Delhi

North

CC/1/2023

SHASHANK ANIL SINGH - Complainant(s)

Versus

STAR HEALTH & ALLIED INSURANCE COMPANY - Opp.Party(s)

20 Jan 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.: 01/2023

In the matter of

Shashank Anil Singh

C/o Shri Anil Singh

R/o 4041, Vijay Colony, Gali No. 1

Burari, Delhi- 110084                                           …      Complainant

 

Versus

 

Star Health & Allied Insurance Company

Through its Chief Manager Dr Madhukar Pandey (Health Claims)

1^st Floor, Himalaya House

23, Kasturba Gandhi Marg

New Delhi- 110001                                              …      Opposite Party

 

Present: Complainant in person

 

ORDER

20.01.2023

(Divya Jyoti Jaipuriar)

On the last date of hearing, we have heard the arguments of the Complainant in person, who is also an Advocate by Profession. Briefly stated, the Complainant has filed this complaint challenging the repudiation of the health insurance claim of the Complainant’s Covid-19 treatment at Thane, Maharashtra during the period from 18.06.2022 to 23.06.2022. The Complainant lodged the insurance claim, which was repudiated by the OP on 12.07.2022, which is under challenge before this Commission.

2. At the onset, we have enquired about the territorial jurisdiction of this Commission primarily on the ground that (i) the insurance policy was purchased by the Complaint on 28.04.2022 when the Complainant was residing at Mumbai and the said policy was issued by the Andheri (E), Mumbai branch of the OP, i.e. the policy servicing branch is situated at Mumbai (Maharashtra); (ii) the treatment of the Complainant was taken at Thane, Maharashtra and the insurance claim was lodged in Maharashtra; and (iii) communication between the parties so filed by the Complainant before us indicate that the policy claim servicing branch, with respect to the policy in question, is situated at Chennai.

3. In reply, the Complainant answered that although the policy was purchased using Mumbai address of the Complainant, the Complainant currently resides in Burari, which is within territorial jurisdiction of this Commission. He has placed reliance on the Election Photo Identity Card (EPIC) issued in favour of the Complainant which indicates the Burari address of the Complainant. The EPIC is on record, but we notice that the said EPIC was issued on 20.10.2022, the date which indicates that the Complainant has recently shifted to the current address.

4. In this context, we would like to refer to section 34 of Consumer Protection Act, 2019 (CPA, 2019) which reads as under:

"34: Jurisdiction of District Commission

(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.

(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or

(c) the cause of action, wholly or in part, arises; or

(d) the complainant resides or personally works for gain.

(3) The District Commission shall ordinarily function in the district headquarters and may perform its functions at such other place in the district, as the State Government may, in consultation with the State Commission, notify in the Official Gazette from time to time.”

5. The Consumer Protection Act, 2019 has expanded the jurisdiction of the District Commissions by permitting the Complainants to approach the District Commission, in whose jurisdiction, the complainant resides or personally works for gain. However unlike clauses (a) and (b) of the section 34 (2), the phrase “at the time of the institution of the complaint” is missing from clauses (c) and (d) of the Section 34 (2) of the CPA, 2019. Not adding the phrase “at the time of the institution of the complaint” in clauses (c) and (d) cannot be termed as an error, and this Commission cannot question the wisdom of the legislature in enacting a particular law. If the phrase “at the time of the institution of the complaint” is not included in clauses (c) and (d) of Section 34 (2) CPA, 2019, these clauses are to be interpreted as to mean “at the relevant time”. In the case in hand, the relevant time is the time when the Complainant’s claim was repudiated i.e. 12.07.2022. There is no document to show that the Complainant was residing at current address or working for gain within the territorial jurisdiction of this Commission at the relevant time. Hence, in our opinion, subsequent shifting of the Complainant to the current address would not give him the benefit of Section 34 (2) (d) of CPA, 2019.

6. Further, in the case in hand, the Policy was purchased on 28.04.2022 using Mumbai address of the Complainant, the Complainant was admitted at Thane, Mumbai for his treatment during the period from 18.06.2022 to 23.06.2022, the claim was also filed in Maharashtra and the claim was serviced by Chennai office of the OP. Although the Complainant has arrayed Delhi Claim Branch of the Insurance Company as Opposite Party in this complaint, the said claim office has not handled the claim of the Complainant. Every document related to the claim of the Complainant is available either at Miumbai or at Chennai office of the OP. The Complainant contents that he has moved to the Insurance Ombudsman at Delhi challenging his grievances, which was heard by the said Ombudsman at Delhi and the claim of the Complainant was rejected by the said Ombudsman vide its order dated 09.11.2022. Complainant argues that as the Insurance Ombudsman at Delhi has heard his case, this Commission can also exercise its jurisdiction to entertain this complaint. Insurance Ombudsman Scheme permits the aggrieved Insured person to approach the Insurance Ombudsman at any location in the Country. Even in the email dated 19.07.2022, the OP has given the option to the Complainant to approach the Insurance Ombudsman at Mumbai or at any other place at the convenience of the Complainant. The Complainant decided to approach the Insurance Ombudsman at Delhi, but said decision of the Complainant cannot decide the territorial jurisdiction of this Commission unless the order.

In this Context, we would like to refer to the judgment of Hon’ble National Commission

in the matter of R B Jagdish Prasad vs Oriental Insurance Co. Ltd. [NCDRC FA No. 259/2008, decided on 22.07.2008], in which Hon’ble National Commission, while dealing with similar issue of territorial jurisdiction with respect to the insurance company, has held as under:

“The intent of the law was that everything should not really be centred in the Head Office and the person should be able to institute a complaint wherever there is a Branch Office of the opposite party organization. Reverse is not true, i.e. if the whole cause of action arose in Muzaffar nagar and both the parties are located in Muzaffar nagar, the complaint could not have been filed in Delhi because the Head Office of the Respondent Insurance Company is located in Delhi. This will be defeating the very purpose of the provisions of Section 11 of the Consumer Protection Act, 1986.”

Hon’ble National Commission, while deciding R B Jagdish Prasad (supra) case, has dealt with specific issue of insurance company and has held that even if the insurance company is having its head office within the territorial jurisdiction of a Forum, the complaint cannot be filed if no cause of action has arisen at the head office of the insurance company. In the case in hand, the cause of action has arisen at Mumbai or Chennai offices of the OP Insurance Company and this District Commission does not have territorial jurisdiction over either of the offices of OP.

We would also like to refer to the judgment of Hon’ble Supreme Court in the Union of India v. Cipla Ltd., [(2017) 5 SCC 262], in which, while dealing with the issue of "forum shopping" by litigants, Hon'ble Supreme Court held as under:

“150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd. [World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd., [(1998) 5 SCC 310] wherein it was observed that the respondent/ plaintiff had made a deliberate attempt to bring the cause of action, namely, a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

…

155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.”

This complaint is squarely covered in Cipla case (supra) as we are of the opinion that the Complainant herein is deliberately trying to come within territorial jurisdiction of this Commission when the documents so filed by him indicate that although the current address of the Complainant is within territorial jurisdiction of this Commission, but the Complainant has not filed any document to show that at the relevant time, he was residing within territorial jurisdiction of this Commission.

Hence, we are of the opinion that this Commission does not have territorial jurisdiction to entertain this complaint. Accordingly, we dismiss the complaint on the ground of lack of territorial jurisdiction of this Commission.

However, in the interest of justice, we grant liberty to the Complainant to approach the forum of appropriate jurisdiction for adjudication of the case, if so advised. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order. While approaching the forum of appropriate jurisdiction, the Complainant may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs PSG industrial Institute [(1995) 3 SCC 583], for explaining the delay in initiating appropriate proceedings, if any.

Office is directed to supply the copy of this order to the parties as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping copies of the same in the record. Thereafter, file be consigned to the record room.

Ordered accordingly.

 

_________________________

Divya Jyoti Jaipuriar, President

 

 

_________________________

Harpreet Kaur Charya, Member