Ld. Advocate(s)
For Complainant: Loknath Paul
For OP/OPs : Subedi Sanyal
Date of filing of the case :11.04.2022
Date of Disposal of the case : 01.06.2023
Final Order / Judgment dtd.01.06.2023
Complainants above named filed the present complaint u/s 11 of the Consumer Protection Act, 1986 against the aforesaid opposite parties praying for direction for payment of Rs.4,19,000/-, interest at the rate of 12% over the said amount and litigation cost amounting to Rs.50,000/-.
He alleged in the petition of complaint that complainant no.1 is the owner of vehicle vide no.WB23B/0580. Said truck was insured with an Insurance Policy vide no.3379/02197802/000/00. Validity of the said Insurance Policy was for one year effective from 27.11.2018 to 26.11.2019. On 21.04.2019 aforesaid truck was coming from Kolkata to Guwahati loaded with goods of Tower of Reliance Jio Info Limited. The driver namely Harswajit Sk was driving the said truck. Helper was the Raman Rao. On 23.04.2019 due to illness driver went to his home and handed over truck to another driver namely Kader Sk who delivered the goods at Guwahati Warehouse. Thereafter on 05.05.2019 said truck came to Bijni district Chirag for carryhing some goods from Bijni towards Kolkata. But driver Kader Sk left the truck at go-down of Bijni and went to his house. Thereafter, helper Raman Rao contacted with another driver namely Aftab Ali for driving the truck. Thereafter, on 13.05.2019 complainants contacted with the driver and helper of the truck over phone then they stated that truck was standing at petrol pump of Goramari over 31C National Highway.
Thereafter, complainants failed to contact with the said driver and helper till date. Complainants made strong attempt and applied all kind of source of contact but failed to trace out the said truck. Last on 05.06.2019 he filed a police complaint and stated all the incident including the reason to delay for filing complaint before the police authority. After hearing the said matter a police case vide no.385/2019 u/s 381 of IPC has been registered by the authority which is still under investigation. Thereafter, the police authority started investigation and assured the complainants that they will trace out the said truck. Thereafter, on 21.06.2019 complainant no.1 in writing filed claim application before the opposite parties but they rejected the said claim as claim application was filed after 39 days from the
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date of incident and FIR was lodged after 23 days from the date of missing. Thereafter, complainant made several communications to the opposite parties but they did not respond the same. Thereafter, OP NO.2 intentionally started an arbitration proceeding against the complainants and arbitrator was appointed by the OP No.1 at their sole discretion. During pendency of the arbitration proceedings OP No.1 also initiated another proceedings u/s 138 of N.I. Act before the Ld. CMM at Kolkata being complaint case no. 10227 of 2020. At the time of disbursement of loan amount OP NO.1 took some blank security cheques and initial down payment. As per order dated 22.06.2022 case is running ex-parte against OP NO.1. As per order dated 30.06.2022 case is running ex-parte against OP No.2.
Trial
During trial complainants filed affidavit in chief of complainant no.1 on 15.09.2022. They also filed some documents before this Commission and on that time they also filed another affidavit in chief relating to the aforesaid documents.
Documents
Complainants produced the following documents viz :
- Aadhar Card and Pan card of the complainant and Truck Registration Card in the name of complainants..........(One sheet)........(Xerox)
- Pan Card and Trucks Registration Card of complainant no.1.........(One sheet).........(Xerox)
- Insurance Policy for the period from 27.11.2018 to 26.11.2019 of Truck vide no.WB23B/0580.........(One sheet).........(Xerox)
- National Permit for goods carrying in the name of complainant no.1.......(One sheet).........(Xerox)
- Challan of payment of consolidated fee for national permit paid through SBI in the name of complainant No.1 dated 22.11.2018............(One sheet)..........(Original)
- Challan of payment of consolidated fee for National permit paid through SBI in the name of complainant dated 06.12.2018.......(One sheet).......(Original)
- Copy of FIR dated 05.06.2019 before OC Bongaigaon P.S..........(One sheet)........(Xerox)
- Formal FIR vide case no. 385/2019 dated 05.06.2019 (Bongaigaon P.S.)...........(Two sheets)........(Xerox)
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- Final report u/s 173 CRPC issued by Bongaigaon P.S..........(Two sheets).......(Xerox)
10)Information to the OP NO.1 & 2 regarding theft of truck no. WB23B/0580 dated 21.06.2019..........(One sheet)........(Xerox)
11)Letter of OP NO.1 & 2 dated 02.09.2019 addressed to complainant..........(One sheet)..........(Xerox)
Brief Notes of Argument
Complainants filed BNA on 27.04.2023.
Decision with Reasons
We have carefully gone through the aforesaid petition of complaint, affidavit in chief of the complainants and documents filed by the complainants. We have carefully considered those documents.
Ld. Advocate for the complainants argued before this Commission that truck of the complainants was stolen and for that reason he informed the matter to OP No.1 & 2 by writing on 21.06.2019. He further argued that said truck was insured under OP No.1 & 2. As during the validity of aforesaid insurance policy truck valued at Rs.4,19,000/- was stolen, so OP No.1 & 2 are bound to pay the value of the said truck in favour of the complainants amounting to Rs.4,19,000/- but they by sending a letter dated 02.09.2019 informed the complainants that they will not give any amounts in favour of the complainants as FIR was lodged after 23 days and fact of theft was informed to them after 39 days from the date of missing.
He further argued that in case of delay of FIR insurance company is bound to pay the policy coverage. He cited a decison of Hon’ble Supreme Court, OM Prakash Vs Reliance General Insurance and another , Civil appellant no. 15611 of 2017 (Arising out of SLP(C) no.742 of 2015).
On perusal of the said decision, we find that FIR was lodged after 8 days from the date of incident and cogent reason for delay she assigned. Hon’ble Supreme Court allowed the claim of the owner of the truck.
We have carefully gone through the petition of complaint filed by the complainants. In para 10 of the petition of complaint, complainants stated that opposite party no.2 intentionally started and arbitration proceeding against the complainants an arbitrator was appointed by the OP No.1 at
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their sole discretion. So, it is clear before us that after initiation of arbitration proceedings present complainants filed this case before this Commission.
In this context, we have carefully gone through the decision of Hon’ble N.C.D.R.C. in M/S Maa Construction Vs L & T Finance Limited and another (1st appeal No.1621 of 2016). Hon’ble N.C.D.R.C. in para no.11 held it is well settled that terms and conditions of the agreement to the effect do not bar jurisdiction of the Consumer Fora but when the parties of to proceed, first of all, before the arbitration, in that even, the jurisdiction of this Commission stands barred.
Hon’ble N.C.D.R.C. further held that similar view has been taken by the Commission in the following other cases reported in II (2014) CPJ 109 (NC), I (2016) CPJ 552 (NC) and III (2017) CPJ 211 (NC).
Hon’ble N.C.D.R.C. further held in para-12:- From the above judgments of this Commission, the view of the Commission is very clear that proceedings under the Arbitration and Reconciliation act and proceeding under the Consumer Protection Act, 1986 cannot go together. Thus, the complaint is not maintainable under the Consumer Protection Act, 1986 in the present case.
As the complaint is not maintainable under the Consumer Protection Act, 1986, I desist from considering other issues raised in the appeal.
Passed on the above, decision as the complaint is not maintainable under the Consumer protection Act, 1986, I do not find any force in the appeal and accordingly, appeal no.1621 of 2016 filed by the appellant is dismissed at the admission stage.
From the aforesaid decision, it is clear before us that proceedings under arbitration and conciliation act and proceedings under Consumer Protection Act, cannot go together. Arbitration proceedings has started relating to dispute in between complainants and OPs so the complaint before this Commission under Consumer Protection Act is not maintainable.
In view of above we are of the firmed view that the present case is not maintainable before this Commission because Arbitration proceedings has already been started in between complainants and opposite parties.
In view of above present case is not maintainable.
In the result present case fails.
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Hence,
It is
Ordered
that the present case be and the same is dismissed ex-parte against the OP NO.1 & 2 but without any order as to costs as not maintainable .
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
