J.S. Klar, Presiding Judicial Member
1. The appellant of this appeal (the complainant in the complaint) has directed this appeal against order dated 21.01.2014 of District Consumer Disputes Redressal Forum Ludhiana dismissing the complaint of the complainant. The appellant of this appeal is the complainant in the complaint and respondents of the appeal are the opposite parties in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the he had purchased Health Insurance Policy under the name Family Protect 2007 bearing no.4034i/FPT/05415051/00/000 for two years from 15.03.2008 to 14.03.2009 and further 15.03.2009 to 14.03.2010 and thereafter he renewed his policy. Presently the policy was renewed in continuation for the period 2012-2013 and further from 2013-
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014 for which, the payment of premium was made from the account bearing no.001701000872 of the complainant of Rs.17,438/- on 23.07.2012 with ICIC Bank at Ludhiana. It was averred that he met with an accident and was admitted at DMC on 14.07.2009 to 19.07.2009. After treatment, he submitted all the necessary documents to OP, but OP did not settle the claim of the complainant. He was covered under policy no. 4034/FPP/03393980/00/000 for the period 15.03.2008 to 14.03.2009 and further 15.03.2009 to 14.03.2010. It was averred that complainant was again admitted in the hospital on 18.06.2012 and discharged on 07.07.2012. The complainant lodged total claim of Rs.1,14,833/- with OPs. In the month of December 2012, the OPs rejected the claim of the complainant and sent back documents to him. The rejection of claim of the complainant by OPs is illegal and against the terms and conditions of the policy. He also served a legal notice dated 28.01.2013 to OPs, but of no use. The complainant has, thus, filed the complaint that OPs be directed to pay the claim amount of Rs.1,14,833/- to complainant, Rs.5,000/- as legal fee. It was further prayed that OPs be directed to pay Rs.2,50,000/- as compensation for mental harassment, Rs.10,000/- as litigation expenses and Rs.2500/- as miscellaneous expenses.3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is barred under Section 26 of the CP Act. The complainant has no cause of action to file the complaint. The complaint is not maintainable and complainant has concealed the material facts from the Forum. On merits, it was averred that the complainant obtained the insurance policy no.4034/FPP/03393980/00/000 valid from 15.03.2008 to 14.03.2009 and from 15.03.2009 to 14.03.2010. Thereafter, he had obtained another policy in question bearing no. 40341/FPT/05415051/00/000 valid from 21.07.2010 to 20.07.2011 after gap of 129 days, as such the policy in question was not the renewal of the previous policy rather it was a fresh policy. The patient was admitted for chronic posttraumatic fracture dislocation right hip and underwent total hip replacement, which falls prior to policy inception i.e. 21.07.2010. The complainant has not disclosed his previous treatment taken and his claim was rightly repudiated on the ground of pre-existing disease being in violation of 3.1 clause of the policy exclusion clause and on the ground of non-disclosure of material facts. It was denied that complainant was admitted to DMC on 14.07.2009. It was denied that after the treatment complainant submitted all the documents to OPs. It was submitted that claim was settled in full and final settlement of the claim and had been fully accepted by complainant. It was submitted that claim of the complainant was rightly repudiated by OPs as per terms and conditions of the policy. Rest of the averments have been denied by OPs and it prayed for dismissal of the complaint.4. The complainant tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-14. As against it; OPs tendered in evidence affidavit of Meenu Sharma Manager Legal ICIC Lombard General Insurance Co. Ltd Ex.R-A along with copies of documents Ex.R-1 to Ex.R-22. On conclusion of evidence and arguments, the District Forum Ludhiana dismissed the complaint of the complainant by virtue of order dated 21.01.2014. Dissatisfied with the order of the District Forum Ludhiana dated 21.01.2014, the complainant now appellant, carried this appeal against the same.5. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.6. The District Forum dismissed the complaint of the complainant now appellant in this appeal. We have to examine this point as to whether the order of the District Forum is in accordance with law or not. The evidence on the record has to be examined by us to decide this appeal. The District Forum recorded this finding that it has no territorial jurisdiction to try the complaint because neither the OPs carried their business or profession at Ludhiana nor any part of cause of action has arisen at Ludhiana, hence it has no jurisdiction to try the complaint. It is settled principle of law underSection 11 of the CP Act1986 that any of the OPs, 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 such case either the permission of the District Forum is given, or the Ops 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 the cause of action, wholly or in part, arises. If District Forum has no jurisdiction to try the complaint, then it cannot record the findings on the merits of the complaint. We have primarily to examine this point, as to whether District Forum has jurisdiction to try the complaint or not. OP no.1 is branch office of OPs at Ludhiana. In view of the law laid down by Apex Court in "Sonic Surgical versus National Insurance Company Ltd," reported in 2010 CTJ 2 (SC)that mere existence of branch office without accrual of any part of cause of action would not confer any jurisdiction under Section 17(2) of the Consumer Protection Act, 1986. We find that the insurance policy was issued by OP no.2 at Mumbai not at Ludhiana. The office of OPs no.2 and 3 are at Mumbai, where this insurance policy was issued. Mere location of branch office per se is not sufficient to confer jurisdiction on the Forum to try the complaint unless cause of action arose thereat. We have to examine this point, as to whether payment for premium was made by the complainant at Ludhiana or not. Evidence has to be looked into by us to point out whether any payment for premium was paid by complainant to OPs at Ludhiana for accrual of cause of action partly. On this point, the documents Ex.C-1 and Ex.C-2 have been placed on record. The complainant is resident of Ludhiana and his address in the statement of account Ex.C-2 has been recorded at Ludhiana. The District Forum returned the findings that this fact is not proved that the payment of premium was made at Ludhiana by the statement of account. We find that District Forum should have delved further into matter by summoning record with regard to payment of premium of OP no.1 at Ludhiana to find whether premium was paid at Ludhiana through OP no.1 or not. This fact could have been easily dug up by the District Forum by summoning record of statement of account of complainant by Ludhiana Bank and it could have been found whether any application for deducting the premium was made at Ludhiana by the complainant or whether there is any document/voucher proving this fact that this premium amount was paid at Ludhiana. This is an essential point to be recorded by District Forum by summoning record or statement of account of the complainant to make a deep enquiry into the matter. Consequently, we are of this view that order of District Forum needs to be remanded for conducting further enquiry into the matter whether the premium was paid at Ludhiana or not.7. As a result of our above discussion, we accept the appeal of the appellant and set aside the order of the District Forum Ludhiana and remand the case to District Forum Ludhiana for 08.02.2017 with a direction to summon further record of the concerned bank at Ludhiana pertaining to statement of account of the complainant and then record a finding, whether the payment of premium was released at Ludhiana for conferring the jurisdiction on it or not. In case the payment of premium was made at Ludhiana, then cause of action would partly accrual at Ludhiana to complainant, where the branch office of OP is located. In case District Forum recorded this finding that payment of premium was released at Ludhiana then District Forum shall decide the case on merits, failing which the District Forum shall return the complaint to the complainant for presentation before proper Forum in accordance with law only.8. The parties are directed to appear before District Forum, Ludhiana on 08.02.2017. Complete record of District Forum be sent back to District Forum forthwith, so, as to reach there well before the date fixed.9. Arguments in this appeal were heard on 22.12.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
"2017 (1) CLT 330,"