BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no.200 of 2017
Date of Institution : 3.8.2017
Date of Decision : 28.2.2018.
Girdhari Singh son of Shri Ranjeet Singh, resident of village Bher Ji Ki Dhani, Jaipura, P.O. Luna Tehsil Malsisar District Jhunjhunu (Rajasthan) at present Permanent residing at H.No.90, Ward No.9, J.J. Colony, Behind Rajpoot Rice Mills, Sirsa, Tehsil and Distrtict Sirsa, Haryana.
……Complainant.
Versus.
1. Chief Manager New India Assurance Co. Ltd. Divisional Office, Sikar, (Rajasthan).
2. The Manager, New India Assurance Co. Ltd. Divisional Office, Near Bus Stand, Sirsa (Haryana) Being Local Office of the Company.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L. AHUJA ………………………..PRESIDENT.
SH. MOHINDER PAUL RATHEE ……..MEMBER.
Present: Sh. Jagwant Singh, Advocate for complainant.
Smt. A.P. Kalra, proxy counsel for Sh. A.S. Kalra, Advocate for opposite parties.
ORDER
The case of complainant in brief is that complainant is the registered owner of a vehicle Ambulance bearing registration No.RJ-18PA/8201 and he got the same insured through opposite parties vide policy No.3316003150100007070 valid w.e.f. 5.2.2016 to 4.2.2017. That the ambulance of the complainant is plied from Sirsa to other cities located in Punjab and Haryana. On 7.10.2017 (wrongly mentioned as it should be 7.10.2016), the ambulance in question was going from Sirsa to Patiala and then Chandigarh. In the way, the vehicle met with an accident on 7.10.2016 and was damaged badly. The driver as well as the owner of the vehicle i.e. complainant informed the police about the accident. The police visited the place of accident, removed the ambulance from the place of accident and taken the same into possession. The vehicle was removed from the spot with a purpose to clear the road. The police recorded the statement of complainant on 7.10.2016 vide DDR No.6 without any addition or omission. That the complainant immediately informed to the ops without any further delay and vehicle in question was brought by complainant to the authorized service station of the company i.e. Garg Motors, Mahindra and Mahindra Pvt. Ltd. Sirsa for service and repair of the accidental vehicle. It is further averred that insurance company deputed Shri O.P. Madan as surveyor who inspected the vehicle before repair and he directed the complainant to get the same repaired from the authorized service station of the company. As per the directions of the surveyor, the authorized service station of the company “Garg Motors” prepared the list of spare parts as well as estimate of the spare parts which were got damaged in the accident. Before the accident, the vehicle of the complainant was in very good condition and was roadworthy and there was no defect in any part of its body. The vehicle in question got repaired from the authorized service station and said station changed the spare parts of the said vehicle. The surveyor of the company after repair again inspected the vehicle at authorized service station of the company before the delivery of the vehicle to the complainant. The bill towards the total expenses was submitted to the complainant by the authorized service station of the company amounting to Rs.2,89,388/- and the above said amount was paid by the complainant to the service station authorities excluding the fee of surveyor of the company to the tune of Rs.4250/- but the surveyor of the company assessed the total loss of Rs.2,75,480/- and he deducted unnecessary amount from the total loss without any explanation but the complainant accepted the amount assessed by the surveyor under protest but till today no accidental loss amount has been paid to the complainant by the company without any explanation. It is further averred that vehicle in question purchased and plied as ambulance at Sirsa for earning his livelihood. It is further averred that the office of New India Assurance Company Sirsa sent the report to Sikar Branch Divisional Office on 2.12.2016 but even then no amount has been paid to the complainant. The complainant sent the reminder for payment to the Sikar Office on 20.12.2016 and also contacted with the Manager of Sikar Branch on telephone but to no effect. That finding no other alternative, the complainant on 19.5.2017 sent a registered a legal notice to the ops which was duly received by the ops but to no effect. Now the complainant came to know from the reliable sources that the ops retained the amount on flimsy grounds, one official of the insurance company stated that they would deduct the amount of 25% from the total assessed amount as no spot inspection was made by the company which is wrong and illegal and the act of the ops amounts to deficiency in service. Hence, this complaint.
2. On notice, opposite parties appeared and filed written statement taking certain preliminary objections regarding maintainability and mainly that this Forum has no jurisdiction to entertain and decide the present subject matter of the complaint, as neither accident occurred within the territorial jurisdiction of this Forum nor policy has been issued by Sirsa Office, rather policy has been issued by Sikar Divisional Office, further claim was lodged and dealt with by the Sikar Divisional office falling under the Regional Office at Jaipur and company is having head office at Mumbai, so by issuing the notice and impleading the Sirsa Office as party to the present complaint, jurisdiction cannot be conferred upon this Forum where no cause of action has arisen. Sirsa office is merely presenting the facts and circumstances of the case and by submitting the pleadings and defending the litigation before the DCDRF Sirsa having no jurisdiction and complaint is liable to be dismissed or returned back to the complainant for presentation of same before competent court of law having jurisdiction. It is further submitted that vehicle was plied in violation of Motor Vehicle Act, Road, Rules, Regulations, as per permanent place of registration of vehicle and plying the vehicle is State of Rajasthan and if vehicle will be driven out of the State, in that eventuality, it is mandatory for the owner, insured of vehicle to apply for change of place/ State for plying the vehicle and get the vehicle transferred there in the territorial jurisdiction, where vehicle is being plied. Thus, vehicle registered in the State of Rajasthan, if has been plied here at Sirsa amounts to breach of term and conditions of the insurance company. It is further submitted that vehicle was insured and registered for commercial purposes and was being driven by its driver (not by complainant) in violation of Motor Vehicle Act and rules without having valid and effective driving licence to drive the same, further without payment of tax and maintaining proper distance from the vehicle going ahead and law prohibits driving the vehicle at high and excessive speed or vehicle to be driven beyond permissible speed limit and in this case admittedly vehicle being driven by its driver struck at the back side of bus, when bus going ahead applied brake all of sudden and drive of vehicle in question was not able to control the same, meaning thereby ambulance was being driven by its driver on excessive speed, which was beyond his control, thus damages and accident were inevitable and for such an intentional and wrong act, damages are not payable to the complainant, as it was the duty of driver of ambulance to keep and maintain sufficient distance from the vehicle going ahead. It is further averred that claim lodged by complainant has been rejected being closed as No Claim being not pursued by complainant as despite the registered letters dated 22.2.2017, 3.3.2017 and 14.3.2017 complainant failed to submit the original registration certificate and driving licence of the driver. It was further desired from the complainant that vehicle was commercial one and no spot survey was got conducted as per norms, guidelines of insurance company, which keeps binding effects upon complainant, further information supplied to company was/is also delayed one and it was/is false one. As complainant failed to submit requisite information, documents in writing to the company, rather opted wrong mode by way of dragging the company into false and frivolous litigation, without any cause of action, without getting the result on merit by the company, hence present complaint filed by complainant is liable to be dismissed being pre-mature and due to lapses, latches, negligent and deficient act on the part of complainant, company was not able to decide the subject matter on merit, hence complainant be advised to approach the company/ op no.1 by submitting the required information, documents in order to avoid further litigation and to avoid abuse and misuse of process of law here before this Forum at Sirsa as it was specifically mentioned in the letters referred above that as per rules, the survey of the commercial vehicle was not conducted at the place of accident so claim is approved on non standard basis and please written approval about deduction of 25% from the claim amount be produced. On merits also, it is submitted that complainant is not admitted to be resident of Sirsa, as according to driving licence and registration certificate, complainant has been shown to be permanent resident of Bherji Ki Dhani Jaitpura, Tehsil Malsisar Distt. Jhunjhunu. It is wrong that complainant is consumer of op no.2. Regional Office and Head office of company are situated at Jaipur and Mumbai and complainant did not join them as party to the complaint. It is specifically denied that vehicle was driven by complainant at the time of accident and ambulance was carrying any patient from Sirsa to PGI, was badly damaged. It is unbelievable that Ambulance carrying a patient from Sirsa to PGI will be without any person inside the same and those person will not suffer any injury after such a heavy impact. It is further submitted that no immediate information has ever been given by complainant to the company. However, it is correct that vehicle was inspected by the surveyor as named above. Surveyor being the best technical person assessed the loss, damages to the vehicle to the extent of Rs.1,97,434/- after deduction of salvage value of Rs.5000/- and Rs.2963/- on account of excess clause. But this amount as assessed by surveyor has not been paid due to the facts and circumstances mentioned above in the preliminary objections. It is further submitted that vehicle was inspected by surveyor after repair and he has submitted his report with op no.2 on 1.12.2017 and op no.2 sent the same to op no.1 which was received by op no.1 on 7.12.2017 and thereafter decision has been taken by op no.1 accordingly without any willful or malafide delay. Sirsa office of company merely acted as an office for sending and dispatching the paper. Decision on the aspect of payment of claim or decision regarding claim has been taken by op no.1 there at Sikar. The other pleas as taken in the preliminary objections are also reiterated, contents of the complaint are denied and prayer for dismissal of complaint has been made.
3. The complainant has produced his affidavit Ex.PW1/A and copies of documents Ex.P1 to Ex.P16. On the other hand, ops produced affidavit of Sh. K.S. Chaudhary, Sr. Divisional Manager as Ex.R1, affidavit of Sh. O.P. Madan, Surveyor and Loss Assessor Ex.R2 and copies of documents Ex.R3 to Ex.R9.
4. We have heard learned counsel for the parties and have gone through the case file carefully.
5. Learned counsel for complainant has strongly contended that complainant has proved that complainant is owner of the vehicle bearing registration No.RJ-18PA/8201 which was insured with opposite parties for the period 5.2.2016 to 4.2.2017. It is also proved on record that on 7.10.2016, the said vehicle was going from Sirsa to Chandigarh and in the way vehicle met with an accident and it was badly damaged. Due intimation was given to the ops. Survey was conducted who inspected the vehicle and submitted his detailed survey report and recommended loss to be paid to the complainant but however, the ops did not settle and pay the claim to the complainant rather continued to avoid payment on one pretext or the other despite serving legal notice upon ops. It is unfair trade practice on the part of ops. The complainant is entitled for the loss which he has suffered and is also entitled for compensation and litigation costs. Learned counsel for complainant has relied upon judgments of the Hon’ble Consumer Disputes Redressal Commission, Union Territory, Chandigarh in cases titled as Super Seeds Private Limited Vs. OIC and others, 2009(1) CLT 232, P.D. Memorial Religious & Eeducational Association Vs. NIAC and another, 2009 (1) CLT 622. He has also relied upon judgments of the Hon’ble National Commission in cases titled as Royal Jordanian Airlines & ors. Vs. Nanak Singh & Anr. 2014 (4) CLT 270, Aggarwal Packers and movers vs. Renu Sharma, 2011 (3) CLT 374 and also judgment of the Hon’ble H.P. State Consumer Disputes Redressal Commission, Shimla in case titled as Charisma Goldwheels (P) Ltd. vs. B.K. Arora and another, 2009(3) CLT 76.
6. On the other hand, learned proxy counsel for opposite parties while contending on the lines of written statement has also strongly contended that this Forum has no jurisdiction to entertain and try the present complaint as neither accident took place in the territorial jurisdiction of Sirsa nor policy has been issued by Sirsa office rather policy has been issued by Sikar office. Claim was lodged and dealt with by Sikar office. So by issuance of legal notice and impleading Sirsa office, jurisdiction cannot be conferred upon this Forum where no cause of action arose. She has relied upon judgment of the Hon’ble Supreme Court of India in case titled as Sonic Surgical Vs. NIC, VA No.1560 of 2004 decided on 20.10.2009.
7. We have considered the rival contentions of the learned counsel for parties and have gone through the record as well as judgments relied upon by learned counsel for parties.
8. It is undisputed fact between the parties that complainant is owner of a vehicle bearing registration No.RJ-18PA/8201 which was insured with the opposite party no.1 i.e. New India Assurance Company Ltd. Divisional Office, Sikar (Rajasthan). It is further undisputed fact that this vehicle was registered with the Registering Authority, Jhunjhunu (Rajasthan). Though, learned counsel for complainant has contended that ops have rejected the claim of the complainant arbitrarily and illegally but however there is specific plea of the opos that complaint of the complainant is pre-mature as claim of the complainant was closed as No Claim being not pursued by complainant despite three letters dated 22.2.2017, 3.3.2017 and 14.3.2017 written to the complainant to submit original RC, driving licence of the driver who was driving the vehicle at the time of accident, but however, complainant did not submit any required documents which were necessary for the settlement of the claim and moreover, complainant did not provide the opportunity to the ops for spot survey and survey was only got conducted by complainant later on due to reason best known to him but however, learned counsel for complainant failed to explain why documents like RC and driving licence of the person who was driving the vehicle was not submitted to the ops for settlement of the claim.
9. Secondly, bone of contention between the parties is qua territorial jurisdiction of this Forum. As per contention of learned counsel for complainant this Forum has jurisdiction to try and decide the present complaint as the complainant is residing at Sirsa and he is plying his vehicle in the area of Sirsa and on the fateful date of occurrence, the complainant had carried the patient from Sirsa to Chandigarh in his ambulance and in the way he met with an accident. It has also been contended that claim was lodged with the office at Sirsa and same was settled but however not paid by office at Sirsa. The vehicle was got repaired at Sirsa under the guidance of the surveyor who was appointed at Sirsa.
10. On the other hand, learned counsel for ops has strongly opposed contention of learned counsel for complainant on the ground that insurance contract took place at Sikar (Rajasthan) from where policy was issued and accident took place in the area of District Patiala. No cause of action or part of cause of action has ever accrued in the territorial jurisdiction of Sirsa.
11. The perusal of the registration certificate of the vehicle reveals that it was registered with the Registering Authority DTO Jhunjhunu (Rajasthan) in the name of Girdhari Singh son of Ranjeet Singh, resident of Bherji Ki Dhani, Jaitpura, PO Luna, Tehsil Malsisar, District Jhunjhunu. The perusal of the policy Ex.P6 reveals that same was issued in the name of complainant Girdhari Singh son of Ranjeet Singh, resident of village Bher Ji Ki Dhani Jaipura, PO Luna, Tehsil Malsisar, Jhunjhunu, Rajasthan meaning thereby that vehicle was registered in Rajasthan and insurance contract also took place in Sikar (Rajasthan). The copy of DDR placed on record as ExR7 reveals that same was registered on the statement of complainant Girdhari Singh son of Ranjeet Singh, caste Rajput, resident of Bher Ji Ki Dhani. This DDR also speaks about the truth that same was recorded on the statement of complainant himself and complainant never stated that he is resident of Sirsa and he is plying his vehicle at Sirsa but however complainant has tried to create evidence in his favour to seek the territorial jurisdiction at Sirsa by serving legal notice and by filing present complaint. The perusal of letters Ex.R4 to Ex.R6 reveals that same were written by insurance company having their office at Sikar addressed to Girdhari Singh son of Ranjeet Singh resident of Bher Ji Ki Dhani Jaipura, PO Luna, Tehsil Malsisar, Jhunjhunu and same were not delivered at Sirsa. Similarly, intimation regarding the accident and the claim was also sent by the complainant to New India Assurance Company at Sikar which is evident from the letter of complainant which is Ex.P1 on the file. So, from the evidence of complainant as well as evidence of ops, we come to the conclusion that insurance contract took place at Sikar where from policy was issued, accident took place in the area of Patiala, Punjab and no cause of action or part of cause of action has accrued at territorial jurisdiction of Sirsa and further more we find force from the judgment of the Hon’ble Supreme Court in case titled as Sonic Surgical Vs. NIC (supra) in which it was observed by Hon’ble Supreme Court as under:-
“ It appears that there was a fire on 13-14th February, 1999 at 10.00 p.m. in the godown of the appellant at Ambala. For claiming compensation, the appellant filed a claim petition before the Consumer Commission of the Union Territory, Chandigarh constituted under Section 17 of the Consumer Protection Act, 1986 (hereinafter for short ‘the Act’). The said claim petition filed by the appellant herein was allowed by the Consumer Commission of the Union Territory, Chandigarh. On appeal, the NCDRC allowed the appeal of the respondent herein on the ground that the Consumer Commission at Chandigarh had no jurisdiction to entertain and adjudicate the complaint. We are in agreement with the view taken by the NCDRC. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.”
12. The above said authority is fully applicable to the facts and circumstances of the present case. The judgments relied upon by learned counsel for complainant are of no help to the case of complainant as facts are quite different.
13. In view of the above discussion, we are of the considered opinion that this Forum has no territorial jurisdiction to entertain and try the present complaint and as such present complaint is ordered to be returned to the complainant with the liberty to file fresh before the competent forum having jurisdiction for the same. The complainant may seek exemption of time during which the present complaint remained pending before this Forum while calculating the period of limitation, as per law. Documents, if any which are required by the complainant be returned to the complainant against proper receipt after placing on file photostat copies of the same. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. Member President,
Dated:28.2.2018. District Consumer Disputes
Redressal Forum, Sirsa.
