DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO.346/2016
Date of Filing: Date of Admission Date of Disposal:
02.06.2016 06.06.2016 29.03.2018
Complainant = Vs. = O.P.
Sri Asish Kumar Gain, 1. Lexus Motors Ltd,
S/o. Late Bharat Chandra Gain, (Barasat Showroom),
Vill- Kamarthuba (Nagar Ukhra Road), Moynagadi, Noapara,
P.O. and P.S. Habra, Barasat, Kolkata-700125.
Dist- North 24 Parganas. 2.Chola mandalam Investment
and Finance Co. Ltd,
Local office address:-
34,Jatia Sarak, Krishnanagar Rd
Noapara, near Lali Cinema Hall,
Barasat, P.S. Barasat,
P.O. Noapara, Kolkata- 700125.
3. IFFCO TOKIO GENERAL
INSURANCE CO. LTD,
13/9, Jessore Road, 2nd Floor,
Duckbanglow, Barasat,
P.O. and P.S. Barasat,
Kolkata- 700124
P R E S E N T :-Bankim Chandra Chattopadhyay……….President
:- Siddhartha Ganguli………..….….Member
J U D G E M E N T
This case has been filed by the complainant on 02.06.2016 under Section 12 of the C.P. Act, 1986 against the O.Ps.
The complainant’s case in brief, is that the complainant purchased a vehicle being XENONPICKUP BS-III on 30.04.2014 from the Lexus Motors Ltd- O.P. No.1(Barasat Showroom) Moynagodi, Noapara, Barasat, Kol-125 being No. NWY659647 and chassis No. DRP 10170 at a price of Rs. 5,19,313/- for which the investment financed by O.P. No.2 after verification of documents and as such an agreement was made in between the O.P. NO.2 and the complainant for the above financial facility to the tune of Rs. 5,30,000/- along with finance charges of Rs. 10,600/- (vide No. XVFP BST 00001191604) in 47 monthly instalments. The O.P. No.1 at the time of purchase made a commitment for free insurance and registration of the vehicle and accordingly the complainant had handed over all the papers and documents to the agent i.e. O.P. No.3/IFFCO TOKIO General Insurance Company Ltd ( another business associates of O.P. No.1). On the basis of the verification of document, the O.P. No.3 started a policy being No. 1-160 YO4L P400 dated 05.05.2014 and the period of its validity with effect from 05.04.2014 to 04.05.2015 with coverage money of Rs. 5,60,000/- for which the premium was Rs. 21,711/-. The complainant had paid the said premium to Sunil Ghosh, agent of O.P. No.3.
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On 15.09.2014 the said vehicle met an accident and the vehicle was damaged. As such the complainant claimed the insurance benefit before the O.P. No.3. On the basis of the said policy amounting to Rs. 5,60,000/- but the said O.P totally refused to pay any insurance benefit because all the papers relating to the vehicles are false which issued by O.P. Nos. 1 and 2 as per the Insurance Company. The complainant on several occasions went to the O.Ps and several meetings were held but no fruitful results were yielded. The O.P. No.2 on the basis of the said void agreement started pursuing the complainant to pay the loan amount.
As such the complainant compelled to file the instant case praying for an order of compensation amounting to Rs. 8,00,000/- for his loss of business and mental harassment and also for passing an order for restraining the O.Ps from forcing the complainant to make their invalid claim.
The O.P. Nos. 1- Lexus Motors Ltd filed W.V separately by denying the material allegations of the complaint. The alleged vehicle was sold to the complainant at a consideration of Rs. 5,91,713/- with the financial assistance from his financer i.e. O.P. No.2 who financed Rs. 5,19,313/- and took delivery of the said vehicle with temporary registration certificate on 30.04.2014 except the consideration price of the said vehicle and Temporary Registration Charges of Rs. 1,751/-. They did not receive any amount of money from the complainant for taking out permanent insurance cover and permanent registration of the vehicle as permanent registration and insurance coverage subject to the Motor Vehicle Authority Concern which was done by the complainant himself. They never made any commitment for free insurance and registration of the said vehicle or handed over all the documents of vehicle to the O.P. No.3. The complainant himself permanently registered his vehicle and got registration No. WB-25F3142 on 30.05.2014 with insurance free of cost. The complainant has alleged that he paid Rs. 60,000/- to one Jai Babu and Sukhamoy Bauri who introduced as agent and when his vehicle met with an accident they told that claim payment would be paid to the complainant. But this O.P did not receive any amount towards insurance cover or took any responsibility for taking out insurance cover and permanent registration of the vehicle. This O.P only sold the vehicle to the complainant after receiving the consideration price of the said vehicle through his financer – O.P. No.2and they did not take any amount or responsibility towards the said insurance cover. As such they prayed for dismissal of the case with exemplary cost as the instant complaint is frivolous and harassive.
The O.P. No.2- Chola mandalam Investment and Finance Co. Ltd denied the material allegations of the complainant contending inter- alia that the present case is not maintainable as it is baseless and no leg to stand upon. The complainant is deliberate defaulter and unnecessarily impleaded them. It is alleged that the complainant had executed all the relevant documents at the time of purchasing the vehicle. There was a loan cum hypothecation agreement about
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the loan which had been disbursed in favour of the seller. The complainant received the loan amount and he is legally liable to repay the same. The O.P had moved an application under Section 9 of the Arbitration and Conciliation Act, 1996 being Misc Case No. 2763/2016 and the Ld. City Civil Court XIII Bench had been pleased to pass an order on 22.07.2016 to the effect that an Ld. Advocate was appointed as receiver for seizing the vehicle in question and to make inventory of it and the receiver legally re-possessed the vehicle and handed over it to the O.P for parking the same at National Parking Amdanga with a direction that it shall not be removed there from without prior order of the Ld. City Civil Court XIII Bench at Calcutta. The complainant had falsely lunched a case at CJM at Barasat under Section 156(3) Cr.P.C being C. C. No. 1733/2015 and subsequently a case had been started as Barasat P.S. Case No. 539/2015. Actually, the complainant had purchased a XENONPICKUP BS-III from the O.P. No.1 Lexus Motors Ltd being Engine No. NWY659647 and Chessis No. DRP10170 as per the documents issued by the O.P. No.1 at the price of Rs. 5,19,313/- which financed by O.P. No.1. O.P. No.2- Cholamondalam Investment and Finance Co. Ltd on executing an agreement on 30.04.2014 vide No. XVFPSST00001191604 to the tune of Rs. 5,30,000/- along with finance charges of Rs. 10,600/- in 47 monthly instalments. They denied that they handed over all the documents to the O.P. No.3 for insurance of the vehicle in question which covers the period of insurance with effect from 05.05.2014 to 04.05.2015. They have no idea about the genuineness of the said statement. This O.P has also denied about the accident of the vehicle. Hence the O.P. No.2 prayed for dismissal of the case with exemplary cost.
The O.P. No.3- IFFCO TOKIO GENERAL INSURANCE CO. LTD denied all the material allegations of the complaint. It has been alleged that the complaint is not maintainable and the Ld. Forum has no jurisdiction to try the same. According to the O.P. No.3, no insurance policy as alleged by the complainant had been ever issued in favour of the complainant. The O.P. No.3 does not admit the interest of the complainant of the vehicle in question. The insurance policy as alleged by the complainant is fake and fabricated one. As such the O.P-3- Insurance Company is not liable to pay any compensation. It is false that O.P. No.1 handed over all the papers and documents to the agent of O.P. No.3. As such the O.P. No.3 has prayed for dismissal of the case with heavy cost.
The O.P. No.3 in Additional W/V alleged that the burden of proof lies upon the complainant. The Insurance Policy as alleged by the complainant has not been issued in the Forum of the complainant or his vehicle but on scrutiny of the material on record, it has been ascertained that one Insurance Policy being No. 1-372VJZU P400 policy 90174824 valid from 05.12.2014 to 04.12.2015 IDV of Rs. 5,20,000/- for which premium was Rs. 22,835/- through their Authorized agent Viz. Tarun Kr. Roy. The copy of the said Insurance Policy has been filed. It has been alleged that the complainant’s case is totally false, fabricated and manufactured for the purpose of the case. If any accident of vehicle occurred on 15.09.2014, it does not cover in Insurance Policy as mentioned by the O.P. According to O.P, he has no liability to pay any compensation.
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The complainant has filed some documents to substantiate his case. The photo copy of registration certificate of his vehicle being registered No. WB-25F3142 and fees relating to West Bengal Motor Vehicle Tax paid on 03.06.2014. The complainant has also filed a photo copy of insurance of vehicle and some other money receipts relating to purchase of the said vehicle dated 28.04.2014 and 30.04.2014. On the other hand the O.Ps have not filed any documents except the photo copy of an insurance policy of the vehicle of the complainant by O.P. No.3.
The complainant has adduced evidence in support of his case. The O.P. No.1 has filed W/V and evidence in support of his case but the O.P. No.2filed W/V and submitted that the same be treated as evidence of them. The O.P. No.3 filed W/V on 22.11.2016 and Additional W/V on 30.12.2016 to contest the instant case. They filed a petition for filing questionnaire but ultimately they did nothing to that effect. BNAs have been filed by the parties.
In this context, the following points were necessarily come up for consideration to reach a just decision of the case.
POINTS FOR CONSIDERATION
1). Is the complainant a consumer under Section 2(1) (d) (ii) of the C.P. Act?
2). Have the O.Ps any deficiency in service as alleged by the complainant?
3). Is the complainant entitled to get relief as prayed for?
Decision with Reasons
We have gone through the record very carefully and perused the photo copy of the documents which filed by the parties.
Point Nos. 1:-
It appears from the record that the complainant has filed this case for getting compensation against the O.Ps where from he purchased his car and made insurance and subsequently got registration from the Government under M.V. Act. Admittedly, the complainant had purchased his car from O.P. No.1 on getting financial facility from O.P. No.2 - Cholamandalam Investment and Finance Co. Ltd and an agreement was held in between the complainant and O.P. No.2 to repay the money in 47 monthly equal instalments. Photo copy of money receipts go to show that the complainant had paid the fees relating to registration of vehicle. The O.Ps’ offices are situated within the jurisdiction of this Forum.
Therefore, in view of facts and circumstances and the materials on record, we are in view that the complainant is a consumer. As such this issue is decided in favour of the complainant.
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Point Nos. 2 and 3
We have already mentioned that both parties i.e. the complainant and the O.P. No.3 have filed two (2) photo copies of the insurance policy of complainant’s vehicle and it goes to show from the documents of complainant that the insurance policy of his vehicle was 1-160Y04L P400 and its validity runs from 05.05.2014 to 04.05.2015 and premium was fixed Rs. 21,711 which IDV is Rs. 5,80,000/-. On the contrary the photo copy of the policy of the complainant’s vehicle which filed by O.P. No.3 goes to show that the insurance policy being No. 1-372VJZU P400 which runs from 05.12.2014 to 04.12.2015 and premium of Rs. 22,835/-which IDV is Rs. 5,20,000/-. It is interesting to note that the complainant’s copy of insurance policy the agent’s name was Sunil Ghosh and the insurance policy filed by O.P. No.3 the agent’s name is Tarum Kr. Roy.
In consonance with the above said documents if we go through the complaint, it would be found that the complainant only has prayed for getting compensation to the tune of Rs. 8,00,000/- for losses of his business and harassment and he also prayed for restraining order to the O.Ps from forcing to meet the O.Ps’ invalid claim.
Besides above, the complainant has not prayed for anything in this case. If we go through the other aspects of this case it is found that the complainant though alleged that the insurance of his vehicle was made on 05.05.2014 at the instance of agent of Insurance Company viz Sunil Ghosh but he has not been made party in this case. The O.P. No.3 Insurance Company in their written version as well as in the additional W.S clearly referred that the policy of the vehicle of the complainant has made on 05.12.2014 and its validity runs w. e. f. 05.12.2014 to 04.12.2015. According to the O.P. No.3, if any accident occurred of complainant’s vehicle on 15.09.2014, that had done exclusion of the period of insurance policy. The alleged accident of the complainant’s vehicle was held prior 2 months of the insurance policy of the vehicle. Though the said O.P had shown an insurance policy in counter of the complainant’s case but the complainant did not make any endeavor in his affidavit-in-chief to clarify the question why two insurance policies were issued in respect of the same vehicle. In our view it is to be ascertained which one was related to the complainant’s vehicle. It is pertinent to mention here which one policy is genuine or which one is false. It cannot be determined by this Consumer Forum. That should be decided by the competent court of law. It is to be decided in this case whether the O.Ps have any deficiency in service or not. From the facts and circumstances, we clearly say that it is not the actual Forum to decide the genuineness of Insurance Policy. In affidavit-in-chief the complainant did not averred anything about the second policy of Insurance filed by O.P.No.3. The complainant did not file any money receipt towards the payment of his policy premium. It is also not understandable to us why the complainant did not ask any question about the said document or why he did not make party to the agents of the Insurance Company.
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In our considered view, the complainant has not come in clean hand to get the award as claimed herein.
We did not find any material on record so that it can be said that the O.Ps have deficiency in service. As such, we are not inclined to give any relief as sought for by the complainant. Thus the points are decided against the complainant. i.e. answered negative.
All the points are disposed of.
In the result, the case fails.
Hence
It is ordered,
that the C.C. No. 346/2016 be and the same is hereby dismissed on contest without any cost.
Let a plain copy of this order be supplied to the parties free of cost as per CPR, 2005.
Member President
Dictated and corrected be me.
