In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/17/2019.

Date of filing: 01/02/2019.                     Date of Final Order: 30/10/2023.

Sri Tapamoy Ghosh,

Vill & P.O. Berela, P.S. Pandua,

Dist. Hooghly, PIN 712134.                                                         …..complainant

  -vs  -

1. The Authorized Signatory,

Bajaj Allianz General Insurance Co. Ltd.

New Town Rajarhat, Kolkata- 7000160.

2. The Branch Manager,

Bajaj Allianz General Insurance Co. Ltd.

Srirampur Branch, 546, G.T. Road, Maniktala,

P.O. & P.S. Serampore, Dist. Hooghly, PIN. 71201.               

                                                                                           …..…..opposite party

3. Maya Auto Mobiles

Hospital More, G.T. Road, P.O. & P.S. Mogra,

Dist. Hooghly, PIN 712148.

4. M/S Biswakarma Gas Welding Garage,

Memari, Hastpukur, Bagilamore,

P.S. Memari, Dist, Purba Burdwan, PIN. 713146.

                                                                             …..proforma opposite party

Before:            President, Shri Debasish Bandyopadhyay.

                           Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that  The complainant is the registered owner in respect of the vehicle being one Bolero pick up van bearing Registration No. WB 15B6989 and the said  vehicle was purchased from the Maya Automobile authorized dealer Mahindra & Mahindra Ltd., i.e the  proforma OP-3.  At the time of purchase the proforma defendant-3 disclosed that they have attachment with Bajaj Alienz General Insurance Company limited towards car insurance and accordingly they disclosed that the said Insurance Company having branch office situated at Serampore, Hooghly and accordingly the complainant has been compelled to admit such proposal of the proforma OP-3.  The complainant gave the said vehicle for repair to the repairer viz. M/s Biswakarma gas welding Garage at Memari, Hatpukur, Bagilamore, P.S. Memari, Dist-Purba Bardwan and the repairer has kept the said vehicle in its garage compound for repair.  The incident of theft of the said vehicle occurred on 4.12.2017 and the complainant made complaint at Memari P.S under District Purba Bardwan on 7.12.2017  which was registered as Memari P.S case no.572 of 2017 dated 7.12.2017 and during that period the complainant also took several steps to search out his vehicle but failed.  The complainant also made a complaint to the OP concern on 6.12.2017 regarding theft of his vehicle which was registered as claim no.OC-18-2401-1803-00002494 and the said vehicle was duly insured at the time of theft was occurred.  On 12.9.2018 and 19.9.2018  by sending letters to the complainant, the OP concern asked him to response or to give positive reply clarifying the liability of the OP towards the claim of the complainant and vide reply notice dated 27.11.2018 the complainant replied to the aforesaid letters but inspite of receiving the said reply notice the op concern vide letter dated 3.12.2018 denied of receipt of any response from the complainant and again asked the complainant forgiving further response and clarify why his claim should not be repudiated.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 536683/- value of the vehicle with @ 18% p.a. w.e.f. 6.12.17 and to a sum of Rs.50000/-  for harassment, mental agony and anxiety  and to pay a sum of Rs.20000/- for litigation cost.

Defense Case:-  The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that this case is not maintainable in terms of law in equity and the instant case cannot be adjudicated in this ld. Forum for want of jurisdiction and in respect of the nature of the complaint and hence the complaint shall be liable for rejection with direction for presentation before proper Forum and the instant case is barred by limitation or provided by the provisions of law and the instant case is defective for mis joinder and non joinder of necessary parties as the repairer is not made party and the instant case is false, baseless, motivated, speculative, bad in law, in fructuous and is based on concocted facts and this case is filed only to cause harassment to the op and to frustrate the rights, interest enjoyed by the op and the complainant is not entitled for the award and relief and remedy as prayed otherwise there shall be a gross defeat of justice and the op shall suffer from irreparable loss and injury. So, the instant case is liable to be dismissed with cost in limini.

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:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant 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 answering opposite parties.

            The answering opposite party nos. 1 and 2 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 nos. 1 and 2 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 nos. 1 and 2 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

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Pandua, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant is the registered owner in respect of the vehicle Bolero pick up van.
2. It is also admitted fact that Registration No. of the said vehicle is WB 15B6989.
3. There is no controversy over the issue that the said vehicle was purchased by the complainant from Maya Automobiles who is authorized dealer of Mahindra & Mahindra Ltd.
4. There is no dispute over the issue that the complainant insured the said vehicle under OP Insurance company Bajaj Alienz General Insurance Company Limited who has its local branch office at Serampur, Hooghly.    
5. It is admitted fact that  the OP Insurance company had received premium in respect of initiation of the said insurance policy.
6. It is also admitted fact that the said vehicle of the complainant was out of order and for the purpose of repairing the said vehicle was handed over to repairer M/S Biswakarma Gas Welding Garage at Memari.
7. There is no controversy over the issue that the incident of theft in respect of the above noted vehicle of complainant was occurred on 7.12.2017.
8. There is no dispute over the issue that Memari P.S. case no.572/2017 Dt.7.12.2017 was registered.          
9. The complainant also informed the said incident of theft of the vehicle to the Insurance Company.
10. Thereafter the complainant registered/claimed of the value of the said vehicle and also issued notice to the OP Insurance Company.
11. It is admitted fact that the OP Insurance Company had not disbursed the said claim of the complainant.               

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant adopted the plea that the Op Insurance Company has intentionally avoided to pay the claim amount which is a clear instance of negligence and deficiency of service but on the other hand the OPs Insurance Company pointed that the incident was not reported to the OP Insurance company within statutory  period of time and for that reason the OP Insurance Company has failed to take up investigation of the incident of theft by their service provider and for that reason the OP Insurance Company has no fault, deficiency of service and negligence on their part.

For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant has neither filed the written complaint, FIR and charge sheet .  Even the police authority has also not been examined as witness in this case to prove the fact that the incident of theft has been committed in respect of the above noted vehicle of complainant.  Thus it is crystal clear that the OP Insurance Company has miserably failed to prove his case that the above noted vehicle was stolen away  by the miscreants.  So this District Commission is of the view that the complainant has failed to prove his case in respect of points of consideration NO. 4 & 5.        

In the result, it is accordingly,

ordered

that the complaint case being no. 17 of 2019 be and the same is dismissed on contest.

 No order is passed as to cost.

Let a copy of this judgment be handed over to the parties on their Ld. Advocates / Agents on record at free of cost.

Let this judgment be uploaded in the official website of DCDRC, Hooghly.