C.F. CASE No. : CC/11/102
COMPLAINANT : Gawchhal Mondal
@ Gaochhal Mondal
S/o Osman Ali Mondal,
Vill. Potia, P.O. Madhabpur,
P.S. Chaprah, Dist. Nadia
Pin 741184
OPPOSITE PARTIES/OPs: 1) Divisional Manager,
New India Assurance Co. Ltd.
Berhampore Division,
P.O. & P.S. Berhampore,
Dist. Murshidabad,
Pin 742149
2) Branch Manager,
New India Assurance Co. Ltd.
Krishnagar Branch
Near Krishnagar Bus Stand
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia, Pin 741101,
- Managr,
IndusInd Bank Ltd.
41/S.P. Sarani, Kolkata 17
- Manager,
Krishnagar Branch
IndusInd Bank Ltd,
Krishnagar, Dist. Nadia
1st Floor of Hero Showroom
Pin 741101
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
: SMT JHUMKI SAHA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 28th May, 2012
: J U D G M E N T :
In brief, the case of the complainant is that his motor cycle bearing No. WB 52 G5615 was insured with the New India Assurance Co. Ltd., Berhampore Division, Berhampore, Dist. Murshidabad vide cover note No. 85792 for the period from 19.12.08 to 18.12.09 and the insured amount is Rs. 61,000/- and for accessories of Rs. 500/- i.e., in total Rs. 61,500/-. It is his further case that the above stated motor cycle was stolen on 18.03.09 from the compound of Dist. Judge’s Court, Krishnagar, Nadia. Thereafter, on the self same date he lodged a complaint before the Kotwali P.S. and a case was started being case No. 189 dtd. 18.03.09 under Section 379 I.P.C. He also informed the matter of theft to the New India Assurance Co. Ltd., Berhampore Division and the R.T.O., Krishnagar. The New India Assurance Co. Ltd., Berhampore Division sent a claim form to the complainant with the direction to file it after filling up the form along with documents as asked by him. Accordingly he submitted the claim application along with all the relevant documents before the OP No. 1. On 29.06.10 he also intimated the matter of theft to the OP No. 3 & 4 who financed Rs. 35,255/- to purchase the motor cycle. He paid two installments @ Rs. 1938/- each to the OP No. 3 & 4 and the rest installments were not paid by him as the motor cycle was stolen. He also requested the OP No. 3 & 4 not to proceed with the loan amount as his motor cycle was stolen. The complainant waited for months together, but the OP No. 1 did not settle his claim. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
Written version is filed by the OP No. 1 & 2, inter alia, stating that the case is not maintainable in its present form and nature and this Forum has no territorial jurisdiction to try this case as the motor cycle was insured with the OP No. 1 whose office is situated at Berhampore, Dist. Murshidabad. He has also stated that he has no knowledge about the alleged theft of the motor cycle belonging to the complainant. He further submits that the complainant purchased one policy from Berhampore Branch Office and not from Krishnagar Branch Office of the New India Assurance Co. Ltd. He submitted the claim form before the Berhampore Office also as per his statement. So this complainant has no cause of action to file this case and the same is liable to be dismissed.
OP No. 3 & 4 have filed separate written version in this case, inter alia, stating that the complainant purchased one Bajaj motor cycle bearing No. WB52G5615 with a financial assistance of the IndusInd Bank, Krishnagar Branch for which the EMI was fixed at Rs.1938/-, but the complainant failed to pay the EMI amount for the last several months. He has also stated that he has no knowledge about the theft of the motor cycle of the complainant and regarding the correspondence between the complainant and the New India Assurance Co. Ltd. As the complainant has failed to pay the instalment amount as per EMI, so he has no cause of action to file this case against them. Hence, the case is liable to be dismissed.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
Point No.3: Has the Forum jurisdiction to try the case?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written versions filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments on both sides it is available on record that the complainant purchased one motor cycle bearing No. WB52G5615 at a price of Rs. 61,500/-. It is also available on record that this motor cycle was insured with the OP No. 1, New India Assurance Co. Ltd. and the insured amount is 61,500/- for the period from 19.12.08 to 18.12.09. The complainant purchased the motor cycle by taking loan from IndusInd Bank Ltd., Krishnagar Branch which was hypothecated with the Bank also. The complainant’s case is that on 18.03.09 the said motor cycle was stolen from the compound of the District Judge’s Court, Nadia, Krishnagar. On the self same date he lodged a complaint before the Kotwali P.S. and on the basis of that complaint Kotwali P.S. started a case No. 189 dtd. 18.03.09 under Section 379 I.P.C. ‘Annexure – 4’ is the petition of complaint lodged before the Kotwali P.S. by the complainant. After investigation I.O. submitted final report in the case bearing No. 189 dtd. 18.03.09 on the ground that after investigation he failed to collect evidence in this case against the accused person. So he submitted FRT of the said case with a prayer to discharge the accused person. So from the ‘Annexure – 4 & 5’ it is available that the motor cycle was stolen and accordingly the complainant lodged a complaint on the basis of which a criminal case was started which ended ultimately into FRT. So the incident of theft of the motor cycle is well established in this case. Complainant, thereafter, submitted an application before the OP New India Assurance Co. Ltd., Berhampore with all the requisite documents praying to pay him the insured amount and this application was received by the OP No. 1 on 29.06.10 vide ‘Annexure – 7’. The OP No. 1 neither settled the case nor repudiated the claim of the complainant. It is already established that the complainant took a loan of Rs. 35,255/- from the OP No. 3 & 4 on 19.12.08 as per his statement in Para-12 of the petition of complaint and the balance amount of Rs. 32,110/- was paid by him. He has also stated that out of 21 instalments he paid 02 installments amounting to Rs. 1938/- each. So from the petition of complaint it is clear that the complainant has not paid the balance loan amount to OP No. 3 & 4 which is also stated by the OP No. 3 & 4 in their written version. At the time of argument ld. lawyer for the complainant has submitted that the due amount of the bank is now Rs. 40,695/- which he is bound to pay. At the same time in the petition of complaint he has clamed before the OP No. 1 & 2 to pay Rs. 61,500/-, i.e., the sum assured in the insurance policy. So we hold that this complainant is actually entitled to get Rs. (61,500/- – 40,695/-) = Rs. 20,805/- from the OP Insurance Co. and the balance amount should be given to the OP No. 4.
Ld. lawyer for the OP No. 1 & 2 submits that this Forum has no jurisdiction to try this case as the insurance policy was issued by the OP No. 1 whose office is situated at Berhampore, Dist. Murshidabad. This point was previously raised by the OP and after hearing both sides order was passed vide Order No. 10, dtd. 28.03.12 with the finding that this Forum has territorial jurisdiction to hear this case. At Para-15 of the petition of complaint it is stated by the complainant that he verbally intimated the OP No. 3 & 4 for not proceeding with the monthly instalments as the vehicle was stolen and after getting the insurance amount he would pay the loan amount to the OP No. 3 & 4. In the written version it is stated that the complainant purchased the motor cycle with the financial assistance of IndusInd Bank, Krishnagar Branch for which the EMI was fixed at Rs. 1938/- which the complainant failed to pay for several months. ‘Annexure – 2’ shows that invoice dtd. 19.12.08 in the name of the complainant was issued by the OP No. 4 from the Krishnagar office. There is no denial on the side of the OP No. 1 & 2 to the extent that complainant did not take any loan from the OP No. 4 whose office is situated at Krishnagar. Section 11 (2)(c) of the CP Act provides that “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, the cause of action, wholly or in part, arises.” On a careful perusal of the facts of this case along with the annexed documents and after hearing the arguments on both sides it is clear to us that the cause of action arose within the jurisdiction of this Forum in part as the complainant took the loan and purchased the vehicle from the OP No. 4 whose office is situated at Krishnagar. In the prayer portion he has prayed for relief against the OP No. 3 & 4 also who are the financiers with the complainant to purchase the vehicle. So considering all these, we have no hesitation to hold that this Forum has jurisdiction to try this case and the same is maintainable also.
In view of the above discussions our considered view is that the complainant has become able to prove his case. So he is entitled to get the reliefs as prayed for. In result the case succeeds.
Hence,
Ordered,
That the case, CC/11/102 be and the same is decreed on contest against the OPs. The complainant is entitled to get Rs. 20,805/- as part of the insured amount plus Rs. 5,000/- as compensation for the harassment caused to him along with litigation cost of Rs. 2,000/-, i.e., in total Rs. 27,805/-. The OP No. 1 & 2 are jointly and severally liable to pay the decretal amount of Rs. 27,805/- to the complainant. They are also directed to make payment of Rs. 40,695/- to the OP No. 4 by issuing a separate cheque. Both the payments are to be done within a period of one month since this date of passing this judgment, in default, the decretal amount will carry interest @10% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
