Adv.Ravi Susha, Member

          Complainant filed this complaint to realize Rs.1, 06,875/- being the price of the new signal processor –A.0.M with interest and compensation from the opposite party.

(2)

The averments in the complaint can be briefly summarized as follows.

Complainant is the managing partner of the registered partnership firm bearing registration No.329/05 engaged in the business of colour lab and digital studio under the name and style M/s.Sharp laser colour lab and digital studio. As per the clause VI of the partnership dated 16.09.2004, the managing partner is authorized to represent the partnership firm in all legal proceedings by or against the partnership.

The partnership firm is a consumer within the meaning of the Consumer Protection Act. The firm purchased a film processor (make-Noritsu QSS – 3201 year 2006) for a price of Rs.53,89,745/- (Rupees. Fifty three Lakhs Eighty Nine Thousand Seven Hundred and Fourty Five only). The said unit was insured with the first opposite party with effect from 5^th June 2006 to 4^th June 2007 ie, for a period of one year on payment of an annual premium of Rs.57,242/- (Rupees. Fifty seven thousand two hundred and fourty two only) on acceptance of the premium from the complainant, the first opposite party issued an Electronic Equipment Insurance Policy.

As per the terms of the Insurance policy the total unit and the various components of the unit are covered and the first opposite party is having the

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obligation to indemnify any loss or damage either to the unit as a whole or its components.

While so, on 20.11.06 at 3 PM one of the signal processes (A.O.M) started malfunctioning which made the products defective. Immediately the complainant reported the matter to KEMLOGIC LAB CARE PVT .LTD, Cochin, the authorized sales and service dealer of Noritsu electronic goods. Since the said component is covered under the policy issued by the opposite party they were also informed about it. The authorized dealer’s persons came and inspected the component and found that it is irreparable and so they have replaced the faulty AOM with a stand by unit from them. Also they directed the complainant to order for a new unit at the earliest as AOM’s cannot be repaired.

As per the terms of the insurance policy the opposite party had agreed that if at any time during the period of insurance stated in the scheduled or during any subsequent period for which the insured pays and the company may accept the premium for the renewal of this policy, the items or any part thereof entered in the schedule shall suffer any unforeseen and sudden physical loss or damage from any cause, other than those specifically excluded, in a manner necessitating repair or replacement, the company will indemnify the insured in respect of such loss or damage as hereinafter provided by payment in cash, replacement or repair ( in their

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own option) up to an amount not exceeding in any one year of insurance in respect of each of the items specified in the schedule the sum set opposite thereto and not exceeding in all the total sum expressed in the schedule as insured hereby. So the first opposite party has the legal obligation to indemnify the amount spent by the complainant for the purchase of a new A.O.M for replacement. But the opposite party rejected the claim falsely alleging that the signal processor became defective the gradual determination due to atmospheric conditions.

          It is respectfully submitted that the complainant has complied with all the conditions laid down by the manufacturer for the proper up keep and maintenance of the unit. So the allegation of gradual deterioration due to atmospheric condition is totally baseless and unsustainable in law. The surveyor deputed by the opposite party to assess the loss etc was not competent and impartial. Merely based on the survey report rejection of the claim is bad in law and that amounts to deficiency in the service rendered to the opposite parties as well as it is an unfair trade practice which is not justifiable. Hence filed this complaint for getting relief.

                    Opposite party at the initial stage of this case filed a petition (IA No.25/10) to hear the question of territorial jurisdiction as a preliminary issue. The Forum posted the petition to consider along with the complaint. Opposite party also filed version contending that the complaint as framed is not maintainable either in

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law or on facts. The office of the opposite party at Ernakulam on receipt of the intimation of the claim had deputed a licensed insurance surveyor and loss assessor Mr.Ramesh.P.R for conducting a detailed survey of the incident reported by the complainant.

          The surveyor Mr.Ramesh.P.R has visited the premises of the insured on 30.11.2006 along with the service engineer from the authorized repairer at Ernakulam and inspected the damage of the film processor unit installed by the complainant. The surveyor had examined the damages of the insured unit in detail and checked the damaged signal processor of the said film processor by various technical tests with the help of the service engineer. On the above examination, it was found that the film processing unit is working in proper manner except clearness ( colour patching ) of ‘photo print out’. The film processor unit is installed in an Air Conditioned room and the damaged part has already been replaced by the insured by their service engineer Mr.Tom John M/s.Kemlogic Labcare Pvt Ltd, Cochin, on 21.11.2006 as a temporary standby arrangement. The replacement was made before the survey and without obtaining any permission either from the insurer or from the surveyor. On the basis of the examination findings of the surveyor, the signal processor unit (AOM) attached to the film processor unit got damaged and as a result no clear output is received from the said signal processor unit. According to the surveyor, the weakness caused to some electronic component

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inside the signal processor unit (single unit), which is not repairable is caused by gradual deterioration due to atmospheric conditions inside the film processing room. The surveyor has observed that the above damage is on account of accumulation of moisture content in the air condition room. The film processor is installed in an air conditioned room without maintaining the humidity inside the room and according to the surveyor, the present condition of accumulation of moisture content in the Air condition room will invariably cause damages to the electronic components.

                    The report submitted by the surveyor who has been appointed by this opposite party under the statutory provisions envisaged under section 64UM of the Insurance Act is a binding report to this opposite party in determining the liability of a claim made under an insurance contract. This opposite party has repudiated the claim on the basis of the definite conclusion opined by the surveyor regarding the proximate cause of damage caused to the insured unit and after due application of mind to all relevant aspects in determining the admissibility of the claim.
The claim of the complainant was properly repudiated by this opposite party with due intimation to the insured. There is no deficiency on the part of this opposite party in repudiating the claim, which was done on the basis of the policy condition.

                                                (7)

                    From the side of complainant PW1 & PW2 were examined. Exts.P1 to P6 marked. From the side of opposite party DW1 was examined. Exts.D1 to D3 were marked.

          The points that would arise for consideration are:

1. Whether there this Forum has got territorial jurisdiction to decide this complaint?
2. Whether there is deficiency in service on the side of opposite party?
3. Relief and cost

Point No.1

                    At the stage of final hearing, the Learned counsel for the opposite party raised the main contention that this Forum has no territorial jurisdiction to decide this case. According to the opposite party the complainant had obtained the insurance policy from the first opposite party and the claim of the complainant was reported by the first opposite party before the office of the opposite party at Ernakulam and the claim of the complainant was inspected, investigated and repudiated by the office of the first opposite party. The office of the first opposite party at Kollam is no way connected with any of the transactions taken place between the complainant and the first opposite party and no way associated either with the issuance of the policy to the complainant or in the repudiation of the claim made by the first opposite party.

(8)

According to the opposite party since the second opposite party is no way connected with the cause of action alleged by the complainant, the complaint is lacking territorial jurisdiction of this Forum.

          Regarding to this point the learned counsel for the complainant argued that the second opposite party is the branch office of the first opposite party which situates, functions and carries on its business at Kollam. More over the complainant approached the second opposite party for taking the insurance policy of the first opposite party. According to the complainant even if there is no transaction or cause of action between the complainant and the second opposite party, the Forum is competent to exercise the powers to adjudicate the complaint U/S II (2) (b) of the Consumer Protection Amendment Act 2002.

                    The main contention of the complainant is that the second opposite party is the branch office of the first opposite party, which situates functions and carries on its business at Kollam. Opposite party contended that even though the first opposite party has branch office at Kollam, the second opposite party is no way connected with the cause of action alleged by the complainant in this case. More over the complainant is having not even a part of cause of action with the second opposite party. In 2009 (4) KLT SN 56 (C.NO.50) SC it has been held that expression “ Branch Office “is amended Section 17 (2) would mean branch office

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where cause of action has arisen. In this case no cause of action has been arisen at second opposite party.

          So this Forum has no territorial jurisdiction to entertain this matter.  Since this point found against the complainant, other points need not be answered.

Return the complaint for production before the proper Forum.

                             Dated this the 21^st day of July 2012

                                                                                   G.Vasanthakumari:Sd/-

                                                                                   Adv.Ravi Susha     :Sd/-

                                                                                   R.Vijayakuamr      :Sd/-

INDEX

List of witness from the complainant

PW1      - Jaya Yasodharan

PW2      - Sujith .P.S

List of documents from the complainant

P1         - Partnership deed subject to admissibility

P2         - Acknowledgment of Registration

P3         - Insurance Policy

P4         - Complainant copy

P5         - Claim Rejection Letter

P6         - Invoice

List of witness from the opposite party

DW1     - Ramesh.P.R

List of documents from the opposite party

D1        - Electronic Equipment Insurance Policy

D2        - Survey report

D3        - Letter from HDFC Brea k down of signal processor unit

                                                                                      // Forwarded by Order //

                                                                                        Senior Superintendent