The Complainant has filed this complaint against the O.P. and praying for following Order :-
- Direction against the O.P. to pay an amount of Rs. 10,00,000/- (Rupees Ten Lakhs Only) to the complainant as assessed claim.
- Declaration that the claim of the Complainant is rightful.
- Direction against the O.P. to pay an amount of Rs. 3,00,000/- (Rupees Three Lakhs Only) for mental agony, pain, harassment and loss caused to the Complainant.
- Direction against the O.P. Company to pay interest upon the total claim amount from the date of claim by the Complainant at the rate of 9% per annum.
- Litigation cost and other reliefs.
The case of the Complainant in brief is that , the complainant is a reputed person / he is a registered owner of a commercial goods carrier being no. WB-73/D-2990 which was used for business for transportation / it was the source of income of the complainant / the vehicle was registered at MVI Siliguri / insured with the O.P. Company being policy no. 3379/01088666/000/02 / policy was valid from 25/09/2016 from 00.01 hours to mid night of 24/09/2017 / On 01/04/2017 the said vehicle met with an accident at Bhula Khola near Mally Outpost P.S. & Dist- Kalimpong / that vehicle was loaded with products of Britannia / going from Fulbari Dipo at Siliguri towards Gangtok, vide invoice no. 34765266, 34765267 & 34847302 dated 11.03.2017 / that vehicle had gone down 200 feet downwards from the highway / entire stocks were completely damaged including the vehicle which was damaged / as per the version of the mechanic the vehicle was un-repairable. The further case is that , due the incident the driver of the vehicle as well as helper were recovered /taken to the nearby hospital for treatment / the Complainant lodged F.I.R. before the Kalimpong Police Station vide Kalimpong P.S. Case No.- 77/2017, dated 02.04.2017 Under Section- 279,337,338 IPC/ the Complainant after the incident intimated the O.P. regarding the accident / O.P. Company issued insurance claim no. “ 3379199840” in respect of the vehicle no. WB-73 D-2990 / Complainant asked for immediate settlement of the said damaged vehicle. After the accident the vehicle was seized by the concern P.S./ after some days the vehicle was released from the concerned Court / prior to release of their vehicle the Complainant was not able to produce the vehicle before the O.P. Company for assessing the loss & damage as claimed by the Complainant. After release of the vehicle the same was picked up through a crane at a garage namely Mahadev Garage, situated at Eastern By Pass / thereafter the Complainant requested to survey the damage claim and to access the claim of the damaged vehicle / surveyor completed the survey / the Complainant provided all documents before the O.P. Company/ O.P. Company deliberately did not pay any heed to settle the genuine claim of the Complainant / the Complainant on several occasions visited the office of the O.P. Company asking for the settlement of claim but of no result / finding no other alternative the Complainant sent demand notice to the O.P. Company on 18.01.2018 through his Ld Advocate namely Sri. Subhash Gupta / the O.P. Company did not pay any heed / again on 01.06.20218 the Complainant sent another demand notice through Ld. advocate / On 11.07.2018 the Complainant received a reply from the Ld Advocate of the O.P. Company who denied the claim of the complainant by disclosing that the vehicle bearing no. WB/73D/2990 had been transferred to one Kashinath Prasad before the accident. The Complainant has further stated that , the vehicle in question had not been transferred to other person as claimed by the O.P. Company. By filing the complaint the Complainant praying for relief as stated above.
In support of its claim the complainant files the following documents namely:-
- Photo copy of money receipt issued on 03.04.2017 by the owner of “Thami Breakdown Service” Salugara, Siliguri.
- Photocopy of money receipt issued on 27.04.2017 by the owner “Thami Breakdown Service” Salugara, Siliguri.
- Photocopy of receiving of damaged vehicle being no. WB 73/D2990 issued by the Owner of Mahadev Automobile on 27.04.2007.
- Photocopy of two legal notices send by the Ld. Advocate of the complainant the former was send on 18.01.2018 and later was send as reminder legal notice on 01.06.2018.
- Photocopy of reply notice dated 11.07.2018 by the Ld. Advocate of opposite party.
- Photocopy of certificate of insurance issued by Chola M/S Mandalam in the name of Manoj Gupta, being policy no-3379/01088666/000/02.
- Photocopy of certificate of fitness of the said vehicle issued by motor vehicle department.
- Photocopy of receipt of tax paid on road issued by taxing officer, Siliguri.
- Photocopy of certificate of registration of said vehicle issued by regional transport authority (M.V Dept).
- Photocopy of permit being no PGDC/WB 73/2453 issued by regional transport authority (M.V Dept) Siliguri.
- Photocopy of FIR, dated 02.04.2017.
- Photocopy of application regarding claim, being claim no (3379199840) dated 22/04/2017 made by Manoj Gupto (Complainant)
- Photocopy of reply on 6th April 2017, with reference to claim no (3379199840) registered in call centre on 02.04.2017 issued by cholammandalam M.S G.I.C Ltd.
- Photocopy of driving license of driver namely Sandeep Subba being license no. WB7320130912465, dated 14.04.2013
Notice was issued from this Commission upon the O.P./ on receipt of notice the O.P. appears before this Commission through Ld. Advocate / files Written Version, denied all the material allegations of the complainant / has stated that the complainant has no locus standi to file this case against the O.P./ the O.P. Insurance Company has claimed that the Complainant is not a consumer as per Section 2(d) (ii) of the Consumer Protection Act / it was also claims of the O.P. that prior to the alleged accident the Complainant had transferred the vehicle to another person and that’s why by suppressing actual fact the complainant has filed this case on some false allegations to extort huge amount of compensation as prayed for by filing Complaint. By filing the Written Version the OP praying for dismissal of this case.
Having heard, the Ld. Advocate of the both sides and on perusal of the Written Complaint, documents filed by the parties and on perusal of the Written Version of the O.P. Insurance Company this Commission has Framed following points for consideration.
Points for consideration
- Whether the complainant is a consumer?
- Whether the case is maintainable under the C.P. Act 2019?
- Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant ?
- Is the Complainant entitled to get any award and relief as prayed for as per the prayer of the Complaint?
Decision with Reasons
All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.
In order to prove the case the Complainant Manoj Kumar Gupta has examined himself as P.W. -1 by filing Written Deposition in Chief which is supported by an affidavit. The Complainant has also filed depositions in chief of P.W. -2 Sandeep Subba, P.W. -3 Chandra Bahadur Thami and P.W. -4 Aurn Roy. In all those depositions of the P.W. -1, P.W. -2, P.W. -3 & P.W. -4 the complainant has categorically stated how he became owner of the vehicle bearing noWB73D-2990 and how the accident was taken place on 01.04.2017 at BhulaKhola near Mally Out Post Under P.S. & District- Kalimpong. Ld. Advocate of the Complainant has also stated that not only the Complainant himself but also the driver of the vehicle namely Sandeep Subba , owner of the Thami Breakdown Service namely Chandra Bahadur Thami (P.W.-3) and the garage owner namely Arun Roy (P.W.-4) have corroborated the case of the Complainant & the witnesses have stated that after the accident the vehicle in question had fell down 200 feet downwards from the highway , entire stock was completely damaged and the vehicle was also damaged badly. Ld. Advocate of the Complainant has also stated that the driver of the vehicle bearing number WB73D-2990 became unconscious, he was admitted to a hospital and after the accident Kalimpong P.S. Case Number 77/2017 dt. 02.04.2017 u/s 279,337 & 338 IPC was started against the driver and the police seized the vehicle and the P.W.-4 Arun Roy in his deposition has also corroborated the case of the Complainant who admits that the vehicle is lying in his garage.
By filing Brief Notes of Argument Ld. Advocate of the Complainant has stated that the complainant has been able to prove this case against the Opposite Party not only through the evidence of the P.W.-1 to P.W.-4 but also through the documentary evidences which are annexed with the complaint as well as with the Brief Notes of Argument. Advocate of the Complainant has further argued that to evade the claim amount the Opposite Party has filed one affidavit allegedly sworn by a fictitious person namely Kashinath Prasad and claiming as if the Complainant has transferred the vehicle to that person which is denied by the Complainant.
Ld. Advocate of the O.P. during argument has stated that they have filed Written Version against the case of the Complainant and they have denied the entire allegations of the Complainant who suppressed the actual fact for getting compensation amount from the O.P.
Ld Advocate of the O.P. during argument submit that, the Complainant had no cause of action to file this case against the O.P. and there was no deficiency in services on the part of the O.P. towards the Complainant and the claim of the Complainant is not admissible as per the terms & conditions of the Policy in question. He further argued that, the O.P. shall have no liability under the Insurance contract as the Complainant has suppressed the actual fact of transfer of his vehicle to another person.
Having heard the Ld. Advocate appearing on behalf of the Complainant as well as the OP. and on perusal of the Written Complaint, Written Version filed by the OP., Examination in Chief of the parties along with the documents which are Annexed by the Complainant & the OP and on perusal of BNA of the parties it reveals that, the Complainant has claims himself as a consumer as per the provisions of the Consumer Protection Act 2019 and he praying for relief as per the prayer of his Complaint. On the other hand Ld. Advocate of the OP has claimed that the Complainant was not a consumer as per the provisions of CP Act.
Now let us consider whether the Complainant of this case is a Consumer or not.
As per the bare provisions of the Consumer Protection Act 2019 a Consumer means any person who
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Definition of service as under:-
service means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news of other information, but does not include the rendering of any service free of charge or under a contract of personal service.
From the basic provisions of the said Act as well as the documents filed by the Complainant it is clearly proves that the Complainant is a consumer under the OP.
From the evidence of the P.W-1 Manoj Kumar Gupta it reveals that he has categorically corroborated the complaint filed before this Commission. On oath he specifically stated that the vehicle bearing no. WB73D2990 met with an accident on 01.04.2017 and to that effect the Complainant lodged a police case with Kalimpong P.S. bearing case no. 77/17 dated 02.04.2017. Ld. Advocate of the Complainant in support of his claim of lodging F.I.R. annexed the first information report (Annexure-11). From the annexure-9 which was filed by the Complainant it reveals that the name of owner of the vehicle is Manoj Gupta and the Registering Authority, Siliguri issued Road Permit in favour of the Complainant (Annexure-10). From the Annexure-8 of the Complainant it reveals that the Tax Token was issued in favour of the Complainant. From those documents which are annexed by the Complainant filed with the complaint clearly proves that the vehicle in question is belonged to the Complainant himself though the O.P. claims that the Complainant has already transferred his vehicle to one Kashinath Prasad of Siliguri. From perusal of the entire record it reveals that the O.P. Insurance Company did not produce Kashinath Prasad as a witness to falsify the case of the Complainant though it is their case that the Complainant as if transferred the vehicle to him. Moreover, in the Written Version as well as in the B.N.A. the O.P. Insurance Company has admits that the vehicle in question was purchased by the Complainant.
It is also admitted fact that the said vehicle met with an accident and as a result of which the vehicle become damaged and the Complainant informed the matter to the O.P. Insurance Company for getting compensation towards claim for the said damage. It is also admitted fact by both the side that Surveyor was appointed for assessing the amount of damage and the Surveyor has assessed net liability to the tune of Rs. 3,03,036/- (Rupees Three Lakhs Three Thousand Thirty Six Only) though the O.P. Insurance Company without admitting the liability claimed that the Complainant is not entitled to get any claim amount as he has suppressed the fact of transfer of the vehicle to another person namely Kashinath Prasad.
From the record it also reveals that the Complainant to prove it’s case produced one witness namely Sandeep Subba (P.W.-2) who on oath has stated that, he was driver of the vehicle owned by the Complainant himself. He also admits that while he was driving the vehicle he met with an accident and the vehicle became completely damaged.
The complainant has also produced another witness namely Chandra Bahadur Thami (P.W.-3) who on oath has stated that, he was proprietor of Thami Breakdown Service and the complainant gave him a sum of Rs. 35,000/- (Rupees Thirty Five Thousand Only) for recovery of damaged vehicle. P.W.- 3 also admits that, Manoj Gupta gave him an amount of Rs. 15,000/- (Rupees Fifteen Thousand Only) under a single package policy.
From the entire record it is also admitted fact that, the Complainant issued two Legal Notice to the O.P. Insurance Company which was admitted by the Company. It is also admitted fact that, the O.P. Insurance Company on receipt of Legal Notice of the Complainant gave a reply by denying all the allegations of the Complainant. It is also admitted fact that, on the date of the accident the vehicle of the Complainant was having effective Insurance Policy under the O.P. It is also admitted fact that, the claim of the Complainant was not settled by the O.P. Insurance Company and till today it is not the case of the O.P. that they have paid the assessed amount of liability which was assessed by the Surveyor.
Accordingly we are of the view that, the Complainant has been able to prove it’s case as there was a clear deficiency in service of the O.P. Insurance Company as well as restrictive trade practices. We are also of the view that, the Complainant is entitled to get compensation amount from the O.P. Insurance Company.
Hence it is therefore,
O R D E R E D
The C.C. Case No. 06 of 2019 filed by the Complainant is allowed on contest. The O.P. Chola M/S Mandalam General Insurance Company Limited is directed to pay a sum of Rs. 3,03,036/- (Rupees Three Lakhs Three Thousand Thirty Six Only) + Rs. 35,000/- (Rupees Thirty Five Thousand Only) + Rs. 15,000/- (Rupees Fifteen Thousand Only) = Rs. 3,53,036/- (Rupees Three Lakhs Fifty Three Thousand Thirty Six Only) as assessed claim for damage of the vehicle. The O.P. Insurance Company is also directed to pay a sum of Rs. 1,00,000/- (Rupees One Lakh Only) for mental pain, agony, harassment and loss caused to the Complainant. O.P. is also directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the Complainant towards cost of litigation and O.P. is further directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the Consumer Legal Aid Account.
O.P. is directed to pay the awarded amount to the complainant as well as to the Consumer Legal Aid Account within 1 (one) month from this day , in default they will have to pay @ 9 % interest p.a. from this date till making payment of the same.
Let a copy of this order be given to parties free of cost.
