Karnataka

Chitradurga

CC/329/2019

Sri. Anand Ojha S/o Hari Govind Ojha - Complainant(s)

Versus

The Branch Manager IndusInd Bank - Opp.Party(s)

Sri.C.J.Lakshminarasimha

24 Jan 2020

ORDER

 

COMPLAINT FILED ON:15/05/2019

DISPOSED      ON:24/01/2020

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:329/2019

DATED: 24^th January 2020

PRESENT :-     Smt. C.M.Chanchala.            …. President

                                B.A.L.,,LL.B.,            

                            

                        SRI. SHIVAKUMAR.K.N    :              MEMBER

                     M.Com., LL.B.,

 

……COMPLAINANT/S	Sri.AnandOjha, S/o. HariGovindOjha, Aged about 40 years, Hotel Business, Fort Road, Chitradurga R/o. 1st Cross, BVKS Layout, Chitradurga Town. Rep., by Sri.C.J.Lakshminarasimha,Advocate)
V/S
…..OPPOSITE PARTY/S	1.The Branch Manager, IndusInd Bank, Main Road, JCR Extension, Above Bank of India, Thippeswamy Arcade, Chitradurga Town. (Ex-parte)   2.The Branch Manager/The Authorized Signatory, K.J.Hyundai Show Room, Opposite To SJMIT College, NH-4, P.B.Road, Chitradurga. (Rep by Sri. M.N. Vijayendra, Advocate for Op.2) 3.The Authorized Signatopry/The Branch Manager/The Service Manager, ICICI Lombard General Insurance Company Limited, No.89, SVR Complex, Hosur Main Road, Madivala, Bangalore-560068. (Rep by Sri. B.M. Ravichandra, Advocate for Op.3) 4.The Authorized Signatory/The Branch Manager, Anika Automobiles, No.129/4, Sankalapur, Bellary Road, Hospete, Karnataka.   (Ex-parte. For Op.4)

Pronounced on 24^th January 2020.

Written by C.M.Chanchala, President.

ORDERS

1.    This is a complaint of alleged deficiency of service filed under section 12 of the Consumer Protection Act,1986 by Sri. Anand Ojha, the Complainant, for the relief to direct the opponent to pay of Rs.5,53,567-00 with interest at the rate of 2% per month, and to direct the opponents No 1 to 3 to pay Rs.1,00,000/- towards the mental agony, mental sufferings, loss of mental peace, annoyance caused to him, and to direct to opponents 1 to 3 to pay Rs.50,000/- towards loss of interest, Rs.150,000/- towards the loss of EMI, Rs.10,000-00 towards the costs of the complaint, Rs.25,000-00 towards advocate fee including the legal notice charges, Rs.25,000-00 towards the loss of charges for hiring another vehicle, Rs.25,000-00 damages for causing the loss to the complainant, in total Rs.9,88,567-00 and also such other reliefs.

The Complaint:

2.  The case of the complainant is that, the owner of the Hyundai I-20 Active Car bearing its Registration No.KA-16, N-4009 and the vehicle was purchased from the opponent No.2 for Rs.11,92,000-00 including Insurance premium, T.P. Charges, Registration and etc., by raising the loan by the complainant with the above said opponent No.1. The Opponent No.3 was the insurer of the said vehicle and he has issued the Insurance Policy to the said vehicle vide Policy Number Cum Certificate No.3001/HI-10730332/00/000 which is valid till 20.04.2019 by receiving an amount of Rs.21,365-00 as insurance premium. The complainant further contended that the above said vehicle met with accident and due to the accident severe damages occurred for the said vehicle, hence the complainant has lefted the vehicle for repair under the guidance of the Opponent No 1 to 3 to opponent No 4 i.e., Anika Automobiles Limited, Hospet. OP 4 has estimated the cost of repairs at Rs.5,53,367-00 and the complainant has incurred Rs.50,000-00 for other charges. After the accident he has submitted the claim with Opponent No 3, but he has not considered the request of the complainant. Due to non-settlement of the claim, he has forced to pay parking charges and also paying the installments unnecessary. Hence he alleged deficiency of service on the part of Ops.

3.        After hearing on admission the complaint was admitted and  notice were ordered to be issued to the OPs  to file their written version under section 12 of the Consumer Protection Act,1986 (in short “the Act).Inspite of service of notice the 1^st OP and 4^th OP did not appear before the forum, hence they placed exparte. The OPs2 and 3 have appeared through their counsel and filed written versions.

Defense:

4.    OP 2 in his written version admitted the sale of the above vehicle to the complainant on receipt of consideration and further contended that as there is no deficiency on its part, it prays for dismiss the complaint against it.

5.    OP 3 filed separate written version by denying the allegation made against him in the complaint and further contended that the vehicle is hypothecated with INDUSIND BANK LTD,  as specified in the policy and is governed by, and is subject to the terms, conditions and exclusions therein contained in the said policy, but not exceeding the Sum insured i.e Rs.8,48,696/- as specified in the policy and hence the liability of this  opponent if any the same is in accordance with the terms and conditions of the contract of insurance. He further contended that the vehicle met with accident on 20.10.2018 and the complainant intimated about the accident only 22.11.2018i.e is after the delay of 33 days which is violation of terms and conditions of the contract of insurance the same was mentioned in the claim from given by the complainant. He further contended that , after intimation, they have appointed one Sudheendra Ramadurga, Surveyor, Loss Assessor to conduct the survey of the vehicle and he has conducted the  survey and has submitted the report on 15.02.2019 assessing the damage caused to the vehicle to the tune of Rs.4,68,000/- is in accordance with the terms and condition of the contract of insurance. As per his inspection  the right side of the vehicle was severely damaged. Further he contended that the complainant alleged in claim form that one Mr.G.S.Mallikarjuna was driving the vehicle and he not sustained any injury, but as per the damages to the vehicle there is every possibility of grievous injuries to the person driving the vehicle. After receiving the said report, the opponent No 3 insurance company was appointed one ICS Assure Service Pvt Ltd., to conduct detailed investigation  regarding the accident, after conducting investigation, the investigator observed the vehicle and taken the photos. As  per the same the right side portion of the vehicle was damaged, the driver would have been injured in the said accident since vehicle was dashed to the road side tree and in the said accident driver cannot escape unhurt in the said  accident. He further contended that as per the insured’s statement dated 14.12.2018 accident occurred on 15.10.2018 at about 4 to 5.00p.m., but as per the claim form accident was occurred on 20.10.2018 and also insured in his statement has clearly stated that, he did not have any driving license, hence the 3^rd OP alleged that the complainant has made misrepresentation by implicating the driver who was having driving license to got wrongful gain from the Insurance company. Hence he justified the repudiation made on 23.02.2019. He further contended that as per the pleadings the vehicle met with an accident near Bellary and policy copy was issued at Bangaluru office, hence there is no any cause of action to try the above case before this Hon’ble Forum, hence he prays for dismiss the complaint.

Evidence :

6.        The complainant got himself examined as PW-1 by filing his affidavit as a part of examination in chief and also got Ex.A-1 to A-10marked and closed the evidence.

7.    On behalf of 2^ndOP, one Mustafa pasha, General manager of 2^nd  OP company got himself examined as RW-1 by filing his affidavit as a part of examination in chief and produced  one document, which is marked as EX- R1and on behalf of OP-3 one Sri. Amarnath.D.V. Manager legal of 3^rd OP company got himself examined as RW-2 by filing his affidavit as a part of examination in chief and close  the evidence.

Arguments:

8.        We have heard the complainant as well as counsel of Ops and perused the written arguments filed by both side advocates. The 3^rd OP raised objection regarding the territorial jurisdiction to entertain the complaint. Hence it is just and proper to take the said issue as preliminary issue for proper adjudication of the matter.

9.        The point that arises for our determination is;

1. Whether this Forum has territorial jurisdiction to trail the present complaint?

2. What order?

10.      Our finding on the above points is as under;

            Point No.1: In the Negative.

            Point No2: As per final order.

                                                                        *******

Discussion and Reasoning:

Point No.1 and 2:

11.   On careful perusal of complaint as well as in the affidavit evidence of the complainant he has not specifically stated the place of accident. However he has stated that he left the vehicle for repair at Hospet. The OP 3 contended that the policy was issued in Bangalore office, vehicle met with accident near Ballary and hence this forum has no jurisdiction to entertain the complaint. He further contended that since the OP 3 repudiated the claim of the complainant, OP 1,2 and 4 are not necessary and proper party to the proceeding, the complainant to bring the complaint with in the jurisdiction to this Hon’ble Forum has made them as party to the complaint.

12.   EX- A1 copy of the policy reflected that the same was issued by ICICI Lombard General Insurance Company, Second floor, SVR Complex, Hosur Road, Bangalore. Further he has not produced any documents to show that the place and date of alleged accident. On perusal of contents of the complaint it made it clear that the complainant has challenged the repudiation made by the OP No.3. Further the complainant has not denied the contention of OP 3 that the accident has taken place within the jurisdiction of Ballary.  Further EX- A3 also shows that the same is issued in Hospet, Ballary District. Further EX- A 8 correspondence letter also made from Bangalore. 

13.   As per Section 11 of the Consumer Protection Act., 1986, a complaint could be instituted within the local limits of a District Forum where the opposite party resides or carries on business or where the cause of action, wholly or in part, arises.  

                  The Sec-11 of the Consume Protection Act, 1986 reads thus; 

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees five lakhs]. (2) A complaint shall be instituted in a District Forum 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, actually and voluntarily resides or 1[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 1[carries on business or has a branch office, or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 1[carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.

 

            14.   On  plain reading of the afore extracted provision it becomes clear to us that a complaint under the C.P. Act can be instituted in the District within the limits of whose jurisdiction any one of the three situations contemplated in the provision is shown to exist. The use of the word “or” at the end of sub-clauses (a) and (b) of the said sub-section is significant and reflects the object of the legislation, leading to the conclusion that each of the three contingencies enumerated therein is independent of each other and not cumulative.

            15. Bearing in mind the said provision, the question for examination is as to whether this Forum has got territorial jurisdiction to entertain the complaint. 

The Hon’ble Supreme Court (reported in 2010 CTJ 2 (CP) (Sonic Surgicalo Vs. National Insurance Company Ltd., )  held that “cause of action– Consumer Protection Act, 1986 – Section 17(2) – Expression ‘cause of action ‘ means a bundle of facts giving rise to a right or liability - ‘Branch Office ‘ in Section 17(2) means the branch office where the cause of action has arisen”.   In Oil & Natural Gas Commission VS Utpal Kumar Basu and others 1994 (4) SCC 711 while interpreting the expression     “ cause of action wholly or in part arises” as appearing in Article 226(2) of the Constitution of India       ( similar expression is used in Section 11 (2)(c ) of the Act ) observed thus, it is well settled that the expression ‘cause of action means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the court’. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts.   In KandimallaRaghavaiah& Co. VS National Insurance Company Ltd., and others III (2009) CPJ 75 (SC)=(2009) 7 SCC 768, the Hon’bleSpreme Court stated that “ cause of action” is cause of action which gives occasion for and forms the foundation of the suit.   16.    In the present complaint, the complainant alleged that the OP 3 has repudiated the claim of the complainant.  Admittedly the policy issued by the OP 3 which is situated within the jurisdiction of Bangalore who repudiated the claim of the complainant which gives occasion to the complainant to file the present complaint .   17.   We have agree with the contention of OP 3 that OP 1,2 and 4 are not necessary and proper party to the proceeding as the claim of the complainant has repudiated by OP 3, which clearly proves that the complainant with intention to bring the complaint with in the jurisdiction to this Hon’ble Forum has made them as party to the complaint

 

Therefore, as per the Sec-11 of the Act, there is no part or whole cause of action arose to the complainant to file a complaint within the jurisdiction of this Forum as such it is liable to be returned with a direction to present it at appropriate forum.  Accordingly, the following;

// O R D E R //

As this Forum has no territorial jurisdiction to entertain the complaint, it is ordered to return the complaint along with all documents to the complainant and get the reliefs before the appropriate forum.     

The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 24th Day of January  2020)

 

MEMBER

PRESIDENT.

           

Witness examined for the complainant side:

 

Complainant-Anand Ojha has examined-in-chief by filing affidavit as PW1.

Documents marked for the complainant side:

01	Ex-A-1:-	Copy of ICICI Lombard General Insurance Company Limited, bearing its No.3001HI/107332/00/000 dated 21/04/2018
02	Ex-A-2:-	Xerox Copy of the RC of the Car bearing its Registration No. KA-16.N.4009.
03	Ex-A-3:-	Xerox copy of Body Shop Estimation Given by the OP No.4
04	Ex-A-4:-	Original letter dated 23/02/2019 issued by the OP.3
05	Ex.A-5:-	Office Copy of the legal notice dated 12/03/2019.
06	Ex.A-6:-	4 Four RPAD Original Postal Receipts.
07	Ex.A-7:-	4 Four Served Postal Acknowledgements.
08	Ex.A-8:-	Letter dated 21/12/2018

 

Witnesses examined on behalf of OP2:

DW-1:- Sri. Mustafa Kamal Pasha, General Manager K.J. Hyundai  Davanagere.

Witnesses examined on behalf of OP3:

DW-2:- Sri. Amarnath D.V. S/o Veerabhadrappa Manager ICICI Lombard General Insurance Company Limited.

Documents marked on behalf of Ops.

 

NIL

 

 

        (C.M.Chanchala  )

                   President.

                                                         

 

 

          ( ShivakumarK.N.)

                                                                             Member.