In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/207/2022.
Date of filing: 29/09/2022. Date of Final Order: 03/6/2024.
- Minor Suvankar Bar
Son of Late Dipankar Bar
- Minor Snigdha Bar
Daughter of late Dipankar Bar
Represented by its Natural Guardian Mother and self.
- Jhuma Bar
Wife of Nimai Bar
All are residing at Moyal, P.S-Khanakul,
Vs.
Authorized Officer
ICICI Lombard GIC Ltd.
15 Park Street Apeejay House 7th Floor
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that during the lifetime of Dipankar Bar (since deceased) purchased a vehicle being Identification no.MAJFUA61800C76876 which was insured from the OP company for the period from 8.7.2019 to 8.7.2020 being Insurance policy no. and type 3001/MI-07711457/00/000 on 8.7.2019. On 9.1.2020 at about 1.30 a.m said Dipankar Bar met with an accident near Ramtark Bridge, under P.S Tamluk, Dist-Purba Medinipur and out of that said Dipankar Bar breathed his last on spot. On 9.1.2020 the brother of said Dipankar Bar namely Sandip Bar lodged a written complaint before Officer-in-Charge, Tamluk police station and the same is registered as Tamluk, P.S case no.19/2020 dated 9.1.2020 U/S 275/388/304A/427 IPC and after completion of investigation in connection with the Tamluk P.S case no.19/2020 the Investigation Officer submitted charge sheet/final report.
Dipankar Bar got insured his car alongwith his body with the OP company. Complainants being the legal heirs of the said Dipankar Bar (since deceased) repeatedly request the Op to disburse his claim. On the other hand the OP sends a letter on 14th March, 2020 to the complainants with a head towards Dipankar Bar who died long ago on 9.1.2020. Such a baseless letter was sent by the Op is nothing but the degradation of a person who is nowhere in the earth. The brother of the deceased Dipankar Bar namely Sandip bar repeatedly requests the OP to disburse the claim but the OP did not pay any heed to it. On 2.8.2022 Ld. advocate sent a notice to the OP to disburse the claim of the complaint but they did not pay any heed to it. It is categorically submited by the complainant that the complainants are the only legal heirs of said Dipankar Bar (since deceased) and he is the only earning members of their family. After sad demise of him the complainants are suffer very much economically and mentally, therefore it is very much require to running the livelihood of the complainants with the help of insured amount.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 1500000/- as insured amount against the vehicle being Identification no. MAJFUA61800C76876 for the period from 8.7.2019 to 8.7.2020 being Insurance policy no.3001/MI-07711457/00/000 on 8.7.2019 and to pay a sum of Rs.1500000/-for the body insurance of Dipankar Bar (since deceased) and to pay a sum of Rs.700000/- as non-payment of claim amount and to pay a sum of Rs.300000/- for mental agony and pain.
Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainants though tried to make out the case in the petition of complaint and the complainants under no circumstances can be considered to be entitled to the benefit provided under the proviso clause enumerated in the consumer protection act as amended till date. Rather the above claim comes under the purview of Motor Accident Claims Tribunal and not under Consumer Protection Act as these complainants are not at all a consumer under the OP-1. Therefore beside other available defences on this ground itself, the complainant has got no locus standi to maintain the present application. Therefore the present complaint is liable to be dismissed in limini on ground of being not maintainable due to the ground as stated herein above. There has been absolutely no scope of obtaining any compensation on the heads as stated in prayer of the petition of complaint and therefore no direction may kindly be passed to pay any compensation whatsoever on those heads. Beside that from the submissions made hereinabove it is clear that the OP has no scope to entertain the above claim unless and until it was claimed in the proper Forum neither committed any deficiency in service nor committed any unfair trade practice. Therefore, it is most respectfully submitted that beside being not entitled to any claim, and relief on basis of prayer to the petition of complaint, is also not entitled to any cost and compensation as prayed for.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the above noted points of considerations are clubbed together and taken up for discussion jointly as the issues and / or questions involved in these points of considerations are interlinked and / or interconnected with one another.
For the purpose of arriving at proper and complete adjudication of this case and also for arriving at just and proper decision in this case there is necessity of scanning the materials of this case record. After going through the material of this case record it is revealed that this complaint case has been filed by four complainants but no permission has been sought for from this District Commission for filing this case by four complainants jointly although according to section 35 (1) (C) of the Consumer Protection Act 2019. There is urgent necessity of taking permission in the matter of joint filing of a complaint case by more than one complainant. This matter is clearly reflecting that there is a serious / gross illegality in the matter of filing of this case. So this case is not maintainable in the eye of law.
Moreover, in this case the complaint has been filed due to the accidental death of Dipankar Bar and in respect of the complaint case the complainant side has filed written complaint, formal F.I.R., Charge Sheet and seizure list in connection with initiation of a criminal case on account of accidental death of Dipankar Bar. But fact remains that no copy of judgment or final disposal of the said criminal case has been filed. Thus it is crystal clear that this instant case has been filed before arising of real cause of action and so this case is prematured. Moreover, in such accidental death of a person in a Road Accident Motor Accident Claim Case is generally filed before Motor Accident Claim Tribunal but no information has been given as to whether such Motor Accident Claim case has been filed by the complainants before the Motor Accident Claim Tribunal or not? This matter is clearly indicating that there is suppression of important information and / or fact. This matter is clearly indicating that the complainant has not come before this District Commission in clean hand. So complainant is not entitled to get any equitable relief from this District Commission. Moreover, when there is an alternative provision of getting claim from the Motor Accident Claim Tribunal and there is a specific jurisdiction of the said Tribunal of dealing such cases, this District Commission has no jurisdiction to entertain such claim.
All the above noted factors are clearly indicating that this case is not maintainable in its present form and in the eye of law and so this District Commission has no other alternative but to return the claim petition to the complainants.
In the result it is accordingly
ordered
that the complaint case being no. 207 of 2022 be and the same is dismissed on contest.
Let the complaint petition be returned to the complainants for filing the same before appropriate Forum.
No order is passed as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
