DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
DF Case No 158 of 2013
Date of filing: 29.7.2013 Date of disposal: 20.6.2014
Complainant: Mewalal Paswan, S/o. Bangali Paswan, Sodepur, 9/10 Pits Colliery, PO: Radhanagar, PS: Kulti, Dist: Burdwan (WB).
-VERSUS-
Opposite Party: 1. The Branch Manager, Director Magma Fincorp Ltd., Office At: Magma House, 24 Park Street, Kolkata (WB), PIN – 700 016.
2. The Branch Manager, Magma Fincorp Ltd. Branch, 1st Floor, Bhiringee (W), Durgapur, Dist: Burdwan.
Proforma O.P.: The Manager, National Insurance Company Ltd., Kundu Mansion (1st Floor), 548, G. T. Road, Bhanghakuthi, Burdwan – 713 101.
Present : Hon’ble President: Sri Udayan Mukhopadhyay
Hon’ble Member : Smt. Silpi Majumder
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty
Appeared for the Opposite PartyNo. 1&2: Ld. Advocate, Sumit Roy.
Appeared for the Opposite Party No. 3: Ld. Advocate, Ahi Bhusan De.
JUDGEMENT
This complaint is filed by the complainant under Section 12 of the C. P. Act 1986 alleging deficiency in service and unfair trade practice as his legitimate insurance claim has not been settled.
The brief fact of the case of the complainant is that he obtained financial help from the OP-1&2 – financier for purchasing a vehicle. At the time of granting loan the complainant had furnished all the papers and documents before the financier and the financier also provided papers and documents relating to insurance cover note agreement, policy certificate and premium receipt. The complainant took loan to the tune of Rs. 5, 00,000=00 from the financier. Unfortunately the said vehicle met with an accident on 30.3.2013 and after the said accident information was given to the financier
1
in writing as well as the insurance company for compensation towards the loss and damage occurred due to the said accident. After scrutiny of all the relevant papers the insurance company intimated the complainant that the papers and documents which have been provided by him are all manufactured, not genuine. Thereafter he physically went at the office of the OP-2, but the OP-2 did not pay any attention to the request of the complainant, not only that, the OP-2 has threatened him. According to the complainant the practice rendered by the Ops are not fair. The vehicle is the only source of income of the complainant and after such accident the economic condition of him became very worst. Though the complainant has paid premium for insurance for the period from 06.4.2012 to 05.4.2013 of an amount of Rs. 20,635=00, but from the accident till today the complainant could not get any reimbursement towards such loss and damage. Finding no other alternative the complainant has approached before this Ld Forum by filing this complaint against the Ops to pay a sum of Rs. 4, 00,000=00 towards the damage and loss of the vehicle, Rs. 50,000=00 towards compensation due to mental agony and harassment, Rs. 90,000=00 as demurrage charge @Rs. 3,000=00 per day, Rs. 2, 27,000=00 as repairing charge to him and in total the complainant has prayed for Rs. 8, 27,000=00.
The petition of complaint has been contested by the OP-1&2 by filing written version wherein it is stated that as the complainant has not approached before this Ld. Forum with clean hands and concealed various material facts, the complaint is liable to be dismissed. In this respect the OP-1&2 have relied on a Ruling wherein it is stated that people should come to the court of law with clean hands and a person whose case is based on falsehood, has no right to approach and his case is liable to be thrown out at any stage of litigation. It is further mentioned by the Ops that the complainant is an intentional and habitual defaulter in case of payment of the outstanding loan amount. It is stated by the Ops that the premium amount for insurance policy paid by the complainant has duly been transmitted to the OP-3 for issuance of the insurance policy certificate covering the vehicle of the complainant. But as the OP-3 has issued false cover note of the insurance policy the onus cannot lie upon the shoulder of the OP-1&2 to prove whether insurance policy certificate has been issued correctly and legally upon the complainant. In this respect as the OP-1&2 have discharged their liability, the action of the said Ops cannot be termed as deficient. So the OP-1&2 are not under any obligation for making payment of any amount towards the repairing of the caused damaged vehicle, compensation as well as litigation cost. There is a MOU by and between the OP-1&2 and the OP- 3 to the extent that OP-1&2 shall transmit the premium amount to the OP-3 and upon getting the same and being satisfied with the documents and papers as sent by the OP-1&2, the OP-3 is the sole authority to issue the
2
insurance policy certificate and in case of any claim or reimbursement the same will be done by the OP-3. In case of any reimbursement or repudiation of any claim the OP-1&2 have no role and liability and the same is only casts upon the OP-3. Therefore, this complaint is liable to be dismissed with cost against the OP-1&2.
This complaint has been contested by the OP-3 by filing written version wherein it is contended that the complainant did not submit/produce the policy certificate of insurance in respect of the vehicle in question and as such this OP is unable to admit because whether the vehicle of the complainant was under insurance at the material time of alleged accident unless further and better particulars regarding the policy number, issuing office of the policy, actual name of the insured are to be disclosed by the complainant. The complainant was directed to produce and prove the actual policy number and the issuing office of the said policy, and it was told that failing which it will be presumed that the OP-3 is not the insurer of the alleged vehicle in question. For this reason the OP-3 should be expunged from this complaint with cost. The OP-3 has further stated that the alleged story as made out in the petition of complaint regarding issuance of cover note by the OP-3 is a false and the alleged document is also forged, fabricated and fictitious as the same has not been issued by the OP-3. The complainant has filed a criminal case before the court of Ld. ACJM, Asansol for the alleged offence committed by the officers and the Branch Manager of the OP-1&2, but the complainant did not disclose the status of the said criminal case in the present petition of complaint, for this reason this complaint is not at all maintainable in law and is liable to be dismissed. As there is no deficiency in service or unfair trade practice on behalf of the OP-3, the OP-3 is not liable to pay any amount towards reimbursement, compensation and cost. According to the OP-3 as the complainant has failed to produce proper and relevant document for reimbursement towards the loss and damage of the vehicle as alleged, the complainant is not entitled to get any amount towards reimbursement. Moreover no allegation has been made out by the complainant within the forecorners of the complaint against the OP-3 and no prayer has also been prayed for by the complainant in respect of this OP and as the complainant has not impleaded the OP-3 in this complaint unnecessarily only to harass it, the OP-3 is also entitled to get cost to the tune of Rs. 10,000=00 from the complainant as the complaint is frivolous and vexatious in respect of OP-3. Therefore the OP-3 has prayed for dismissal of the complaint with cost.
We have carefully gone through the entire record and documents filed by the parties as well as the written notes of argument filed by the OP-3. It is seen by us that admittedly the vehicle of the complainant was under the coverage of insurance with the OP-3 and for getting such insurance policy the complainant admittedly paid due
3
premium to the OP-1&2 at the time of taking out financial assistance from the OP-1&2. The premium receipt reveals that a sum of Rs. 20,635=00 has been received by the Op-1&2 for issuance of the insurance policy. Further admitted fact is that as per MOU which was accepted by and between the OP-1, 2&3 that after transmitting the premium amount by the OP-1&2 paid by the complainant to the OP-3, the OP-3 will issue insurance policy certificate and in case of any claim the same will be decided or settled by the OP-3. Accordingly, the OP-1&2 have received the premium amount towards issuance of the insurance policy from the complainant and in the written version the OP-1&2 have admitted that premium amount has been duly paid by the complainant and the same has been transmitted to the OP-3. The allegation of the complainant is that inspite of payment of due amount towards the premium for insurance policy, the OP-3 has alleged that the policy cover note which was issued in respect of the vehicle in question is a fake and fabricated document and no premium amount has been received by it and hence, question for issuance of insurance policy does not arise at all. Further allegation of the complainant is that as his vehicle was under the coverage of insurance policy and the accident occurred during the validity of the said policy, the complainant is entitled to get reimbursement towards damage and loss of the said vehicle. As the OP-3 has repudiated his legitimate claim alleging the fake insurance cover note, hence this case. During hearing from the document it is noticed by us that though the premium amount has been received from the complainant and the OP-1&2 have transmitted a bulk amount for issuance of policy to the OP-3, but there is no document is forthcoming from the OP-1&2 to show that the premium amount of the complainant has been duly transmitted to the OP-3 for issuance of such policy. Moreover, the document on which the OP-1&2 have attracted our notice there is no signature, seal and stamp of the OP-1&2. Therefore, the document cannot be entertained in favour of the argument of the OP-1&2. As the grievance of the complainant has not been redressed by way of reimbursement of the claim in respect of the damaged vehicle by the OP-3, the complainant has approached before this Ld. Forum. The OP-3 has argued that until and unless the premium amount is received by it through the OP-1&2, the insurance certificate cannot be issued as per the MOU. Admittedly the document shows that the OP-3 did not receive the premium amount from the OP-1&2 which was paid by the complainant. Therefore issuance of the insurance policy does not arise at all on behalf of the OP-3 in respect of the said vehicle. So we have failed to find out any deficiency in service as well as unfair trade practice on behalf of the OP-3 and hence it is not liable to pay any amount towards reimbursement, compensation and cost. In our view as the OP-1 & 2 inspite of receipt of the premium amount did not transmit the same to the OP-3, such action can be termed as deficiency in service as well as unfair trade practice and for this reason the OP-1& 2 are liable to compensate the loss and damage of the
4
complainant. Further admitted fact is that the vehicle met with an accident during the validity of the insurance policy. Though fake insurance policy was issued, but the liability does not cast upon the shoulder of the complainant as the complainant has paid due premium amount for the same. Liability also does not cast upon the OP-3 because the OP-3 did not receive any premium for issuance such insurance policy from the OP-1&2.
In the written version the OP-1&2 have mentioned that the complainant has not approached before this Ld. Forum in clean hands because some material facts have been suppressed by the complainant and on that score the complaint is liable to be dismissed. In this respect the OP-1&2 have also relied on a Ruling. In this regard we are to say that no document is forthcoming to prove that the complainant has approached before this Ld. Forum with unclean hands and malafide intention to grab some money through an unscrupulous manner. During hearing the Ld. Counsel for the OP-3 has also argued that as the criminal case is pending on the self-same cause of action this complaint cannot be entertained at this juncture by this Ld. Forum. In this respect we are to mention that in view of the judgment passed in the case of Airport Authority of India Vs. Geeta Jethlani wherein it has been held that the criminal proceedings and the proceeding before the Consumer Forum can run concurrently, therefore, having regard to the abovementioned reportable judgment we are of the view that the criminal case cannot stand in the way of this proceeding before this Ld. Forum. In the prayer portion the complainant has prayed for Rs. 4 lacs towards damage and loss of the questioned vehicle and the repairing charge of the damaged vehicle. In support of his contention the complainant has filed one document showing the estimate for repairing of the said vehicle, from where it is evident that approximate repairing cost is to the tune of Rs. 2, 85,500=00. Therefore the OP-1&2 are directed to take step for reimbursement of the repairing cost of the damaged vehicle of the complainant forthwith. The complainant in total has prayed for Rs. 8, 27,000=00 towards compensation, cost as well as demurrage charge on daily basis. It is true that as the vehicle of the complainant is lying in damaged condition the complainant cannot use the said vehicle for earning money. For this reason the complainant is entitled to get some compensation from the OP-1&2 and in our opinion it will meet the justice if we direct the OP-1&2 to pay a sum of Rs. 20,000=00 towards compensation, litigation cost and per day demurrage charge of the vehicle. The OP-1&2 are further directed to take appropriate step for issuance of valid
5
insurance policy from the OP-3 as per law and for reimbursement the OP-1&2 shall take steps in consultation with the OP-3. But in respect of reimbursement, payment of cost and compensation and demurrage, the OP-3 has no role and liability.
Hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The OP-1&2 are directed either jointly or severally to take step for reimbursement of the estimated repairing cost to the tune of Rs. 2,85,500=00 within one month from the date of passing of this judgment. The OP-1&2 are further directed to pay either jointly or severally Rs. 15,000=00 towards compensation due to mental agony and harassment along with demurrage charge on per day basis for the said vehicle and to pay litigation cost of Rs. 5,000=00 to the complainant within one month from the date of passing of this judgment. In default, to comply with the said order the complainant will be at liberty to approach before this Ld. Forum as per provisions of law. With the abovementioned observation the complaint is thus disposed of accordingly.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
6
