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Advocate Sanjay Gaikwad for the Complainant
Advocate Arati Soman for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 28th February 2014
This complaint is filed by consumer u/s 12 of the Consumer Protection Act, 1986 against the Insurance Company for deficiency in service. Brief facts are as follows-
[1] Complainant is an Ex-Defence Personnel. He had joined army in the year 1986 and was posted at various places throughout the country as well as abroad. He retired at Nashik in the year 2003 and he had started to cultivate his agricultural land. He is an agriculturist. He is residing at Kalepadal, Hadapsar. He had purchased Maruti Swift vehicle bearing No. MH 12 FP 7144 for Rs.4,55,770/- plus vat of Rs.56,971/-. The total invoice amount is Rs.5,12,742/-. He had availed financial assistance from Magma Fincorp Ltd. after obtaining loan of Rs.3,00,000/- and also borrowed Rs.3,00,000/- from his relatives and friends. The said vehicle was insured with the Opponent. It was purchased from the Dealer at Pune and insured with the Opponent. The amount of premium was paid at Pune. It is the case of the complainant that only one page policy was given to the complainant which does not include terms and conditions as well as exclusions.
[2] The father of the complainant is about 75 yrs. old and is suffering from heart disease and also sustained paralysis attack. Hence, he was admitted in the hospital at Latur. On 6/4/2010 his father was discharged. At that time, complainant, his mother and employee Shashabai Babru Panchal visited Latur in order to see the health of father. He has parked the car on the road and went for withdrawing money from ATM at Aousa Road. After withdrawing money, he found that, the car was taken away by somebody. Thereafter, he was on the way to Shivajinagar police station at Latur. At that time, he has received call from his mother. He made inquiry about the car and also searched the same within the vicinity. Then, he went to Gandhi Chowk Police Station and lodged complaint. The complaint was acknowledged by the police constable on 8/4/2010 but the FIR was not registered. Police asked the complainant to search the car in the vicinity. He searched the same and informed about the theft of car on 9/4/2010 to the Opponent by fax. He had also informed this fact to the financer immediately. Then, he searched the car at various places i.e. Latur-Astamood, Sirur, Ahmedpur, Nanded, Parbhani, Gangakhed, Parali, Ambejogai, Renapur-Latur etc. He also searched in the neighboring places viz. Latur-Yedsi, Osmanabad, Kuruwadi, Barsi, Karmala, Tuljapur. Ultimately on 19/4/2010 FIR was registered by the police. He informed this fact to the officials of the Magma Finance Company and also submitted the insurance claim to the Pune Branch of Opponent. After making various inquiries and seeking compliances as regards insurance claim, the Opponent directed the complainant to inform this fact to the RTO office and pay the loan which was taken from the Finance company. Ultimately, the Finance Company has repudiated the claim on the ground that the complainant was negligent and the claim was not lodged immediately. Intimation was not given promptly.
[3] Being aggrieved by the decision of the insurance company, complainant has filed present complaint before this Forum. It is the case of the complainant that, he has not received the terms and conditions, as alleged by the Opponent. The insurance claim is wrongly repudiated. That amounts to deficiency in service. He has claimed compensation of Rs.4,97,221/- alongwith interest @ 36% p.a. from the date of theft i.e. from 8/4/2010 till its realization. He has also claimed Rs.1,00,000/- towards compensation and Rs.50,000/- towards mental torture and mental agony. Complainant has also prayed for costs of Rs.10,000/-
[4] Opponent has resisted the claim by filing written version. It has denied the contents of the complaint. It is the case of the Opponent that, the complainant has suppressed material facts. Previously, he has filed complaint No.215/2011 before this Forum on 09/05/2011, which was dismissed by this Forum on 30/11/2011 for want of jurisdiction. Thereafter, he has filed complaint No.51/2012 before the District Consumer Disputes Redressal Forum, Latur on 21/3/2012 which was dismissed on 18/4/2012. These facts are not disclosed by the complainant. Moreover, no cause of action arise within the jurisdiction of this Forum. Hence, this Forum has no jurisdiction to entertain the present complaint. This Forum has no power to review its own order. It is further contended by the Opponent that, the complainant has not intimated the incidence of theft immediately to the police as well as to the insurance company. That amounts to breach of conditions of policy. Hence, complainant is not entitled for any claim. Complainant was negligent as he had left the keys of the car while withdrawing money from ATM, that is also one of the ground for repudiation of his claim. It is the case of the Insurance Company that, the claim was rightly repudiated and the complaint is liable to be dismissed.
[5] After scrutinizing the voluminous documents which are produced by both parties, considering the pleadings, hearing the argument of both counsel, following points arise for the determination of the Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has established that the Opponent has wrongly repudiated the insurance claim of the complainant ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point Nos. 1 and 2-
[6] Before discussing the merits of the case, it is necessary to quote the history of the present proceeding. It reveals from the voluminous documents and certified copies of the Judgments which are produced by the complainant that, the complainant had required to run from pillar to post for getting his legitimate claim. It reveals from the record that, this complainant has filed complaint No.PDF/215/2011 before this Forum and that was dismissed on 30/11/2011 by holding that, this Forum has no jurisdiction. It reveals from the said Judgment and Order that, the branch office of the Insurance Company at Pune was not made party to the proceeding and on that ground, the complaint was dismissed. The learned Advocate for the Opponent argued before the Forum that, this Forum has already dismissed the complaint by holding that, it has no jurisdiction. Now, it cannot review its own order. It reveals from the record that, the complainant had made party to the Head Office of the Insurance Company and prayed for serving the notice on the address of the branch office of the said Insurance Company. On that ground, that complaint was dismissed. Thereafter, complainant has filed complaint before the District Consumer Disputes Redressal Forum, Latur for the same cause of action, and that was dismissed by holding that, the Pune District Consumer Disputes Redressal Forum, Pune has the jurisdiction to entertain the dispute. That Order was challenged before the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad. That was the First Appeal No.247 of 2012 which was preferred against the Order of the District Consumer Disputes Redressal Forum, Latur in complaint No.51 of 2012. Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad has dismissed the First Appeal by holding that the complainant has filed two complaints i.e. one before the District Consumer Disputes Redressal Forum, Latur and another before the Pune District Consumer Disputes Redressal Forum, Pune. On that ground, the Order of the District Consumer Disputes Redressal Forum, Latur was confirmed by the Hon’ble Maharashtra State State Consumer Disputes Redressal Commission, Circuit Bench, at Aurangabad. It is pertinent to note that, the issue of jurisdiction was kept open by the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench, at Aurangabad. Meanwhile, the Opponent i.e. the Insurance Company has challenged the Order of admission of the present complaint by preferring Misc.Appln. No.MA/300/2012 before the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai. That was delay condonation application. But the delay was not condoned and the Revision filed by the Insurance Company is dismissed on 26/3/2013.
[7] If the history of all these proceeding is minutely considered, it would reveal that, the complaint was never decided on merit.
[8] The learned Advocate for the complainant argued before this Forum that, the second complaint is not barred. In that context, he has strongly relied upon the ruling by the Hon’ble Supreme Court in Civil Appeal No.11439 of 1996, between New India Assurance Co. Ltd. vs. R. Srinivasan, reported in AIR 2000 Supreme Court 941. In that proceeding, it has been observed that,
“There is no provision of restoration of complaint in the Consumer Protection Act, 1986 and the Code of Civil Procedure has been applied to the Consumer Protection Act, 1986 only to the limited extend. If the intention of the Legislature was to apply the provisions of Order 9 Civil P.C. also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 Civil P.C. will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act, S.14(3). In this circumstances, there is no bar to file second complaint on same facts and cause of action.
[9] It is pertinent to note that, that no proceeding between the parties has been fully and finally decided as regards the said cause of action. Then the principle of Resjudicata is also not applicable in the present proceeding.
[10] The learned Advocate for the Opponent argued before the Forum that, the fact as regards mere having the branch of the Opponent at Pune, does not confer the jurisdiction on the Pune District Consumer Disputes Redressal Forum, Pune. There must have been cause of action within the jurisdiction of this Forum. In that context, the learned Advocate has relied upon the ruling of the Hon’ble Supreme Court, between Sonic Surgical v/s. National Insurance Co. Ltd. reported in IV (2009) CPJ 40 (SC). It reveals from the said ruling that, the alleged incident of fire took place on 13/2/1999 in the godown of Appellant at Ambala. He had filed complaint before the Consumer Disputes Redressal Commission, Chandigarh and in that proceeding it has been observed that, as the cause of action taken place at Ambala, State Commission, Chandigarh has no jurisdiction, as no cause of action has taken place at Chandigarh. It has been observed in the said ruling that, merely having branch of Opponent, itself does not confer jurisdiction n the Forum or the Commission and certain cause of action must have been taken place within the jurisdiction.
[11] It reveals from the facts of the said proceeding that, the said claim was before the amendment of the Act, and after the amendment, Legislature had provided that the Forum where the Branch office is situated is having the jurisdiction.
[12] Secondly, it appears from the voluminous record that, the complainant had obtained policy by paying the premium through the dealer at Pune. He had submitted the insurance claim to the branch office of the Opponent. He had received the letter of repudiation of claim at Hadapsar, Pune. Then, it cannot be said that no cause of action took place within the jurisdiction of this Forum. The ruling cited by the learned Advocate for the Opponent, is not helpful to adjudicate the dispute before this Forum as there is vast difference in the facts and circumstances of both proceedings.
[13] The object of the amendment as regards jurisdiction must have been that the consumer should get better and expeditious remedy and in that circumstances, the jurisdiction of Forum is widened and complainant is entitled to file complaint where the branch office of the Opponent is situated.
[14] If the facts of the present proceeding are thoroughly considered it is significant to note that, complainant has filed complaint firstly before this Forum, then he has filed complaint before the District Consumer Disputes Redressal Forum, at Latur. Then, he has preferred revision before the Maharashtra State Consumer Disputes Redressal Commission at Aurangabad. Opponent has also challenged the Order of admission of present complaint by preferring revision. There is series of litigation which dragged the complainant to lodge the present complaint before this Forum. If this complaint is again dismissed or returned to the complainant on the ground of jurisdiction, the very object of the Consumer Protection Act, 1986 would be frustrated. As it is the opinion of the Forum that, cause of action also arise within the jurisdiction of this Forum and branch of Opponent is doing its business at Pune, this Forum has the jurisdiction to entertain this complaint.
[15] As regards merits, it is the case of the Opponent that, the complainant was gross negligent as he had left the keys with the car at the time of first incident which provoke the offender to take away the car. Secondly, he had not lodged FIR immediately and intimation of the theft was not given to the Opponent on the same day. The learned Advocate for the Complainant argued before this Forum that, the Complainant had received single page policy, which is produced before this Forum. No specific terms and conditions are mentioned in the said policy. In such circumstances, the defences raised by the Opponent, does not hold any water. Moreover, Apex Court observed in the ruling of Nitin Khandelwal v/s. National Insurance Company that, Breach of conditions does not germane in the case of theft of vehicle. The Opponent has not produced any evidence in order to rebut the documentary evidence which is produced by the Complainant. Hence, this Forum has no alternative but to accept the documentary evidence which is produced by the complainant. It reveals that, no terms and conditions were provided by the Opponent. Moreover, it reveals from the documentary evidence that, the complainant had promptly informed the theft to the police station on the same day and also intimated the Opponent by sending fax. Then, the reason sated in the repudiation letter appears to be false. It is the opinion of the Forum that the Opponent has wrongly repudiated the insurance claim of the complainant and that amounts to deficiency in service. It reveals from the insurance policy which is produced before this Forum that, the value of the vehicle has been shown as Rs.4,97,271/-. The vehicle was brand new. Hence, there is no question of depreciation. Hence, Complainant is entitled for the insurance claim as per the policy. Complainant is also entitled to receive Rs.10,000/- for deficiency in service, Rs.15,000/- by way of compensation on the ground of physical and mental torture and Rs.5,000/- by way of cost of proceeding.
In the light of the above discussion, this Forum answer the points accordingly, and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by repudiating the insurance claim of the complainant.
3. Opponent Nos. 1 to 3 are jointly and severally directed to pay Rs.4,97,271/- [Rupees Four Lakh Ninety Seven Thousand Two Hundred and Seventy One only] to the complainant within six weeks from the date of receipt of copy of order.
4. Opponent Nos. 1 to 3 are jointly and severally directed to pay Rs.10,000/-[Rupees Ten Thousand only] towards deficiency in service, Rs.15,000/- [Rupees Fifteen Thousand only] by way of compensation on the ground of physical and mental torture and Rs.5,000/-[Rupees Five Thousand] by way of cost of proceeding to the complainant within six weeks from the date of receipt of copy of order.
5. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
6. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 28/02/2014
