case afresh by giving opportunities to both the parties.  Accordingly, the complaint was taken back and tried.

            9. The complainant is the owner of LMV Load Carrier bearing Regn. No. TN 32 C 3445 and he had insured the said vehicle under policy No. OG-06-1501-9961-00044184.  He had paid premium of Rs.4,498/- and the policy was in force from 30.08.2005 to 29.08.2006.  It is alleged by the complainant that on 07.01.2006 he drove the vehicle along with co-driver by name Badurajama, loaded with vegetable bags to Pondicherry market while proceeded in Sellipattu road at the junction of Sellipattu and Pillaiyarkuppam village, near the Sellipattu bridge, one cyclist by name Sandhanam with influence of alcohol, came in zigzag manner on the other side.  The complainant applied sudden brake to avoid dashing of his vehicle against the cyclist, but the vehicle was capsized on the right side and thereby complainant's right leg was caught beneath his vehicle and sustained crush injury and his ankle below his knee was hanging and lost his sensation.  He was taken to General Hospital, Pondicherry for first aid and then to General Hospital, Chennai and admitted as inpatient from 8.1.2006 to 20.03.2006 and his right leg was amputated on 8.1.2006.  The complaint further alleged  that he was holding valid driving licence at the time of alleged accident.  The said cyclist Santhanam lodged a complaint before Traffic Police, Villianur which ended in acquittal.  The said Santhanam also filed claim petition in MACTOP No. 563/2006 which was also settled through Lok Adalat.   The complainant alleged that he submitted his claim form claiming the damages caused to his vehicle.  But the opposite party refused to indemnify the damages as this complainant holds invalid driving licence through letter dated 14.1.2006, the said letter was duly replied by the complainant on 21.08.2007 narrating non-violation of contract of insurance.  But the opposite party did not entertain the claim application.  Therefore, the complainant issued legal notices to the first opposite party on 12.08.2009 and 05.07.2010, for which there was no response from the opposite parties. 

          10. It is the case of the opposite parties that the claim made by a third party against owner as well as the insured of a motor vehicle before a claims tribunal stands in a different footing when compared to a claim made by owner of the vehicle himself against his insured as a policy holder.  Further, the opposite parties engaged a private investigator, who informed that the complainant was holding only learner's licence at the time of accident authorizing him to drive Light Motor Vehicle and not the commercial vehicle.  The accident involved vehicle is a commercial vehicle.  Hence, there is breach of policy condition.  It is the further allegation of the opposite parties that the accident occurred on 07.01.2006 and the claim of the complainant was repudiated on 14.06.2006, the complaint ought to have been filed within two years from the date of repudiation, but the complaint was filed only in the year 2010.  Hence, the complaint is barred by limitation.  The opposite parties therefore pleaded that the complaint should be dismissed with costs. 

          11. We have perused the complaint, evidence of CW1 to CW3 and Exs.C1 to C18.  We have also perused the reply version of the first opposite party.  The second opposite party remained absent and set ex parte.   On perusal of Ex.C9, the first opposite party has repudiated the claim of the complainant on the ground that the driver of the vehicle was not having valid driving licence at the time of accident.  This Forum also carefully perused the reply version filed by the first opposite party and the material available on records.  Admittedly, the accident was occurred on 07.01.2006.  The same was also established by Ex.C1 the FIR registered by the Traffic Police Station, Villianur.  The alleged accident involved vehicle also covers insurance from 30.08.2005 to 29.08.2006.  Ex.C7 proves that the complainant was having Learner's Licence at the time of alleged accident.  The complainant has stated in his complaint that he had submitted claim form before the first opposite party but the same was repudiated vide letter dated 14.01.2006 vide Ex.C9.    The complainant has listed so many documents, but has not produced the claim form which he had submitted before the first opposite party.  However, the complainant sent a letter Ex.C13 to the first opposite party claiming compensation.  Further, the complaint has been filed only on 24.08.2010.  Since the repudiation letter Ex.C9 is dated 14.06.2006, the complaint ought to have been filed on or before 13.06.2008 but the complaint was filed on 24.08.2010 much after two years not accompanied with any condonation of delay application.    

          12. The learned Counsel for the complainant contended that the accident was happened on 07.01.2006, the complainant was accused and was facing criminal trial in S.T. R. No. 3009/06.  The complainant claimed damages for the personal injuries sustained by him in the said accident.  He sent a letter claiming damages on 21.08.2007 in Ex.C13.  No reply was given.  The lawyer's notice issued on 05.07.2010 vide Ex.C16 for which also no reply from the opposite party.   He also relied upon a judgment reported in M/s Jyoti Impex vs New India Assurance Co., Ltd., (Complaint Case No. CC/09/152) wherein, it is observed that "The limitation period would begin only after the refusal to settle the claim and not at the time of the damage to the claimant".

13. The criminal trial faced by the complainant and the letters sent to the opposite parties would not give any substance for accrual of cause of action.  As per Section 24A of the Consumer Protection Act 1986, the limitation starts on the date of accrual of actual cause of action and the accrual of actual cause of action is the day on which the claim was repudiated i.e. on 14.06.2006.  Hence, the argument advanced by the learned Counsel for the complainant does not hold any substance for accrual of cause of action for period of limitation.  The authority filed by the learned Counsel for the complainant is also not helpful to the case on hand, since in that case, the insurance company has not repudiated the claim of the complainant.  Hence, this point is answered against the complainant holding that the complaint is barred by limitation.

          14. Point No.3:

          On perusal of Ex.C3, this Forum observes that the complainant took the policy from the first opposite party who is carrying on business at Chennai with Head office at Pune.  Though the Bajaj Allianz General Insurance Company ltd., is having branch at Pondicherry, the complainant had not taken policy through second opposite party.  Moreover, they had not rendered any service to the complainant.  No cause of action has arisen and accrued with the second Opposite Party.  For want of territorial jurisdiction of the local limits of this Forum, this complaint cannot be adjudicated before this Forum. 

15. The Hon'ble Apex Court of India in the case of "Sonic Surgicals vs National Insurance Company Ltd., has also held that

"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....."

It is clear from the above judgment that the territorial jurisdiction for filing a consumer case lies at a place where the cause of action has arisen.

16. In this case, the complainant paid premium to the first Opposite Party at Chennai and the repudiation was made by the first opposite party.  The cause of action not routed out through the second opposite party for conferring the territorial jurisdiction to this Forum.

            17.  Hence, as per the decision of  Hon'ble Apex Court of India in "Sonic Surgical vs National Insurance Company Ltd.," stated supra and also as per Section 11 (2) of the Consumer Protection Act, the complainant should have filed  this complaint within whose local jurisdiction, the cause of action has accrued i.e. either at Pune or Chennai from where the complainant  took the policy. 

18. Under the above two grounds, the complaint is barred by limitation and this Forum  has no jurisdiction to entertain this complaint, this complaint is liable to be dismissed.    This point is answered accordingly.

          19. Point Nos. 4 and 5:

In view of the discussion and decision held in Point Nos.2 and 3 that the Complaint is barred by limitation and this Forum  has no jurisdiction to entertain this complaint, these points are need not to be answered.

20. In the result, this complaint is dismissed. No costs.

Dated this the 6^th  day of January 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           30.04.2015           Sheik Noor Mohamed

CW2           15.06.2015           Badurjama

CW3           06.10.2015           Kaliaperumal

OPPOSITE PARTY'S WITNESS:   NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTYS' EXHIBITS:  NIL

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER