BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2008 AGAINST C.C.NO.74 OF 2007 DISTRICT CONSUMER FORUM ADILABAD
Between
1. The Peerless General Finance & Investment
Company Ltd., Peerless Bhavan, 3 Esplanade East
Kolkata-700 069
2. The officer in Charge, R.M.C.,
The Peerless General Finance & Investment Co., Ltd.,
Mancharia Towers, 1st Floor, 1-8-143, 143/A, Golkonda X Road
Musheerabad, Hyderabad-500 029
Appellants/opposite parties
A N D
1. Smt Yelti Shobha W/o late Jeevan Reddy
R/o Kumbajary, Yapalguda Post
Mandal and District Adilabad
2. Yelti Ashwini D/o Yelti Shobha
Age minor, Occ: Student U/g of
natural mother Yelti Shoba complainant no.1
Respondents/complainants
Counsel for the Appellants Sri P.Venkat Swamy
Counsel for the Respondents Sri M.Ramgopal Reddy
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TENTH DAY OF NOVEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The opposite parties are the appellants.
2. The brief facts of the case relevant for disposal of the appeal are that the husband of the first complainant, Jeevan Reddy during his life time obtained endowment policy certificate no.5306286/915 on 23.1.1995 with the expiry date 23.1.2005. He fell sick and was admitted to medical college hospital, Nagpur and while under going treatment she died on 28.11.1995 in the hospital. As per the terms of the endowment certificate the nominee is entitled to the sum assured and bonus of `35,060/- in case of sudden death of husband of the complainant. After the death of her husband the first complainant has lodged claim and got issued notice on 17.1.2007. The opposite parties had sought for submission of correct policy number, copy of death certificate, which were furnished by the complainant, but the claim was not settled whereby the complainants had filed the complaint before the District Forum.
3. The opposite parties contended that maturity amount could not be released due to the default in payment of premium by the deceased husband of the complainant no.1. He had not paid the total premium from 1995 to 23.1.2004. It was submitted that as admitted by the complainants in para 2 of the complaint that the husband of the complainant no.1 died due to sickness, accident benefits cannot be claimed by the Legal Representatives of the certificate holders. They can opt for continuation of the certificate with the permission of the opposite parties. The complainants are not entitled to full maturity value of `28,000/- plus bonus of `7,060/-. As per the opposite parties agreed to refund the amount as per the terms and conditions of the certificate and issued discharge cum voucher dated 23.12.2004. The opposite parties offered `4,160/- towards full and final satisfaction of the claim of the complainant.
4. The complainant no.1 has filed her affidavit and got marked Exs.A1 to A14. On behalf of the opposite parties no documents had been filed nor the opposite parties had chosen to file affidavit of any of their officer.
5. The District Forum has awarded a sum of `35,060/- with interest @ 9% per annum.
6. Aggrieved by the order of the District Forum, the opposite parties filed the appeal contending that the District Forum has no territorial jurisdiction to entertain the complaint, the complaint was not filed within the period of limitation, the complaint was bad for non-joinder of New India Assurance Company Limited, the service rendered by the opposite parties to the complainant’s husband was free of charge and that the deceased met with natural death but not accidental death.
7. The points for consideration are:
1) Whether the District Forum has no territorial jurisdiction to entertain the complaint?
2) Whether the complaint has not filed within the period of limitation?
3) Whether the opposite parties rendered service to the husband of the complainant no.1 free of charge?
4) To what relief?
8. POINT NO.1 The learned counsel for the opposite parties has contended that the District Forum, Adilabad has no territorial jurisdiction as the opposite parties had neither head office nor branch office in Adilabad District. It is true, the opposite parties might not have head office or branch office at Adilabad. The opposite parties had not denied the rendering of service or carrying on business in Adilabad District though they might not have a branch office there. It is pertinent to note that the opposite parties had not taken objection to the territorial jurisdiction at any point of time ever since they had made their appearance before the District Forum till the disposal of the complaint. For the first time, the opposite parties had raised an objection as to the jurisdiction of the District Forum in the appeal which is not sustainable in law and in view of catena of decisions of the Hon’ble Supreme Court. Thus, it is a settled law that no objection as to the territorial jurisdiction of the tribunal can be entertained in the appeal if not taken at the earliest point of time in the complaint before the District Forum. The contention of the opposite parties does not hold water and liable to be rejected.
9. POINT NO.2 The aspect of limitation is a question of fact and law. Even if it is not taken at the enquiry stage of the complaint, the opposite parties can raise the plea of limitation in the appeal. The husband of the complainant no.1 obtained the insurance policy on 23.1.1995. The expiry date of the certificate is 23.1.2005. The husband of the complainant died on 28.11.1995 leaving behind him the complainants. The complainants had got issued notice dated 27.1.2007 requesting for settlement of their claim and in reply, the opposite parties had addressed letter dated 6.6.2007 requesting for furnishing of correct certificate number and later on the opposite parties addressed another letter dated 12.6.2007 to the counsel for the complainants Sri M.kantha Rao to supply the attested copy of the death certificate of the husband of the complainant no.1 “to enable them to issue discharge form cum voucher in the name of nominee for the payment as per privileges and conditions as mentioned in the overleaf of the certificate”. The opposite parties had issued discharge form-cum-voucher on 23.1.2004 for a sum of Rs.4160/-. The complaint was filed on 20.11.2007.
10. Section 24(A) of the Consumer Protection Act provides for limitation of two years from the date of cause of action for filing the complaint before the Consumer Forum. The cause of action, as was settled by several decisions of the Apex Court, is a bundle of facts which the plaintiff has to prove in order to succeed in his claim. As aforementioned, though the husband of the complainant no.1 died on 28.11.1995, the opposite parties had acquiesced to the limitation aspect of the claim by expressing their readiness to pay the amount of `4160/- by their letter dated 12.6.2007. As such the complaint is filed within the period of limitation in terms of Sec.24A of the Limitation Act. The point is answered against the opposite parties.
11. POINTS NO.3 AND 4 The learned counsel for the opposite parties has contended that the relationship between the complainant and the opposite parties is not that of consumer and service provider as there was no consideration paid by the deceased husband of the complainant no.1. The opposite parties had not brought on record the particulars of the scheme whereunder the insurance coverage was provided by the New India Assurance Company Limited to the certificate holders who are the account holders with M/s Peerless General Finance & Investment Company Limited, Karimnagar. The failure of the opposite parties to produce the positive evidence that had been in their possession makes their contention devoid of any merit or force and it has to be construed as the service rendered by the opposite parties to the deceased husband of the complainant no.1 was not for free of charge but on collection of certain amount.
12. In order to claim accident benefit in terms of the insurance policy that was stated to have been issued in connection with the endowment certificate obtained by the husband of the complainant no.1 the complainants have to establish that the husband of the complainant no.1 met with an accidental death or died in an incident that can be termed as accident. The certificate issued by the opposite parties in favour of the deceased husband of the complainant no.1 indicates deposit of first premium by him in the year 1995. The endowment certificate contains the details of certificate holder, premium amount, date of commencement, date of maturity, last payment, total amount payable, period of payment, bonus and other particulars besides containing the name of the complainant no.1 as nominee of her husband. The privileges and conditions mentioned the overleaf of the certificate show that accident death benefit would be payable to the nominee in case the certificate holder dies in an accident.
13. The endowment certificate contains the conditions for payment of premature withdrawals, special provision for immediate refund or maturity in case of death, mode of settlement of account paid by the defaulted certificate holder, mode of payment in case of accidental death where the subscriber paid the entire instalments continuously till maturity of the certificate. It provides for payment of accident benefit, full amount on maturity along with bonus and interest provided the certificate holder paid the entire instalments and if he dies in an accident prior to the maturity of the certificate his legal heirs would get the amount paid by him with interest and accident benefit without interest. If the certificate holder dies due to natural death, his legal representatives would get the amount deposited by him along with interest after maturity date. His legal representatives would be given opportunity for continuation of the certificate.
14. The learned counsel for the opposite parties has contended that the certificate holder had not died due to an accident. The complainants in para 2 of the complaint pleaded that the husband of the complainant no.1 “suddenly fell sick and died, who was admitted as inpatient in the Medical College Nagpur for treatment, during the course of treatment he died on 28.11.1995 at 8.50 p.m. within one year after receiving the policy, due to enteric fever and burst of abdomen at Nagpur Medical College”. The death of the certificate holder due to enteric fever cannot be said due to accident or accidental. The complainants had failed to prove that the insured died in accident or he met with accidental death. Failure of the complainant to establish the accidental death of the certificate holder would necessarily relieve them from the obligation of impleading the New India Assurance Company as one of the opposite parties to the complaint. As such non-joinder of the New India Assurance Company Limited to the proceedings is not bad nor warranted.
15. The opposite parties have expressed their readiness to pay an amount of `4,160/-. The opposite parties had addressed letter dated 6.6.2007 and another letter dated 12.6.2007 to the counsel of the complainant with a request to the complainants to furnish the correct certificate number and copy of death certificate of the certificate holder respectively. The opposite parties could have sought the relevant information in one instance but not in instalments as this act on the part of the opposite parties has led to delay in processing the claim whereby the complainant had been subjected to inconvenience and hardship as the early settlement of the claim would have enabled them to the facility of enjoyment of the amount to which they are legitimately entitled to receive from the opposite parties. The opposite parties are liable to pay compensation of `2,000/- besides the amount of `4160/- which was agreed to be paid by them under discharge voucher dated 23.12.2004. The order of the District Forum need be modified accordingly.
16. In the result the appeal is allowed. The order dated 9.5.2008 of the District Forum is modified to the extent the amount awarded `35,060/- with interest is reduced to `4160/- without any interest. The opposite parties shall pay `2,000/- towards compensation. In the circumstances of the case there shall be no order as to costs.
MEMBER
MEMBER
Dt.10.11.2010
KMK*
