State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Apollo Imaging & Diagnostic Private ... on 14 February, 2013
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.936 of 2008.
Date of Institution: 01.09.2008.
Date of Decision: 14.02.2013.
1. National Insurance Company Limited, Regional Office, SCO No.232-
234, Sector 34-A, Chandigarh through its Manager (Legal).
2. Branch Manager, National Insurance Company Limited, No.6, G.T.
Road, Miller Ganj, Ludhiana.
3. Senior Divisional Manager, National Insurance Company Limited,
Divisional Office No.1, BMC Chowk, Jalandhar.
.....Appellants.
Versus
Apollo Imaging & Diagnostic Private Limited, Registered Office at 677, Mall
Road, Model Town, Jalandhar City 144001 through its Director Dr. B.L.
Goyal.
...Respondent.
First Appeal against the order dated
28.05.2008 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. B.S. Taunque, Advocate, counsel for the appellants.
Sh. Parminder Singh, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
National Insurance Company Limited and others, appellant/opposite parties (In short "the appellants") have filed this appeal against the order dated 28.05.2008 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that Apollo Imaging & Diagnostic Private Limited, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, First Appeal No.936 of 2008 2 "the Act") against the appellants, pleading that on 22.08.2003, appellant no.1 through its authorized agent covered its risk on one GE-SIGNA CONTOUR MRI system, including all spares for functioning of machine including cold head, R.F. Coils, Shield Cooler, Helium etc. and issued a cover note no.0122064 dated 22.08.2003, fully describing the risk coverage under the Electronic Equipment Insurance Policy. The appellants have its Divisional Office at Jalandhar.
3. On receipt of premium of Rs.3,03,469/- calculated by appellant no.1 in the said cover note, valid period of insurance was from 25.08.2003 to 24.08.2004. The appellant agreed and undertook to make good the loss or damage suffered by the respondent for the perils covered by the insurance policy at any time during one year. Appellant no.1 issued cover note in which allotted policy number was 401603/44/03/6000078, but the policy was not issued. It was mandatory and obligatory on the part of the appellant to issue the policy. The terms and conditions including exclusion clauses were not communicated and were not part of the contract of insurance.
4. On 28.09.2003, it was discovered that the MRI system was not functioning properly and developed problem as a superfluous sound was observed from the Helium Compressor room and within no time, the temperature of Magnet increased. In order to avoid any major mishap, the system was switched off and the assemblies were disconnected from the main. Intimation was given to appellant no.1 on 28.09.203 and also the matter was reported to Wipro GE Medical Systems, Chandigarh, who deputed their Senior Engineer Mr. Rishi for diagnosing the fault in the MRI machine. On checking, he found that recondensation of the Helium gas was not being done properly by the cold head unit and the flange assembly had broken due to which cold head was not working and the respondent was advised to order for new component including Helium.
5. Appellant no.1 deputed Sh. Arun Mehta, Surveyor to assess the extent of damage and loss and the surveyor made visit on 01.10.2003 and First Appeal No.936 of 2008 3 checked up the machinery. The surveyor found that the cause of break down was sudden, unforeseen and accidental in nature and was covered under the policy. The Wipro GE Medical Systems had charged Rs.6.50 lacs for the Helium. On instructions and the assurance, the respondent ordered and purchased the required amount of Helium and Flange Assembly which was replaced and it was inspected by the surveyor on his next visit. The respondent completed all the formalities and all the necessary documents were submitted, but the claim was closed vide letter dated 13.04.2004 by appellant no.1.
6. Appellant no.1 vide letter dated 01.12.2003 conveyed the cancellation of policy w.e.f. 16.12.2003, but no cancellation of the existing policy could be done without any reason. The respondent supplied all the documents and wrote letter dated 21.04.2004 and cooperated, but the claim was not settled and the respondent filed a complaint and vide order dated 09.03.2006, the appellants were directed to give new list of required documents within seven days and the respondent was asked to comply with one month. Accordingly, the compliance was made, but the claim was declined on the ground that the Helium liquid gas of the compressor and cold head assembly of Magnetoom is excluded from the risk coverage and the same falls under special exclusion of the policy and the claim was closed as 'no claim', which is unjustified and there is deficiency in service on the part of the appellants.
7. It was prayed that the appellant may be directed to pay Rs.6.50 lacs for identification of loss and damage along with interest @ 18% p.a. from the date of loss till payment and to pay Rs.5.00 lacs as compensation and Rs.15,000/- as litigation expenses.
8. In the written version filed on behalf of the appellants, the preliminary objections were taken that the respondent company is a private company and is not a consumer under the Act. There is no deficiency in service or unfair trade practice on the part of the appellants. Immediately, on First Appeal No.936 of 2008 4 receipt of the information qua the loss caused to the machine, Sh. Arun Mehta was appointed as surveyor, but he could not assess the loss as the required documents were not supplied. On receipt of necessary documents, he submitted the report dated 27.05.2006 and recommended the claim as 'no claim'. The Helium, being an operating media as well as consumable one, was not covered under the policy issued by appellant no.1. The cover note was issued and the policy number was allotted. If the policy was not issued, then how could the respondent come to know about the number of the policy. The surveyor asked vide various letters to comply with the requirements and to supply the necessary documents but due to non-submission of the documents, the claim was filed as 'no claim'. The appellants were well within its right to cancel the policy. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the exclusion clause containing the documents Ex.R-4 was not communicated to the respondent along with the policy or at the time surveyor visited the defective machine. The document Ex.R-4 was not issued on 19.12.2003 and exclusion clause has no value as it was not communicated before accident or even after the accident. The exclusion clause which was raised for the first time in the second complaint cannot be held to be a legal defence. The repudiation was unjustified. The complaint was allowed and the appellant was directed to pay the claim amount with interest @ 9% p.a. from the date of first complaint till payment and to pay Rs.5,000/- as litigation costs.
11. Aggrieved by the impugned order dated 28.05.2008, the appellant has come up in appeal.
First Appeal No.936 of 2008 5
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
13. Learned counsel for the appellants contended that the District Forum, Jalandhar has no jurisdiction to try and decide the present complaint. The insurance cover was issued by National Insurance Company Limited, G.T. Road, Millerganj, Ludhiana. The Electronic Equipment Insurance Policy was issued by the Chandigarh office. The surveyor was appointed at Ludhiana and no cause of action or part of cause of action arose at Jalandhar. The present complaint was filed at Jalandhar and in the complaint also, the reason for the jurisdiction was the situation of the Branch Office at Jalandhar, but the same was not sufficient to hold that the District Forum, Jalandhar had the jurisdiction. It has been argued that once the District Forum had no territorial jurisdiction, it could not pass any order and the appeal may be allowed.
14. On the other hand, learned counsel for the respondent has argued that the District Forum has considered the aspect of territorial jurisdiction and passed a detailed and speaking order and there is no ground to interfere with the same and the appeal may be dismissed.
15. We have considered the respective submissions advanced on behalf of the parties and have thoroughly monitored the entire record placed on the file.
16. The present complaint was filed before the District Forum, Jalandhar, whereas appellant no.1 is located at Chandigarh, appellant no.2 at Ludhiana and appellant no.3 i.e. Senior Divisional Manager is at Jalandhar. Whether the District Forum, Jalandhar had the jurisdiction to try and decide the complaint, is required to be decided first?
17. Ex.C-6 is the cover note issued by the National Insurance Company Limited, G.T. Road, Millerganj, Ludhiana and the insured's name is also mentioned as Apollo Imaging & Diagnostic Private Limited, SCF 4, First Appeal No.936 of 2008 6 Udham Singh Nagar Market, Ludhiana. Name of Financing Institution is UBI, Civil Lines, Jalandhar City. The said equipment was also installed at Ludhiana. Other correspondence was also done at Ludhiana. Claim Form Ex.C-14 was also filled at Ludhiana. Invoice dated 07.11.2003 Ex.C-16 is also of Ludhiana and other documents relied upon by the respondent are also of Ludhiana. Senior Divisional Manager, appellant no.3 was not, at all, concerned and the respondent in the complaint also mentioned that the insurance company has more than one branch office including the Divisional Office and the Forum has the jurisdiction.
18. Mere location of the Branch Office or the Divisional Office is not sufficient to make any cause of action, nor the cause of action arose in the territory where the said office is situated. The Hon'ble Supreme Court in case "Sonic Surgical Vs National Insurance Company Limited", IV(2009) CPJ- 40(SC) observed in Para-8 (relevant portion) as follows:-
"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. No doubt this would be departing from the plain and literal words of section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity {vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79}".
19. From the above proposition of law, it is clear that no cause of action or part of cause of action has arisen at Jalandhar and the District Forum, Jalandhar was not competent to decide the complaint filed by the respondent. The order passed by the District Froum is not sustainable in the eyes of law, as it lacks jurisdiction.
First Appeal No.936 of 2008 7
20. Accordingly, the appeal filed by the appellants is accepted and the impugned order under appeal dated 28.05.2008 passed by the District Forum is set aside. The parties through counsel are directed to appear before the District Forum, Jalandhar on 20.03.2013 and the District Forum on appearance of the parties or after procuring their presence shall return the complaint to the respondent/complainant for presenting the same before the appropriate form having territorial jurisdiction. The respondent has been pursuing the complaint as well as the appeal in good faith, as such, as per the law laid by the Hon'ble Supreme Court in case "Trai Foods Ltd. Vs National Ins. Co. & Ors." (2004) 13 SCC-656, the time spent from the date of filing of the complaint till the decision of this appeal is ordered to be excluded, in the interest of justice.
21. Copy of the order along with record of the District Forum be sent to the District Forum forthwith.
22. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant no.1 by way of a crossed cheque/demand draft after the expiry of 45 days.
23. The arguments in this appeal were heard on 04.02.2013 and the order was reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Jasbir Singh Gill) Member February 14, 2013.
(Gurmeet S)