BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.23/2012

Dated this the 16^th day of November 2016

(Date of Institution: 02.07.2012)

Patel Illa Virendra, wife of V.K. Patel             

No.5, Rue Saint Martin,                   

Puducherry – 605 001.

….     Complainant

vs

1. The Oriental Insurance Company Ltd.,           

    3^rd Floor, Gate No.4, SBI Annex Building

    Harniman Circle, Fort,                     

    Mumbai – 400 001.     

2. The Oriental Insurance Company Ltd.,

    Branch Office at No.179, S.V. Complex 2^nd Floor

    Eswaran Koil Street, Puducherry HO

    Pondicherry – 605 001.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru L. Sathish, Advocate      

FOR THE OPPOSITE PARTY:  Thiru Ba. Sethuram,  Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 and 13 of Consumer Protection Act for directing the Opposite Parties to refund a sum of Rs.9,223/- being the premium paid by the complainant for the insurance policy;  to pay a sum of Rs.1,50,000/- for the monetary loss suffered by the complainant in USA because of the deficiency in service in not providing medical insurance to the complainant; to a sum of Rs.1,00,000/- as compensation for the mental agony and pain and sufferings due to the negligence in service.

2.  The case of the complainant is as follows:

          The Complainant stated that she had planned her vacation to USA along with her husband for a period of seven months and she booked her tickets on 3.6.2011 and scheduled to return to India on 15.01.2012.   The complainant enquired about the opposite parties insurance policy namely "TrawellTag" and the agents of the opposites parties claimed that the policy offers wholesome package addressing all travel related issues, especially cashless medical insurance and baggage losses.  Accordingly, the complainant took the "TrawellTag" policy bearing No. 121800/48/2011/13216 on 31.05.2011 .  The policy offered Medical Expenses, Evacuation and Repatriation, Personal Accident Death, Delay Baggage, Personal Liability, Missed connection, Emergency Dental Cover, Loss of Baggage, Loss of Passport, Trip Cancellation/Curtailment, Bounced Hotel Booking coverages worldwide including USA and Canada from 3.6.2011 to 30.09.2011 and the policy contained the contact details of           CORIS-MIAMI-USA for emergency cashless medical assistance.  The complainant travelled to USA on 3.6.2011 and on 1.8.2011 the complainant suddenly felt a sharp persistent pain in her left knee incapaciting her movement and the pain was acute while climbing staircase.  The complainant contacted the said Coris-Miami-USA, Coris-USA-INC who referred the complainant to Dr. Garry Willner, D.C. & Physical Therapist at New York for cashless treatment, but the said doctor refused to give any treatment unless his fee is paid.  The complainant contracted the opposite parties representative Coris-Miami-USA who requested the complainant to pay the doctor's fee and assured that the same will be reimbursed.  Further, the complainant was referred by the above said doctor to take X-ray and required 150 USD for which the agent at US requested  the complainant to hold on for confirmation, therefore the complainant could not take X-ray.  The complainant's husband sent innumerable mails to the opposite parties service agent in USA seeking confirmation, who in turn claimed the delay is from the opposite parties side.  The complainant waited for 17 days for approval of her treatment, but it was not forthcoming.  The complainant suffered in pain and could not leave her hotel room for want of approval on the side of opposite parties.  The complainant and her husband subjected to extreme metal pain, agony and stress.  Due to the act of the opposite parties, the complaint cut short her trip to USA by 4 months and returned to India on 27.8.2011.  The complainant expected smooth and hassle free service at the opposite parties end which was not be.   The complaint issued legal notice to the opposite parties on 24.11.2011, the second opposite party received the legal notice but washed off its hand by claiming that the complainant should take up the matter only with the Mumbai Office, the notice sent to first opposite party was returned as shifted its office, however the E-mail sent was received on 26.12.2011 but it did not chose to respond.  Hence, this complaint. 

3. The reply version filed by the second opposite party and adopted by first opposite party briefly discloses the following:

          The complaint is not maintainable either in law or on facts.  The complainant was issued an Overseas Mediclaim Policy No. 121800/48/2011/13216/1747379 by Karvat Travel Services Private Limited for the period 03.06.2011 to 30.09.2011 with the coverages of Medical Expenses, Evacuation and Repatriation, Personal Accident Death, Delay Baggage, Personal Liability, Missed connection, Emergency Dental Cover, Loss of Baggage, Loss of Passport, Trip Cancellation/Curtailment, Bounced Hotel Booking.  With regard to the fees paid to the Dr. Gary Wilmer, the opposite parties given authorization, but the service provider refused to accept the cashless service.  The claim administrators for Overseas mediclaims namely Heritage Health TPA received the request from Coris Miami on 02.08.2011 for authorization of first visit.  The authorization was given on 3.8.2011.  The service provider has not accepted the cost guarantee and the insured had to pay the bill for first visit to doctor.  The opposite parties stated that it is not liable for non-acceptable of cashless service by the service provider.  Likewise, for immediate X-ray, the authorization was given on 16.8.2011 but the service provider refused to accept the cashless service.  The insurance company is not liable for non-acceptable of cashless service by the Service provider.  All other allegations of the complainant are denied by the opposite parties.  The opposite parties also stated that they are not responsible for the cut short stay in the USA by the complainant and the mental strain and agony caused to her.  The opposite parties also stated that Sec.A of the policy conditions speaks about Medical Expenses and Repatriation.  Under the covered expenses, Cashless assistance can be provided on all covered ailments / disease and accident / injuries treated on outpatient and inpatient basis subject to the acceptance of the hospital / service providers and further subject to the prior approval of Coris International / Heritage Health Services Private Ltd in the respective jurisdiction.   Further the policy contains General conditions applicable to all sections.  No refund of premium or part thereof will be allowed in case insured person returns to India before the expiry of the policy.   Hence, the complainant cannot seek to refund the premium.  Further, the opposite party sent a registered letter dated 23.04.2012 to the complainant with a copy marked to the complainant's Advocate requesting to submit the claim form and original documents with all original bills, payment receipts and medical reports, original policy copy for reimbursement.  The complainant did not submit the claim form or claims papers for reimbursement to the opposite party or to the Heritage Health TPA Pvt Ltd., instead the complainant has directly approached this Forum and has filed this complaint.  Since the opposite parties are not liable to pay compensation, prayed for dismissal of the complaint with costs.

4.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C11 were marked.  On the side of the opposite parties, no witness was examined and no documents were marked. 

5.       Points for determination are :

1. Whether this complaint is maintainable for want of Territorial Jurisdiction?
2. Whether the complainant is bad for non-joinder of proper and necessary party and misjoinder of unnecessary party?
3. To what relief the complainant is entitled for?

6   Point Nos.1 and 2:

          It is the allegation of the complainant that  she had planned to spend her vacation with her family members in USA along with her husband for a period of  7 seven months and took a "TrawellTag " policy  with the  service provider of first opposite party covering the period from 3.6.2011 to 30.09.2011 vide Ex.C1.  On 01.08.2011 the complainant felt pain in her left knee incapacitating her movement and she contacted the agent of opposite parties at USA namely Coris-Miami-USA who referred the complainant to Dr. Garry Willner for cashless treatment, who in turn refused to give treatment to her unless his fee is paid.  She informed the same to the said Coris-Miami-USA who requested the complainant to pay the fees and assured to reimburse.  The said doctor recommended the complainant to take immediate X-ray and demanded fees, for which the said Coris-Miami-USA requested the complainant to hold on for confirmation from the opposite party's office.  Even waited for  17 days, the approval did not come and hence, the complainant was forced to abandon her trip and returned to India on 27.8.2011 with her husband and hence this complaint.    

          7. On the otherhand, the opposite parties submitted that their agent at USA given authorization to the doctor for cashless service, but the service provider only refused to accept the same and demanded fees both for consultation as well as X-Ray.  Further submitted that the opposite parties sent a registered letter dated 23.04.2012 to the complainant with a copy to her Counsel to submit claim form and original documents with all original bills, payment receipts and medical reports, original policy copy for reimbursement, but the complainant did not submit the same either to the opposite parties or to the Heritage Health TPA Pvt Ltd., therefore, they are not liable to pay any compensation to the complainant since they have not committed any deficiency in service. 

          8. This Forum carefully perused the complaint, reply version and the documents Exs.C1 to C11 marked by the complainant.   On perusal of Ex.C1, this Forum observes that the complainant took Overseas Travel Insurance Policy from the first opposite party who is carrying on business at Mumbai.  Even though the second opposite party is the independent branch office of first opposite party and has place of business at Pondicherry, the Ex.C1 reveals that the second opposite party has not rendered any service to the complainant.  No cause of action has arisen with the second Opposite Party for want of territorial jurisdiction to the local limits of this Forum.  The second Opposite Party in Ex.C5 clearly replied that the policy was taken by the complainant with first opposite party alone.

9. The Hon'ble Apex Court of India in the case of "Sonic Surgicals vs National Insurance Company Ltd., has also held that

"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 the 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....."

It is clear from the above judgment that the territorial jurisdiction for filing a consumer case lies at a place where the cause of action has arisen.

          10.  Further,  as per section 11 (2) of Consumer Protection Act 1986:-

          A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1. 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, or
2.  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 given, or the opposite parties who do not reside, or [carry on business of have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
3.  the cause of action, wholly or in part, arises.

In this case, the complainant paid premium to the first Opposite Party at Mumbai and also the cause of action not routed through the second opposite party conferring the territorial jurisdiction to this Forum. 

          11.  Hence, as per the decision of  Hon'ble Apex Court of India in "Sonic Surgical vs National Insurance Company Ltd.," stated supra and also as per Section 11 (2) of the Consumer Protection Act, the complainant should have filed  this complaint within whose local jurisdiction, the cause of action has accrued i.e. at  Mumbai  from where the complainant  took the policy and also the complaint is bad for mis-joinder of unnecessary party.  This point is answered accordingly.

          12. This Forum carefully perused the records available in this case.  The opposite parties in its reply version stated that the complainant was issued an Overseas Mediclaim Policy by M/s Karvat Travel Services Private Limited.  On perusal of Ex.C1 also, it is mentioned that "This Group Travel Insurance Policy No.121800/48/2011/13216 dated 07.01.2009 has been issued at Mumbai by the Oriental Insurance Company Ltd., to the insured M/s Karvat Travel Services Pvt Ltd.,…..".  Hence, it is very clear from Ex.C1 page 1 and 2 that the above said policy has been issued by the first opposite party to the said M/s Karvat Travel Services Private Limited.    The opposite parties raised the plea that the policy was issued to M/s Karvat Travel Services Pvt Ltd., it is the duty of the complainant to array the said M/s Karvat Travel Services Pvt Ltd., as a party to this proceedings from whom the complainant took the policy.  Instead of doing so, the complainant unnecessarily impleaded the second opposite party who is the independent branch office of first opposite party at Pondicherry from whom no service was availed by the complainant.  Hence, this Forum decides that the complainant should have added the above said M/s Karvat Travel Services Pvt Ltd., as a party to this proceedings.  Hence, this point is answered holding that the complaint lacks merit on the aspect of non-joinder of  proper and necessary party i.e. M/s Karvat Travel Services Pvt Ltd., and Mis-joinder of unnecessary party i.e. the second opposite party.

          13. This Forum also relied the judgment rendered by the Hon'ble State Consumer Disputes Redressal Commission, Chennai in F.A. 345/2007 [SUSHIL RAJAMANIKKAM vs M/S KLM ROYAL DUTCH AIRLINES] wherein, it was held that

          "The District Forum considering all these facts that the complainant has not made out a case and failed to implead the proper party, dismissed the case correctly which deserves acceptance by this Commission also, since we are unable to take any contra view….."

          14. Under the above facts and circumstances, before going into merit of the case, this Forum decides that there is no prima facie case to file this complaint before this Forum which has no jurisdiction to entertain this complaint and also the complaint is bad for non-joinder of proper and necessary party and mis-joinder of unnecessary party.  These points are answered accordingly.

          15. Point No. 3:

          In view of the discussion and decision held in Point Nos.1 and 2 that the Complaint is not maintainable before this Forum and also bad for non-joinder of necessary party and mis-joinder of unnecessary party, these points are need not to be answered.

16. In the result, this complaint is dismissed.  No costs.

Dated this the 16^th day of November 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           26.11.2013           Patel Illa Virendra

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER