Order No. -30 Dt.-23/07/2015
Smt. Bina Choudhuri, Member
This is an application u/s 12 of the C.P.Act, 1986.
The case of the complainant in short is that he purchased a light goods vehicle, “Tata Super Ace” from the authorised dealer of “Tata Motors” viz OSL AUTOMOTUIVES PVT.LTD. and the vehicle was registered on 09/10/2012 vide registration no. WB-71-A-4522 and insured on 17/10/2012 from 11.30 hrs. to midnight 16/10/2013 vide policy no. 2012-V2041968-FCV with the Future General India Insurance Company Ltd.- Opposite Party. The financer of the vehicle is Tata Motors Finance Ltd. The said vehicle met with an accident with another vehicle on 17/10/2012 at Khunia More while returning towards Jalpaiguri from Nagrakata and the vehicle was badly damaged and became unroad-worthy condition. The vehicle toed to the workshop of OSL AUTOMOTIVES PVT.LTD. on 19/10/2012 for repairing. The complainant had to pay Rs.20,000/- as advance and Rs.1,09,000/- to OSL AUTOMOTIVES PVT.LTD. for repairing charges from his own purse as the said vehicle is his sole bread earning source. He has duly informed the matter through the agent of the Opposite party Insurance Co.Ltd. for reimbursement of the aforesaid amount. But the complainant received a letter dt.12/02/2012 from the opposite party that the claim has been repudiated on the ground that the delivery of the vehicle was given on 18/10/2012 after alleged accident on 17/10/2012 as stated by the complainant and it was confirmed by dealer OSL AUTOMOTIVES PVT.LTD. But there are/were no single chit of paper can show that the vehicle was purchased after accident, hence the repudiation made by the O.P. is arbitrary, vindictive, deficiency in service and Unfair Trade Practice. Hence this case.
The O.P. has contested this case by filing Written version wherein he denied and disputed the claims and contentions as alleged against him by the complainant.
The main and specific stand of the O.P. is that the story of alleged accident on 17/10/2012 cannot be believed without lodging FIR to Police Station and on enquiry the O.P. came to learn from the dealer OSL AUTOMOTIVES PVT.LTD. that the alleged vehicle was delivered on 18/10/2012 after alleged accident on 17/10/2012, which casts cloud over the story of alleged accident. Therefore, repudiation of claim by the O.P. is right, proper and justified. The O.P.prays for dismissal of the case with cost.
POINTS FOR CONSIDERATION.
1.Is the complainant a consumer as per C.P.Act?
2.Is the case maintainable as alleged ?
- Is the O.P. guilty for negligence, deficiency in service and Unfair Trade Practice as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All four points are taken up together for consideration and decision for the sake of convenience.
Seen and perused the petition of complaint, Written Version, documents, Written Arguments filed by both parties. We have heard the arguments advanced by the Ld. Lawyers of both parties.
Now after due consideration of arguments advanced by the Ld. Lawyers of both parties and the materials on record we find that admittedly the complainant had purchased a light goods vehicle, “Tata Super Ace” being registration no. WB-71-A-4522 and the vehicle was insured with the O.P. Future Generali India Insurance Company Ltd. which was valid from 17/10/2012 to 16/10/2013. Admittedly the complainant reported about the accident to the O.P. asking to settle the claim of the complainant. But the claim was repudiated by the Future General India Insurance Company Ltd.(O.P.) vide its letter dt. 19/02/2013 on the ground that the vehicle was delivered on 18/10/2012 by OSL AUTOMOTIVES PVT.LTD. but in the claim form the complainant mentioned the said vehicle met with an accident on 17/10/2012 by misrepresenting and violating the declaration clause as mentioned in claim form. Perused the Declaration form. The O.P. categorically stated in his Written Version that without FIR story of alleged accident cannot be believed and alleged damage of the vehicle is not proved. O.P. has also stated in his written version that no such accident was occurred on 17/10/2012 as alleged and if such alleged accident occurred the matter would have been reported to police.
In this point Ld. Lawyer of the complainant argued that it is neither a case of theft of vehicle nor the case is a motor accident claim case for death or injury of a person or damage to property where information before police is required. There was no contact with the insurance company in case of claiming compensation for damage sustained by vehicle, the lodging of FIR is required in terms of the contract. In this case we find that the complainant has mentioned the date and time of accident as 17/10/2012 at 7pm in his claim form and from the letter dt. 11/02/2013 of OSL AUTOMOTIVES PVT.LTD. to the claim manager Future General India Insurance Company Ltd.(Ref. policy no. V2041968 and claim no.CV2297699) filed by O.P.it reveals that the alleged vehicle was delivered on 18/10/2012. But the complainant didn’t mention the date of delivery of the vehicle in his complaint petition and also didn’t produce any papers to show when he took possession of the said vehicle in his custody. Although he mentioned in his Written Complaint that the said vehicle booked on 18/09/2012 and he paid Rs.13,500/- to OSL AUTOMOTIVES PVT.LTD. vide receipt no.2672 and made down payment of Rs.77,055/- on 19/09/2012 vide receipt no.2674 in cash, the remaining amount of Rs.3,75,000/- has been provided by Tata Motors Finance Ltd. and etc. Even he mentioned in the written complaint that the said vehicle toed to the workshop of OSL AUTOMOTIVES PVT.LTD.for repairing on 19/10/2012. Now the main question to be decided in this case is as to whether on 17/10/2012 the alleged accident took place or not. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. Now we find that the complainant has failed to prove that the alleged accident took place on 17/10/2012 by cogent and convincing evidence. That apart although it was within the knowledge of the complainant before filing of this case about the defense take by the O.P. to the effect that the vehicle was delivered to him on 18/10/2012 i.e. after the date of alleged accident but he kept himself mum on this point and neither he mentioned the date of delivery of the vehicle in his petition of complaint and in the written argument despite getting ample opportunity. Had there any accident as alleged that should be reported to police but in this case the accident was not reported to the P.S. and if the matter was reported to P.S. then it could be easy for the complainant as well as by this Forum to come to a definite finding as to whether the alleged accident took place on 17/10/2012 as claimed by the complainant.
In this view of the matter we have no hesitation to hold that the complainant has hopelessly failed to prove that his said vehicle met with an accident on 17/10/2012 by sufficient, reliable and corroborative evidence. As such the the O.P. is not guilty for deficiency in service, Unfair Trade Practice as alleged. Therefore we find that the complainant is a consumer and the case is maintainable as it was filed within the period of statutory limitation as per Consumer Protection Act 1986 and that this Forum has jurisdiction to hear and to dispose of this case. As we find that the O.P. is not guilty for deficiency in service and Unfair Trade Practice as alleged, the complainant is not entitled to get any relief in this case.
All four points are disposed of .
In the result the case/application fails.
Hence, it is
O R D E R E D
that the case/application stands dismissed on contest but in the circumstances we make no order as to cost.
Let copy of this final order be supplied to the parties free of cost forthwith in terms of Rule.5(10) of West Bengal Consumer Protection Rules 1987. Sd/-
