Date of filing:17-05-2013
Date of Disposal: 27-08-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: ANANTHAPURAMU
PRESENT:- Sri S.Niranjan Babu, B.A.,B.L., President (FAC).
Smt.M.Sreelatha, B.A., B.L., Lady Member
Wednesday, the 27th day of August, 2014
C.C.NO.54/2013
Between:
K.Chandrakala
W/o D.Rama Mohan
Junior Assistant in
Municipal Office,
Hindupur, r/o D.No.4-2-108,
D.B.Colony, Hindupur,
Ananthapuramu District. …. Complainant
Vs.
- The New India Assurance Company Ltd.,
rep. by its Divisional Manager,
Divisional Office, Sai Ram Towers,
2/789, 1st floor, Nagarajpet
Kadapa ( YSR District).
- New India Assurance Company Ltd.,
rep. by its Branch Manager, Branch Office,
16-3-474/A, Krishna Mansion, Main Bazaar,
Ananthapuramu District. …. Opposite Party
This case coming on this day for final hearing before us in the presence of Sri B.Satyanarayana Reddy, Advocate for the complainant and Sri V.Krishna Sharma, Advocate for the opposite parties 1 & 2 and after perusing the material papers on record and after hearing the arguments on complainant’s side, the Forum delivered the following:
O R D E R
Smt.M.Sreelatha, Lady Member:- This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.1,00,000/- with all consequential benefits, Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of the litigation
2. The brief facts of the complaint are that :- The complainant is the legally wedded wife of late D.Rama Mohan, who was working as Junior Assistant in Municipal Office at Rayadurg, Ananthapuramu District. The said Rama Mohan during his life time had taken Group Janatha Personal Accident Policy (Group Janatha Personal Accident Insurance Certificate) bearing No.4761120105695 on 20-07-1998 for a sum of Rs.1,00,000/- and the policy was valid from 20-07-1998 to 19-07-2008. The above said policy-holder i.e. D.Rama Mohan died on the spot on 10-11-2005 in a road accident occurred at Malla Reddy Mori No.208/4 on Kadapa-Tadipatri Road Main Road within the jurisdiction of Muddanur P.S. of Kadapa District at 4.00 A.M. while travelling in Ambassador Car bearing Registration No.CAT-4752 and Muddanur P.S. registered the Cr.No.53/05. The complainant submitted that according to the terms and conditions of the policy a sum of Rs.1,00,000/- assured for accidental death claim to be paid by the Insurer. The complainant submitted that she is unaware of the said policy taken by her husband from the 1st opposite party and she recently came to know about the policy while searching some papers. The complainant also stated that immediately she approached the 2nd opposite party along-with relevant documents to submit the claim and the 2nd opposite party advised to submit all the documents with the 1st opposite party. As per oral instructions of the 2nd opposite party, the complainant submitted a claim with 1st opposite party on 08-02-2013 along-with relevant documents. The complainant submitted that the 1st opposite party repudiated the claim on 13-02-2013 with untenable grounds. The complainant submitted that the policy was in force on the date of death of assured and the Government and their instrumentalities are not supposed to raise technical pleas for repudiating the claim. Hence, the complainant is entitled the claim as stated in the policy along-with costs and consequential reliefs.
3. The counsel for the 2nd opposite party filed counter denying the allegations made by the complainant. The 2nd opposite party submitted that the allegation in the complaint that the deceased Rama Mohan paid premium to 1st opposite party and obtained JPA Policy on 20-07-1998 and the policy is in force till 19-07-2008. While the policy is in force, the policyholder died in an accident is not admitted by this opposite party. The opposite party also stated that being a nominee the complainant is entitled the policy amount is to be proved by the complainant herself. The allegation that the policyholder died on 10-11-2005 in the road accident it has to be proved by the complainant. The opposite party submitted that about the maintainability of the complaint before this Forum has to be proved by the complainant as policy is said to be taken at Kadapa and accident is said to be caused within the jurisdiction of Muddanur P.S. i.e. Kadapa District. And there is no cause of action arose within Ananthapuramu District. Hence this Forum has no territorial jurisdiction to entertain the case. The opposite party also contended that the cause of action arose within Anantapur as the opposite party is having Branch Office at Hindupur is absolutely not correct in order to entertain the present complaint, the 2nd opposite party is added as one of the opposite parties and the 2nd opposite party is unnecessarily added as a party to attract the jurisdiction and the complaint is liable to be dismissed on this short ground. The opposite party stated that the policyholder died on 10-11-2005, the complainant do not aware of the policy, hence she could not approach the opposite parties and 2nd opposite party instructed the complainant orally, then she made a claim to 1st opposite party vide letter dt.08-02-2013 is not correct and the allegation that the 1st opposite party repudiated the claim on 13-02-2013 is also not correct. The opposite party sent a reply on 13-02-2013 by informing the complainant that the claim is absolutely barred by limitation and the same cannot be entertained and there is no word of repudiation as alleged in the complaint. The complainant invented the word repudiation in order to get limitation, which is absolutely not maintainable. The opposite party also submitted that there is no cause of action to the complaint as alleged cause of action is invented for the purpose of the complaint. The allegation that the complaint is not aware of the alleged policy all these years is absolutely not correct. The opposite party also submitted that as per the conditions of the JPA Policy any event happened, which may give rise under the policy is to be informed forthwith by giving notice in writing or otherwise it should be within one calendar month from the date of such incident. Whereas in the present complaint the alleged letter is written on 08-02-2013 i.e. nearly 8 years after the occurrence. Thus as per the condition No.1 of the policy, no amount can be paid and the claim is barred by limitation. This opposite party also submitted that as per the terms and conditions of the policy, the complaint should be filed within 12 calendar months of the occurrence only, whereas the present complaint is filed after lapse of 8 years. Hence, the complaint is liable to be dismissed as barred by limitation with exemplary costs.
4. The counsel for the 1st opposite party filed a memo adopting the counter filed on behalf of the 2nd opposite party.
5. The complainant filed written arguments and counsel for the opposite party submitted authorities with gist of authorities.
6. The counsel for the complainant stated in the written arguments that the complainant is wife of late D.Rama Mohan and the above said D.Rama Mohan has taken Janatha Personal Accident Insurance Policy bearing No.4761120105695 during his life time with the 1st opposite party on 20-07-1998 for a sum of Rs.1,00,000/-. The complainant counsel stated in the arguments that the husband of the complainant i.e. policyholder died in an accident on 10-11-2005 near Kadapa-Tadipatri Main Road while the policy-holder travelling from Rayadurg to Kadapa to attend the marriage . The crime was registered by Muddanur P.S. in Cr.No.53/05. The counsel for the complainant also submitted that the complainant is unaware of the policy taken by her husband and she recently came to know about the policy while she is searching some papers in the home. The complainant also submitted that Insurance Company or any Government Instrumentalities should not take any technical pleas while settling the claim. The counsel for the complainant submitted that after tracing the policy, the complainant approached the 2nd opposite party and 2nd opposite party orally instructed the complainant to approach the 1st opposite party along-with claim forms. She submitted a letter to the 1st opposite party under Ex.A4 on 08-02-2013. But surprisingly the 1st opposite party repudiated the claim under Ex.A5 on 13-02-2013 with untenable grounds. The counsel for the complainant submitted that at the time of death of the insured, the policy was in force and the opposite parties are liable to pay compensation with interest and costs.
7. The counsel for the opposite parties argued that this Forum has no jurisdiction to entertain the complaint as per Ex.A1 i.e. policy was issued by Kadapa office and the no claim has to be made before this Forum. The counsel for the 2nd opposite party also argued that there is no mention about the policy taken by her husband within jurisdiction of Anantapur. The counsel for 2nd opposite party also argued that mere residing at Rayadurg or Hindupur, the territorial jurisdiction does not attract. To attract the jurisdiction, the complainant added the 2nd opposite party as party though there is no cause of action arose with 2nd opposite party. The counsel for 2nd opposite party also argued that it is the burden on the complainant to prove whether the policy was taken within jurisdiction of this Forum. The counsel for 2nd opposite party also argued that the claim made by the complainant is barred by limitation and as per the policy the claim has to be made within forthwith or within 30 days from the date of accident. Whereas in the present case the accident occurred in the year 2005 and the claim was made in the year 2013. The counsel for the opposite parties argued that nowhere it was mentioned in the complaint nor in the letter sent by the complainant to the 1st opposite party that when the complainant came to know about the policy? Simply the complainant stated that she recently came to know about the policy but the complainant failed to establish that the complaint is filed within the period of limitation. Basing on it the 2nd opposite party submitted bunch of citations and the 2nd opposite party also argued that the complainant ought to have filed separate application to condone the delay in filing the complaint because the complaint is barred by limitation and the complaint is to be rejected on this ground by this Forum and the 2nd opposite party argued that there are no grounds to allow the complaint and the complaint is liable to be dismissed.
8. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether this Forum has got territorial jurisdiction to entertain the
complaint?
2. Whether the complaint is barred by limitation?
3. Whether there is any deficiency of service on the part of the opposite
Parties 1 & 2
4 . To what relief?
9. In order to prove the case of the complainant, the complainant has filed evidence on affidavit on her behalf and marked Ex.A1 to A5 documents. On behalf of the opposite parties, evidence on affidavit of the 2nd opposite party has been filed and marked Ex.B1 & B2 documents.
10. Heard on both sides.
11. POINT NO.1 - The main objection of the 2nd opposite party about the territorial jurisdiction of this Forum. The 2nd opposite party argued that this Forum has no territorial jurisdiction as the policy was issued by the Kadapa Office and no recital in the complaint or in the affidavit of the complainant whether the policy was taken by the policyholder within Anantapur. The counsel for the 2nd opposite party also argued that as per the Hon’ble Supreme Court reported in IV 2009 CPJ 40 (SC) “cause of action arose at Ambala and policy is taken at Ambala but the case is filed at Chandigarh which has no jurisdiction to adjudication. “ in the present case also the policy is taken at Kadapa and the deceased also died within the limits of Kadapa. The Hon’ble Supreme Court clearly observed that though the act is amended in 2003 by inserting section 17(2) important ingredient is that mere existence of any branch office and doing business within local limits of Consumer Forum is not sufficient to attract territorial jurisdiction but there must be some part of cause of action arose to attract jurisdiction by a particular Forum. The complainant submitted a ruling with regard to jurisdiction reported in I(2008) CPJ 219 (NC) that “ Jurisdiction - Territorial – O.P. Bank having branch office in Bagalkot – District Forum Bagalkot had jurisdiction to adjudicate. The Hon’ble court further stated that coming to the point of jurisdiction there is no dispute that the complainant was employee of the petitioner-Bank which has its Head Quarters at Hubli but they also having a branch office in Bagalkot section 11(2) (a) of C.P. Act, 1986 dealing with the jurisdiction of District Forum 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 (carries on business or has a branch office or personally works for gain. There is no dispute that there is branch office of the petitioner at Bagalkot and it is also important to note that the written submission before the District Forum were filed by the petitioner –Bank located at Bagalkot, hence District Forum Bagalkot is having jurisdiction to entertain the case. “ The complainant also submitted number of rulings with regard to territorial jurisdiction. But as per regulation 17(5) of the A.P.Consumer Regulation we are of the opinion that we are not mentioning all the above said rulings as there is a clear guidance from the Central Government while disposing orders it was mentioned that the order of District Consumer Forums and disposing of matters shall be short and precise and practicable and unnecessary long quotations from judgments of Higher Courts or other-wise shall be avoided. As per the guidelines of regulation 17(5) we are not mentioning all the judgments submitted by both parties. We are considering only relevant judgments while discussing the points. As per Ex.A1 the address of the policy-holder is mentioned that D.Rama Mohan S/o D.Chidananda, Record Assistant, Municipal Office, Rayadurg, Anantapur District. In Ex.A2 i.e. F.I.R. statement it was mentioned that that the deceased (policyholder) and other persons proceeded to Kadapa to attend the marriage from Rayadurg and the incident took place near Kadapa – Tadipatri Main Road. The wife of the policyholder i.e. complainant made a claim from Hindupur. The argument of 2nd opposite party is not considerable one because as per section 11(2) of Consumer Protection Act, which is clearly mentioned that class to attract the jurisdiction:
“ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction.
- The opposite party or each of the opposite parties, 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
- 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 either the permission of the District Forum is give or the opposite parties who do not reside or (carry on business or have a branch office) or personally work for gain, as the case may be acquiesce in such institution; or
- The cause of action wholly or in part arises.
Section 11(2)(a)(b) clearly and categorically stated that at the time of institution of the complaint the opposite party or opposite parties actually and voluntarily resides or carries on business or has a branch office personally works for gain, a complaint shall be instituted in a district forum. The opposite party branch office is situated in Hindupur, Anantapuramu, Tadipatri, Kalyandurg and other places carrying business personally works for gain the same is not disputed by the opposite parties herein. Hence at the time of filing of present complaint, the opposite party No.2 branch office situated at Hindupur and carrying business for gain. Hence, this Forum has got territorial jurisdiction to entertain the present complaint. “
12. The complainant can file the complaint before any Forum in which the opposite party is having jurisdiction. We are relying on the decision reported in 2002(III) CPJ 205 and also 2008(I) CPJ 219 (NC) wherein the Hon’ble National Commission observed that as per section 11(2) of Consumer Protection Act to attract territorial jurisdiction mere having branch office of the opposite parties is sufficient to attract the jurisdiction. The Hon’ble National Commission also held that the complainant is at liberty to claim from any Forum in which the branch office is situated. In the present case the complainant made a claim from Hindupur and policy was taken by the policyholder at Rayadurg all are within the jurisdiction of this Forum and admittedly the 2nd opposite party is branch office to the 1st opposite party. Hence, we are of the opinion that this Forum has got jurisdiction to entertain the complaint and this point is answered accordingly in favour of the complainant and against the opposite parties.
13. POINT NO.2 - The counsel for the 2nd opposite party argued at length about the limitation aspect. The 2nd opposite party argued that the accident of the policyholder was occurred in the year 2005, whereas the claim was made by the complainant in the year 2013 i.e. after lapse of 8 years. The counsel for the opposite parties is pressing on the condition No.1 of the policy. As per condition No.1 the claim should be made forth-with from the date of accident or within one month from the date of accident. Admittedly in the present case the claim was made by the complainant after lapse of 8 years. For this the opposite party submitted bunch of rulings to show that the claim is barred by limitation. We are considering some of the rulings submitted by the opposite parties 2014 (I) CPJ page 10B . As per the observation of the Hon’ble A.P. State Commission, there is a delay of 1270 days not condoned as the contention in the said case is that the delay caused due to misplacement of file at Head Office not accepted without specifying dates general averment made to prove that delay was not intentional. Exorbitant delay cannot be condoned. “ The opposite party also relied on another decision reported in 2013(IV) CPJ page 567 – The National Commission held delay of 6 years 4 months - protracted correspondence does not extend limitation for filing complaint – for a below committed error in allowing time barred complaint. “ The counsel for the complainant argued that there is no delay in filing the complaint as the complainant came to know about the policy recently and immediately she made a claim to the 1st opposite party in the year 2013 and the repudiation was made in the year 2013 itself and the claim was made within one year from the date of repudiation and the complainant counsel also relying on the decision reported in 2005 (III) CPJ 118 (NC) – “ Time barred - cause of action arose on repudiation of claim – Complaint within limitation. The plea in regard to complaint being barred by time is stated to be rejected. Cause of action to file the complaint within the meaning of section 24-A of Consumer Protection Act, 1986 had arisen on 13-05-1997 when the claim was repudiated by the Insurance Company and not on 07-06-1982 when the fire broke out and thus the complaint is within time. “ The counsel for the complainant also relied on another decision reported in 2008(II) CPJ 221 (AP) - Limitation – policy neither settled nor repudiated inspite of service of legal notice – continuing cause of action – Forum erred in dismissing complaint on limitation ground order set aside in appeal. “ The counsel for the complainant argued at length another aspect i.e. Government and its instrumentalities cannot raise technical pleas. Hence basing on this technical pleas and ground the claim cannot be rejected.
14. When we go through Ex.A1 policy there is no dispute with regard to issuance of policy by the 1st opposite party to the policyholder i.e. D.Rama Mohan and in Ex.A1 the complainant is a nominee. Admittedly the accident was occurred within the policy period i.e. in the year 2005. The crucial aspect in the present case is about the limitation. Both counsels argued at length about the limitation. We are considering the arguments of the complainant, which is not considerable argument why because the complainant failed to show either in the complaint or in the claim submitted to the 1st opposite party that when she came to know about the policy, which was taken by her husband. She simply stated in the complaint that she recently came to know about the policy. The entire complaint is silent about the knowledge of the policy. The counsel for the complainant argued that limitation starts from the date of knowledge but failed to establish about the knowledge, there is no whisper at all. Admittedly the claim was made after lapse of 8 years. There are number of rulings from National Commission and State Commission that the claim should be made at the earliest possible time but in the present case there is lapse of 8 years. As per Ex.B1 policy immediately the claim should be made to the insurance after the accident. If there is delay it should be informed with reasons for the delay. There is no mentioning of the delay by the complainant. The complainant failed to establish the reasons for the delay. As stated by the counsel for the opposite parties even for 9 days delay the National Commission held that each day should be explained while condoning the delay. Section 24-A of Consumer Protection Act restricted on limitation for 2 years and also mentioned in the clause if there is delay a complaint can be entertained after 2 years as per section 24A but the reasons should be convincible to condone the delay. Whereas the case in hand there is no mentioning of delay. The complainant ought to have filed a petition to condone the delay. But they have not made any such application as contemplated under section 24A of Consumer Protection Act, 1986 to condone the delay. The counsel for the complainant relied on the decision reported in 2008 to get limitation mere issuing of legal notice is sufficient and the opposite parties neither to settle the claim nor repudiated the claim. If they failed to do so the cause of action is continued but the Hon’ble National Commission in the recent decision reported in 2012(5) CPJ 343 NC held . In the above case the Hon’ble National Commission observed the provisions under section 24A is peremptory in nature by serving legal notice or making representation the period of limitation cannot be extended. When we go through the citations submitted by the complainant in deep in all most all cases the complainant explained the delay in filing the complaint. For example 2006 (I) CPJ 16 NC. In this case on the issue of limitation in para 5 of order it was mentioned “ operation was performed on 06-06-1992 the complainant was assured and requested that vision would improve, then on 30-12-1993 he consulted another doctor. Whereas in the present case the complainant has not mentioned the dates to get limitation. If the delay is sufficient and excusable definitely any institute entertain the claim and tried to settle the claim. The counsel for the complainant argued one point that “Government and Instrumentalities cannot raise technical pleas.” Simply keeping the policy for more than years and insisting to settle the claim neither the Government nor any private sector will not consider that much of delay. There must be some reason to ask the condonation. It is not one month nor a year but it is a lapse of 8 years. Basing on the above observations, we are of the opinion that the complaint is barred by limitation. By observing the above point, we are not discussing other two points about the claim of the complainant. Hence this point is answered accordingly in favour of the opposite parties and against the complainant.
15. In the result the complaint is dismissed without costs.
Dictated to Steno, transcribed by him, corrected and pronounced by us in open Forum this the 27th day of August, 2014.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOSITE PARTIES
-NIL- -NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Photo copy of Group Janatha Personal Accident Insurance Certificate issued by the
1st opposite party in favour of the deceased D.Rama Mohan.
Ex.A2 - Photo copy of FIR in Cr.No.53/2005 of Muddanur P.S., Kadapa District.
Ex.A3 - Photo copy of postmortem certificate relating to deceased D.Rama Mohan.
Ex.A4 - Photo copy of representation dt.08-02-103 submitted by the complainant
to the 1st opposite party.
Ex.A5 - Photo copy of letter dt.13-02-2013 sent by the 1st opposite party to the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
Ex.B1 - Terms of Janatha Personal Accident policy issued by the opposite parties.
Ex.B2 - Photo copy of letter dt.13-02-2013 sent by the 1st opposite party to the complainant.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
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