BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No.45 of 2013
Sahed Ahmed Laskar ………………………….………………………… Complainant.
-V/S-
1. The Authorised Officer,
Chola M.S General Insurance Co. Ltd.,
2nd Floor, Teen Sangi, A.K Road,
(Opp. National Insurance Co. Ltd.) (Peerlees),
Krishna Nagar, Agartala- 799001. .…………………………….. O.P. No.1.
2. The Authorised Officer,
Chola M.S General Insurance Co. Ltd.,
2nd Floor, Dare House, 2NSC Bose Road,
Chennai-600001. …………………………………………………. O.P. No.2.
3. The Branch Manager,
Indusland Bank (Vehicle Finance Division),
Indusland Bank Ltd. 1st Floor, Cachar Market,
Rangirkhari, N.S. Avenue, Silchar-788005,
P.S- Silchar, Dist- Cachar, Assam. …………………………….. O.P. No.3.
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Mrs. Chandana Purkayastha, Member,
District Consumer Forum,
Cachar, Silchar.
Shri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared :- Mr. Abdul Hai Laskar, Advocate for the complainant.
Sri Shubrendu Sekhar Dutta, Adocate for the O.P.No.1 and 2.
Sri Jhumur Dhar, Advocate for the O.P. No.3.
Date of evidence………………… 13-08-2014, 17-10-2014, 21-11-2014, 10-03-2015
Date of written argument………. 23-02-2016, 28-03-2017
Date of argument……………...... 14-06-2017, 17-06-2017
Date of judgment……………...... 12-07-2017
JUDGMENT AND ORDER
(Sri Bishnu Debnath)
- The Complainant Sahed Ahmed Laskar purchased a Tata Truck on 21/12/2011 on finance by Indusland Bank, Silchar Branch. Accordingly, the vehicle bearing Registration No. As-11 AC/7282 was insured with Chola M.S. General Insurance Co. Ltd. Vide Insurance Policy No. 3379/00655569/000/00. The period of risk was from 21/12/2011 to 20/12/2012. The vehicle was insured as commercial vehicle for carrying goods. The vehicle was plying on the road by paid driver Sahar Uddin Mazumder of Kajidahar Pt-II, Sonai, Cachar. On 07/03/2012 the said paid driver was plying the vehicle towards Mizoram through N.H.54. While the vehicle reached at Rangtetlang Sang at Kolasib, Mizoram with load of goods it fell down to the deep gorged about 120 ft. As a result the vehicle became damaged. Accordingly GD Entry No. 109 dated 07/03/2012 made to the Kolasib P.S. However, during course of investigation some miscreant stolen away some parts of the damaged vehicle from the spot. The matter was informed to the O.Ps. but the O.P did not take immediate action to recover the vehicle for repairing. However, the Complainant towed the vehicle to Silchar and with his own expenditure repaired the vehicle for which spend Rs.5,78,830.
- Accordingly, he claimed the Compensation from the O.P. Insurance Co. But the O.P. Insurance Co. by putting condition paid Rs.2,00,000 by cheque and assured to make payment of balance in a later stage part by part. But later on the Complainant came to know that taking advantage of the simplicity of the Complainant the Insurance Co. obtained signature on some papers to show that the O.P insurance Co. settled the claim finally with Rs.2,00,000/-.
- Hence, brought this Complaint for relief of award for directing the O.PS. to pay balance amount of Rs.3,78,830 and compensation etc. The Insurance Co. being O.P. No. 1 and 2 submitted W/S. In the W/S stated inter alia that mutual discussion and negotiation the O.P agreed to the proposal of the Complainant for a cash loss mode of settlement for an amount of Rs.2,00,000 as full and final quit for the accident claim and also the Complainant agreed for cancellation of the Insurance policy with effect from the date of accident by surrendering the original Insurance Certificate in favour of the Insurance Co. The Complainant thereafter executed a consent letter on a Non-Judicial stamp of Rs.100/- on 12/05/2012. In the consent letter it is also mentioned that the Consent was given by the Complainant voluntarily. In pursuant of the consent latter and agreement the O.P. Insurance Co. issued cheque for Rs.2,00,000 in full and final satisfaction and the Complainant encashed the cheque.
- The O.P. No. 3 in its W/S stated inter alia that as per loan agreement the Complainant has to return the entire loan amount within 21/10/2014 by mode of 34 nos. of EMI of Rs.33,650 each but the O.P. No. 1 and 2 settled the claim of the Complainant at Rs.2,00,000 and handed over cheque on 20/06/2012 so, the Complainant unnecessarily filed this case by impleading the O.P No. 3 as parties. Hence, the case is liable to be dismissed in limine.
- During hearing the Complainant deposed and exhibited some documents. He also examined 4 (Four) more persons including paid driver and handyman of his vehicle. He examined 2(two) independent witness Niranjan Barman @ Chandmoni Barman and Nurul Hassan Chaudhury @ Mithu as P.W 2 & 3 respectively to support his case and to established the fact of negotiation and agreement with O.P Insurance Company for payment of compensation part by part. He also examined Sultan Ahmed Laskar as P.W – 6 to establish the fact that the said PW being Garage owner supported his plea of keeping the vehicle in the garage and repairing the damage vehicle etc.
- The O.P. Insurance Co. examined Sri Utkarsh Leo, the Assistant Manager, as D.W-1 and exhibited Consent letter vide Ext. A and the Motor loss voucher vide Ext. B. The O.P. No. 3 also examined Sri Jayanta Chakraborty and exhibited some douments including loan agreement and trade license in favour of the Complainant that he obtained the said license from Uttar Krishnapur G.P for running his K.B steel fabrication establishment.
- Heard oral argument of the Ld. Advocate of the O.Ps. and perused the written argument of the Complainant is engaged lawyer and the counsels of the O.Ps. We have also perused the evidence on record including all exhibited documents.
- In this case the fact of meeting accident of the insured vehicle and fact of damaging it as well as fact of missing some valuable parts of the vehicle from the accident spot are not denied by the contesting O.P. The vehicle has been purchased on finance by the O.P No. 3 is also admitted fact. It is also admitted fact that the vehicle was under coverage of insurance with O,P No. 1 and 2 for the period from 21/12/2011 to 20/12/2012 and met accidence on 07/03/2012. But O.P. No.1 and 2 took a plea that on cash loss mode of settlement the Complainant got Rs.2,00,000 from the O.P Insurance Company by cheque and executed consent letter vide Ext. A and motor lose voucher vide Ext B as full and final and also agreement to quit the accident claim and cancellation of Insurance Policy with effect from the date of accident.
- The Complainant did not admit that fact rather took plea that he was misrepresented and due to his semi education he put signature on some paper as per instruction of the Companies officer. To support his plea he examined independent witness i.e Pw.2 to 6. But those witnesses gave a general statement in respect of execution of the documents for cash loss mode of settlement and consent letter. However, the O.P witness exhibited those documents which revealed the fact that the Complainant executed consent letter and Motor loss vouchers.
- Hence, the fact adduced by the O.P Insurance Company is more reliable. It is reliable because the Complainant during the coverage period of Insurance with O.P No. 1 and 2 insured his above vehicle with the New India Assurance Co. Ltd. for the period from 25/06/2012 to 24/06/2013, vide Insurance policy NO. 53060031120100001963.
- Why the Complainant insured his vehicle with other Insurance Company during the Coverage of risk period with O.P. Insurance Company? Nothing explained by the Complainant convincingly. Hence, the Ld. Advocate of the O.P Insurance Company submitted that the Complainant was aware of the fact that Insurance coverage of the vehicle with O.P Insurance Company has been cancelled in view of his consent letter vide Ext.A and for that causation the Complainant went to the New India Assurance Co. ltd. and insured the vehicle with effect from the 25th day of June, 2012 for next one year up to 24th June 2013. We have convinced with the submission of the Ld. Advocate of the O.P Insurance Company. Hence, it is concluded that the Complainant with full knowledge executed the consent letter vide Ext. A and Motor loss voucher vide Ext. B as well as surrendered the Insurance Policy with the O.P. Insurance Company and subsequently insured his vehicle with the New India Insurance Co. Ltd. with effect from 25/06/2012.
- Therefore, in our considered view there is no cause of action to institute this case against the O.P. No. 1 and 2. Moreover, the O.P No.3 is the financer. So, the said O.P is not required to implead as party of this case but the Complainant made the Financer as O.P No.3 without seeking any relief in reality against the O.P. No.3.
- It is pertinent to mentioned here that the O.P.No.3 by adducing evidence produced a license issued by Uttar Krishnapur G.P in favour of the Complainant vide Annexure-2. As per the said license the Complainant was granted license for the period from 01/07/2011 to 30/06/2012 for the purpose of Steel Fabrication by name and style of his establishment K.B Steel Fabrication. The said license indicated that the Complainant did not purchase the vehicle for his self-employment and service of the O.P Insurance Company was not also availed for said purpose. Rather the vehicle was purchased for commercial purpose and accordingly service of the O.P was availed for Commercial purpose. Therefore, as per provision of section 2(d)(11) of the Consumer Protection Act, 1986 he is not Consumer. So, he is not entitled any relief from this Forum. The National Commission in Suresh Baban Godkar Vs ICICI Bank and Or’s, 2013 (2) CPR 448(NC) also held that the Complainant of that Case purchased the Tractor for Commercial purpose and hence he would not fall under the definition of ‘Consumer’ as per the Consumer Protection Act, 1986 . The National Commission also held that the vehicle was used for Commercial purpose. Hence, the Complaint is not maintainable.
- With the above observation and finding this case is dismissed on contest. Supply free certified copy of this judgment and order to the parties.
Given under the hand of the President and Members of this District Forum and seal of the Office of the District Forum on this the 12th day of July, 2017.
