West Bengal

Birbhum

CC/129/2016

Anima Ghosh, W/O Kashinath Ghosh - Complainant(s)

Versus

Br. Manager, SBI, Gen INS Co Ltd - Opp.Party(s)

Pareshnath Mukherjee

28 Sep 2022

ORDER

Shri Sudip Majumder.Member.

            The complainant files this case U/S 12 of the Consumer Protection Act, 1986. The fact of the case in brief is that the complainant/petitioner is a resident of Mayureswar, Chowki Rampurhat, District- Birbhum, lying within the jurisdiction of this Forum/Commission.

            That the complainant is the Regd. Owner of a damper bearing No. WB53-B0054 (Engine No. 21H 63281676 and Chasis No. MAT 448126 C 3H 23727) which was duly covered with the OP Insurance Company who carring on business for gain throughout India including it’s branch office at Suri, P.O and P.S. Suri, District Birbhum, Pin 131101 (vide Policy No. 00000000021626 covering period from 04/10/2014 to 03/10/2015).

            That on 14/09/2015 at about 02-45 Hrs. the said vehicle was collided with another vehicle No. WB 33C/1117 (Truck) at Bandhkana more under Beliatore P.S. District Bankura and the driver of the aforesaid dumper was seriously injured and the dumper was heavily damaged.

            That one Sourav Bagdi, eye witness of the accident, lodged written complaint before Beliatore P.S. who started P.S. case No. 95/2015 dated 14/09/2015 U/S 279/337/427 I.P.C.

            That the matter of accident was duly intimated to the OP insurance company who sent one investigator named Dipak Paul to the complainant for proper inspection of the damaged vehicle.

            The said investigator collected all necessary papers from the complainant with an assurance to submit his report to the OP insurance company.

           

                                                                                   

That without getting any information from the OP insurance company the complainant through his authorized Ld. Advocate Santi Kumar Sarkar wrote to OP insurance company to settle the claim on 22/02/2016 and 31/03/2016 under Regd. Post with A/D. but through the OP insurance company received the said notice on 29/02/2016 and 04/04/2016 respectively, they kept silent.

            That in the meantime, the damaged vehicle was thoroughly repaired by the complainant at Sekedda Auto Centre and an amount of Rs. 5,35,850/- (Rupees five lacks thirty five thousand eight hundred fifty) were expensed. It was also intimated to OP insurance company over phone and they assured the complainant to reimburse the same within a very short period. But all went in vain.

            That finding no other alternative, the complainant filed the instant case praying the following relief/reliefs as to pass an order directing Ops to pay a sum of Rs. 5,35,850/- (Rupees five lacks thirty five thousand eight hundred fifty) to the complainant along with interest thereon @ 9% p.a., Rs. 10,000/- for compensation and Rs. 5,000/- as litigation cost to the complainant.

            On 24/11/2016 complainant filed an amended petition of complaint.

            It appears from case record that by virtue of Order No. 10 dated 19/07/2017 the case has been running exparte against OP No. 1.

            On 19/09/2018 the OP No. 2/SBI General Insurance Company Limited filed their written version and denied all the complaint against them. After filing W/V, OP No. 2 did not taken any step and no show cause has yet been filed. Though we are considered the view of the OP/SBI General Insurance Company Limited from their written version.

Complainant’s side submitted evidence-in-chief and written notes on argument (W/N/A). Some documents have also been filed by the complainant herself and compare with original documents. Thereafter, Ld. Advocate for the complainant made oral argument in support of her case.

                                                            Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 Decision with reasons

Point No. 1:

            Evidently the complainant purchased an insurance policy for her damper/vehicle vide police No. vide Policy No. 00000000021626 covering period from 04/10/2014 to 03/10/2015.

            Hence, the compliant is a Consumer U/S 2(1) (d) (ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of the Forum as per Sec. 11(1) of the Consumer Protection Act, 1986

i.e. Rs. 20,00,000/.

                                                                      

 

The OP/SBI General Insurance Company Limited who carring on business for gain throughout India including it’s branch office at Suri, District-Birbhum i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

That the complainant purchased an Insurance Policy for her Damper/vehicle, covering period from 04/10/2014 to 03/10/2015 and the said accident occurred on 14/09/2015 and the case has been filed on 03/11/2016 and as such it can be said that the complainant has been filed this case within the statutory period of the C.P. Act, and as such the instant complaint is not barred U/S 24A of the C.P. Act, 1986.

Point No. 3:

            In this case, on 14/09/2015 the said dumper/vehicle was collided with another vehicle and the driver of the aforesaid dumper was seriously injured and the dumper was heavily damaged. This accident occurred within the valid insurance policy covering period from 04/10/2014 to 03/10/2015.

            The OP stated in para 7 of their written version that the complaint manufactured the alleged case with the help of police and informed after long delay. As such OP did not filed any documentary evidence regarding their statement.

            Whereas, the complainant filed some documents like FIR dated 14/09/2015 at Beliatore P.S. Bankura, made by sourav Bagchi, eye witness. Final Forum/Report of Beliatore P.S, Seizure list made by Beliatosre P.S., Hence, on that point the complainant able to prove her case by filing documents.

            OP stated in para 8 of their written version that the alleged vehicle was damaged long before and so no date is mentioned.

            Whereas the complainant filed some documents like Report of (Technical), Transport Department, Bankura MVI Vide Memo No. 164/MV/2015 dated 28/09/2015 regarding damage of her dumper. Hence, on that point the complainant able to prove her case by filing document.

            OP stated in para 9 of their written version that as per survey report Mr. Sushanta Sahana was driving the vehicle at the material time of loss and suffered serious injuries due to accident. But, OP did not filed any survey report regarding this case before this Commission.

            Whereas, the complainant stated in her W/N/A that Ujjwal Ghosh was driving the vehicle and seriously injured. Complainant also filed the valid driving license with No. WB-53/806981 date of issue 26/07/2002 and Date of validity 18/07/2016. Hence, on that point the complainant able to prove her case by filing document.

            Complainant also filed a money receipt from Rofikul Islam, Sekedda Auto Centre at MD. Bazar, Sontsal High Road, Birbhum, amounting of Rs. 5,35,850/- (Five lakhs thirty five thousand eight hundred fifty only) for cost of repairing her damaged dumper.

           

 

                                                                                   

 

Complainant through her Ld. Advocate Santi Kumar Sarkar wrote to OP to settle the claim on 22/02/2016 and 31/03/2016 under Regd. Post with A/D and OP also received the said notices on 29/02/2016 and 04/04/2016 respectively but they kept silent.

            Considering over all matter into consideration and materials on record we are constrained to hold that the complainant has been able to prove her case of deficiency in service by the OP as they did not pay the cost of repairing of the said damaged dumper amounting of Rs. 5,35,850/- to the complainant.

Point No. 4:

            As in this case, it is proved that there is deficiency in service on the part of the OP.

            It appears from documentary evidence that the total Insured Declared Value (IDV) is Rs. 18,00,000/-.

            Hence, the complainant is entitled to get relief or compensation as prayed for.

            Thus, all the points are decided in favour of the complainant.

            Complainant is sufficiently stamped and proved beyond all reasonable doubt.

• In Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhandu II (2019) CPJ 117 (SC).

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. from the date of filing of this case.

              Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 129/2016 be and same is allowed on merit with cost.

            The OP members are jointly/severally directed to pay Rs. 5,35,850/- (Five lakhs thirty five thousand eight hundred fifty only) to the complainant/petitioner as cost of repairing of the said damaged dumper along with interest thereon @ of  9% per annum calculating on and from (i.e. from the date of filing of this case) to till realization. OP members are also jointly/severally directed to pay Rs. 5,000/- (Five thousand only) to the complainant/petitioner for compensation as against mental agony and harassment to the complainant and Rs. 5,000/- (Five thousand) as cost of litigation to the complainant.

The entire decree will be complied with  by the O.P. members within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order in execution in accordance with law.

                                                         

 

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.