In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. CC/50 /2014
Date of filing: 28/04/2014 Date of Final Order: 17/11/2016
Mekail Mondal.
S/O.- Israil Mondal of Vill. Bhabanipur. P.O.- Pratappur.
P.S.- Hariharpara.Dist- Murshidabad. Pin.-742166. ……………………………...Complainant
- Vs-
1). Divisional Manager,
The New India Assurance Company Limited,
Berhampore Division.37, R. N. Tagore Road.
P.O.& P.S.- Berhampore.Dist.- Murshidabad.PIN.-742101.
2). The Manager “ Bajaj Platinum wheel”,
Hariharpara Bazar Showroom,
P.O.& P.S.- Hariharpara Dist.- Murshidabad.
3). The Branch Manager,
Bajaj Finance Limited of Akurdi Pune-411035. …………….………. Opposite Party.
Debasish Gupta. Ld. Adv..……………………………… for the complainant
Subhanjan Sengupta. Ld. Advocate……………………for the Opposite Party No.1.
Sougata Biswas Ld. Advocate…………………………… for the Op No. No.2
Before: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
Hon’ble Member, Pranati Ali.
FINAL ORDER
Samaresh Kumar Mitra, Member.
This complaint has been filed by the complainant u/s 12 of the C. P. Act, 1986 praying for a direction upon the OP No.1 to pay a sum of rs.49,100/- to the complainant for the loss of the Motor Cycle ‘Discover 125 CC’ .
The case of the complainant, in brief, is that the complainant purchased a Motor Cycle having Registration No. WB 58T/6879 which was insured with the OP No.1. vide Policy No. 51290031110100052062 and the period of insurance was from 27.02.2012 to 26.02.2013. The said Motor Cycle was lost on 02.05.2012 in the evening from a fair at village Trimohini under Nowda P.S. An FIR was lodged before the Nowda P.S and Nowda P.S. Case No. 133/12 dt. 13.05.12 was started. The complainant informed the OP no.1 about the missing of his Motor Cycle and requested to pay the compensation but the OP did not pay heed to it. Thereafter, the complainant sent an Advocate’s notice on 24.01.2014 by registered post but to no avail. Complainant is entitled to get compensation for the loss of the Motor Cycle. So, there is deficiency of service on the part of the Op No.1. So, the complainant is bound to file this complaint claiming compensation. Hence, the instant complaint case.
The OP No.1 denied almost all the allegations as raised by the complainant against them. The specific case of the OP No.1 is that the complainant was asked to submit the Form 35 from the financer as the vehicle in question was financed by Bajaj Finance Limited. The complainant was also asked to submit 2nd key of the Motor Cycle, the Original Registration Certificate and Tax Token and a certified copy of the FIR, Charge Sheet and copy of the letter, if any. But instead of submitting any of the documents which were asked for, the complainant filed this case for wrongful gain. This OP has no deficiency in service. So, there cannot be any question of any sort of compensation from this OP No.1. The complainant’s case is liable to be dismissed with cost.
OP No.2 appeared in this case and filed written version where all the allegations of the complainant against the OP No.2 are denied. The OP No.2 prays for dismissal of the case against the OP No.2.
OP No.3 admits that the complainant approached the OP No.3 and requested for financial assistance to purchase a Motor Cycle namely Bajaj Discover-125 which was considered and a sum of Rs.48048/- for 24 months was sanctioned in favour of the complainant. Later as per mutual understanding on 12.03.2013 a Loan agreement No. L2WBER01580682 was executed. The monthly installment to be paid as per loan agreement per month was Rs.2002/-. This complainant as per the loan scheme has remitted one installment of Rs.2002 as advance at the time of obtaining loan. The contract period was for 24 months. On 3.11.2014 this complainant is in due of Rs.34034 towards installments and Rs.23080/- towards other overdue charges accumulated due to non-payment of loan in time. The OP No.3 also states that the complainant is not a consumer as per the order of the Hon’ble Supreme Court as a defaulter cannot be termed as a consumer as defined under the consumer Protection Act. It is a settled position of law that the Ld. Forum should not entertain and/or interfere in the matter, where terms and conditions of the Loan Agreement have been duly agreed and binding between the parties. This OP is only Financer in this present transaction. Hence, the name of this OP No.3 shall be removed from this present complaint. This OP prays for dismissal the case with heavy cost.
The complainant filed evidence in the form affidavit where he corroborates the case as per his written version.
The complainant was absent on calls and no steps taken on his behalf for successive dates. He could not file show cause in accordance with the order of this Forum, sufficient opportunity has already been given. For the ends of justice the case is taken up for disposal on merit.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant ‘Mekail Mondal‘ is a ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved his case against the opposite parties as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Mekail Mondal is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein is the consumer of the OP, as the complainant insured his vehicle from the OP No.1 and purchased the same from the OP No.2 with the financial assistance from the OP No.3 so he is entitled to get service from the OP.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued Rs.49,100/- as insured value of the impugned motorcycle from the OP No.1 and any other costs ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that he purchased the impugned motor cycle from the OP No.2 with the financial assistance of the OP NO.3 and the vehicle was insured before the OP No.1 and it is matter of record and no one disputed it. The said vehicle was lost on 02.05.2012 at a village fair at Trimohini, Nowda P.S., district Murshidabad within the insured period. He lodged a complaint before the Nowda P.S. and a specific case started being Nowda P.S. Case No.133/12 dt.13.5.2012. Then the complainant informed the matter to the OP No.1 and prayed for compensation and subsequently he served a demand letter dated 24.01.2014 by his advocate which was received on 27.01.2014 but the said OP No.1 pit no bid at the utterance of the complainant. The complainant assailed that the said motor cycle was insured before the OP No.1 and the premium was taken by him so he is entitled to get compensation for the loss of the Motor Cycle from the OP No.1. Getting no alternative he filed the instant complaint for getting relief from this Forum.
The OP No1 by filing written version refuted the allegations and averred that the answering OP No.1 asked the complainant to submit the Form 35 from the financier as the vehicle in question was financed by the Bajaj Finance Limited i.e. OP No.3 and he was also asked to furnish the original registration Certificate and Tax Token and a certified copy of the FIR, Charge Sheet and a copy of the letter, if any, he had submitted with the Regional Transport Office.
But the complainant nowhere in the complaint stated that he submitted his claim Form before the OP and it was repudiated by the OP.
The OP No.3 by filing written version denied the allegations and averred that the complainant approached the OP No.3 and requested for financial assistance to purchase a Motor Cycle namely Bajaj Discover-125 CC which was considered and a sum of Rs.48048/- for 24 months was sanctioned in favour of the complainant. Later as per mutual understanding on 12.03.2013 a Loan agreement No. L2WBER01580682 was executed. The monthly installment to be paid as per loan agreement per month was Rs.2002/-. This complainant as per the loan scheme has remitted one installment of Rs.2002 as advance at the time of obtaining loan. The contract period was for 24 months. On 03.11.2014 this complainant is in due of Rs.34,034.00 towards installments and Rs.23,080/- towards other overdue charges accumulated due to non-payment of loan in time. The OP No.3 also stated that the complainant is not a consumer as per the order of the Hon’ble Supreme Court as a defaulter cannot be termed as a consumer as defined under the consumer Protection Act. It is a settled position of law that the Ld. Forum should not entertain and/or interfere in the matter, where terms and conditions of the Loan Agreement have been duly agreed and binding between the parties. This OP is only Financer in this present transaction. Hence, the name of this OP No.3 shall be removed from this present complaint and the complaint is liable to be dismissed with heavy cost.
From the above discussion and careful observation of documents as produced by the parties we are in a opinion that the complainant insured his Motor Cycle before the OP No.1 and the said motor cycle was lost within the insured period and a police case started u/s-379 I.P.C in the Nowda P.S. but there is no charge sheet from which we could understand the fate of investigation but we may safely conclude that the complainant is directed to produce the relevant documents before the OP No.1 for settling the claim for theft of the vehicle and the OP No.1 is also directed to settle the claim of the complainant within 30 days from the receipt of relevant documents as required for settling the claim of the complainant. It is the duty of the OP No.1 to show good gesture by settling the claim of the complainant as early as possible keeping in mind that the vehicle in question theft within the period of insurance.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove his case but the Opposite Party is not liable to pay any compensation.
ORDER
Hence, it is ordered that the complaint case being No.50/2014 be and the same is allowed on contest against the Opposite party No.1.
The OP 2&3 are exonerated from this case.
The complainant is directed to file the documents before the OP No.1 as required for settling the claim for theft of insured Motor Cycle as early as possible.
The OP No.1 is also directed to settle the claim of the complainant within 30 days from receiving the documents as required from the complainant.
No other reliefs are awarded to the complainant for harassment and mental agony.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me.
Member, Member, President.
