Hon’ble Mr. Syed Nurul Hossain, President
This is a case under section 12 of the Consumer Protection Act filed by the Complainant against the O.P Cholamandalam M.S. General Insurance Company Limited and another for capsizing of vehicle No. WB-74V-6346 which was insured with the O.P insurer vide insurance Policy no. 3362/00898645/000/00, remaining valid from 12.03.2014 to 11.03.2015. Also the complainant having driving license no.WB-6152/ B 83 prayed for direction upon the O.P Insurance Company to pay a sum of Rs. 2,29,631/- for the capsized vehicle. Moreover, they have prayed for consolidated sum of Rs. 1,70,369/- for mental pain, harassment, business loss, huge financial loss and expenses incurred for collecting the documents etc. including the litigation cost.
The case of the complainant, as made out in the evidence-in-chief, corroborating the case of the complainant stated inter alia that the registered car bearing no. WB-74V-6346 was insured with Cholamandalam M.S. General Insurance Company Limited. The said insurance policy covers insurance of the vehicle from 12.3.2014 to 11.3.2015. Also the driving license remains valid till 26. 6.2017. He was driving his said Maruti Echo from Rambhi Bazar, P.O. Rambhi, P.S Kalimpong, Dist. Darjeeling (presently Kalimpong) towards Siliguri. While on the way an accident occurred near Swetijhora bridge and the said vehicle fell down into the Teesta river. However, he saved his life, but could not trace out the said vehicle. On 27.7.2014 he lodged F.I.R with the Officer-in-Charge, Reang Police Post, under Kalimpong P.S, Dist. Darjeeling(now Kalimpong district) vide G.D entry no. 653/2014 dated 27.7.2014. Also he lodged insurance claim with the opposite party vide claim no. 3362234612 and one panelled surveyor was engaged by the opposite party who collected the relevant documents as well as visited the place of occurrence. After lodging the said insurance claim on 21.1.2015 he received a letter from the O.P asking him to submit copy of F.I.R and the Court approved Police Final Report in respect of said untraceable vehicle. The Police authority did not start specific case on the basis of the said General diary Entry. Due to non-starting of the specific case by the concerned Police Authority he will not be responsible. So, the question of final report tender in respect of the said vehicle does not arise. The concerned police authority rushed to the spot to work out information, but could not trace out the vehicle despite best effort. Due to heavy rainfall and high speed of river Teesta the Police officers could not trace out the vehicle. Due to non-recovery of the vehicle no specific case was registered save and except lodging of general diary enter. After waiting for a reasonable period he sent a legal notice through Ld. Advocate Sri Subhas Gupta of Siliguri Court on 16.4.2016 and on 3.3.2017 to the opposite party demanding claim of the claimant. But the opposite party did not pay heed to their claim. On 5.1.2017 he enquired about his claim but the Branch Manager denied to make any settlement. The said untraced vehicle having validity from 12.3.2014 to 11.3.2015 was valued at Rs. 2,29,631/-Towards insurance of the said vehicle the opposite parties has received a sum of Rs. 12,173/-. So, repudiation of claim discloses that unfair trade practice by the O.Ps results financial loss to the claimant. On 16.1.2017 the complainant filed consumer case no. 12/S/2017 before the Consumer Disputes Redressal Forum, Siliguri. On 16.2.2017 the case has been admitted for hearing. On 28.3.17 the opposite parties entered into appearance, but due to not filing Written version the case has been posted for ex parte hearing. On 28.3.2017 the Ld. Forum has passed ex parte judgement and order. The opposite parties has its office Cholamandalam M.S. General Insurance Company Limited situated at 2nd Floor, Sona Wheels Building, 3rd Mile, Sevoke Road, Siliguri, under Bhaktinagar P.S, District : Jalpaiguri and another office at Chhabidas Tower, 3rd Flooor, 6A, Middleton Street, Kolkata and as such office of the opposite party is situated outside the territorial jurisdiction of the Ld.District Consumer Disputes Redressal Forum, Siliguri. Consequent upon the fact the Consumer case no. 12/S/2017 was dismissed being not maintainable under section 11 of the Consumer Protection Act, 1986. So, he has claimed for relief u/s. 14 of the Limitation Act in consideration of fact that the period taken for filing the case at the Consumer Disputes Redressal Forum having no jurisdiction will be excluded for counting the limitation period. Moreover, the Ld. Advocate did not inform about the case in time. On 18.2.2018 the Ld. Counsel informed him that the case has been dismissed for want of jurisdiction. Thereafter he has instructed his Counsel accordingly for taking out certified copy of the order dated 28.7.2018. He was under impression that the Ld. Counsel will take out certified copy of the order dt. 28.7.2017. He took eight months. Unfortunately he handed over the certified copy of the said order on 21.11.2018.
The opposite parties in their written statement have made false, fabricated, manufactured and frivolous statements. The complainant on 16.4.2016 has served the legal notice through his Ld. Advocate to the respondents informing the incident which has not been ascertained by the investigating agency. So, the consumer case is barred u/s. 24A of the Consumer Protection Act. He has filed the certified copy of certificate of registration of the missing vehicle being no. WB-74V/6346, copy of F.I.R dated 27.7.2014, photo copy of insurance claim form, photo copy of legal notice dated 16.4.2016, original copy of Notice sent by advocate. Therefore, he has prayed for Award of Rs.2,29, 631/- and other claims of Rs. 1,70,369/-.
Countering the case of the complainant the O.P Cholamandalam and another it has been stated, inter alia, that the case has been filed by suppression of material fact only to put the law in motion and to gain illegal monetary benefit under the shadow of the present case. He is not a consumer. The O.P insurer does not admit the interest of the complainant Kumar Chhetri in respect of the vehicle no. WB-74V-6346 which was Maruti Echo Model at the material time. After General Diary entry on 27.7.2014 by the complainant, on 16.6.2016 the complainant by way of Notice upon the O.Ps demanded claim of happening of incident which has not been asserted by the Investigating Authority. The claimant has neither filed any document to show that Notice has been duly served to the O.P, nor filed any document to prove that he went to the office of the O.P lastly on 5.1.2017 to enquire into the matter of his claim. The complainant did not establish the incident. Rather within the period from 27.8.2014 to 5.8.2017 the complainant remained silent on the plea of enquiry from the side of Police Authority. The complainant had various options to force the Police Authority for registering the case in question and to investigate into the subject matter of complaint and to unfold the truth. Though the complainant filed Consumer Case No. 12/S/2017 before the District Consumer Disputes Redressal Forum, Siliguri, but the cause of delay has not been explained. Thus said case has been dismissed for want of jurisdiction on 18.07.2017. So, the present Consumer case is barred by rule of estoppels. He could not establish deficiency of service or unfair trade practice against the O.P by any means. The O.Ps tried hard to elicit the truth behind the allegation made by the complainant for the capsize of the vehicle. But the O.P is not satisfied with his explanation. So, the allegation of missing vehicle complained by the complainant has not been proved by the Authority and as such the O.P is not liable to pay compensation as claimed by the claimant.
Having regard to the evidence supported by documents it is clear that the vehicle no. WB-74V-6346 has been registered in the name of the complainant Kumar Chhetri. It was manufactured by Maruti Suzuki India Limited. The said car was manufactured in the month of January, 2011. The registration of the said vehicle remains valid till 3rd July, 2016. Road tax of Rs.14,740/- has been paid by the complainant. Insurance of the said vehicle was paid from 12.3.2014 to 11.3.2015. So, the car is covered by the Policy of the O.P insurer. The complainant Kumar Chhetri has his own driving license bearing no. WB-6152/83 B 83 issued by the office of Sub-Divisional Oficer, Siliguri. The incident of the capsize of the said vehicle in Teesta River was reported in writing to the O.C, Riang Police Post, P.S Kalimpong,District Darjeeling(now under Kalimpong District), on 27.7.2014. Consequently said Kalimpong P.S. diarized the incident in GDE No. 653 of 2014 on 27.4.2014. A.S.I Bidhan Rai of Riang Police Post, P.S. Kalimpong, Dist. Darjeeling, has informed in writing that the complainant Kumar Chhetri, S/o.Late Lalit Kumar Chhetri, resident of Rambhi Bazar, P.O. Rambhi, P.S. Kalimpong, Dist. Darjeeling, being the registered owner of vehicle WB-74V-6346 came to Reang Police Post and diarized information regarding capsize of the said vehicle at Swetijhora bridge and it fell into the Teesta river. Over this information A.S.I Mukul Chandra Das along with force of Reang Police Post rushed to the P.O to work out information and searched for the said vehicle at their level best at every possible area where the said vehicle was capsized in Teesta river, but due to heavy rainfall and high speed of water of river Teesta the Police could not trace out the said vehicle or any part of the same. Due to non-recovery of said vehicle from the P.O no case has been registered in connection with the said incident.
Thereafter the complainant Kumar Chhetri filled up the prescribed form of
Cholamandalam M.S General Insurance Company Ltd. on 20.8.14. The O.P Cholamandalam M.S. General Insurance Company Ltd. by its letter dated 21.1.2015 asked the complainant to submit F.I.R and Court approved Police Final report in respect of non-traceable vehicle. Thereafter Ld. Advocate Sri Subhash Gupta of Siliguri sent legal Notice to the O.P Cholamandalam M.S General Insurance Company Ltd. Finding no other alternative initially the complainant filed Consumer Case No. 12/S/17 at Siliguri, but on 18.7.2017 said Consumer Forum of Siliguri for want of territorial jurisdiction dismissed the cased u/s.11 of the Consumer Protection Act. So, the period taken by the complainant due to choosing wrong forum of jurisdiction be excluded u/s.14 of the Limitation Act. The instant case was filed on 28.12.2018. If the period of two years from the date of cause of action is added with the period of choosing wrong territorial jurisdiction, then it will result that the complainant has filed the case within two years in view of exclusion of period choosing wrong territorial jurisdiction u/s. 12 of the Limitation Act.
Coming to the merit of the case it appears that the complainant is a vehicle owner and the said vehicle was capsized at Swetijhora and fell into the river Teesta, as certified by the Police Officer in his official capacity and it shall be treated as public document u/s. 35 of the Evidence Act. When the insurance coverage covers theft of vehicle, the O.P insurer is liable to pay Rs.2,29,631/- to the claimant/petitioner for capsize of the vehicle into the Teesta river. It is to be believed that the complainant has himself driving license. So, it is quite natural that he was driving the vehicle on the road but unfortunately, though he has saved his life, but the vehicle was capsized into the Teesta river. It is settled law that technicality cannot stand in the way of rendering substantial justice to the parties. Inference drawn by the O.P Insurer is total misconception. Every incident shall be reported to the concerned P.S. within whole jurisdiction it occurs. It may be cognizable or non-cognizable offence. In case of cognizable offence, Police is under obligation to start a case, otherwise incident will be diarized. Final Report Tender as done by Police in any case is not case at all. Even acceptance of Final Report tender by the concerned
Criminal Court is not an essential ingredient to establish case of capsize in river. Even choice of wrong forum due to inadvertent mistake does not disentitle the complainant from his claim, if the claim can be established by document.
Preamble to the Consumer Protection Act clearly provides that the instant Central Act, known as Consumer Protection Act, is better protection of interest of consumer to get relief of a consumer in respect of insurance better than u/s.2(0) of the Consumer Protection Act. The O.P. Insurance Company has taken money for covering such insurance. Consequently he cannot escape from his liability in the event of an unforeseen calamity. The O.P insurer could not deny to make payment of the value of the vehicle amounting to Rs.2,29,631/- for which the insurance was being made. Equity will not suffer wrong where there is remedy. Insurance is being made for incidental event or unforeseen event which may happen at any time. Therefore, the O.P when has given insurance of the whole period, then it shall compensate the complainant for capsize of the same in the Teesta river. It comes under maxim “vis major” to which no one is responsible for sweeping of car under current of Teesta River.
In the result the case succeeds. Accordingly, it is
O R D E R E D
That the complaint case be and the same is allowed. The O.P Cholamandalam M.S. General Insurance Co. Ltd. is hereby directed that they shall pay Rs.2,29,631/- to the complainant within one month from the date hereof, failing which the O.P shall go on paying punitive damage amounting to Rs.500/- per day from the date of expiry till the date of realization of the same.
Let plain copy of this order be handed over to each of the parties at free of cost forthwith.
