Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs: Dilip Kuimar Saha
Date of filing of the case :05.03.2018
Date of Disposal of the case : 02.06.2023
Final Order / Judgment dtd.02.06.2023
Complainant above name filed the present complainant u/s 12 Consumer Protection Act 1986 against the aforesaid Ops praying for refund of Rs. 4,45,809, interest @ 12% Per annum, compensation amounting to Rs. 50,000/- and cost of the case and another relief.
He alleged that he is the owner of vehicle vide no. WB 52 Z1665 Maruti Wagonor Said vehicle was insured before the OP no. 1 who is authorised agent of OP no. 2.
Aforesaid vehicle faced an accident on 02.03.2016 and said vehicle was totally damaged. Relating to the said accident Krishnaganj P.S started case no. 92/2016 u/s 279/338/427 IPC
OP appointed investigator but lastly he did not pay any amount in favour of the complainant hence, this case.
OP no. 1 contests the case by filing the W/V. He denied the entire allegation of petition of complaint.
He further contended that complainant had lost the claim with respect to accident which occurred allegedly on 02.03.2016. Thereafter OP appointed licensed surveyor to access the loss and damage of the aforesaid vehicle.
Surveyor had accessed loss of Rs. 3, 44,809. Thereafter OP arranged for details investigation and found that aforesaid accident did not take place on the date and time mentioned in the claim form. Thereafter he issued several letters to the complainant but he did not respond to any of the letter. Complainant has not mentioned true cause of accident.
Complainant deliberately withholds the particulars and cause of accident.
Complainant grossly violated the policy condition by withholding the true facts in respect of the claim by not providing genuine accident details and also by misrepresentation of the driver, hence complainant is not entitled to receive any claim amount from the OP.
Case is running ex-parte against OP no. 2 vide order no. 01.11.2018.Case is also running ex-parte against OP no. 3 vide order no. 17.01.2019.
TRIAL
During trial complainant filed affidavit-in-chief on 11.01.2023. On that date OP no.1 was absent without any steps.
Next date was fixed on 15.02.2023. On that date OP no. 1 was absent without any steps.
Accordingly, OP no. 1 lost his right to file questionnaire.
OP no. 1was also absent on 17.03.2023 , 03.05.2023 .
On 03.05.2023 was fixed for argument of this case and argument was heard from the side of the complainant.
DOCUMENTS:
Complainant filed following documents at the time of filing of this case.
- One Xerox copy of Royal Sundaram of Bhandari Automobiles Pvt. Ltd.(Annexure 1)
- Xerox copy of certificate of registration.(Annexure:2).
- Xerox copy of MOTOR INSURANCE CLAIM FORM( Annexure:3).
- Xerox copy of FIRST INFORMATIN REPORT issued by Office-in-charge Krishnagar, P.S.(Annexure:4).
- Xerox copy of SEARCH/SEISURE LIST issued by Samim Ch Halder A.S.I of police dtd. 12.04.2016. ( Annexure :5).
- Xerox copy of driving licence of Islam Mondal ( Annexure :6).
- Xerox copy of letter issued by Brindaban De addressed to Debajit Chakrabarty. ( Annexure :7).
- Xerox copy of letter issued by Bindaban De addressed to The Manager Motor od claim Rayal Sundaram Genaral insurance Co. Ltd. ( Annesure : 8)
DECISION WITH REASONS:
1.Annexure :1 is the insurance policy valid from 18.07.2015 to 17.07.2016 Said Insurance Policy was prepared in the name of complainant in respect of this vehicle vide Chassis No MA3EW DE 1500900517 and engine no. K10 BN 7551150.
With comparison with Annexure: 2 we find that said policy was prepared in respect of the vehicle of the complainant vide no. WB52Z1665.
We also find that annexure 2 is the certificate of registration in respect of aforesaid vehicle having aforesaid chassis no and afore said engine no. which stands in the name of complainant.
On perusal of the FIR we find that Soumojit Dey son of the complainant lodged the said FIR before the O/C Krishnaganj P.S.
He stated in the FIR that on 02.03.2016 at about 1 PM vehicle no. 52Z1665 dashed Sayan Dey and thereafter said vehicle also knocked boundary wall. Due to aforesaid accident said vehicle was damaged heavily.
W e find that said FIR was lodged on 22.03.2016.Krishnaganj Police after receipt of the said FIR started Krishnaganj Police Station case no. 92/2016 on 22.03.2016. In the said FIR it has mentioned that complainant of the said FIR was busy with treatment of aforesaid sayan Dey at Kolkata till 28.03.2016 and thereafter he kept Sayan Dey in the house at Kolkata. He returning to his home on 21.03.2016 lodged the FIR before Krishnaganj Police Station on 22.03.2016.
On perusal of sezar list on 22.03.2016 we find that the driver was seized.
On perusal of document dtd. 09.01.2017 we find that complainant submitted one reply in favour of the surveyor .
As per the said document he refused to supply medical record of Sayan Dey who sustained injury in the said accident.
He also refused to give particular of the driver who drove the aforesaid vehicle at the time of aforesaid accident.
On perusal of the another letter issued by complainant on 06.02.2017 we find that he stated that at the time of accident he was not present in the place of accident. He further stated that driver did not sustain any injury.
He also stated that he does not feel any necessity to submit 3rd party medical report. He further stated driver namely Islam Mondal who drove the vehicle at the time of accident is not working at present and he is unable to give where about of the said driver. He also refused to send passport report.
On perusal of FIR we find that said FIR has been lodged by the son of the complainant. he stated in the FIR that he was busy with the treatment of his brother Soumojit Dey. He could not file FIR in due time. He failed to explain in respect of the FIR as to why complainant himself could not file FIR immediately after the accident. Even other family of the complainant could file FIR.
It is mentioned over the FIR that on 02.03.2018 at about 1 PM Soumojit Dey was standing in front of his house then aforesaid vehicle dashed him.
It is the contention of OP no. 1 and 2 how it can be believed that driver of the vehicle dashed the son of the owner of the vehicle near his house.
As per FIR Sayan Dey son of complainant sustained injury.
Moreover, in the accidental case statement of driver is very much vital. He is the best person who can say as to how aforesaid accident took place.
On perusal of record we find that subsequently OP no. 1 and 2 produced some documents before this Commission as those documents were submitted before them.
From the bunch of aforesaid documents we find injury report of Sayan De. We find that Sayan De was at first produced before Krishnaganj Rural Hospital on 02.03.2016. After giving primary treatment he was referred to Shaktinagar Hospital .
We also find that complainant took away him to GLOCAL HOSPITAL KRISHNANAGAR and produced him there on 02.03.2016 at 4PM. He was discharge therefrom on 03.03.2016 at 6 PM. They found displaced fracture of right ilium with facture superior and inferior facture , they found initial resuscitation with IVS NS.
We also found said Sayan Dey was produced before FORTIS HOSPITAL .
Said Sayan De was treated there for a period from 03.03.2016 to 18.03.2016. Operation was done on 05.03.2016 and 07.03.2016. He was released with the advice of some medicine.
On careful consideration of aforesaid documents it is clear before us that said Sayan Dey sustained serious facture injury and he went on surgical operation before FORTIS HOSPITAL on 05.03.2016 and 07.03.2016. So we do not find any reasons to disbelieve the aforesaid injury of Sayan Dey.
As per allegation of complainant and allegation of FIR said Sayan De was standing near his house and aforesaid vehicle dashed him all of a sudden so production of driving licence of said Sayan De is immaterial.
We also find from the record that OP no. 1 and 2 produced some photographs of the aforesaid vehicle which shows that aforesaid vehicle was heavily damaged. Also found from the W/V of OP no. 1 and 2 that they appointed one licence surveyor to assist loss and damages of the aforesaid vehicle. As surveyor has assessed the loss and damage of the vehicle amounting to Rs.3,44,809/-.
Ld. Adv. for the OP no. 1 and 2 argued that the story of aforesaid accident is suspicious because driver did not sustain any injury.
OP no. 1 and 2 did not take any initiative to prove the said fact.
OP no. 1 and 2 failed to establish before this Commission by sufficient evidence that aforesaid incident did not take place.
In absence any such documents we are unable to disbelieve the contention of complainant.
Having regard to the aforesaid discussion it is clear before us that complainant has able to establish his grievance before this Commission by sufficient evidence .
Accordingly, we find that aforesaid vehicle was damage in the said accident and damage of the vehicle was assessed by the licenced surveyor amounting to Rs. 3,44.809/-.
From the aforesaid discussion and on due consideration of documents on record it is clear before us that complainant is a Consumer and OP no. 1 and 2 are the service provider.
Accordingly, complainant is entitled to Rs.3, 44,809/- as damage of aforesaid vehicle because it was damage due to accident during the valid period of insurance coverage.
In the result present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP no.1to 2 and dismissed ex-parte against OP no. 3 with cost of Rs. 5,000/- to be paid by OP no. 1 and 2 in favour of the complainant.
OP no. 1 and 2 are jointly and severally directed to pay Rs. 3,44,809/- in favour of the complainant within one month from this date failing which aforesaid amount shall carry interest @ 9% per annum from this date to till date of actual disbursement and complainant shall have liberty to put this order into execution.
OP no. 1 and 2 jointly or severally are directed to pay compensation amounting to Rs. 5,000/- in favour of the complainant within one month from this day failing which complainant shall have liberty to put this order into execution.
Let a copy of this order be supplied to both the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
