Delhi

North East

CC/115/2019

Mr. Devender Singhal - Complainant(s)

Versus

The oriental Insurance Co. Ltd. & Ors. - Opp.Party(s)

22 Jan 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: N-E

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Case No. 115/19

 

Devender Singhal                                                                              Complainant

 

Vs

 

The Oriental Insurance Co. Ltd & Ors                                                      Opposite party

 

 

                                                                                                Dated: 22.01.2020

 

 

Order passed by Ms. Sonica Mehrotra (Member)

1. The complainant was directed to satisfy this Forum on maintainability of present complaint on ground that OP1 acted as agent of OP2 and OP3 for selling the Mediclaim Policy No. 272900/48/2018/17747 for creating territorial jurisdiction in terms of the role of bank governing the same as argued to justify the same.  
2. We have heard the arguments on maintainability of the complaint on grounds of territorial jurisdiction addressed by the counsel of the complainant and have perused the complaint and documents filed therewith.
3. Section 11(2) (a),(b),(c) of the CPA governs the determination of territorial jurisdiction of the District Forum for entertaining a complaint and leaves no ambiguity for admission of complaint to be instituted in a District Forum within the local limits of whose jurisdiction the opposite party (ies) or any of the opposite parties at the time of institution of complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain and in case of several opposite parties, complaint to be filed only at one particular place on the choice of the complainant subject to the condition that

1. the District Forum, where the complaint has been instituted has given permission to the complainant to institute his complaint in that Forum despite the fact that some of the opposite parties are not residing or not having branch, or are not carrying on business or are not working for gain within the local limits of the jurisdiction of such District Forum; or
2. the opposite parties not so residing, or not having branch office or not carrying on business or not personally working for gain within such territorial limits, acquiesce in such institution.

Clause b of sub Section 2 of Section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the District Forum would, in all probability grant such permission; this therefore is a matter within the discretion of the District Forum.

4. With respect to his argument of the maintainability of the complaint in terms of OP1 being agent / broker of OP2 and OP3, the same does not create any part cause of action under Section 11(2) as the consideration for jurisdiction is only limited to OPs having branch office or working for gain or where cause of action wholly or in part arises. The grievance of the complainant is primarily against OP2 and OP3 being TPA and Insurance company from which end his mediclaim was rejected. The Hon’ble National Commission in the judgment of Puran Chand Wadhwa Vs Hamil Era Textiles Ltd (2003) 48 SCL 59 (NCDRC) was faced with an argument that section 11 (2) (c) of CPA and Section 20 (c) of CPC be read as same and in similar position for the purpose of territorial jurisdiction under Section 11 (2) (a) and (c) of CPA. The Hon’ble National Commission held that though both the aforementioned sections had a common reading, observed that effort by the petitioner to bring in the bank as an agent of Respondent with a view to fall within Section 11 (2)(c) is too naïve to be accepted and dealt in by us. The Hon’ble NCDRC stressed that Consumer Forums cannot go beyond or behind the provision of the Act and held that bank is only a facilitator to accept the money and to encash cheques. This is limited service being rendered by them for all – by no stretch of imagination can they be called agents to vest cause of action.  Therefore, Hon’ble NCDRC reiterated that admittedly Consumer Protection Act is a beneficial legislation but the Forum shall not go out of the boundaries of law provided under the Act to satisfy the desires of anyone.  Further the Hon’ble National Commission in its decision in HUDA Vs Vipin Kumar Kohli 1995 (I) 235 CPJ (NC) held that no part of cause of action can arise at a place from where the bank draft was obtained to file a complaint.  
5. In the present case none of the conditions laid down for admissibility of complaint under section 11 sub clause (a) (b) (c) is getting fulfilled in terms of the arraignment of opposite party (ies) in as much as it is neither residing nor carrying on business nor has a branch office nor is personally working for gain and lastly no cause of action wholly or in part has arisen within the jurisdiction of this Forum.  Mere money transfer through bank shall not accord any cause of action in part as already settled in the judgments afore cited. The Hon’ble Supreme Court in State of Madras Vs C.P. Agencies AIR 1960 SC 1309 had held that “cause of action” is taken to mean every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of court. Therefore the entire plaint has to be taken in to consideration to ascertain the bundle of facts which gave rise to cause of action and to determine whether any one or more of such facts accrue within the territorial jurisdiction of the court. The expression “wholly or in part arises” as  per 11 (2) (c) means that some act on the part of defendant must be a part of cause of action. 
6. Clause c of sub Section 2 of Section 11 has provided that each and every fact pleaded by the respondent in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. The Hon’ble Supreme Court in ONGC case 1994 AIR SCW 3287 held that facts which have no bearing with the lis or the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. 
7. Therefore, we do not find force in the arguments forwarded by the complainant to accord jurisdiction since in the present case the complainant is trying to create jurisdiction on the basis of averring OP1 as agent of OP2 and OP3 which function had already been decided by the Hon’ble Supreme Court and Hon’ble NCDRC in the case laws discussed thread bare in forgoing paragraphs.
8. In light of the settled proposition of law with respect to the territorial jurisdiction, the above mentioned complaint is hereby dismissed in limine due to erroneous jurisdiction which does not accord or vest in this Forum power to entertain and adjudicate the present complaint.
9. Let the present complaint therefore be returned to the complainant with liberty to the complainant to file the same before the appropriate Forum at North Delhi as per Section 11(2) of the Consumer Protection Act.  Let the copy of this be sent to the complainant free of cost. 
10. File be consigned to Record Room.

 

(N.K. Sharma)             President

(Sonica Mehrotra) Member