West Bengal

Birbhum

CC/77/2016

Bipul Chakroborty, S/O S.S Chakroborty - Complainant(s)

Versus

Branch Manager, IFFCO TOKIO Gen INS Co Ltd. - Opp.Party(s)

Krishna Prosad Chatterjee

05 Jan 2018

ORDER

Shri Biswa Nath Konar,  President.

            The case of the complainant Bipul Chakraborty, in brief, is that he is an owner of vehicle No. WB 53B/3488 and he purchased a first party package policy bumper to bumper and paid Rs. 61,813.28p. as premium to O.P No.1 IFFCO TOKO Kolkata being policy No. 91776479 valid upto 26.03.2016. But unfortunately on 08.03.2016 the said vehicle met an accident at Dolkata, Panchami under Md. Bazar P.S., Birbhum when it was proceeding towards Dolkata and as a result of which the same was badly damaged.

            It is the further case of the complainant that he informed the matter of accident to Suri P.S. and Insurance Co.

It is the further case of the complainant that after getting information regarding accident he lodged claim application being No. H2/311/31446 and a Surveyor was deputed by the Insurance Co. who instructed the complainant to take the vehicle in question to a workshop for repairing and accordingly he brought the said damaged vehicle to N.R. Motor Pvt. Ltd. Burdwan and they prepared estimated cost of repairing of the vehicle and he submitted his claim application with all relevant documents in order to get insurance claim. But inspite of getting all relevant documents the O.Ps did not consider the claim of the complainant rather repudiated his claim which amounts deficiency in service.

Hence this case for directing the O.P No.1 Insurance Co. to pay a sum of Rs. 1,72,698/- with 12% interest as claim amount and also to pay Rs. 50,000/- as compensation for mental pain, agony and harassment.

The O.P No.1 IFFCO TOKIO General Ins. Co. Ltd. has contested the case by filing written version denying all material allegations of the complainant contending inter alia, the case is not maintainable and the complainant has no cause of action to bring this case.

It is the specific case of the O.P No.1 that their Ins. Co. is a public institution and they always rendered their best service to the customers. In this case too from the time when the complainant has somehow intimated his loss the O.P No.1 has immediately appointed a Surveyor with a view to assess the loss, if payable as per terms and conditions of the policies without any delay.

It is the next case of the O.P No.1 that as per proposal, the concerned policy was issued and Surveyor Hardev Singh assessed the loss accordingly and the claim of the complainant was repudiated as per policy condition.

It is the further case of the O.P No.1 that there was no external impact sustained on the concerned vehicle. Accordingly, O.P No.1 repudiated the compensation amount after having been fully satisfied and without any hesitation whatsoever. But one fine morning the complainant moves Consumer Forum and claims this vogues compensation ultimately the O.P No.1 prayed for dismissal of the case.

The O.P No.2 Sree Ram Transport Finance Co. Ltd. has contested the case by filing written version denying all material allegations of the complainant.

It is the next case of the O.P No.2 that the present case is not maintainable and the complainant has no cause of action to bring this case.

It is the specific case of the O.P No.2 that the complainant has purchased a vehicle being No. WB53B/3488 after taking financial assistant from the O.P No.2 on executing loan-cum-hypothecation agreement. The O.P No2 has made several written and verbal communication with complainant and requested him to pay instalments in due time. But all on a sudden he has filed the present case to escape from liability from loan and to enjoy the vehicle by depriving the O.P No.2 from their legitimate claim by violating the terms and conditions mentioned in the loan-cum-hypothecation agreement.

It is the further case of the O.P No.2 that there is no deficiency in service on their part and the case is liable to be dismissed with cost against them.

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.Ps?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Biplub Charkraboty has examined himself as P.W.1 and he was cross examined by O.Ps. Some documents have been submitted by him.

O.Ps have not adduced any oral documents but O.P No.1 has filed some documents.

Argument of the Ld. Advocate/Agent of the both parties has been heard.

Point No.1:: Evidently the complainant purchased a first party package policy bumper to bumper and paid Rs. 61,813.28p. as premium to O.P No.1.

So, the complainant is consumer u/s 2(1)(d)(ii) of C.P. Act.

Point No.2:- O.P No.2 Sree Ram Transport Finance Co. Ltd. has Branch Office at BKTPP within jurisdiction of this Forum.

The total valuation of the case is Rs. 242698/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-. So, this Forum has territorial and pecuniary jurisdiction.

Point No. 3 and 4:- Both points are taken up together for convenience of discussion as they are related to each other.

The complainant in his complaint and evidence stated that he is an owner of vehicle No. WB 53B/3488 and he purchased a first party package policy bumper to bumper and paid Rs. 61,813.28p. as premium to O.P No.1 IFFCO TOKO Kolkata being policy No. 91776479 valid upto 26.03.2016.

Copy of the certificate of registration, Fitness certificate and Tax receipt show that the complainant is registered owner of the vehicle No. WB53B/3488.

Copy of the policy certificate shows that vehicle in question under coverage of insurance of O.P No.1 Insurance Co. for the period 27.03.2015 to 26.03.2016.

The present accident took place on 08.03.2016.

P.W.1 Bipul Chakrabority further stated that unfortunately on 08.03.2016 the said vehicle met an accident at Dolkata, Panchami under Md. Bazar P.S., Birbhum when it was proceeding towards Dolkata and as a result of which the same was badly damaged and he informed the matter of accident to Suri P.S. and Insurance Co.

He further stated that after getting information regarding accident he lodged claim application being No. H2/311/31446 and a Surveyor was deputed by the Insurance Co. who instructed the complainant to take the vehicle in question to a workshop for repairing and accordingly he brought the said damaged vehicle to N.R. Motor Pvt. Ltd. Burdwan and they prepared estimated cost of repairing of the vehicle and he submitted his claim application with all relevant documents in order to get insurance claim. But inspite of getting all relevant documents the O.Ps did not consider the claim of the complainant rather repudiated his claim which amounts deficiency in service.

Copy of claim application shows that the complainant submitted a claim application before O.P No.1 Insurance Co.

Copy of the report of Surveyor Hardev Singh shows that he assessed the cost of repair of vehicle at Rs. 1,41,917.17p. and in his report he stated that the claim payable subjected to the policy condition.

We find that the O.P Insurance Co. repudiated the claim of the complainant on the ground that the subject vehicle has sustained damages to the suspension parts and under carriage not because of any impact by accidental external means but due to some other failure – “load transmit to spring assay and occurred this failure.”

The O.P No.1 Insurance Co. in their repudiation letter also stated that in view of sec.1 of the policy condition the company shall not liable to make any payment in respect of consequential loss, discretion, wire and tear, mechanical or electrical breakdown failure for breakages.

We further find that it is the case of the O.P No.1 Insurance Co. that on narrow road to allow passage to one opposite direction vehicle, driver of the vehicle in question stopped and then reversed. The vehicle rolled back towards left side of road and got inclined left words.

We further find that a suggestion was given to the PW1 that at the time of accident the vehicle in question was in over loaded condition.

But the O.P No.1 Insurance Co. has not made any attempt to prove such allegation by adducing any evidence and has bee miserably failed to proof that the complainant has violated any policy condition and there was no external impact on vehicle.

So, considering overall matter into conditions and materials on record we find that the complainant is entitled to get compensation of Rs. 1,41,917.17p. as assessed by the Surveyor of the O.P No.1 Insurance Co. with interest.

We find that the complainant has not made any allegation against the O.P No.2 Sree Ram Transport Finance Co. Ltd. rather in his cross examination as PW1 he admitted that O.P No.2 is his financer of loan and he is ready to pay some portion of the loan to O.P No.2 if the case is decided in his favour.

So, we think the case is liable to be dismissed against the O.P. No.2 Sree Ram Transport Finance Co. Ltd.

Hence, both the points are decided in favour of the complainant.

Accordingly the case is allowed in part.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 77/2016 be and the same is allowed on contest against O.P No.1 with cost  of Rs. 2000/- and dismissed on contest against O.P No.2 without any cost.

The O.Ps No. 1 IFFCO TOKIO General Ins. Co. Ltd is directed to pay Rs. 1,41,917.17p.with 8% interest from the date of filing of claim application till realization. Complainant is not entitled to get any other compensation.

 All such payments shall be made within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and procedure.

Copy of this order be supplied to the parties each free of cost.