DATE OF FILING: 05.08.2011.
DATE OF DISPOSAL: 03.08.2017.
O R D E R
Dr. N. Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of her grievance before this Forum.
2. Briefly stated the case of the complainant is that for her personal livelihood, the complainant took a vehicle TATA ACC from the O.P.No.1 on loan basis. The vehicle bore registration No. OR-07N- 9655 under proposal No. PG/0018/V/05/000031 under insurance claim policy No. 31500/31/2010/1096 under the O.P.No.2 for the period from 05.04.2009 to 04.04.2010. The aforesaid vehicle of the complainant met with an accident on 03.12.2009 at about 10 P.M. while climbing Khallikote Ghat owing to starting problem. Resultantly the vehicle overturned from the Ghat in spites of the effort of the driver who escaped unhurt. In the said accident, the cabin box, dala and other parts of the vehicle were badly damaged. Soon after the accident, the husband of the complainant reported the matter to the I.I.C. Khallikote P.S. who entered into the Station Diary No. 67 dated 04.12.2009. The complainant also intimated about the accident to the Branch Manager of the O.P.No.2 on the very next day of accident on 04.12.2009. The O.P.No.1 sent a notice to the complainant on 05.04.2010 and 21.04.2010 asking her to submit the required documents within 10 days and 7 days respectively to forward her claim file to the O.P.No.2. But the complainant could not submit the required documents within the said period as she had to attend her seriously ill aged father-in-law. Hence the O.P.No.1 closed her claim file and forwarded the same to the O.P.No.2 for further necessary action. Thereafter the complainant submitted the Xerox copies of the original cash memo for spare parts, original labour bill, Towing bill and the supplementary estimation to the O.P.No.1, which was intimated to the O.Ps by the complainant vide registered letter dated 07.05.2010. As the O.Ps did not settle the claim of the complainant, she again sent registered notices to the O.Ps through her advocate on 23.07.2010 with a request to reopen the insurance claim file of the complainant’s vehicle and to settle the matter. But the O.Ps neither took steps to settle the dispute nor gave any intimation to her. As such the complainant was constrained to file this complaint for redressal of her grievances. Due to the inaction of the O.Ps, the complainant was forced to keep the vehicle in the garage for inspection till the first week of August, 2010 which caused lots of financial problems to her. She spent an amount of Rs.71,058/- (Rupees Seventy One Thousand Fifty Eight) only for repairing, spare parts and other necessary works of the vehicle. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.71,058/- towards repairing and spare parts with 12% interest, Rs.40,000/- towards the financial loss due to keeping of the vehicle in the garage and Rs.20,000/- for mental agony in the best interests of justice.
3. Upon notice the O.P.No.1 filed version through his advocate. It is stated in reply to the Para 1 of the complaint, it is submitted that and as mentioned above that the complainant is not a consumer as defined in section 2(d) (ii) of the Consumer Protection Act in view of the order of Hon’ble Supreme Court in “Laxmi Engineering Works versus PSG Industrial Institute” cited in 1995 AIR SC 1428. In view of the aforesaid observations of the Hon’ble Courts the complainant fails to be under the definition and meaning of “Consumer” for which the case is liable to be dismissed. The contents of Para 2 to 5 of the complaint are denied due to want of knowledge. The contents of Para 6 & 7 of the complaint are denied as false. As per the complainant, the complainant directly contacted O.P.No.2 for insurance claim and O.P.No.2 asked the complainant to submit the required documents within 7 days. Subsequently, sending notice to O.P.No.1 regarding submission of documents has no meaning since Magma never coordinated with the O.P.No.2 for insurance claim. The contents of Para 8 & 9 of the complaint are denied due to want of knowledge. In reply to Para 10 of the complaint it is submitted that the complainant has never suffered any financial loss or otherwise due to the staff of the O.P.No.1, if ever any loss has been incurred by him, it is only due to his own malicious deeds and mischievous attitude for non submission of the relevant papers before the OP No.2 as admitted in the complaint for which these O.P.No.1 can in no way be held responsible. The O.P.No.1 has committed no unfair trade practice and therefore there is no reason for the complainant to undergo any physical, financial and mental loss and agony attributable to the O.P.No.1. Extending financial help to a person in need cannot be construed as unfair trade practice. The complainant is not entitled to any relief as claimed by him and this case is liable to be dismissed on merit against O.P.No.1 with exemplary cost, for filing such a frivolous and vexatious complaint. Hence the O.P.No.1 prayed to dismiss the present complaint.
4. Similarly, on notice by this Forum, the O.P.No.2 filed version through his advocate. It is stated that the allegations made in the complaint are all not true and the complainant is put to strict proof of the same. The allegations made in Para 1,2,3 &4 are specifically denied by the O.P. and the complainant is put to strict proof of the same. It is not to the knowledge that the O.P.No.1 has sent a notice to the complainant on 05.04.2010 for submitting required documents within 10 days and also another notice to submit the required documents within 7 days for onward transmission of her claim file to the O.P.No.2. It is specifically denied by this O.P. that the complainant is put to strict proof of the same. The allegation made in Para 6 of the complaint is specifically denied that the complainant could not submit the documents within the period due to seriously ill health of his aged father-in-law for which the O.P.No.1 closed and forwarded the claim file of the complainant to the office of the O.P.No.2 for necessary action is not admitted and the complainant is put to strict proof of the same. The complainant specifically stated that the O.P.No.1 has closed and forwarded the claim file to the O.P.No.2 for necessary action, so there is absolutely no negligence or any deficiency of service on the part of the O.P.No.2. As per the complainant case the complainant could not submit the required documents to the O.P.No.1 for onward transmission of her claim to the O.P.No.2 but the complainant failed to do so and the O.P.No.1 has closed and forwarded the claim file of the complainant to the O.P.No.2 for necessary action, so the dispute is between the complainant and O.P.No.1 i.e. Manager, Magma Financial Corporation Ltd and this O.P. is nothing to do with it and there is absolute no deficiency of service on the part of this O.P. The allegation in Para 7 of the complaint petition is specifically denied and the O.P. does not admit that the complainant submitted Xerox copy of original cash memos for spare parts, original labor bill, Toying bill and supplementary estimate to the O.P. and the same was intimated to the O.P. vide registered letter darted 07.05.2010 or that after receipt of the said registered letter the O.P. neither come forward to reopen the said insurance claim for nor to settle the matter in either of the way. As such the complainant again sent registered notices through her Advocate on 23.07.2010requesting the O.P.No.2 to reopen the insurance claim filed of the complainant’s vehicle and settle the matter, or that no action has been taken in the matter, not even any information was given to her and the complainant is put to strict proof of the same. As per the complaint petition, she has submitted the Xerox copy of original cash memo for spare parts, original labor bill and toying and supplementary estimate to the O.P.No.1, so this O.P. has nothing to do whatsoever in the absence of intimation to this O.P.No.1 i.e. Manager, Magma Financial Corporation ltd. and on this ground the case against this O.PNo.2 is to be dismissed. It is specifically denied that the complainant has spent an amount of Rs.71,058/- only for repairing spare parts and other necessary works of the vehicle and the O.P.No.2 is liable to pay the same. The complainant has submitted the Xerox copy of the original cash memo and documents to the O.P.No.1 and the O.P.No.1 has never submitted these documents to this O.P. and there is no scope for this O.P. to settle the claim of the complainant. So there is absolute no deficiency of service or negligence on the part of this O.P. and the complainant has unnecessarily dragged this O.P. to the litigation and this O.P. cannot settle the claim of the complainant in the absence of any documents supplied to this O.P. It is purely a dispute between the complainant and O.P.No.1 i.e. Manager, Magma Financial Corporation Ltd. Hence the O.P.No.2 prayed to dismiss the case with exemplary costs.
5. On the date of disposal of the case on merit, the learned counsel for O.P.No.1 is present and the learned counsel for the complainant as well as for O.P.No.2 are absent on call and not filed any steps. In fact the matter was heard in presence of all parties on 22.03.2017 and during the course of hearing it was directed to the complainant to produce the documents regarding intimation of the claim to the O.P.No.2 after accident of the vehicle in dispute. However, the complainant neither complied the order nor remained present even on 25.05.2017. On 01.05.2017 the learned counsel for complainant filed some documents i.e. repudiation letter dated 14.03.2012, Advocate notice dated 07.04.2012 and postal receipts before this Forum in support of his case. The complainant despite repeated directions failed to comply the order and also remained absent on 03.07.2017 and not produced the letter of intimation to the O.P. insurance company. Since, this is a year old case and the complainant not interested to proceed with the case hence the Forum decided to dispose of the case on merit as per Section 13(2) (c ) of the Consumer Protection Act, 1986.
6. On merit it is not in dispute that the vehicle of the complainant bearing registration No.OR-07-N-9655 under proposal No.P.G./0018/V/05/000031 vide insurance policy No. 311500/31/2010/1096 met with the accident on 03.12.2009 at about 10 P.M. It also revealed that the complainant also informed the matter to the I.I.C. Khallikote Police Station on 04.12.2009 vide station diary bearing No.67 dated 04.12.2009. It is also contended by the learned counsel for the complainant in the written argument that the complainant on 04.12.2009 also intimated the matter to the Branch Manager of O.P.No.2. It further reveals that the O.P.No.1 sent a letter to the complainant on 05.04.2010 and 21.04.2010 asking her to submit required documents within 7 days and 10 days respectively to forward the claim application to the O.P.No.2 but the complainant failed to submit the same before the O.P.No.1, hence the O.P.No.1 closed the claim. It is further contended that the complainant in his registered post letter dated 07.05.2010 submitted the photocopies of original cash memo for spare parts, original labor bills, towing bill and supplementary estimate to release the claim but when the O.P.No.1 did not settled the claim she again sent a registered Advocate notice to the O.P.No.1 on 23.07.2010 but the O.P.No.1 neither take any steps to settle the disputes nor give any intimation. Hence the complainant constrained to file this complaint in this Forum as prayed for the relief as per the complain petition.
7. Similarly, the learned counsel for the O.P.No.1 during the course of hearing contended that the present complaint is not maintainable against O.P.No.1 since the vehicle in dispute is financed by O.P.No.1. The complainant has already paid the loan amount and after closures of the account by the complainant the N.O.C. has already been issued in favour of the complainant and the financier is not liable to pay any compensation. He also submitted that in view of the authority of Hon’ble Supreme Court reported in AIR 2008 SC 2493 in the case of Godavari Finance Co. Versus Degala Satyanarayanamma & Ors it is a settled principle of law that Financer is not liable for any compensation in case of accident of the vehicle. This O.P. received the claim application from the complainant along with other documents and verified the same and on perusal it was found that there was wanting of some documents. Accordingly this O.P. on 06.04.2010 and 21.04.2010 wrote letters to the complainant for submission of required documents but the complainant failed to submit the same within 7 days and 10 days respectively to forward the claim to the O.P.No.2 but when it was not received the O.P.No.1 was forced to close the claim. So there is no deficiency in service on the part of this O.P. It is also submitted that the complainant is not a consumer in view of the order of the Hon’ble Supreme Court of India in Laxmi Engineering Works Vs. PSG Industrial Institute reported in 1995 AIR SC 1428. The O.P.No.1 has not committed any unfair trade practice and not liable to pay any compensation, hence prayed to dismiss the complaint.
8. As per argument of the learned counsel for the O.P.No.2 on 22.03.2017 and as per the written argument, the O.P.No.1 has asked this O.P. to close down the file of the complainant as she has not submitted the required documents even after repeated requests made by the O.P. No.1. Accordingly this O.P. has closed the case of complainant as desired by the O.P.No.1. There is no deficiency of service or negligence by this O.P. and this O.P. has promptly acted upon and has given service to the complainant as well as to the O.P.No.1. It is purely a dispute between the complainant and the O.P.No.1 Magma Finance Company. So this O.P.No.2 has nothing to do in the above case and the complainant have lodged this complaint before O.P.No.1 and O.P.No.1 had submitted some papers to this O.P. and could not submit the relevant documents for settlement of the complainant’s claim as asked for. The complainant also could not submit the required documents to the O.P.No.1 for settlement of his claim. So the O.P.No.1 requested this O.P. to close the case of the complainant. So the O.P. No.2 has closed the claim of the complainant. Hence O.P.No.2 prayed to dismiss the case. During the course of hearing he also pointed out that the complainant has wrongly mentioned her policy number in the complaint and accordingly the O.P.No.2 verified the policy and on verification it was found that the policy bearing No.311500/31/2010/1096 belongs to Bhaswar Banerjee of Calcutta hence the O.P.No.2 is not liable to make any payment. However, the complainant in her counter on 22/3/2017 filed a petition before this Forum to correct the policy as 311500/31/2010/1069 which was also allowed by this Forum. From this it is established that the complainant did not intimate the O.P.No.2 regarding her policy details properly through the O.P.No.1 and even not intimated this O.P. regarding the loss due to accident hence she is not entitled to any insurance claim and the same may be dismissed with cost in the interest of justice.
9. We have carefully considered the submissions made above by learned counsels for the complainant as well as for the O.Ps in the light of peculiar fact and circumstances of the case. We have also perused the documentary evidence filed by the complainant as well as by the O.Ps placed on the case record. On careful verification of the documents we find that the O.P.No.1 on 6.4.2010 and 21.04.2010 asked the complainant through letters to submit relevant documents in support of her claim to forward the same to the O.P.No.2 for settlement of her insurance claim. However, the complainant did not prefer to submit the same as a result the O.P. No.1 could not furnish the same to the O.P. No.2 regarding the claim of the complainant. On further perusal of the documents we find that there is nothing placed on record to show that the complainant has actually intimated to the O.P. No.2 regarding accident of her vehicle TATA ACC on 03.12.2009. Even during the course of hearing of the consumer dispute when the Forum pointed out regarding non-intimation to the O.P.No.2 by the complainant for settlement of her insurance claim, the learned counsel for the complainant agreed to produce the intimation letter before this Forum. Accordingly, the learned counsel for the complainant on 01.05.2015 filed a list of documents that includes copy of original letter dated 14.03.2012, office copy of reply letter by the complainant dated 07.04.2012, two numbers of original postal receipts and one AD card in support of his claim that the complainant had intimated the O.P.No.2 regarding her insurance claim. On perusal of aforesaid documents, we find that the first document is copy of repudiation letter, the second document is regarding advocate notice issued by the complainant to the O.P.No.2, the third document is postal receipt of sending the advocate notice to the O.P.No.1&2 and the fourth one is an AD card of Advocate’s notice which was acknowledged by the O.P. No.2 on 10.04.2012. From the aforesaid discussion, it is amply clear that the learned counsel failed to produce the copy of the intimation letter that was intimated to the O.P.No.2 by the complainant for settlement of her insurance claim. In our view, in case of accident, the complainant should intimate the O.P. insurance company within a reasonable time period of one month as per the term and conditions of the policy. The terms of the policy requires immediate action in such cases and as per settled law, such delay in intimation in case of accident would result in outright repudiation of the claim of the complainant because delay in intimating to the O.P. insurance company would be disastrous to the interest of the insurance company and the same constitute violation of a fundamental conditions of the insurance contract. In the instant case, the complainant has not intimated to the insurance company regarding accident of her vehicle TATA ACC on 03.12.2009 as a result the insurance company could not inspect the damaged vehicle on the spot and also could not able to depute the surveyor for assessment of the loss. In our considered view, in case of delay in intimation to insurance company, the O.Ps are justified repudiating the claim of the complaint and in that case, the O.Ps are not deficient in service. Our finding is fortified with the decision of the Hon’ble National Commission in the case of Devendra Singh Vs. New India Assurance Co. Ltd., reported in III (2003) CPJ 77 (NC) where it was held that ‘wherein there was a delay of one month in giving information to the insurance company repudiation of the claim of the complainant was held justified’. In the instant case, the vehicle of the complainant met with the accident on 03.12.2009 and the complainant intimated to the O.P.No.2 insurance company only through an advocate notice on 07/04/2012 i.e. after a long lapse of more than two years. On this count only we are convinced that the claim of the complainant was liable to be repudiated by the O.P. insurance company. In a sequel to the above discussion and considering the fact and circumstance of the case, we find that the complaint of the complainant has got no merit for consideration and same is dismissed due to devoid of any merit.
10. In the result, we dismissed the complaint of the complainant due to devoid of any merit. The parties are directed to bear their own cost. The case of the complainant is disposed of accordingly.
11. The order is pronounced on this 3rd day of August 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
