BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
Thursday, the 1st day of March 2018
First Appeal No.26/2016 in C.C.23/2012
Patel Illa Virendra, wife of V.K. Patel
No.5, Rue Saint Martin,
Puducherry – 605 001.
… Appellant
Vs.
1. The Oriental Insurance Company Ltd.,
3rd 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 2nd Floor
Eswaran Koil Street, Puducherry HO
Pondicherry – 605 001.
… Respondents
In C.C. 23 / 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.,
3rd 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 2nd Floor
Eswaran Koil Street, Puducherry HO
Pondicherry – 605 001.
…. Opposite Parties
BEFORE:
HON’BLE JUSTICE THIRU K. VENKATARAMAN
PRESIDENT
Thiru S. TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Thiru L. Sathish, Advocate
FOR THE RESPONDENTS:
Thiru B. Mohandoss, Advocate
O R D E R
(By Justice Thiru K. Venkataraman, President)
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry dated 16.11.2016 made in
C.C. 23 / 2012.
2. The Complainant in the said proceedings before the District Forum is the appellant herein and the Opposite Parties are the respondents in this appeal.
3. The parties are referred in the same position as they had been referred before the District Forum, Puducherry for the sake of convenience.
4. The complainant has preferred this complaint before the District Forum, Puducherry seeking direction, 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 and to pay a sum of Rs.1,00,000/- as compensation for the mental agony, pain and sufferings suffered by the complainant due to the negligence in the service of the opposite parties.
5. The gist of the complaint before the District Forum is set out hereunder :
The complainant has planned a vacation to USA along with her husband for a period of seven months and booked ticket. For taking policy she has approached the opposite parties. She took "TrawellTag" policy on 31.05.2011. The Policy offered Medical Expenses, Evacuation and Repatriation, Personal Accident Death etc. The complainant travelled to USA on 03.06.2011 and on 01.08.2011, she suddenly felt a sharp persistent pain in her left knee and hence, contacted the Doctors therein for treatment; however, they refused to give treatment unless fees is paid. Therefore, the complainant contacted the opposite parties and they requested the complainant to pay the doctors fees and assured that the same will be reimbursed. The complainant had to undergo treatment and approached the opposite parties for recovery of money spent by her, however, there was no reply. The complainant also issued a legal notice. Since the opposite parties were not responded, she has preferred a complaint before the District Forum, Puducherry.
6. The reply version has been filed by the second opposite party which has been adopted by the first opposite party and the gist of the same was set out hereunder.
The complaint is not maintainable either in law or on facts. With regard to the fees paid to the Doctor, the Opposite Parties given authorization, but the service provider refused to accept the Cashless Service. The opposite parties are not liable for non-acceptance of cashless service by the service provider. Likewise, for immediate X-ray, the authorization was given on 16.08.2011, but the service provider refused to accept the cashless service. The insurance company is not liable for non-acceptance of cashless service by the service provider. The opposite parties thus pleaded that they are not liable to pay any amount to the complainant.
7. On the side of the complainant, the complainant examined herself as CW1 and 11 documents were filed which had been marked as Exs.C1 to C11. On the side of the opposite parties, no witness was examined and no document was marked.
8. The District Forum framed three points for determination, namely;
- Whether this complaint is maintainable for want of Territorial Jurisdiction?
- Whether the complainant is bad for non-joinder of proper and necessary party and mis-joinder of unnecessary party?
- To what relief the complainant is entitled for?
9. On the first point, the District Forum found that the complaint is not maintainable for want of Territorial Jurisdiction.
10. On the second point, the District Forum found that necessary parties have not been added.
11. On the third point, the District Forum found that the complaint is not maintainable.
12. The complainant preferred this appeal challenging the said order.
13. Though the opposite parties had not taken the jurisdiction point at the first instance, during the course of argument, they have taken the first point.Since it is a question of law, we are of the view, the same could be taken even at the final stage of the original matter or appeal.The question now arose is whether the complaint before the District Forum, Puducherry is maintainable and that it has got jurisdiction to decide the complaint filed by the complainant.
14. It is an admitted fact that the complainant has taken the policy with the first respondent.It is also admitted fact that the second opposite party has not rendered any service to the complainant.In such circumstances, we are of the view, even though the second opposite party is a Branch Office at Pondicherry, since no part of cause of action has arisen in Pondicherry, the complaint cannot be maintained before the District Forum at Puducherry.The said view was taken by the Hon'ble Apex Court in CDJ 2009 SC 1960 (SONIC SURGICALS vs NATIONAL INSURANCE COMPANY LTD).
Section 11 of the Consumer Protection Act reads as follows:
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs]
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
a) the opposite party or each of the 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
(b) 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 or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
[c] the cause of action, wholly or in part arises.
The provisions makes it very clear that if the opposite parties against whom the complaint is made is not within the jurisdiction of any District Forum, the complaint cannot be maintainable.Admittedly, here no part of cause of action either wholly or in part arose at Pondicherry where, the second Opposite Party is having an Office.However, the learned Counsel appearing for the appellant relied on a decision rendered by us in Revision Petition No. 1 / 2017 dated 25.05.2017.That is the case where the withdrawal of the amount from ATM from the second Opposite Party's Bank at Pondicherry was carried out and hence, we have held that since the second opposite party is in Pondicherry where a part of cause of action has arisen and hence, the District Forum at Puducherry has got jurisdiction.Such judgment may not come to the rescue of the appeal herein.
15. One more aspect that has to be seen is that the Overseas Mediclaim Policy was issued by M/s Karvat Travel Services Private Limited which has not been made as a party.Even assuming that the District Forum, Puducherry is having a jurisdiction which is not the decision that had been taken by us, in view of the non-joinder of necessary party, the complaint is liable to be dismissed.
16. Thus, considering the overall circumstances referred to above, we are of the view that the District Forum, Puducherry has taken a correct decision in deciding the complaint preferred by the complainant before the District Forum is not maintainable.However, the District Forum should have directed the complainant to prefer the complaint before the appropriate Forum where the jurisdiction lies.Therefore, while dismissing the appeal, we direct the complainant to prefer the complaint before the District Forum, where the cause of action arose.It is needless to say that the complainant is at liberty to seek for condonation of delay stating that the complainant has pursue the matter before the District Forum and thereafter before the State Commission at Puducherry.
17. In fine, the appeal stands dismissed. However, there is no order as to costs.
Dated this the 1st day of March 2018.
(Justice K. VENKATARAMAN)
PRESIDENT
(S. TIROUGNANASSAMBANDANE)
MEMBER
