By :  SMT. BANDANA ROY, PRESIDENT

           The case of the petitioner in brief is that he owns a Pick Up Van (Bolero) being No. WB29B/0713. The said vehicle was insured with the Bajaj Allianz Insurance Co. bearing policy No. OG-16-2410-1803-00001625 valid from 31.01.16 to 30.01.2017. On 21.03.16 when the said vehicle was proceeding from Nandakumar to Kamarda it met with an accident on 41 NH Road near Kamarda when a cow suddenly came in front of the vehicle. The driver could not control the vehicle and it capsized on the said road and was damaged badly. There were three persons inside the cabin of the vehicle. A case was lodged at Nandakumar P.S vide Nandakumar PS case No. 3/16 dated 28.03.16. The complainant lodged a claim  petition before the OP no. 1 for sanction of Rs.4,00,000/- for the damage of the vehicle as per report of the Mechanical Expert, appointed by the Nandakumar Police Station in connection with the PS Case. The OP 1 and 2 refused to pay the said amount on the plea that in the driver’s cabin seven persons were seated which was contrary to the terms and conditions of the insurance policy. The claimant asserts that there were only three persons inside the cabin of the driver at the time of the accident.

            Under the above circumstances, the complainant has filed this claim petition on the ground of unfair trade practice on the part of the OP 1 and 2 praying for the reliefs as per prayer of the claim petition.

            The OPs contested the claim petition by filing two separate written versions.

            The case of the OP no 1 & OP no.2  Bajaj Allianz General Insurance Co. is that the claim petition filed by the complainant is false, malicious, incorrect and filed only  for wastage of time of this ld. Forum. It has been filed for availing undue advantage. So, they prayed for dismissal of the claim petition.

 The specific case of these OPs is that the seating capacity of the vehicle is 2 + 1, but the vehicle had seven persons inside the cabin at the time of the occurrence which was contrary to the terms and conditions of the insurance policy admittedly covered by them. They also categorically stated that the financer of the Vehicle Cholamandalam Investment and Finance Co. is necessary party.  

Accordingly the Cholamandalam Investment and Finance Co has been added in the case as OP no.3 by amendment of the claim petition, vide order No. 9 dated 21.03.17

            This OP-3 filed written version and contested the case. It also claimed that the case is not maintainable in law and this Forum has no jurisdiction to try this case between a debtor and creditor.

            It is the specific case of this OP that they are the financer of the vehicle in question and the said vehicle stood hypothecated to the OP no.3 as security of the loan till 28.08.19 when the last instalment of repayment was scheduled to be paid.  The complainant defaulted in payment of the EMIs repeatedly and subsequently many times it was adjusted but ultimately for the default of payment of EMIs, the loan account of the claimant was delinquent and overdue charges and other contractual charges had been levied on the loan account of the claimant.

            Lastly the OP no.3 has prayed that as the loan account of the claimant has already become a non performing asset the OP no. 3 has already sustained huge loss.

            In view of the above pleadings of the parties, the issues required consideration are whether the case is maintainable and whether the petitioner is entitled to get any relief as prayed for.

                                                                                      Decision with Reasons.

            Both the issues are taken up together for consideration for the sake of brevity and convenience.

            It appears from the cause title of the case that the address of the OP no.1 is at GE Plaza, Airport Main Road, Yerward, Puna, 411006, the address of the OP no.2 is at 164/13 Maniktalala Maina Road, Main Square  Premises No. 41 Canal Circle Road, Kolkata – 7000054 and the address of the OP no.1 is at Dare House, 2 NSC Bose Rd. Parrys, Chennai, 600001 India.

           According to Section 11 (2) of the CP Act, 1986, a Complaint shall be instituted   in a District Forum within the local limits of whose jurisdiction-  (a ) the OP or each of the Ops where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

b) any of the OPs where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, provides that  in such case  either the permission of the State Commission is given or the  OPs who do not reside or carry  on business  or have a branch office or personally works for gain as the case may be acquiesce in such institution, or c) the cause of action ,wholly or in part arises.

           In view of that provision of the C. P. Act, it appears that this Forum has no jurisdiction to try this case as it appears that the address of all the OPs of this case is outside the territorial jurisdiction of this ld. Forum.

           It is not denied that the complainant entered into a written agreement with the OP where under the OP disbursed an amount of Rs. 5 lakhs to the complainant on the condition that the said disbursement would be utilized to purchase the disputed vehicle and the said vehicle would remain hypothecated to the OP to secure repayment of the loan by the complainant of his dues as per said agreement and the said loan would be repaid by the complainant in 43 EMIs at the rate of Rs. 15,116/-. First of such instalment would be payable on 28.02.2016 and the last of such EMI would be repaid on 28.08.2019. The complainant purchased the said vehicle with the disbursed amount and the vehicle remained hypothecated with the OP no.1 as per agreement.                                                                                                                       

            The failure on the part of the complainant to pay the EMI in time resulted in instalment overdue and other incidental charges levied  on the loan Account.

            Besides that, the OP no.1 and 2 has brought into the notice of this ld. Forum another fault of the complainant to the effect that the seating capacity in the cabin of the vehicle was three but at the time accident there was seven persons inside the cabin of the vehicle for which it can be presumed that the complainant used the vehicle for commercial purpose. However, we do not want to enter into the merit of this case anymore at this time as it has already been held that this ld. Forum has no territorial jurisdiction to try this case. The complaint is given liberty to file the present application at the proper Forum.

            Hence, it is               

                                                                                                ORDERED

             That the Complaint Case No. 330 of 2016 be and the same is returned to the filing ld lawyer for presentation of the same before the appropriate Forum.

            Parties do bear their respective costs.

            Let a  copy of this judgment be supplied to the parties free of cost.