State Consumer Disputes Redressal Commission
Sushil Kumar Sahu vs The Oriental Insurance Co. Ltd. on 8 November, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/497
Instituted on : 14.09.2016
Sushil Kumar Sahu, S/o Shri Dhanush Lal Sahu,
Aged 37 years, R/o : Village - Khara,
Police Station - Rengakhar, Tehsil - Bodla,
Dist. Kabirdham/Kawardha (C.G.) ... Appellant (Complainant)
Vs.
The Oriental Insurance Company Limited,
Through : Divisional Manager,
Divisional Office No.2, Sai Nagar, Jail Road,
Raipur, Tehsil & District Raipur (C.G.). ..... Respondent (O.P.)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Rastogi, Advocate for the appellant (Complainant).
Shri L.K. Joshi, Advocate for the respondent (O.P.).
ORDER
DATED : 8 /November/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 04.07.2016, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C./2015/322. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is an agriculturist and he purchased Swaraj Mazda vehicle bearing registration No.C.G.08/L/3038. In the above vehicle, the goods are loaded and the goods are carrying from one place to another place and the complainant engaged a driver to drive the above vehicle, who is having // 2 // valid and effective driving licence. The above vehicle is the source of livelihood of the complainant and his family. The O.P. No.1 is a General Insurance Company, which is doing insurance business all over the country as per the instructions and Circulars issued by I.R.D.A. The O.P. No.2 is a Surveyor duly licenced by I.R.D.A. The complainant purchased Swaraj Mazda vehicle bearing registration No.C.G.08-L-3038 in his name for loading unloading work. The complainant obtained temporary permit for operating his vehicle, which was valid for entire Madhya Pradesh. The complainant also obtained permit for goods vehicle from the R.T.O. Rajnandgaon, which was valid for entire Chhattisgarh. The complainant obtained Motor Insurance Certificate Cum Policy Schedule GCCV Public Carriers Other Than Three Wheelers Package Policy from the Insurance Company, so that if during the working period, the vehicle is damaged and there is any defect in the vehicle, then the complainant can made claim before the Insurance Company. The insurance policy was valid for the period from 05.12.2013 to 04.12.2014 and the Insured Declared Value was Rs.10,16,386/-. The complainant paid premium of Rs.31,900/-. The insurance policy No. is 191200/31/2014/5775. The Insurance Company assured the complainant that in case of damage of loss to the vehicle in question, the Insurance Company will provide the amount equivalent to the Insured Declare Value or the amount to be incurred in repairing of the vehicle. On 06.06.2014, the vehicle of the complainant dashed with a Harra tree at Main Road, Village Damoh, Ghopghat. In the accident, a labour namely Rusau S/o Shri Mahangu Nai, who had sat for loading unloading of the cement bags, had died due to pressing down in the cement bags and another labour Shankar Lal also // 3 // sustained injuries. Due to accident, the vehicle of the complainant was badly damaged. The driver of the complainant namely Bharat Lal Sen, immediate gave intimation regarding the accident in the office of the Insurance Company. As in the accident, a labour had died, therefore, another labour namely Shankar Lal gave intimation regarding the accident to Police Station, Saletekri, District Balaghat. On the basis of intimation given by Shankar Lal, the Incharge Officer of Police Outpost, registered offence against driver Bharat Lal for offence under Section 279, 337 and 304-A of I.P.C. After completion of investigation, the Police Submitted Final Report on 29.06.2014 before Judicial Magistrate First Class. On the basis of intimation given to the Insurance Company, the Insurance Company appointed Nanda & Nanda Associates for conducting survey of the vehicle. Nanda and Nanda Associated conducted survey of the damaged, took photographs and thereafter told the complainant to take the damaged vehicle Swaraj Mazda bearing registration No.C.G.04-L-3038 in the showroom of the manufacturer company for assessment of the loss. As per instruction of the Surveyor, the complainant brought his vehicle to show room of the company situated at Rajnandgaon, where after examination, the Engineer of the Company assessed the loss to the vehicle bearing registration No.C.G.08-L-3038 and provided copy of estimate to the tune of Rs.5,89,949/-. The complainant provided the estimate to the Surveyor. The Surveyor, who was appointed by the Insurance Company, had also received fees from the complainant. After receiving Preliminary Survey Report, the Insurance Company issued claim form to the complainant. The complainant duly filled up claim for and gave all informations and submitted the claim form along with relevant // 4 // documents in the office of the Insurance Company. After examining the claim form submitted by the complainant in respect of his Swaraj Mazda vehicle bearing registration No.C.G.08-L/3038, Nanda & Nanda Associates submitted Final Survey Report in the office of the Insurance Company, but the Insurance Company did not show its interest in the claim of the complainant. The complainant several time requested the Insurance Company to settle his claim, but the Insurance Company assured the only gave assurance to the complainant to settle his claim at the earliest. The Insurance Company did not settle the claim of the complainant for a long time, and the dealer of the Swaraj Mazda vehicle was continuously pressurizing the complainant to remove the vehicle, therefore, the complainant was compelled to get the vehicle repaired in his own expenses in which he spent a sum of Rs.5,10,730/-. The original bill of the repairing was also submitted by the complainant in the office of the Insurance Company. At the time of submitted original bill of repairing, the officer of the Insurance Company assured the complainant that his claim will be settled at the earliest, but in spite of making all efforts by the complainant, the Insurance Company did not settle his claim, which comes in the category of deficiency in service. The complainant sent legal notice to the Insurance Company on 21.05.2015 and requested to settle his claim within 3 days but inspite of receiving the legal notice on 25.05.2015, the Insurance Company did not settle the claim of the complainant. Hence the complainant filed the instant complaint and prayed for granting reliefs as prayed in the compliant.
// 5 //
3. The Oriental Insurance Company Limited (O.P.) filed its written statement and averred that the insurance policy was issued from Raipur office of the Insurance Company and claim was also submitted by the appellant (complainant) before Raipur Office of the Insurance Company, whereas the accident took place at Balaghat District, therefore, the District Forum, Durg (C.G.) has no territorial jurisdiction to entertain the instant complaint. The complaint is liable to be dismissed. The Insurance Company further averred that the Insurance Company appointed Nanda & Nanda Associates as Surveyor, who assessed the loss, but the appellant (complainant) violated terms and conditions of the insurance policy, therefore, no amount is payable to the respondent (complainant). The GCCV Public Carriers Other Than Three Wheelers Package Policy - Zone B was issued by the Insurance Company to the appellant (complainant). The sitting capacity of the vehicle in question is 2 + 1 (including driver) as against which the appellant (complainant) was carrying 8 persons in the vehicle in question, which comes within fundamental breach of the terms and conditions of the insurance ply. The Surveyor has been made party only to bring the jurisdiction within territorial jurisdiction of the District Forum, Durg (C.G.). The Surveyor is not a necessary and proper party in the complaint because the Surveyor had only assessed the loss as per guidelines issued by Insurance Regulatory and Development Authority. Initially Maniklal Sahu was appointed as Spot Surveyor, who inspected the spot and submitted his Survey Report to the Insurance Company, thereafter Nanda & Nanda Associates was appointed by the Insurance Company as Surveyor and Loss Associates, who assessed the loss to the tune of Rs.3,93,770.92, but // 6 // as the appellant (complainant) violated the terms and conditions of the insurance policy, therefore, the claim of the appellant (complainant) was repudiated by the Insurance Company. The intimation regarding the repudiation of his claim was also given by the Insurance Co. to the appellant (complainant). The complaint is liable to be dismissed.
4. Initially the appellant (complainant) had filed complaint against the Oriental Insurance Company Limited arrayed as O.P. No.1 and Nanda & Nanda Associates was arrayed as O.P. No.2. Nanda & Nanda Associates (O.P. No.2) filed an application before the District Forum on 04.09.2015 for deleting its name from the array of O.P.No.2. Vide order dated 14.03.2016, learned District Forum allowed the application filed by Nanda & Nanda Associates (O.P. No.2) and directed that the name of the O.P. No.2 be deleted from the complaint and thereafter the name of the O.P. No.2 was deleted from the complaint.
5. The complainant has filed documents. Annexure A-1 is copy of Certificate of Registration of C.G.08-L-3038 and Form Receipt of Tax, Annexure A-2 is Temporary Permit, Annexure A-3 is Permit for Goods Vehicle, Annexure A-4 is Driving Licence of Bharat Lal Sen, Annexure A-4 is driving licence of Bharat Lal Sen, Annexure A-5 is Insurance Policy, Annexure A-6 is First Information Report, Annexure A-7 is Final Report, Annexure A-8 is Estimate dated 27.06.2014 issued by Rajnandgaon Motor Engineering Works, Annexure A-9 is repairing bill issued by Rajnandgaon Motor Engineering Works, Annexure A-10 is registered notice dated 21.05.2015 sent by Shri Rajkumar Rastogi, Advocate to the Oriental Insurance // 7 // Company Limited, Raipur, Annexure A-11 is postal receipt and acknowledgement, Annexure A-12 is reply dated 02.06.2015 sent by Shri Pradeep Kumar Paul, Advocate to M/s Om Sai Associates, Advocates.
6. The Insurance Company has filed documents. Document Annexure NA-01 is letter dated 25.05.2015 sent by Sr. Divisional Manager, The Oriental Insurance Co. Ltd. to the complainant, Annexure NA-02 is vehicle particulars, Annexure NA-03 is Motor Sport/Final Survey Report dated 21.11.2014 of Nanda & Nanda Associates, Durg (C.G.), Annexure NA-04 is Investigation Report dated 09.03.2015, Annexure NA-05 is Statement of Kanhaiyalal, Annexure NA-06 is Statement of Kanhaiyalal, Annexure A-7 is Statement of Shankar, Annexure A-8 is Statement of Shankar, Annexure NA- 09 is Statement of Monu Alias Devendra.
7. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint of the complainant.
8. Against the order of the District Forum dated 04.07.2016, the appellant (complainant) filed the instant appeal i.e. Appeal No.FA/2016/497, which was dismissed in default by this Commission vide order dated 29.11.2016. Thereafter the appellant (complainant) filed Miscellaneous Application No.2016 /10 before this Commission for restoration of Appeal in its original number by recalling or reviewing the order of dismissal passed by this Commission on 29.11.2016. The above application was also dismissed by this Commission vide order dated 09.01.2017 being not maintainable. The appellant (complainant) filed Revision Petition No.353 of 2017 before Hon'ble // 8 // National Commission against the order dated 09.01.2017 passed by this Commission in Miscellaneous Application No.2016/10 and vide order dated 25.08.2017, Hon'ble National Commission allowed the revision petition, set aside order dated 29.11.2016 subject to cost of Rs.10,000/- to be deposited by the petitioner /appellant with Legal Aid Account of this Commission and matter was remanded back to this Commission.
9. Shri R.K. Rastogi, learned counsel appearing for the appellant (complainant) has argued that the branch office of the respondent (Insurance Company) is situated at Durg, therefore, the District Forum, Durg (C.G.) is having jurisdiction to decide the matter, but learned District Forum, did not consider the above aspect of the matter and dismissed the complaint. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. He placed reliance on Appeal No.FA/2017/73 National Insurance Co. Ltd. and Another Vs. Kanhaiya Daga, decided by this Commission vide order dated 18.05.2017.
10. Shri L.K. Joshi, learned counsel appearing for the respondent (O.P.) (Insurance Company) has argued that the insurance policy was issued from Raipur office of the Insurance Company and the claim form was also submitted by the appellant (complainant) before Raipur Office of the Insurance Company. The appellant (complainant) himself is resident of Village Khara, P.S. Rengakhar, Tehsil Bodla, District Kabirdham / Kawardha (C.G.), therefore, the District Forum, Durg (C.G.) has no jurisdiction to decide the case. The impugned order passed by the District Forum, is just and proper and it does not suffer from any infirmity, irregularity or illegality, // 9 // hence does not call for any interference by this Commission. The appeal filed by the appellant (complainant) be dismissed. He placed reliance on Sonic Surgical Vs. National Insurance Co. Ltd. 2010 (1) ACCD 1 (SC) = IV (2009) CPJ 40 (SC); Oriental Insurance Company Limited Vs. Mohammad Ramzan Ansari, II (2015) CPJ 147 (Chha.); Puranmal Vs. Shri Ram General Insurance Company Ltd. I (2016) CPJ 280 (NC); New India Assurance Company Ltd. Vs. Ishwar Singh Rathore, II (2015) CPJ 28 (NC).
11. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum, as well as the impugned order.
12. Sub section 2 of Section 11 of the Consumer Protection Act, 1986 runs thus :-
"(2) A complaint shall be instituted in 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 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 or 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."
13. In Sonic Surgical Vs. National Insurance Company Ltd. (Supra) Hon'ble Supreme Court has observed thus :-
"(i) Consumer Protection Act, 1986 - Section 17 - Jurisdiction -
Territorial - Fire broke out in godown at Ambala - Insurance policy taken at // 10 // Ambala - Compensation claim made at Ambala - Contention regarding applicability of Amendment Act, 2003 not acceptable - 'branch office' in amended section means, branch office where cause of action arose - No part of cause of action arose in Chandigarh - Consumer Commission, Chandigarh had no jurisdiction to adjudicate."
"8. ......... 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..."
14. In Srei Equipment Finance Pvt. Ltd. & Ors. Vs. S. Natrajan, III (2016) CPJ 389 (NC), Hon'ble National Commission has observed thus :-
"6. Perusal of agreement executed between the parties reveals that agreement was executed in Kolkata and registered office of OP is in Kolkata whereas complaint has been filed before District Forum, Salem in Tamil Nadu State. Merely because, there is branch of OP at Salem and Chennai, complainant does not get jurisdiction to file complaint at branch office of OP and complaint was to be filed only in Kolkata. In spite of specific objection by OP in its written statement towards jurisdiction neither District Forum nor State Commission has dealt with this objection and learned State Commission decided appeal in absence of petitioner's Counsel and I am of the view that District Forum, Salem had no territorial jurisdiction to entertain the complaint...."
15. In Appeal No.FA/2013/137 - Branch Manager, Bajaj Allianz Insurance Company Limited Vs. Ghararam Sahu, vide order dated 21.03.2014, this Commission observed thus :-
"9. In the instant case, the office of the appellant/Insurance Company is situated at Pandri, Raipur and there is no branch of the appellant/Insurance Company at Dhamtari and policy was issued from Raipur office of the appellant/Insurance Company. Merely the accident was took place at near Sihawa, no part of the cause of action has accrued at Dhamtari and District // 11 // Forum, Dhamtari (C.G.) has no territorial jurisdiction. Therefore, the learned District Forum, Dhamtari (C.G.) erred in holding that it has territorial jurisdiction to take cognizance of the complaint case..."
16. In the instant case also, the insurance policy was issued from Raipur office of the respondent (O.P.) Insurance Company and claim was also submitted by the appellant (complainant) before Raipur office of the Insurance Company. The appellant (complainant) is resident of District Kabirdham / Kawardha and accident took place at Main Road, Village Damoh, Ghopghat, District Balaghat (M.P.), hence, no cause of action accrued to the appellant (complainant) within territorial jurisdiction of District Forum, Durg (C.G.). Therefore, District Forum, Durg (C.G.) has no jurisdiction to entertain the complaint of the appellant (complainant).
17. Therefore, the impugned order dated 04.07.2016, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
18. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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