West Bengal

Cooch Behar

CC/70/2018

Sri Bhabendra Nath Saha, - Complainant(s)

Versus

M/S Saha Auto Pvt. Ltd., - Opp.Party(s)

Sri Bibek Kr. Datta & Sri Kumardeep Mukharjee

21 Mar 2023

ORDER

District Consumer Disputes Redressal Commission,
B. S. Road, Cooch Behar -736101.
Ph. No. 03582-230696, 222023
E-mail - confo-kb-wb at the rate of nic.in
Web - www.confonet.nic.in
 
Complaint Case No. CC/70/2018
( Date of Filing : 18 Sep 2018 )
 
1. Sri Bhabendra Nath Saha,
S/o. Late Gouranga Saha, C/o. Rhino Resort, Vill. Purba Khayerbari, P.O. Madhya Khayerbari, P.S. Madarihat, Dist. Alipurduar-735220.
...........Complainant(s)
Versus
1. M/S Saha Auto Pvt. Ltd.,
Authorised Dealer of Tata Motors, Kalerpar, Dawaguri, N.H-31, P.S. Kotwali, Dist. Cooch Behar-736156.
2. Iffco Tokio General Insurance Co. Ltd.,
Branch Office- Shri Radha Apartment, 2nd Floor, Shop No.8, Sevoke Road (Iscon Mandir Road), Siliguri-734001. Registered Office- Iffco Sadan, C-1, District Centre, Saket, New Delhi-770017.
3. Tata Motors Finance Ltd.,
Registered Office- 1st Floor, Saharan House, Sevoke Road, 2nd Mile, Siliguri-734001.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MRS. RUMPA MANDAL PRESIDING MEMBER
 HON'BLE MR. SUBHAS CHANDRA GUIN MEMBER
 
PRESENT:Sri Bibek Kr. Datta & Sri Kumardeep Mukharjee, Advocate for the Complainant 1
 Sri Ranjan Chakraborty, Advocate for the Opp. Party 1
 Sri Sudip Das, Advocate for the Opp. Party 1
 Mr. Himadri Sekhar Roy & Mr. Mirza Aslam, Advocate for the Opp. Party 1
Dated : 21 Mar 2023
Final Order / Judgement

 

Hon’ble Mrs. Rumpa Mandal, Member.

The brief fact of the case of the Complainant is that the Complainant Sri Bhabendra Nath Saha purchased a LMV car from the O.P. No.1 M/S Saha Auto Pvt. Ltd. for 6,03,731/- on down payment of Rs.2,26,000/- on 05.07.2016.The O.P. No.1 being the dealer of Tata Motors  arranged for finance with Tata Motors &Finance Ltd & for insurance with the Iffco Tokio General Insurance Co being O.P. No.2.The registration number was obtained being registration no WB70G2798 dt.26.08.2016 . The O.P. No.2 issued an Insurance Policy No 9913486L for the period 21.07.2016 to 20.07.2017 midnight. Suddenly during the validity of the said Insurance  policy the vehicle met with accident on 30.04.2017 at 2 ½ Mile in falakata to Madarihat road against which Falakata P.SM.A.C No 5/2017 dt 01.05.2017 was registered. The Complainant informed the said accident to the opposite Parties. The Complainant thereafter placed the said vehicle  M/S Saha Auto Ltd. on 05.5.2017 for repairing  O.P. No.1 as authorized service centre assured the Complainant that he will take up the matter  with the O.P. No.2 insurance Co & O.P. No.3 the Finance Company. Since 05.05.2017 the complainant met with O.P. No.1 repeatedly but the O.P. NO.1 did not take proper steps for repairing  of the vehicle. Suddenly on 11.09.2017 O.P. No.1handed over a copy of mail stating inter alia that “ as per Tata Motors manual the child parts are available, so please order the child parts and repair the vehicle”. Due to latches on the part of the O.P. No.1 the complainant sent a legal notice to all the OPs on 19.09.2017 through registered post with A/D through his Advocate with a request to handover the vehicle after proper repair and also to return the  blank cheque which was kept by O.P.No1 to deliver the same to the O.P. No.3 & also to instruct  the financer not to utilize the said blank cheque, until further instruction & to take steps for repairing  the vehicle. Despite receiving the notice none of the O.P. replied to the Complainant. The complaint again sent a reminder through Advocate on 16.01.2018. But the complainant received reply from O.P. No 3 on 11.01.2018 with same false & vague allegation. Despite receiving the reply to the said notice sent by Complainant on 01.02.2018 the O.P. No.3 remained silent.

OP No.1 intimated the Complainant & O.P. No.2 that a sum of Rs.1,82,664/- has been incurred towards total cost of rep[airing .But on 26.03.2018 a sum Rs.1,00,664/- has been credited to his account being  A/C NO 3295981277 lying with Central Bank of India by the O.P. 2. Ultimately Complainant had to pay Rs.82,000/- from his own pocket though the vehicle in question was  properly insured with O.P. No.2.

Complainant contacted with O.P. No.1 & O.P. No.2 & but they did not give any reply .Again Complainant sent a legal notice through registered post to O.P. No.2 with a copy to O.P. No.1 on 15.06.2018 asking them to credit the balance amount of Rs.82,000/- to the A/C of the Complainant, So that complainant could not get delivery of the vehicle. Complainant claimed that there is direct nexus in between O.P.1& O.P. No2 & O.P. No.3 & in this way they  perpetrated unfair trade practice with the complainant. The vehicle met with an accident  within the period of insurance coverage. So the complainant claimed that he is entitled to get the entire amount of cost of repair.

Therefore the activities of the O.P is clearly unfair trade practice for which the complainant suffered  from mental pain & agony as well as sustained huge financial loss. Complainant prayed for an award against the  O.P. No.2 to pay the balance amount of Rs.82,000/- to the complainant towards the cost of repair of the vehicle & also for a direction to the O.P. No.1 to hand over the vehicle of the complainant being no WB70G-2798.  Complainant further prays for an award for sum of Rs.1,00,000/- against the OPs towards mental pain & agony & for Rs.1,00,000/- towards unfair trade practice &  deficiency in service & also prays  for Rs.20,000/- as litigation cost & any other relief or relief prayed for.

O.P. No.2 contested the case by filing written version O.P. No.3 filed written version but it appears from the record that the O.P. No.3 was debarred from filing w/v in the instant case vide order No 3 dt. 01.11.2018 .So the evidence on affidavit filed by O.P. No.3 dt.10.07.2019 could not be accepted as it was debarred from the instant case on 01.11.2018.

O.P. No.2 denied  all the allegations. The positive defense case of the O.P. No.2, Iffco Tokio General Insurance Co. Ltd in brief is that after receipt of  the information, O.P. No.2 gave an appointment  to the Surveyor namely  Bibekananda Bhadury & the O.P. No.2 was fully   dependent on surveyor report .It is one part of evidence & according to the surveyor report as per norms & terms and condition of insurance policy, the O.P. No2 has already settled the claim of Rs.1,00,664/- only & the same amount was transferred on 26.03.2018 in favour of the complainant after deduction vide A/c.No3295981277 Central Bank of India , Maiarihat Branch by NEFT. So the O.P. No.2 will not accept any demand acceptable against his claim vehicle. So the instant case is not maintainable in the eye of law against O.P. No.2. The O.P. claimed that the case is liable to be dismissed with cost.

After scrutiny of the case the respective parties the question involved in this case & having analyzed   the argument  of both respective Advocates the Commission Considers the fallowing points for adjudication of this case.

POINTS FOR CONSIDERATION

  1. Whether the  case is maintainable is its present form and manner?
  2. Whether the Complainant is entitled to get the relief?
  3. To what other relief or reliefs the complainant is entitled to get?

DECISIONS WITH REASONS

Point No.1.

It is admitted fact that the complainant  purchased the LMV car from O.P. No.1 and insured the vehicle from IFFCO Tokio General Insurance Company Ltd being Registration No WB 70G-2798 vide policy No 99134861 effective from 21.07.2016 to midnight on 20.07.2017. Having  met with an accident by the said vehicle the Complainant lodged insurance claim against ( where there is an assessment of loss ) damage/ loss as which was assessed by assessor of the O.P. No.1 company.

Thus the relation between complainant & the O.P. No1 appears to have been within the C.P. Act as a consumer & service provider/ Insurance.

Although the status of the Complainant as a consumer stands challenged in the written version of the O.P. NO.1 yet in course of argument Ld. Defence Counsel did not advance any documents challenging the status of the complainant. However the relation between the parties appears to be well within the jurisdiction of C.P. Act. The Pecuniary jurisdiction is also within the limit of this commission.

Thus, the complainant is a consumer &the present case is maintainable in its present form & prayer.

Accordingly, the point Nom 1 is answered in favour of complainant.

Point No.2 & 3.

Both the points are very closely interlinked with each other and accordingly these are taken up together for brevity and convenience of discussion.

These points relate to entertainment of relief by the complainant.

After perusing the pleadings of both complainant & O.P. No.2 it appears that the complainant had purchased a LMV car ( Tata ZEST XMRTI.2) from the O.P. No.1 M/s Saha Auto Pvt. Ltd. who is dealer   of Tata Motors & the Tat Motors had arranged for insurance of the said vehicle with IFFCO Tokio General Insurance Co. Ltd. (O.P.No.2). It was admitted that O.P.No.2 issued an  insurance policy  for the said vehicle of the complainant & handed over all the papers to the complainant being Registration No WB70G-2798 vide policy No 9913486L effective from 21.07.2016 to midnight on 20.07.2017. The said vehicle was being used for the personal use of the Complainant.

It is settled position of law that admitted fact need not be proved. So we can much forward to the next stage of analysis of fact and evidence.

The OP further seems to have admitted that after getting intimation about the accident from the complainant that O.P. No.2 appointed Mr. Bibekananda Bhadury surveyor for post survey  to assess the loss of damage vehicle as per norms & terms and condition  of Insurance policy receiving the surveyor report from surveyor it was found total damages of complainant vehicle claim amount Rs.1,11,664.54 only and a per norms of insurance policy after deduction of policy excess and depreciation amount of accident vehicle. Insurance co. was settled the claim amount of Rs.1,00,664/-  and transferred the same amount in favour of claimant’ account vide A/C No 3295981277, Central Bank of India, Madarihat Branch on 26.03.2018 by NEFT.

Thus it stands well proved on the basis of admission of the O.P. that the ill fated vehicle  met with an accident resulting I loss/ damage  of the vehicle which was assessed by the own men of the O.P. to the extent of Rs.1,00,664/- as per final assessment by the personnel. Now, the only defense plea to discard the claim of the complainants case shows that complainant is trying to make unlawful gains from policy of Insurance by filing the present case. The duly appointed surveyor after considering both repair basis as well as salvage mode of settlement, computed  the net liability of the O.P. subject to the admissibility of the claim at Rs.1,11,664/-only on salvage mode basis as repairs were found unfeasible.

The O.P. claimed that in this regard in his evidence on affidavit that complainant had duly accepted that settlement at Rs.1,00,664/- on 26.03.2018 and agreed to obtain the wreck of the insured vehicle in “as is where is condition” and O.P. agreed that the in view of the consent by the insured the claim has been rightly settled as per the policy terms & condition. So there is no deficiency or unfair trade practice by the O.P. No.2 as the complainant has provided consent for the settlement. 

In order to ascertain the veracity of the said defence plea that let us have an introspection into the documentary evidence adduced by the complaint.

The Complaint claimed that the complaint duly communicated the fact of such accident to all the O.Ps. on 04-05-17 complaint took released the said vehicle from Falakata P.S. & placed the vehicle with M/S Saha Auto Pvt. Ltd i.e. O.P. No.1 an 05-05-17 for repairing of the vehicle as per instruction of O.P. No.122 as the said O.P is also the authorized Service Centre of Tata Motors and the O.P.No.1 assured the complaint that O.P. No.1 would arrange for proper repairing of the vehicle in consultation with the IFFCO Tokio General Insurance Company Ltd i.e. O.P. No.2. From 05-05-17 the Complainant time and again went to the O.P. No.1 and it was seen that the O.P no.1 had not taken any steps towards the repairing of the vehicle. However Complainant got the vehicle insured with the IFFCO Tokio General Insurance Company Ltd i.e. O.P.No.2 & M/S Saha Auto Pvt. Ltd i.e. O.P. No.1 arranged for such insurance with the O.P.No.2. Complainant has purchased the vehicle with financial assistance with Tata Motors Finance Ltd i.e.O.P.No.3 and Complainant was regularly paying the EMI taking burden of re-payment on his shoulder. The Complainant  time and again had been to the O.P.No.1 & also communicated  over phone, but O.P.No.1 did not  take any proper steps to hand over the vehicle  of the Complainant. Finding no other alternative complainant sent a legal notice through registered Post with A/D on 16.09.2017 through his Advocate to all OPs.

But none of the OPs had replied nor they handover the vehicle of the complainant. On 11.01.2017 complainant received one reply from OP No.3 of his legal Notice dt. 19.09.2017. After that on 01.02.2018 through registered Post with A/D complainant gave plausible reply through his Advocate, Sri Bidek kumar Dutta, Cooch Behar which the OP No.3 received and remained silent. 

Thus the Complainant as a registered owner of the said vehicle has legitimate claim for insurance. So the defence plea that the Complainant had no insurable interest at the time of loss not acceptable in the eye of law the repudiation the pale amount and as such of the claim by the O.P. is not justified.

The O.P. No.2 assessed the loss finally by their assessor  for Rs. 1,00,664/- which had been credited  in the A/C of the Complainant being A/C No 3295981277 lying with the Central Bank of India when  the total cost of repairing had been shown and claimed by M/S Saha Auto Pvt. Ltd. i.e  O.P. No.1 was Rs.1,82,664/-.

Ld. Advocate for the Complainant argued that the claim of the Complainant is genuine since his claim is duly supported by the different receipts for incurring cost.

Complainant cross examined with O.P.No.2. But reply to the questionnaires BY O.P.No.2 is not so effective.

Ld Advocate for the O.P. No.2 order to strengthen  his argument relied upon 3 (three) decisions reported in WBLR( SC) VoI(i) before the Supreme Court wherein it was held that the damage of the insured property  during the validity of the policy-covers rains and floods-claim repudiated on the ground that the building collapsed  due to structural defect.

The case law does not apply here in as much as there is hell and heaven difference between the factual aspects of the two cases.

Ld counsel for the O.P. further referred to a decision reported in 2007 before the Hon’ble National Commission WBLR( CPNC) 809 wherein it was held that vehicle of the complainant was stolen-theft reported to the Police-Delay in preferring claim explained-Vehicle was issued-No ground for repudiating the claim by the Insurance Company.

In the case in hand that the total cost of repairing had been claimed by M/S Saha Auto Pvt. Ltd. i.e O.P. No.1 was Rs.1,82,664/-. But the O.P. No2 IFFCO Tokio General Insurance Co. Ltd had credited in the A/C of the Complainant a sum of Rs. 1,00,664/-. Now the Complainant wants to settle the balance amount of Rs.82,000/-.

So the reported case laws do not apply in the present case.

Another case law referred to by the Ld. Advocate for the O.P. reported in First appeal 1( WBLR( CPNC) 812 of 2007 wherein it was held that  loss suffered due to fire claim from the Insurance co. was settled at Rs.13,90,000/-. Insurance company paid Rs.10,56,695/-. State Commission awarded Rs.13,90,000/- according to surveyors report. The said case low does not come to the help of the O.P.

The fact of the cases are different which do not match with the present case in hand. So the reported case laws do not apply in the present case.

It is found that the valuation was computed by the assessor of the O.P. No.2 company it-self . Only Points remains to be decided is the additional cost incurred by the complainant. Case laws cited by the Advocate of the O.P. No.2 does not apply here.

 In the backdrop of the  assessment evidence vis-a-vis  the observation made in the foregoing paragraph  this commission comes to the findings that the Complainant is entitled to get the relief towards the insurance claim along  with some consequential relief.

Accordingly point No.2 & 3 are answered in favour of the complainant. In the result the complaint case succeeds on contest with cost.

Hence, it is

Ordered

That the Complaint case No CC/70/2018 be and the same is allowed on contest  against O.P.No2 and exparte against O.P. 1 & 3 with cost of Rs.10,000/-.

The complainant do get an award for a sum of Rs.82,000/- towards the cost of repair of the vehicle from the O.P.No.2

The O.P. No.2  is directed to pay Rs.25,000/- towards mental pain and agony, and Rs.25,000/- for deficiency in service and unfair trade practice to the complainant.

The O.P. No.1 is directed to handed over the said vehicle of the complainant bearing No WB-70G-2798 forthwith.

O.P. No1 and O.P. No.3 are directed to pay litigation cost of Rs.10,000/- to the Complainant jointly and/or severally.

The O.P. No.2 is directed to pay Rs.1,32,000/- and O.P. No.1 & 3 are  directed to pay Rs.10,000/-  each to the Complainant within 30 days from the date of passing the  Final order failing which  the Complainant shall be entitled to get interest @ 6% per annum. The Complainant case is accordingly disposed of on contest.

Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.

The copy of the Final Order is also available in the official Website www.confonet.nic.in.

Dictated and corrected by me.

 
 
[HON'BLE MRS. RUMPA MANDAL]
PRESIDING MEMBER
 
 
[HON'BLE MR. SUBHAS CHANDRA GUIN]
MEMBER
 

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