Tripura

StateCommission

A/4/2019

The Oriental Insurance Co. Ltd. - Complainant(s)

Versus

Sri. Gopal Debbarma - Opp.Party(s)

Mr. Prahlad Kr. Debnath

11 Jul 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.4.2019

 

1. The Oriental Insurance Company Limited,

H.G.B. Road, Agartala,

Near Sarkar Nursing Home, Agartala,

District - West Tripura, Pin: 799001.

 

  … … … … Appellant/Opposite Party No.3.

Vs

 

1. Sri Gopal Debbarma,

S/o Late Indrajit Debbarma,

House No.811/327/A. Debbarma,

No.14, Near Cosmopolitan Club,

P.S. West Police Station, Agartala,

District - West Tripura.

… … … … Respondent/Complainant.

2. The Oriental Insurance Company Limited,

Represented by Edelweiss Insurance Brokers Ltd.,

Unit No.102, 10^th Floor, Sakhar Bhavan, 

230 Nariman Point, Mumbai - 400002

… … … … Respondent/Opposite Party No.1.

3. The Mobilestore,

Store Code 1075, 6, C.R. Avenue, E-Mall,

Chandni Chowk, Kolkata - 700072.

… … … … Respondent/Opposite Party No.2.

 

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

For the Appellant:                                              Mr. Prahlad Kr. Debnath, Adv.

For the Respondent No.1:                                  Mr. Kajal Nandi, Adv.

For the Respondent No.2 & 3:                            Absent.

Date of Hearing & Delivery of Judgment:         11.07.2019.

J U D G E M E N T [O R A L]

 

U.B. Saha, J,

The instant appeal is filed by the appellant, the Oriental Insurance Company Limited i.e. the opposite party no.3, challenging the judgment dated 24.01.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.15 of 2018.       

2. Heard Mr. Prahlad Kr. Debnath, Ld. Counsel appearing for the appellant, (hereinafter referred to as opposite party no.3/Insurance Company) as well as Mr. Kajal Nandi, Ld. Counsel appearing on behalf of the respondent no.1 (hereinafter referred to as complainant). None appears on behalf of the respondent no.2, the Oriental Insurance Company Ltd., represented by Edelweiss Insurance Brokers Ltd. (hereinafter referred to as opposite party no.1) and the respondent no.3, the Mobilestore (hereinafter referred to as opposite party no.2) though the notice were properly served as per speed-post track report.
3. Brief facts of the case are as follows:-  

Complainant, Sri Gopal Debbarma, submitted an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging that he had purchased one mobile phone (Samsung Galaxy S8 + Black) on 05.05.2017 from the Mobilestore, 6, C.R. Avenue e-Mall, Chandnichowk, Kolkata, the opposite party no.2 on payment of Rs.64,000/-. At the time of purchase of the mobile phone, he had got the mobile phone insured with the Oriental Insurance Company Ltd. vide Certificate No.AZTMA3150325 through the Edelweiss, Insurance Brokers Limited, 23, Nariman Point Mumbai, the opposite party no.1 represented by Edelweiss, Insurance Brokers Limited on payment of Rs.933/- being the premium. The Insurance Policy was valid from 05.05.2017 to 04.05.2018. It is stated by the complainant that on 14.02.2018 evening when he was on the Rajguru Road near Metro Plaza Hotel, New Delhi, he met with in an accident when a bicycle being ridden by a child dashed him from behind. As a result, he fell on the ground and his mobile phone slipped from his hand and fell into the manhole which was then open. The drain was full of black colour waste water. He could not recover the mobile phone. He immediately reported the matter to the nearby Police Station where G.D. Entry was made by the Station Officer vide No.561162/2018 dated 14.02.2018. The complainant further stated that on 07.03.2018, he returned to Agartala from Delhi and on the next day i.e. on 08.03.2018 he sent an e-mail to support@amtrustmobilesolutions.in claiming the sum insured in respect of his mobile phone which he had lost in New Delhi, but his claim was not entertained. Hence, he filed the complainant petition for redress.

4. The opposite party no.1, Edelweiss Insurance Brokers Limited after receiving the notice from the learned District Forum submitted written objection through Courier Service (Blue Dart). The written objection was signed by their authorized officer and it was received by the learned District Forum on 25.07.2018. It appears from the written objection that the opposite party no.1 denied to have committed deficiency of service. It is stated by the aforesaid opposite party that the complainant had availed of insurance package of his mobile phone through him from the Oriental Insurance Company Ltd. who alone is entitled to decide whether to allow or decline the insurance claim that had been raised by the complainant. The opposite party no.1 thus prayed for dismissal of the complaint against them.
5. The opposite party no.2, the Mobilestore had not taken any step though the notice was sent to the said opposite party by post from the learned District Forum. Thus, the case was proceeded ex parte against the said opposite party. 
6. On 14.06.2018, the Oriental Insurance Company Ltd., Agartala has been added as opposite party no.3 in the complaint case. Notice was duly issued to the opposite party no.3 from the learned District Forum. The said opposite party after appearing before the learned District Forum submitted its written statement. In the written statement, the opposite party no.3 denied to shoulder any liability in respect of missing of the mobile phone of the complainant. It is stated by the opposite party no.3 that the complainant did not mention in his complaint the Policy particulars, Certificate Number of the alleged Policy purportedly issued by the Oriental Insurance Company Ltd. It is also stated by the opposite party no.3 that in the Insurance Certificate bearing No.AZTMA3150325 issued by the opposite party no.2 the name of Oriental Insurance Company Ltd. has been mentioned, but at the same time the name of National Insurance Company Ltd. has also been reflected on the body of the Certificate which creates confusion as to whom the liability would be fixed. The said opposite party further stated that the complainant is not entitled to get insurance benefit as per the terms and conditions contained in the Certificate as his claim is barred under the exclusion clause provided in Para-8 of sub-para-1 which provides that the insurer shall not be liable for “Loss or damage to the Equipment due to mysterious, circumstances/disappearance or unexplained reasons”. The opposite party no.3 had denied any deficiency of service committed by it towards the complainant. Thus, the opposite party no.3 urged for dismissal of the complaint petition.
7. In support of the complaint, the complainant examined himself as P.W.1 and produced four documents i.e. Insurance Certificate, Police Report, SMS Report, Claim Information and Voucher which were marked as Exhibit-I series.
8. On the other hand, the opposite party no.3 i.e. the Oriental Insurance Company Limited, H.G.B. Road, Agartala examined one witness, namely, Sri Goutam Banik, Asstt. Manager, Oriental Insurance Company Limited. The said witness did not adduce any documentary evidence.
9. Considering the pleadings of the parties and the documents, the learned District Forum framed the following issues for deciding the case:-

1. Whether the mobile phone (Samsung Galaxy S8 + Black) of the complainant was insured with the Oriental Insurance Company Limited (opposite party no.3)? 
2. Whether there was any deficiency of service committed by the opposite parties towards the complainant? 
3. Whether the complainant is entitled to get any compensation/relief?

10. After hearing the parties and considering the evidence on record, the learned District Forum allowed the complaint petition directing the opposite party no.3, Oriental Insurance Company Limited, H.G.B. Road, Agartala Branch to pay an amount of Rs.64,900/- being the insured amount of the mobile phone of the complainant along with compensation of Rs.10,000/- on account of mental agony and harassment suffered by the complainant together with Rs.3,000/- as costs of litigation, in total Rs.77,900/- which shall be paid within a period of two months from the date of judgment, failing which, the amount shall carry interest @ 9% per annum till the payment is made.
11. Being aggrieved by the judgment of the learned District Forum, the opposite party no.3, the Oriental Insurance Company Limited, H.G.B. Road, Agartala preferred the instant appeal on the ground that the learned District Forum had/has no jurisdiction to decide the complaint petition, as the cause of action was not within the territorial jurisdiction of Tripura. More so, the complainant was not the insured of the Policy which would be evident from the Insurance Certificate itself. According to Insurance Certificate, the name of the insured is AmTrust Mobile Solutions India Pvt. Ltd. and the same was not made party in the complaint petition.
12. Mr. Debnath, Ld. Counsel appearing on behalf of the appellant-opposite party no.3 while urging for setting aside the impugned judgment would contend that the learned District Forum had/has no territorial jurisdiction to decide the complaint petition as the cause of action arose out of Tripura. In support of his aforesaid contention, he has relied upon the decision of the Hon’ble Apex Court in Sonic Surgical Vs National Insurance Company Ltd. 2010 1 SCC 135. He has again submitted that as per the Insurance Certificate, the insured is AmTrust Mobile Solutions India Pvt. Ltd. and the complainant is the beneficiary, but the AmTrust Mobile Solutions India Pvt. Ltd. is not made party in the complaint petition though initially the complainant taken up the matter with the AmTrust Mobile Solutions India Pvt. Ltd. and his prayer was rejected due to outside the policy guidelines. He has finally contended that though the question of maintainability of the complaint petition was raised before the learned District Forum, but the same was neither considered nor decided. Hence, the complaint petition is liable to be dismissed.
13. Per contra, Mr. Nandi, Ld. Counsel appearing on behalf of the complainant submits that admittedly AmTrust Mobile Solutions India Pvt. Ltd. was not made party. His main contention is that he purchased the Insurance Policy through the seller, Mobilestore, the respondent-opposite party no.2 and the Oriental Insurance Company Ltd. is made party as represented by Edelweiss Insurance Brokers Ltd. and the said Insurance Brokers purchased the Policy in the name of AmTrust Mobile Solutions India Pvt. Ltd. and complainant is shown as a beneficiary. He has finally contended that as the Oriental Insurance Company has a branch in Tripura, therefore, the learned District Forum had/has the jurisdiction to decide the complaint petition.   
14. We have gone through the complaint petition as well as the Insurance Certificate issued by the Oriental Insurance Company Ltd. relating to Group Insurance Policy No.0000038157 as produced before this Commission by the appellant-opposite party no.3, Oriental Insurance Company Ltd. from which it appears that the insured is AmTrust Mobile Solutions India Pvt. Ltd. and the beneficiary is the present complainant, but while the complaint petition was filed by the complainant he did not make party to the AmTrust Mobile Solutions India Pvt. Ltd. though he submitted his initial claim to the aforesaid AmTrust Mobile Solutions India Pvt. Ltd. and after rejection of his claim by the said AmTrust Mobile Solutions India Pvt. Ltd., he had filed the complaint petition. Thus, the complaint petition is bad in law for non-joinder of necessary party. In Sonic Surgical (supra), the Hon’ble Apex Court while deciding the expression ‘Branch Office’ in Section 17(2) (b) of the Consumer Protection Act, held that “‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen.” For proper appreciation the Paragraph-9 and 10 of the aforesaid judgment of the Hon’ble Apex Court is reproduced hereunder:-

“9.     The learned counsel for the appellant submitted that the respondent Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant.

10. 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. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. (Vide G.P. Singh's Principles of Statutory Interpretation, 9^th Edn., 2004, p. 79.)”

15. In the instant case also, Mr. Nandi, Ld. Counsel has submitted that the appellant-opposite party, Insurance Company has a branch office at Agartala, Tripura and hence, under the amended Section 17(2) of the Consumer Protection Act, the complaint can be filed at Agartala.  
16. In view of the judgment of the Hon’ble Apex Court, we regret, we cannot agree with the Ld. Counsel, Mr. Nanadi who has appeared for the complainant. We have also gone through the judgment of the learned District Forum from which it appears that the learned District Forum did not consider the maintainability of the complaint petition even though the opposite party no.3 raised the question of maintainability before it. The learned District Forum considered a document being Insurance Certificate Reference No.AZTMA3150325, but the same is not the Insurance Certificate, actual Insurance Certificate is relating to Group Insurance Policy No.0000038157 and Certificate Number is No.AMTAD00216348 wherein the insured name is shown as AmTrust Mobile Solutions India Pvt. Ltd. and the name of beneficiary as mentioned is Gopal Debbarman i.e. the complainant, the respondent no.1 herein. Thus, according to us, even if, the Oriental Insurance Company Ltd. is liable to pay the insured amount that should be paid to the beneficiary complainant through the insured AmTrust Mobile Solutions India Pvt. Ltd. More so, from the fact as stated in the complaint petition as well as written statement submitted by the opposite parties, it appears, neither the cause of action arose within the territorial jurisdiction of learned District Forum nor the mobile of the complainant was lost within the jurisdiction of the learned District Forum. The Hon’ble Apex Court discussed about the cause of action in Paragraph-3, 4 and 5 of Sonic Surgical (supra) which are reproduced hereunder:- 

“1.     Heard learned counsel for the parties. This appeal by special leave has been filed against the order dated 10th July, 2003 of the National Consumer Disputes Redressal Commission, New Delhi (for short 'NCDRC') whereby the appeal filed by the respondent herein has been allowed and the order of the Consumer Disputes Redressal Commission Union Territory, Chandigarh has been set aside.

2.       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.

3.       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.”

17. In view of the above, we are of the considered opinion that the learned District Forum committed error while passing the impugned judgment. Thus, the same is set aside. However, as the Consumer Protection Act is enacted for the benefit of the consumers, it would be proper not to throw out the complainant for raising his claim for the benefit of Insurance Policy purchased by him through the opposite party no.2, Mobilestore. Accordingly, the complainant is given liberty to file a fresh complaint at the place where the cause of action had arisen. The Insurance Certificate placed by the Oriental Insurance Company be kept on record.

In the result, the impugned judgment is set aside and the appeal is allowed. No order as to costs.

Send down the records to the learned District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura