DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

 

CASE   NO:   CC- 56 of 2021.

 

1. Sri Krishna Dhan Sen,

S/O. Shri Haripada Sen,

C/O. Shri Hara Krishna Biswas,

Of Beltali, Chourangi Para,

Near Chourangi School,

P.S.-A.D. Nagar, P.O.-Charipara, Agartala, Pin-799003,

Dist.-West Tripura, Agartala….................................................................Complainant.

 

 

-VERSUS-

 

 

1. Authorised Service Centre,

M/S. Panna Motors,

Kashipur,

P.S.-Bodhjungnagar, P.O.-Reshambagan,

Pin-799008,

Dist.-West Tripura, Agartala.

 

2. Branch Manager, 

HDFC ERGO General Insurance Company Ltd.

1, Mantri Bari Road, Near SBI RASMECCC Branch

P.O.-Agartala, P.S.-West Tripura,

Pin-799001.

 

3. Mr. Sayantan Dey,

Manager, 

Motor OD Claims(North East India),

HDFC ERGO General Insurance Company Ltd.

6th Floor, Adityam building,

Lachit Nagar, G.S. Road,

Guwahati-781007............................................................................. Opposite Parties. 

 

 

    __________PRESENT__________

 

 SRI RUHIDAS  PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

 

C O U N S E L

 

 

For the Complainant : Sri M. K. Arya,

  Sri Pritam Deb,

  Advocates.

 

For the O.P. No.1  : Sri Richard Sinha,

  Sri Prasenjit Saha,

  Advocates. 

 

For the O.P. Nos.2 & 3 : Sri Prabal Kumar Ghosh

  Advocate. 

 

JUDGMENT  DELIVERED  ON : 30/09/2022.

J U D G M E N T

          The Complainant Sri Krishna Dhan Sen, set the law in motion by presenting the complaint petition U/S. 35 of the Consumer Protection Act, 2019 complaining deficiency of service by the O.Ps.

The Complainant's case, in brief, is that the Complainant  purchased one Hyundai Company motor car “NEW SANTRO” bearing registration No.TR-03-M-0386 in the year 2019 and in the year 2020 the Complainant insured this vehicle with the O.P. No.2 vide Policy No.23112033068851100000 which the coverage of the said policy was from 20/02/2020 to 19/02/2021 and this insurance was provided by the O.P. No.1. On 03/01/2021 the Complainant when proceeding towards Ranirbazar from Agartala, then the Complainant met with a fatal accident near Khayerpur by riding his own car and due to this he sustained injury on his person and immediately shifted to private doctor chamber and take First Aid. Thereafter, the Complainant informed this matter in writing before the Khayerpur Outpost which was noted in the G.D. Book vide no.GDE No.09 dated 03/01/2021. On 04/01/2021 the O.P. No.1 received the said vehicle and due to accidental injury the Complainant without going to Kashipur communicate over telephone with the O.P. No.1 and requested them to inform this accident matter to the O.P. No.2 & 3 and subsequently the O.P. No.1 informed this matter to the O.P. No.2 & 3.  Thereafter, the O.P. No.2 sent one surveyor for assessing the loss and subsequently the O.P. No.1 submitted the repair estimate for an amount of Rs.1,72,798.28/- through email to the O.P. No.2 and also furnished one estimate copy to the complainant. On 26/04/2021 he went to the office of the O.P. No.1 and from where he learnt that O.P. No.2 rejected his claim without providing any intimation to the complainant. But when the Complainant asked them why the O.P. No.1 assured him that the repairing was almost done, then they could not provide any reasonable answer. The Complainant on 05/05/2021 again requested the O.P. No.3 by writing one letter stating the accidental fact and requested them to release his claim but till date they did not pay any heed of his request. The O.P. Nos.2 & 3 willfully repudiate the claim to escape from their liability. Thereafter, the Complainant in so many times went to the shop of the O.P. No.1 for any further updates but he did not get any response from the O.P. No.1 then he again went to the office of the O.P. No.2 but from where also he did not get any response. Hence there is a clear deficiency in service on the part of O.P. Nos.1, 2 & 3. 

Hence, this case. 

 

2. On the other hand O.Ps. contested the case by filling written statement. 

        In the written statement the O.Ps. submitted para-wise reply to the complaint in seriatim. Mostly, O.Ps. denied and disputed the averments made in the complaint.  

      In the written statement the O.P. No.1 stated that the petition is denied to the extent that the Complainant without going to

Kashipur communicated the O.P. No.1 over telephone and requested to inform about the accident to the office of the O.P. Nos.2 & 3. O.P. No.1 further stated that the Complainant himself came to the said service centre on 04/01/2021 and filed up the repair order form himself. Thereafter, O.P. No.1 after receiving the said damaged vehicle send a “Claim Intimation” letter on 11/01/2021. Subsequently after initial inspection in the vehicle the O.P. also generated one repair estimate and mailed the office of the O.P. Nos.2 & 3 on 05/02/2021. The O.P. No.1 also asked to appoint a surveyor and after surveying send a work order. Accordingly one Sri Pranay Goswami was appointed as a surveyor by the office of the O.P. No.2 & 3, who conducted a survey on 09/02/2021(1st Survey) and on 19/02/2021 (2nd Survey, Post Dismantling) who also took photographs of the damaged vehicle on both the occasion. O.P. No.1 prayed the complaint is liable to be dismissed.    

          The O.P. Nos.2 & 3 in their written statement that the complaint petition is completely vague and baseless and there is no dispute and deficiency of service, hence the complaint petition is not maintainable. O.P. Nos.2 & 3 further, stated that the Complainant petition is liable to be dismissed due to suppression of materials facts as he has failed to approach this Hon'ble Commission with clear hands for which the present complaint. O.P. Nos. also stated that Complainant did not submit the repair bills to the insurance company nor the Complainant has submitted the same before this Learned Commission. O.P. Nos. 2 & 3 further stated that the Complainant has filed the present claim by stating all false and imaginary story whimsically by invoking jurisdiction of the Commission. O.Ps. also stated that the said vehicle was hypothecated with Aditya Birla Capital but the financier has not been made a party to the present complaint. O.Ps. further submitted that the vehicle is subject to Hypothecation Agreement with Aditya Birla Capital and to secure financial interest of said financer endorsement IMT-7 is being made in the Policy.  They also stated that the financial interests of financer being involved, it is proper and necessary party to the proceedings but being not joined, complaint is bad-in-law for non-joinder of proper and necessary parties and deserves to be dismissed.    

    At last, it is submitted that the complaint is not maintainable in law and it is liable to be dismissed.                    

EVIDENCE ADDUCED BY THE PARTIES:-

Complainant has examined himself as PW-I and he has submitted his examination-in-Chief by way of Affidavit. In this case the complainant produced 10 documents comprising 21 sheets under a Firisti dated 29/07/2021. The documents are namely Photocopy copy of G.D.E. No.09 dated 03/01/2021, Photocopy of Insurance Policy, Photocopy of Medical prescription, Photocopy of repair order of Service centre, Photocopy of repair estimate copy, Photocopy of rejection letters by HDFC ERGO, Photocopy of investigation report dated 03/05/2021, Photocopy of intimation letter by the Complainant dated 05/05/2021, Photocopy of Money receipt & Photocopy of Envelope etc. which are marked as Exhibit-1 series. 

          On behalf of the O.P. No.1, one witness namely Sri Sukanata Bhowmik, S/O. Sri Nantu Bhowmik, Service Manager, Authorised Service Centre M/S Panna Motors, Kashipur, P.O.-Resham Bagan, P.S.-Bodhjungnagar, Dist.-West Tripura was examined & For O.P. Nos.2 & 3, one witness namely Ms. Saswata Banerjee, Daughter of Late Anjan Kumar Banerjee, Working for gain at HDFC ERGO General Insurance Company Ltd.  was also examined.   

     

POINTS TO BE DETERMINED:-

    On perusal of the pleadings of both parties and having regard to the evidence adduced by the parties, the following points are to be determined:

      (i). Whether the complaint is maintainable in law for non-joinder of necessary party ?             

  (ii). Whether there is deficiency of service on the part of the O.P. towards the Complainant?

    (iii) Whether the complainant is entitled to get any compensation/ relief as prayed for?

ARGUMENT OF COMPLAINANT SIDE: 

    We heard argument of Mr. M. K. Arya for the Complainant. He submitted that accident occurred on 03/01/2021 at Khayerpur and in this regard G.D. Entry was made on the same day at Khayerpur OutPost and vehicle was totally damaged in broken condition. The accident not only damaged of the car but also injured the Complainant. The vehicle was taken to workshop of O.P. No.1 who is Authorized Service Centre for repairing purpose and O.P. No.1 submitted repair estimate of Rs. 1,72,798.28/- through email to the O.P. No.2 and also furnished one estimate copy to the Complainant. In spite of having insurance policy the O.P. Nos. 2 & 3 did not make any payment of repairing and they have illegally repudiated the claim and hence, Complainant has filed this complaint and necessary documents are also exhibited to substantiate the claim.                                     

DECISION AND REASONS FOR DECISION:                                     

          All the points are taken up together for convenience. 

    O.P. Nos. 2 & 3 in their written objection at Para-5 stated that the vehicle was hypothecated with Aditya Birla Capital but the financer has not been made a party to the present complaint and the vehicle was subject to Hypothecation Agreement with Aditya Birla Capital and to secure financial interest of said financer endorsement IMT-7 is being made in the Policy. Since, financial interest of financer being involved, they are proper the necessary party to the proceedings but they are not made party. So it is bad-in-law for non-joinder of necessary party and complaint deserves to be dismissed.    

    On perusal of the complaint petition we do not find any everment in respect of Hypothecation Agreement as well as taking loan from Aditya Birla Capital. It is a suppression of fact. In our considered opinion Aditya Birla Capital is a necessary party and Complainant ought to have made Aditya Birla Capital a party in this complaint. Hence, complaint is bad for non-joinder of necessary party.   

7.  We have gone through the examination-in-chief on affidavit submitted by the Complainant as well as O.Ps. We also gone through the exhibited documents. One Ms. Saswata Banerjee deposed on behalf of the O.P. Nos.2 & 3. In her deposition at Para-7 stated that O.P. Nos.2 & 3 were not intimated about the alleged estimated cost. Complainant did not seek permission from the O.P. to dismantle / repair of his vehicle at the service centre. O.P. was informed only on 11/01/2021 when the vehicle was already dismantled that prior to the claim intimation and appointment of Surveyor. At Para-9 & 10 further stated that before the visit IRDA approved surveyor for inspection of loss, the vehicle had been dismantled for which Surveyor was not able to assess the actual damage. At Para-11 stated that Complainant was asked to clarify by letter dated 03/03/2021 and 08/03/2021 but he did not response to the clarification. 

          From the examination-in-chief on affidavit of one Sri Sukanata Bhowmik, we find that he was Service Manager of O.P. No.1 and he deposed that one Sri Pranay Goswami was appointed as a Surveyor by the Office of the O.P. Nos. 2 & 3, who conducted a survey on 09/02/2021 & 19/02/2021 who also took photographs of the damaged vehicle on both the occasion. From the oral testimony of O.P. Nos. 2 & 3 and also O.P. No.1 we find corroborative evidence of dismantling of the vehicle prior to survey. From the exhibit-1 series documents we also find that Complainant was asked by letter dated 03/03/2021 & 08/03/2021 to submit his response with documentary evidence as to why claim should not be repudiated within 7 days from the date of letter. It is admitted fact that vehicle was dismantled prior to servey for assessment of loss as per policy condition, Complainant has violated the terms of the policy and for that reason claim was repudiated.  

8.        In our considered view that there is a justification for repudiation of the claim and we also find that Complainant did not come with clean hands. He had suppressed material facts in respect of  Hypothecation Agreement. Hence, we decided that claim is bad for non-joinder of necessary party and Complainant has failed to prove the deficiency in service on the part of the O.P. Nos.2 & 3. Accordingly, complaint is dismissed and no cost.                            

Supply a certified copy of the judgment to both the parties  free of cost. 

        Announced.

 

 

SRI  RUHIDAS  PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA, AGARTALA

 

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.