BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 244/2003 Filed on 17.06.2003
Dated : 29.02.2012
Complainant :
Nalina Kumari, W/o Vasantha Kumar, Ambalathuvila House, Thirumala P.O, Thiruvananthapuram.
(By adv. S.S. Balu Anayara)
Opposite parties :
M/s Hero Honda Passport Programme, Centre, B-149, New Delhi – 110 048.
M/s Venad Automobiles, 152 A and B, Vendermukku, Thiruvananthapuram Road, Kollam-691 010.
(By adv. Parippally R. Raveendran)
Addl. Opposite party :
M/s National Insurance Company Ltd., Division VII, 50 Janapath, New Delhi – 110 001.
(By adv. M. Nizamudeen)
This O.P having been heard on 23.01.2012, the Forum on 29.02.2012 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant's son Mr. Anup Kumar purchased one Hero Honda CBZ (Disc) motor cycle bearing engine No. 02341 Mo 2983 from the 2nd opposite party M/s Venad Automobiles on 26.03.2002 by remitting Rs. 54,463/-, that at the time of purchase 2nd opposite party had made oral and visible representations on behalf of the 1st opposite party, M/s Hero Honda Passport Programme offering fabulous gifts and other benefits under the Hero Honda passport. On 26.03.2002 itself the said Anup Kumar remitted Rs. 95/- to 1st opposite party through the 2nd opposite party for a hero Honda passport and complied with all formalities for the issuance of passport, that said Anup Kumar was issued a temporary passport on 26.03.2002 and he was informed that the permanent hero honda passport will be issued to him within 4 weeks from the date of payment, that complainant and Anup Kumar demanded opposite parties to issue passport on several occasions, but they never issued passport as promised. On 14.05.2002 the said Anup Kumar met with a road traffic accident and he succumbed to death due to injuries on 24.05.2002, that on 06.06.2002 the complainant was issued with a passport bearing No. 02C46C01005 in favour of the deceased Anup Kumar insuring him for an amount of Rs. 1,00,000/- in case of accidental death, that complainant approached opposite parties with a claim on account of the death caused to her son in a road traffic accident on the strength of the passport programme. But the said claim was denied by opposite parties as the original passport was issued after the death of Mr. Anup Kumar, that the delay in issuing permanent passport amounts to deficiency in service and opposite party had adopted unfair trade practice for the purpose of promoting the sale using passport programme. Hence this complaint to direct opposite parties to pay a sum of Rs. 1,00,000/- towards compensation to the complainant along with Rs. 50,000/- towards compensation for deficiency in service and unfair trade practice.
Opposite parties 1 & 2 have filed version contending interalia that complaint is not maintainable either in law or on facts, that this Forum has no territorial jurisdiction to entertain the complaint as the alleged cause of action arose at Kollam, where the complainant's son purchased Hero Honda motor cycle from the 2nd opposite party and payment of Rs. 95/- for the passport programme was also at 2nd opposite party's showroom at Kollam, that the complaint is bad for non-joinder of necessary parties, that insurance company is a necessary party to the complaint, that one of the requisites of issuance of passport is that the applicants must be attached two passport size photographs with the application form. Since the complainant's son did not have his photographs at the time of remittance of money, he promised to send it by post and hence the application form was kept by the 2nd opposite party in their custody, that thereafter 2nd opposite party sent reminders to complainant's son for getting the photographs, but no reply was received from him. Hence 2nd opposite party sent his application form to 1st opposite party for permanent passport after a lapse of one month without photographs. The passport issued to the complainant's son is also without photographs, that the complainant will get the insurance benefit only from the issuance of permanent passport. Hence there is no deficiency in service from the part of opposite parties 1 & 2. After filing the complaint, National Insurance Company Ltd. was impleaded as additional 3rd opposite party. Additional 3rd opposite party filed versions stating that 3rd opposite party did not issue any accidental insurance policy in favour of complainant's son, Mr. Anup Kumar at the time when he died in the alleged motor accident, that complainant did not submit any claim to additional 3rd opposite party. Additional 3rd opposite party has not committed any deficiency in service to the complainant. 3rd opposite party has not received any consideration from the complainant or her son. It is further submitted by 3rd opposite party by way of additional version that 3rd opposite party had issued group personal accidental insurance covering members of Hero Honda passport programme for the period from 28.10.1999 to 27.10.2000, which had been subsequently renewed from 28.10.2000 to 27.10.2001 and thereafter from 28.10.2001 to 27.10.2002, that under the said policy the insured is the 1st opposite party M/s Heron Honda Motors Ltd., that the said policy was issued with a view to grant a personal accident cover as provided for in the insured's customer relationship programme named as Hero Honda Passport Programme, that under the special conditions of the aforesaid policy, the risk in respect of the customers of M/s Hero Honda Motor Limited would commence from the date of issue of passport by the insured, that as the 1st opposite party had issued passport only on 06.06.2002, the liability of the 3rd opposite party would commence only from the date of issue of the passport by the insured. Hence 3rd opposite party prays for dismissal of the complaint.
Points that arise for consideration are:-
Whether this Forum has territorial jurisdiction to entertain the complaint?
Whether the complainant is entitled to get the claim amount on the strength of passport programme?
Whether there is unfair trade practice and deficiency in service on the part of opposite parties 1 & 2?
Whether the complainant is entitled to compensation and costs?
In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P8. In rebuttal, 2nd opposite party has filed affidavit. Other opposite parties have not filed affidavit or any documents.
Points (i) to (iv):- There is no dispute on the point that the complainant's son Mr. Anup Kumar had purchased Hero Honda Motor cycle on 26.03.2002 from the 2nd opposite party. There is no dispute on the point that the said Anup Kumar had remitted Rs. 95/- for a Hero Honda passport on 26.03.2002. Opposite parties raised the issue regarding jurisdiction of this Forum to entertain the complaint on the ground that the entire cause of action arose at Kollam. 3rd opposite party's address mentioned in the complaint is at Delhi. Opposite parties have filed version and contested the case before this Forum. Though opposite parties raised issue regarding jurisdiction of this Forum they never insisted for early hearing regarding the maintainability of the complaint before this Forum. Complaint was filed in the year 2003. As both parties have appeared and contested the case, the issue regarding maintainability of the complaint at this juncture after a lapse of 8 years will never serve the purpose of the complaint. Hence we find complaint is maintainable before this Forum. As regards the claim of the complainant it should be noted that the alleged passport was issued to the complainant on 06.06.2002, that is, after the death of the complainant's son in a road traffic accident. The very stand of the opposite parties is that the risk in respect of the customer of M/s Hero Honda Motor Limited would commence only from the date of issue of the passport by the insured or its representative and would continue for 12 months, thereafter, provided the policy of insurance is kept in force or not allowed to lapse. It has been the case of the complainant that opposite parties denied the benefits offered under the passport programme as the passport was issued after the death of Mr. Anup Kumar. Complainant's evidence consisted of the oral testimony of the complainant and Exts. P1 to P8. Ext. P1 is the copy of the passport. As per Ext. P1 the passport number is 02C46C01005, date of issue is on 06.06.2002, model of the vehicle and engine number are also mentioned in Ext. P1. It is stated in Ext. P1 that Mr. Anup Kumar. V is insured for an amount of Rs. 1,00,000/- in case of accidental death under policy No. 350700/8200055/99, M/s National Insurance Company Ltd., Delhi. It is further stated that in case of claim under the said policy the documents such as intimation letter, claim form, death certificate, postmortem report, copy of FIR are required for processing and settlement of claim. It is further stated therein that the policy is valid for a period of one year from the date of issue of Hero Honda passport. Herein the date of issue was on 06.06.2002. Ext. P2 is the cash receipt voucher issued by the dealer under Hero Honda Passport programme. It shows that dealer received Rs. 95/- from Mr. Anup Kumar on 26.03.2002. There is a note in Ext. P2 as “If you do not receive your passport within 4 weeks please get in touch with your dealer or SSP or hero Honda Passport Programme Centre, New Delhi”. Admittedly as averred in Ext. P2 complainant or her son never received passport within 4 weeks from 26.03.2002. it has been contended by the complainant that Mr. Anup Kumar as well as the complainant demanded the opposite parties to issue passport on several occasions, but they have not issued passport as promised. Ext. P3 is the copy of the advocate notice issued by the father of Mr. Anup Kumar to opposite parties 1 & 2 calling upon them to pay Rs. 1,00,000/-. Ext. P4 is the acknowledgement cards. Ext. P5 is the postal receipts. Ext. P6 is the reply notice to Ext. P3 notice dated 09.10.2002 issued by 2nd opposite party. As per Ext. P6 complainant's son remitted Rs. 95/- on 26.03.2002, but Mr. Anup Kumar did not have his photographs at that time and he promised to send the photographs by post and the 2nd opposite party kept his application with them, that even after sending repeated reminders to Mr. Anup Kumar for getting the photographs, no reply was received from him. Thereafter 2nd opposite party sent Mr. Anup Kumar's application to the company for permanent passport after a lapse of one month without photographs. It is further stated in the reply notice that even though company rejected the application at the first time, later they issued passport on the request of the 2nd opposite party. Ext. P7 is the copy of the death certificate. Ext. P8 is the copy of the postmortem certificate. It is to be noted that complainant never denied the allegations raised by 2nd opposite party in Ext. P6 reply notice sent by them stating that even after repeated reminders to Mr. Anup Kumar for getting the photographs no reply was received from him, nor has complainant mentioned in her affidavit that her son had submitted photographs as required by 2nd opposite party in time, thereby the presumption is that complainant's son had never furnished photographs to 2nd opposite party within time which caused delay in issuing the passport. The burden is on the part of the complainant to show that delay was caused on the part of the opposite parties in issuing passport. Admittedly passport was issued on 06.06.2002, that is after the death of Mr. Anup Kumar. The very condition in Ext. P1 passport is that the passport is valid for a period of one year from the date of issue of Hero Honda Passport. Herein the passport was issued on 06.06.2002, that is after the death of Mr. Anup Kumar, thereby we are of the view that at the time of accident there was no policy in the name of Mr. Anup Kumar, as such complainant is not entitled to get the amount as stated in the passport. Complainant has never furnished any document to show that Mr. Anup Kumar approached the opposite parties 1 & 2 with required documents including photographs to get the passport in time. In view of the above discussions and evidence available on records we are of the considered opinion that complainant is not entitled to get the claim amount on the strength of the passport dated 06.06.2002. There is nothing on record to attribute any deficiency on the part of opposite parties. Complaint has no merits at all which deserves to be dismissed.
In the result, complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29th day of February 2012.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
Sd/-
S.K. SREELA : MEMBER
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O.P. No. 244/2003
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Nalina Kumari
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of passport
P2 - Copy of cash receipt voucher issued by dealer under Hero
Honda Passport Programme.
P3 - Copy of advocate notice dated 09.10.2002
P4 - Acknowledgement cards
P5 - Postal receipts
P6 - Reply notice dated 28.10.02 issued by 2nd opposite party.
P7 - Copy of death certificate.
P8 - Copy of postmortem certificate
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
Sd/-
PRESIDENT
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