(24^th February 2011)

HON'BLE MEMBER : SMT. JYOTI IYER

1. This complaint has been filed by the Complainant against the Opponent alleging deficiency in service thereby for arbitrarily and illegally repudiating his valid and illegal Insurance claim and for directions to the Opponent to pay to the Complainant Rs.2,56,615/- towards repairs of estimate raised by M/s.Krishna Motors Dombivali, Rs.1 lakh as compensation for mental Agony physical torture etc., and Rs.25,000/- towards cost of litigation.

2. The facts of the case in a nutshell are as follows:-

The Complainant avers that the he is the Owner of Indica DLS V2 E2 Tata Motors bearing Plate No.MH-04-CJ-7435, having Engine no.PD6443, Chassis No. PD2393, Model 2005, which is duly insured with ICICI Lombard General Insurance CO., Ltd. w.e.f. 00:00 06/12/2007 to 05/12/2008 midnight (herein after for the sake of brevity and convenience ICICI Lombard Company Ltd,m and Indica DLS V2 shall be referred to as Opponent and the said vehicle) vide Certificate-cum-Policy No. 3001/53079442/00/B00. The said vehicle met with an accident on 24/11/2008 at about 5.30 a.m within the limit of Mangaon Police Station. The necessary complaint was lodged with Mangaon Police Station on the same day and accordingly panchnama was drawn.

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3. It is the contention of the Complainant that he was going to Chiplun for his personal work and was himself driving the said vehicle and was accompanied by one friend. The Complainant states that the intimation in respect of the said accident was given by the Complainant to Opponent. The said vehicle was brought to M/s. Krishna Motors Dombivali by towing from the accident spot. The said vehicle was inspected by the Opponent's Surveyor and all the formalities, which are required for the sanction of insurance were complied by the Complainant and M/s. Krishna Motors Dombivali gave an estimate of Rs. 2,66,615/- towards repair of the said vehicle.

4. The Complainant thereafter lodged his claim with the Opponent and on 23/12/2008 received a letter dtd. 16/12/2008 from Opponent stating that his claim was repudiated as the said vehicle was use for hire and reward.

5. The Complainant thereafter through his Advocate placed on record that at the time of inspection as well as investigation, the complaint was lodged by the Complaint with Mangaon Police Station and the statement given by his friend accompanying him clearly establishes that neither the said vehicle was used for hire and reward nor was it driven by some other person and further that the said vehicle was driven by the Complainant only and met with an accident and requested the Opponent to pay the estimate amount aforementioned to M/s. Krishna Motors, Dombivali towards repair of the said vehicle, however in vain. Therefore the Complainant was constrained to file this present complaint before this Forum for redressal of grievances and for the aforementioned reliefs.

6. Pursuant to issuance of notice, to the Opponent's appeared and filed their W.S denying all the allegations made against them in the Complaint by the Complainant and stated that the complaint is false, frivolous and vexatious and is not maintainable either on facts or in law and the same is filed only with an ulterior motive to harass the Opponent with an intention to derive and extort illegal benefits from them. Documents filed by the Complainant are not trustworthy and in any case are not sufficient to support his claims and further averred that the Complaint is bad for non-joinder of the necessary party, in as much as, the said vehicle admittedly is hypothecated by the Complainant with ICICI Bank Ltd., and as such the said Bank is the

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owner of said vehicle. The Complainant has deliberately not joined the said Bank, as the Party to the present complaint and ownership of said vehicle vests with ICICI Bank Ltd., as the entire Loan amount is not repaid to othe said Bank by Complainant. This Hon'ble Forum lacks territorial jurisdiction to entertain the present Complainant as the Opponent's issued the policy of letter of repudiation from mumbai office.

7. The Complainant was using the said vehicle for commercial purpose i.e he was letting the said vehicle for commercial purpose i.e he was letting the said vehicle on hire, driven either by himself or by somebody else and was accepting reward (consideration) for the same and therefore the Complainant cannot be termed as a “CONSUMER” within the meaning of section 2(1)(d) of the Consumer Protection Act 1986. After the Opponent received an intimation about the said accident it appointed an investigating agency to prove into the claim of Complainant Accordingly, M/s. Lamba Associates of Mumbai reported that the said vehicle was let out on hire to one Mr. Sachin Kashiram Golvankar of Kalyan for traveling from Kalyan to Chiplun. Hence the complaint is liable to be dismissed with compensatory costs.

8. We heard the Ld Advocates representing both the parties at length. Perused the record so also examined the rival contentions raised by both the parties. Our Observations, findings and reasons are as follows:-

It is the contention of the Complainant that he is the owner of the above referred vehicle which was insured vide policy no.3001/53079442/00/B00, with the Opponent Company w.e.f. 06/12/2007 to 05/12/2008 midnight. The Complainant's case is that his said vehicle met with an accident on 24/11/2008 at about 5.30am within limits of Mangaon Police Station which was during the subsistence of the above referred policy. Thereafter the Complainant lodged the claim with the Opponent Company for the aforementioned reliefs. However the claim was repudiated by the Opponent on the ground that the said vehicle was used for hire and reward and therefore in violation/breach of the clause limitations as to use hence this claim is not admissible under the said policy.

9. It is a contention of the Opponent Company that this Forum lacks Territorial jurisdiction to entertain the present complaint, that the Opponent is

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having his office at Mumbai from where the policy was issued and from were the letter of repudiation was issued, which place is not within the jurisdiction of this Hon'ble Forum and as such neither the Opponent is having the office or the place of business within the Territorial jurisdiction of this Hon'ble Forum nor the cause of action in part or whole accrued within the Territorial jurisdiction of this Hon'ble Forum. Contra it is the case of the Complainant that the Opponent is having the Office at Kalyan the address mentioned in the cause title of the complaint which comes within the jurisdiction of this Hon'ble Forum and that the vehicle in issue met with the accident at Chiplun which is also within the jurisdiction of this Hon'ble Forum. On careful perusal of the policy document of the said insured vehicle standing in the name of the Complainant we found that the address mentioned of the policy issuing office of the Opponent company as Mumbai Sion, 6^th Floor, wing a, 601-2, godrej Colesium eastern exp. Highway SION HOUSING SOCIETY MUMBAI MAHARASTRA 400022 which is not within the jurisdiction of this Hon'ble Forum. In the instant case it is an admitted fact that the said insured vehicle met with an accident at Chiplun which is not within the jurisdiction of this Hon'ble Forum. Undoubtedly the is the Opponent Company appears to have a branch office in Kalyan-west as reflected from the correspondence of the Opponent Company with the Complainant. However, by merely having a branch office in a place would not give jurisdiction to this Forum to entertain the present complaint as the Complainant though he has averred in his complaint that this Forum has jurisdiction no documentary or any other evidence has been brought on record so as to ascertain that any cause of action has arosen in the jurisdiction of this Hon'ble Forum so as to uphold the contention of the Complainant that this Forum has jurisdiction. We are therefore of the well considered view that no cause of action has arosen within the Territorial jurisdiction of this Hon'ble Forum. In the present case in hand we are bound by the Hon'ble Supreme Court Judgment IV (2009) CPJ 40 (SC)

Sonic Surgical -- Appellant

V/s

National Insurance Company Ltd., -- Respondent

In the above referred judgment their Lordships were pleased to observe in para 7 and 8 of the said judgment. The said relevant paras no. 7 and 8 are reproduced hereunder:-

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7. Learned Counsel for the appellant then invited our attention to the amendment brought about in section 17(2) of the Act in the year 2003. The Amended Section 17(2) of the Act reads as under :-

(2) A complaint can be instituted in the State Commission within the limits of whose jurisdiction

a)the opposite party or each of the opposite parties where there are more that 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 work for gain; or

b) any of the opposite parties, where there are more that one, at the time of the institution of the complaint, actually and voluntarily resides. Or carried on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or personally works for gain, as the case may be, acquiesce in such institution;

c) the cause of action, wholly or in part, arises.”

The aforesaid amendment came into force w.e.f 15.3.2003 whereas the complaint in the present case has been filed in the year 2000 and the cause of action arose in 1999. Hence, in our opinion, the amended section will have no application to the case at hand.

8. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. 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. In our Opinion, an interpretation has to be given to the amended 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 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

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necessary (as it is in this case) to avoid absurdity (vide G.P.Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P.79)

10. In view of the above discussion we do not find it necessary to deal with the other contentions raised by the Complainant as on the count of lack of territorial jurisdiction the present complaint is not maintainable before this Forum. We are constrained to say that the present complaint is not maintainable before us as no cause of action has arosen within the territorial jurisdiction of this Hon'ble Forum after a period of three years. Our minds do tick at the thought and fail to understand the object, purpose and intention of the legislature behind the said amendment to section 17(2) of the Consumer Protection Act 1986 and insertion of the term branch office. In view of the aforesaid position the present complaint lacks territorial jurisdiction. However we make it clear that the period spent by the complainant prosecuting this present complaint before this Hon'ble Forum shall be excluded for the purposes of limitation and the Complainant is at liberty to file a fresh complaint before the appropriate Forum. Hence the following order-

ORDER

1. Complaint no. 83/2009 is dismissed for want of territorial jurisdiction.

2. No order as to cost.

3. Copies of this order be sent to both the parties free of cost.

THANE

DATE : 24/02/2011

(JYOTI IYER) (M.G.RAHATGAONKAR)

MEMBER PRESIDENT