West Bengal

Birbhum

CC/35/2021

Radhashyam Sadhu - Complainant(s)

Versus

General Manager, Oriental Ins. Co. Ltd. Suri Branch - Opp.Party(s)

Nabendu Ghosal

13 Oct 2023

ORDER

 

Shri Sudip Majumder- President-in-Charge.

            The complainant/petitioner files this case U/S 35 of Consumer Protection Act, 2019. The fact of the case in brief is that the petitioner/complainant, Radhashyam Sadhu, permanent resident of Vill.- Faujnagar, Deucha, Mahammad Bazar, P.O.-  Deucha and Dist. - Birbhum, purchased the insurance policy No. 313103/31/2017/4385 which was valid up to  03/11/2017 for vehicle No. WB-53-8834.

            It is the further case of the complainant that the schedule mentioned vehicle was in possession of the complainant and the vehicle met with an accident on 19/08/2017 at about 1 p.m. and it was duly intimated to the OP regarding the said fact.

            Thereafter, as per instruction of OP side, the said vehicle was handed over to Lokenath Automobile for its proper servicing and repairing.  After repairing of the said vehicle the total expenditure was shown as Rs. 2,76,334/- as repairing cost and extra cost of Rs. 24,500/- and thus total amount of expenditure is Rs. 3,00,834/- (including tochen cost). The complainant paid the entire amount from his own fund.

            Thereafter, the complainant submitted bill regarding said repairing works, total amounting to Rs. 3,00,834/- to the OP as insurance claim amount of the said vehicle as per the terms and conditions of the valid insurance policy. The OP did not pay the insurance claim to the complainant. The complainant also sent a legal notice through Ld. Advocate, Nabendu Ghoshal dated 13/04/2018. The OP did not reply against the same.

 

           

It is the specific case of the complainant that the complainant filed CC Case being No. 36/2018 before the Ld. Forum/Commission. The said CC Case being No. 36/2018 was dismissed for default on 18/11/2019 due to diary mistake of the complainant’s Ld. Advocate and subsequently the complainant’s Ld. Advocate filed a petition on the said CC Case being No. 36/2018, dated 10/12/2019 and due to the Corona Virus (COVID- 19) pandemic situation the said petition dated 10/12/2019 was not moved and the Ld. Commission on 16/03/2021 after hearing the complainant and perusing the material on record was pleased to allow the petition and disposed of the said petition and also liberty was given to the complainant to file the case afresh and the complainant filed this case.

            That the cause of action of this suit arose on and from 04/12/2017 when the receipt for repairing charges had been issued by the Lokenath Automobile and thereafter it continued till 10/12/2019 and lastly till 16/03/2021 under P.S. Suri within the jurisdiction of this court.

            Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper reliefs and prays for:-

1. To pass order directing the OP to pay a sum of Rs. 3,00,834/-(Three lakh eight hundred thirty four only) as insurance claim amount.
2. To pass order directing the OP to pay interest @ 12% p.a. on Rs. 3,00,834/-(Three lakh eight hundred thirty four only).
3. To pass order directing the OP to pay a sum of Rs. 50,000/- (Fifty thousand only) as litigation cost and for mental pain and agony including cost of harassment.
4. Other relief/reliefs.

It appears from case record that none appears from OP before this District Commission after receiving the notice. OP has not taken any step. No written version has yet been filed by the OP.  As a result, vide order No. 19 dated 23/02/2023 this Commission stated for running of the instant case exparte against the OP.

Complainant side submitted evidence-in-chief and written notes on argument. Some documents have also been filed by the complainant himself compared with original documents. Thereafter, Ld. Advocate for the complainant made oral argument in support of his case.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Op?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 

 

Decision with reasons

Point No. 1:

            In this case, the complainant purchased an insurance policy for his vehicle vide policy No. No. 313103/31/2017/4385 dated 03/11/2017. Thus the complainant is a consumer under the OP member and the OP member is the service providers. Hence, the complainant is a consumer as per Sec. 2(7)d(ii) of the Consumer Protection Act, 2019.

Point No. 2:

            In this case, the cause of action arose on and from 04/12/2017 and lastly on 16/03/2021. The case has been filed on 26/03/2021 and as such it can be said that the complainant has been filed this case within the statutory period of the C.P. Act, 2019 and as such the instant complaint is not barred U/S 69(1) of the C.P. Act, 2019.

            Pecuniary Jurisdiction of this District Commission as per Notification No. G.S.R. 892(E). dated 20^th December, 2022 by Consumer Affairs Department, Govt. of India, New Delhi is Rs. 50 lakh.

            That the complainant is resident under P.S.- Md. Bazar, Birbhum, which is under the Territorial Jurisdiction of this District Commission as per Sec. 34(2) of C.P. Act, 2019.

            Hence, this Commission has Pecuniary Jurisdiction as well as Territorial Jurisdiction.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant

purchased an insurance policy for his vehicle vide policy No. 313103/31/2017/4385 dated 03/11/2017, for vehicle No.WB-53-8834.

 The policy was valid from 04/11/2016 to midnight of 03/11/2017, IDV Rs. 25,23,320/-. The vehicle

in question met with an accident on 19/08/2017 i.e. within the valid period of the said insurance policy. The complainant claimed Rs. 3,00,834/-(Three lakh eight hundred thirty four only) as cost of repairing as it was shown in the invoice of Loknath Automobile date 04/12/2017. The amount of claim is also within the IDV i.e. within Rs. 25,23,320/-.

The Complainant filed evidence-in-chief and written notes on arguments. Even at the final stage of hearing his lawyer took part in argument.

      The petitioner has proved the receipt amounting to Rs. 2,66,334/- granted by Loknath Automobile as repairing cost. The OP could not negate it anyway. So, the claim of the petitioner stands.

            It is proved beyond all reasonable doubt that there is/was deficiency in service as per Sec. 2(11) of the C.P. Act, 2019 as well as unfair trade practice as per Sec. 2(47) of C.P. Act, 2019 on the part of the OP.

Hence, from the above discussion it is proved that the complainant could be able to prove her case beyond all reasonable doubts.

 

Point No. 4:

From the documentary evidence as available in the case record it is crystal clear that the complainant is a consumer under the OP.

As in this case, it is proved that there is deficiency in service on the part of the OP member.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

• We find in Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• We also find in Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be levied @ 9% per annum on and from 26/03/2021 (i.e., the date of filing of this case).

Hence, it is,

            O R D E R E D,

                                            that the instant C.F. Case No. 35/2021 be and same is allowed exparte against the O.P. with cost.

OP is directed to pay the actual cost of repairing as paid by the complainant.

=Total cost of repairing – less discount

= Rs. (2,76,334 – 10,000)

= Rs. 2,66,334/- (Two lakh sixty six thousand three hundred thirty four only) to the complainant along with interest thereon @ 9% per annum calculating on and from 26/03/2021 (i.e. from the date of filing of this case) till realization.

          The OP is also directed to pay Rs. 5,000/- (Five thousand only) as cost of litigation to the complainant/petitioner.

The entire decree will be complied by the OP within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.