State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Mahajan Singh on 5 August, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 70 / 2012
Branch Manager, United India Insurance Company Limited
Kailash Gate, Muni-Ki-Reti
District Tehri Garhwal through
Sh. Loveleen Awasthi, Manager
United India Insurance Company Limited
Regional Office, Ratan Palace
Kaulagarh Road, Dehradun
......Appellant / Opposite Party
Versus
Sh. Mahajan Singh S/o Sh. Bhajan Singh
R/o Village Margaon, P.O. Margaon Patti
Tehsil Chaiyalisaur, District Uttarkashi
......Respondent / Complainant
Sh. J.K. Jain and Sh. Vaibhav Jain, Learned Counsel for the Appellant
Sh. H.L. Khanna, Authorised Representative of Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mrs. Veena Sharma, Member
Dated: 05/08/2016
ORDER
(Per: Justice B.S. Verma, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 18.04.2012 passed by the District Forum, Dehradun in consumer complaint No. 29 of 2011.
2. Briefly stated the facts giving rise to the appeal are that the complainant was the registered owner of bus bearing registration No. HP-68-0946. The said bus was insured with the appellant - opposite party United India Insurance Company Limited for the period from 14.09.2008 to 13.09.2009. During the validity of the insurance policy, the insured bus fell in a river on 03.07.2009 and got 2 completely damaged. The complainant lodged the claim with the insurance company. The insurance company appointed surveyor on 04.07.2009, who submitted his report to the insurance company. The insurance company, however, repudiated the claim of the complainant through their letter dated 16.11.2010 on the ground that at the time of the accident, the bus was overloaded. Thereafter alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company filed written statement before the District Forum and pleaded that the District Forum, Dehradun has no territorial jurisdiction to hear and decide the consumer complaint; that at the time of the accident, 63 passengers were travelling in the vehicle in excess of permitted capacity of 44 passengers; that since the complainant has violated the terms and conditions of the policy and, as such, the claim of the complainant was rightly repudiated through letter dated 16.11.2010 on the ground of overloading of the vehicle at the time of the accident and that there is no deficiency in service on their part.
4. The District Forum vide impugned order dated 18.04.2012 allowed the consumer complaint and directed the appellant - opposite party to pay compensation of Rs. 6,78,500/- to the respondent - complainant together with Rs. 20,000/- towards mental agony and Rs. 5,000/- towards litigation expenses within a period of 30 days' from the date of the order, failing which the respondent - complainant was also held entitled to interest @9% p.a. on the above amount from the date of filing of the consumer complaint till payment. Aggrieved by the impugned order, the insurance company has preferred this appeal.
35. We have heard the learned counsel for the appellant and the authorised representative of respondent and gone through the record.
6. Learned counsel for the appellant - insurance company has submitted that the District Forum, Dehradun had no territorial jurisdiction to entertain and decide the consumer complaint filed by the complainant for the reason that no cause of action has arisen in favour of the complainant at Dehradun so as to bring his consumer complaint before the District Forum, Dehradun. Learned counsel placed reliance on the fact that the vehicle was got insured by the complainant from United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal, as would be evident from the copy of the insurance policy (Paper Nos. 22 to 23). Learned counsel further submitted that the complainant has also impleaded the opposite party in the consumer complaint as, "Branch Manager, United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal" and, as such, the consumer complaint was not at all maintainable before the District Forum, Dehradun. Learned counsel also submitted that this aspect of the matter was not properly considered by the District Forum and the District Forum has wrongly held that it has got territorial jurisdiction to entertain and decide the consumer complaint filed by the complainant. Learned counsel has cited certain decisions in support of his submissions on the point of territorial jurisdiction, which we will discuss later on at the relevant point. Learned counsel has also submitted that since at the time of the accident, the insured vehicle (bus) was overloaded and persons in excess of the permitted capacity were travelling in the vehicle at the time of the accident and hence on this ground as well, the complainant was not entitled to any relief and his consumer complaint was liable to be dismissed.
47. Per contra, the authorised representative of respondent - complainant submitted that in the policy itself, in the particulars of the insurance company, word "Rishikesh" has been mentioned after "District Tehri Garhwal" and since Rishikesh falls within the territory of District Dehradun and hence the consumer complaint was very much maintainable before the District Forum, Dehradun. He further submitted that in the policy, it has been also been mentioned that the policy has been signed at Rishikesh on 12th day of September, 2008 and since the policy was signed at Rishikesh and, as such, the consumer complaint could have very well been filed before the District Forum, Dehradun. The authorised representative also submitted that on account of overloading of the vehicle at the time of the accident, the complainant can not be denied his claim in toto and after admissible deduction on account of overloading of the vehicle at the time of the accident, the complainant was entitled to the remaining amount, to which he was held entitled by the District Forum per impugned order, which does not call for any interference.
8. The question relating to territorial jurisdiction of the District Forum being an important question and which goes to the root of the matter, the same need to be decided first without entering into the merit of the case.
9. Having considered the rival submissions on the question of territorial jurisdiction and after going through the material on record, we find force in the submission raised by the learned counsel for the appellant - insurance company that the District Forum, Dehradun had no territorial jurisdiction to entertain and decide the consumer complaint. Section 11(2) of the Consumer Protection Act, 1986 deals with the territorial jurisdiction of the District Forum and which reads as under:
5"11(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 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
(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."
10. In the case at hand, as is stated above, in the consumer complaint filed by the complainant, he has impleaded the opposite party as, "Branch Manager, United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal". The insurance policy in question was also issued by United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal. Merely mentioning the word "Rishikesh" after "District Tehri Garhwal" in the insurance policy in the particulars of the insurance company, will not make any difference, as the address of the policy issuing office of the insurance company ends on District Tehri Garhwal. We are also not convinced with the submission raised 6 by the authorised representative of respondent - complainant that since the insurance policy was signed at Rishikesh, the part cause of action has arisen in favour of the complainant at Rishikesh and hence the District Forum, Dehradun had territorial jurisdiction in the matter. Merely by mentioning the fact in the insurance policy that the policy has been signed at Rishikesh, it can not be said that the part cause of action has arisen in favour of the complainant at Rishikesh, particularly in view of the fact that the insurance policy was issued by United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal, as has been discussed above. It is significant to mention here that the said office of the insurance company is situated at Muni-Ki-Reti, although a part of Rishikesh, but falls within the territorial jurisdiction of District Tehri Garhwal.
11. In para 2 of the consumer complaint, the complainant has stated that the opposite party - insurance company carries on business of insurance in the town of Rishikesh which is within the local limits of District Forum, Dehradun. Here, it need to be stated that the opposite party - United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal does not have any branch office at Dehradun. The insurance company has filed an affidavit dated 08.09.2015 of Sardar Jassa Singh, Senior Divisional Manager, Divisional Office, United India Insurance Company Limited (Paper Nos. 99 to 100), wherein in para 2, the above-mentioned deponent has averred that the Branch Office of United India Insurance Company Limited at Kailash Gate, Muni-Ki-Reti, Rishikesh is within the territory of District Tehri Garhwal and the administration of it falls under the Divisional Office, Haridwar situated at Mitra Vatika, Ranipur More, Haridwar and in para 3 of the affidavit, he has stated that the Branch Office of the insurance company situated at Kailash Gate, Muni-Ki-Reti, Rishikesh is not governed by Divisional Office, 7 Dehradun and nor the same is a Branch Office of Dehradun Division. Thus, in the light of the said affidavit, the mere mentioning of word "Rishikesh" in the particulars of the insurance company mentioned in the insurance policy and signing of insurance policy at Rishikesh will not make any difference and will not create any cause of action in favour of the complainant at Rishikesh. The learned counsel for the insurance company has also filed the map of Rishikesh and information about Muni-Ki-Reti available on internet, which shows that Muni-Ki-Reti falls in District Tehri Garhwal. It is also worth to mention here that the insured vehicle met with an accident near Village Thirang on Bhatwari - Gangotri road (Uttarkashi), as has been mentioned by the surveyor Sh. Balbir Singh in his survey report dated 21.03.2010.
12. It is true that United India Insurance Company Limited is having branch office at Dehradun, but for the purposes of territorial jurisdiction of District Forum, Dehradun, the branch office of the insurance company is to be considered in view of the definition of "branch office" provided under Section 2(1)(aa) of the Consumer Protection Act, 1986, which reads as under:
"(aa) "branch office" means -
(i) any establishment described as a branch by the opposite party; or
(ii) any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment."
13. In view of above definition of "branch office" provided under the Act and also in view of the above-quoted affidavit of Sardar Jassa Singh, wherein he has specifically averred that Branch Office of the 8 insurance company situated at Kailash Gate, Muni-Ki-Reti, Rishikesh is not governed by Divisional Office, Dehradun, nor the same is a Branch Office of Dehradun Division, it can not be said that the cause of action, either wholly or in part, has arisen in favour of the complainant at Rishikesh, so as to bring the consumer complaint before the District Forum, Dehradun. It is also important to mention here that it can not be said that United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal is carrying on the same or substantially the same activity as carried out by the Registered and Head Office of the insurance company situated at 24, Whites Road, Chennai.
14. Learned counsel for the appellant - insurance company cited a decision of the Hon'ble National Commission in the case of New India Assurance Company Limited through Manager Vs. Gopal Gupta and another; [2013] 3 CPR (NC) 690, wherein it was held that the location of Branch Office does not give territorial jurisdiction of Consumer Forum of that place. In the instant case, the opposite party - United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, District Tehri Garhwal, is not even the branch office of the Divisional Office, Dehradun of the insurance company. The same law has been laid down by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in the case of Regional Centre (ECHS) Cantt. and others Vs. Ram Kumar Sharma;
[2013] 4 CPR 43, also pressed into service by the learned counsel for the appellant - insurance company and wherein it was held that mere location of a branch or office of opposite party within area of particular Forum does not confer territorial jurisdiction upon Forum of that area. Learned counsel also cited another decision of the Hon'ble National Commission in the case of M/s R.B. Jagdish Prasad and Co. Vs. Oriental Insurance Co. Ltd.; 2008 (4) CPR 296 (NC), 9 wherein it was held that the whole cause of action arose in Muzaffarnagar and both the parties are located in Muzaffarnagar, the complaint could not have been filed in Delhi because the Head Office of respondent - insurance company is located in Delhi. In the present case, merely because the appellant - insurance company is also having its office at Dehradun, it can not be said that the complainant could have filed the consumer complaint before the District Forum, Dehradun. Learned counsel further cited a decision of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in the case of Srilatha Vs. ICICI Lombard General Insurance Company Limited and others; [2013] 1 CPR 143, wherein it was held that expression "branch office" would mean branch office where cause of action has arisen.
15. The authorised representative of respondent - complainant cited a decision dated 01.05.2014 of this Commission given in First Appeal No. 210 of 2011; United India Insurance Company Limited Vs. Sharda Associates. In the said case, the plea of insurance company with regard to the District Forum, Dehradun having no territorial jurisdiction in the matter, was turned down and it was held that the District Forum, Dehradun had territorial jurisdiction in the matter. It was held that the insurance company has not filed any evidence to show that no branch office of United India Insurance Company Limited, Kailash Gate, Muni-Ki-Reti, Rishikesh, District Tehri Garhwal is situated at Rishikesh, District Dehradun. The said decision can not be relied upon in the given facts and circumstances of the case stated above as well as the law cited by the learned counsel for the appellant - insurance company. This apart, learned counsel for the appellant - insurance company, by way of application dated 19.07.2016 (Paper Nos. 105 to 106), has apprised the Commission that against the order dated 01.05.2014 passed by this Commission in 10 First Appeal No. 210 of 2011; United India Insurance Company Limited Vs. Sharda Associates (supra), a Revision Petition bearing No. 3306 of 2014 is pending before the Hon'ble National Commission and the said decision is subjudice before the Hon'ble National Commission.
16. In view of above discussion, we are of the considered view that the District Forum, Dehradun had no territorial jurisdiction in the matter and the District Forum has erred in entertaining the consumer complaint filed by the complainant and deciding it on merit by order impugned, which can not legally be sustained and is liable to set aside. The District Forum has wrongly turned down the plea taken by the appellant - insurance company with regard to the territorial jurisdiction. Resultantly, the appeal is fit to be allowed. Since we have come to the conclusion that the District Forum, Dehradun had no territorial jurisdiction in the matter and it has erred in entertaining the consumer complaint and, as such, we need not enter into the merit of the case and record any comment upon the merit of the case.
17. Appeal is allowed. Order impugned dated 18.04.2012 passed by the District Forum, Dehradun is set aside and consumer complaint No. 29 of 2011 is dismissed, being not maintainable before the District Forum, Dehradun. However, the respondent - complainant would be at liberty to file a consumer complaint before the District Forum having territorial jurisdiction in the matter. The statutory amount of Rs. 25,000/- deposited by the appellant at the time of filing the appeal, be released in its favour. No order as to costs.
(MRS. VEENA SHARMA) (JUSTICE B.S. VERMA) K