Ld. Advocate(s)
For Complainant: Soumi Dutta
For OP/OPs : Surajit Gangopadhyay
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Date of filing of the case :08.01.2019
Date of Disposal of the case :02.08.2023
Final Order / Judgment dtd.02.08.2023
Complainant above named filed this complaint against the aforesaid opposite parties u/s 11 & 12 of the Consumer Protection Act, 1986 praying for direction to the OP No.1 for payment of Rs.7,00,000/- along with interest. He also prayed for compensation amounting to Rs.50,000/- cost of the case and other reliefs.
He alleged that he had purchased one Four Wheeler Car being Model New Desire Maruti VXI Silky Silver from OP No.3 on 30.07.2018 with the value of approx. Rs.7,00,000/-. At the time of purchase of the said vehicle, he paid cash of Rs.1,00,000/- and rest of amount was paid by way of loan from OP No.2. Aforesaid vehicle was insured under OP No.1.
On 18.08.2017 at night suddenly the aforesaid car caught fire due to unknown reason and in the said incident 90% of the vehicle was badly damaged. Complainant informed the matter to the OP NO.3. He went to Ranaghat Police Station and lodged one G.D. vide no.949/2017 dated 20.08.2017. Complainant informed the entire matter to the OP No.1-3. OP No.3 came and took possession of the said vehicle and at present said vehicle is lying in Kalyani Showroom of OP No.3. Valuers of OP No.2 valued the car and assessed the esteem loss of the complainant. In the meantime complainant paid 6 EMI. But thereafter, complainant could not pay the EMI. OP No.2 instituted one criminal case before the Metropolitan Magistrate Kolkata under Negotiable Instrument Act. Till date complainant did not get the claim of insurance coverage. Hence, the complainant filed this case.
OP NO.1 contests the case by filing a W/V. He denied the entire allegations of the complainant. He further stated that no claim was loaded or informed immediately after the incident as such no surveyor was sent to ascertain the actual cause of accident and claim was not delivered. As per policy terms and conditions insured shall take all reasonable steps to safeguard the vehicle from any loss of damage. It is the duty of the insured that company shall have at all demand free and full access to examine the vehicle insured. There was no deficiency in service on the part of the OP No.1.
OP No.2 contests the case by filing a separate W/V. He denied the entire allegations mentioned in the petition of complaint. He further stated that at the time of purchase of aforesaid vehicle he gave loan of Rs.6,45,090/- interest was fixed at the rate of 8.75/- per annum, period payment of EMI was fixed from 05.07.2017 to 05.06.2022 and complainant paid 8 EMI and outstanding dues of the said loan account as on 05.04.2019 was Rs.2,19,379/-. He further stated that complainant
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agreed to repay the aforesaid loan amount with monthly instalment @ Rs.13,313/-. He further stated that proceedings against the bank is not maintainable as per section 230 of N.I. Act.
OP No.3 contests the case by filing a separate W/V. He denied the entire allegations against him. He further stated that there is no cause of action against him. He has no negligence in any manner regarding the aforesaid dispute. He further stated that complainant never informed anything to him nor even produced the vehicle before him for inspection of the vehicle. In fact since from the date of purchase to till today complainant never bought the vehicle in the showroom of the OP NO.3 except first free service. He prays for dismissal of the case.
Trial
During trial complainant filed affidavit in chief. OP NO.2 filed interrogatories and complainant filed answer.
Complainant also filed another reply in respect of questionnaire of another OP on 10.05.2022. Complainant filed another reply on 30.01.2023 in respect of questionnaire of the OP. He also filed another reply in respect of questionnaire of another OP.
OP No.2 filed affidavit in chief. Complainant filed questionnaire and OP NO.2 filed answer. OP NO.3 filed affidavit in chief.
No questionnaire has been filed. No answer filed by the OP NO.3.
Documents
Complainant at the time of filing of this case filed the following documents.
- Xerox copy of Certificate of Registration dated 14.07.2017........(One sheet)
- Xerox copy of Certificate cum policy schedule dated 27.06.2017........(One sheet)
- Xerox copy of Invoice cum Certificate of Extended Warranty Registration dated. 30.06.2017.........(One sheet)
- Xerox copy of letter issued by Ranaghat P.S., Nadia..........(One sheet)
- Xerox copy of Closure of Motor Insurance Claim dated 11.12.2017.....(One sheet)
- Xerox copy information dated 29.11.2017..........(One sheet)
- Xerox copy of Agreement............(One sheet)
- Xerox copy of letter issued by complainant to OP NO.1.........(Four sheets)
- Xerox copy of letter issued by complainant to OP NO.2.........(Five sheets)
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10)Xerox copy of Postal Receipt...........(One sheet)
11)Xerox copy of Postal Receipt..........(One sheet)
12)Xerox copy of receiving endorsement.............(One sheet)
13)Xerox copy of letter issued by complainant to OP NO.3..........(Four sheets)
14)Xerox copy of letter issued by complainant to OP No.1.........(Four sheets)
15)Xerox copy of Postal Receipt..........(One sheet)
16)Xerox copy of letter issued by complainant to OP NO.3.......(Four sheets)
17)Xerox copy of letter issued by complainant to OP NO.2.........(Two sheets)
18)Xerox copy of letter issued by complainant to OP NO.1.......(Four sheets)
19)Xerox copy of receiving endorsement..........(One sheet)
20)Xerox copy of summons dated 27.11.2018.........(Five sheets)
Brief Notes of Argument
Complainant filed BNA. OP NO.2 filed BNA. OP NO.1 was not present at the time of hearing argument. He did not file BNA.
OP NO.3 was not present at the time of hearing argument nor he filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint and other documents on record.
On perusal of affidavit in chief filed by the complainant, we find that complainant corroborated his allegation in the aforesaid affidavit in chief. He also gave answer of interrogatories .
It is admitted fact that complainant had purchased one 4 wheeler vehicle vide no. WB52AH 3234.
On perusal of Xerox copy of certificate of registration of the said vehicle, we find that said document stands in the name of complainant. Registration of the said vehicle took place on 14.07.2017.
On perusal of Xerox copy of insurance policy, we find that aforesaid vehicle was insured on behalf of complainant and OP No.1 issued the said policy and said policy was valid for the period from 27.06.2017 to 26.06.2018. It is also admitted position that aforesaid vehicle was purchased through the loan sanction by OP NO.2.
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On perusal of affidavit dated 21.08.2017 we find that in the night of 18.08.2017 at about 1/1:30 a.m. he heard one hue and cry and saw that his vehicle in the garage was burning. Thereafter, he informed the matter to Police Station and fire brigade. Fire was dissolved but vehicle was totally burnt.
On perusal of document dated 29.11.2017, we find that Divisional Fire Officer \, Krishnagar stated in his report cause of fire could not ascertain and in the said fire some portions of the vehicle was damaged.
On perusal of document dated 11.12.2017, we find that OP No.1 directed the complainant to submit some documents.
On perusal of Xerox copy of another document dated nil, we find that Sourav Chatterjee Advocate Ranaghat Court alleged the casual attitude of OP No.3 said document bears the signature of the complainant.
On perusal of another document dated nil, we find that said document has filed on behalf of Sunayan Biswas Advocate Ranaghat Court and said document bears the signature of complainant.
On perusal of summon to an accuse person dated 09.10.2018, we find that said summon has issued in the name of complainant u/s 138 of N.I. Act.
Complainant alleged in the petition of complaint that on 18.08.2017 at night suddenly the aforesaid car caught fire due to unknown reason. He further stated in the said fire vehicle was burned almost 90% and it was badly damaged and immediately it was informed to OP NO.3 that is the showroom from which he purchased the vehicle but complainant could not produce any document in support of the fact that matter was informed to OP NO.3. He further stated that he went Ranaghat P.S. and lodged one G.D. vide no. 949/2017 dated 20.08.2017 but he could not produce any document in support of the said fact. He further stated that he informed the aforesaid matter to opposite parties that is OP NO.1-3 but he could not produce any documents in support of the fact that he informed the aforesaid incident to OP NO.1-3.
He further alleged that OP NO.3 came before him and took the possession of the aforesaid vehicle and at present said vehicle was lying in Kalyani showroom but he could not produce any document in support of the fact that OP NO.3 came before him and inspected the said vehicle and took away the same and kept the same in his custody.
On perusal of the document issued by OP NO.1 in favour of the complainant dated 11.12.2017, we find that complainant lodged the aforesaid incident before the OP NO.1 on 08.11.2017.
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By the said document OP No.1 directed the complainant to produce certain documents. But complainant could not produce any document in support of the fact that he deposited the aforesaid documents before the OP NO.1 as per the aforesaid direction.
On perusal of document dated 29.11.2017, we find that Divisional Fire Officer could not ascertain the cause of fire.
Complainant produced copy of some letters as if his Ld. Advocate have issued those letters but those letters do not bear the signature of Ld. Advocate.
Ld. Advocate for the complainant cited a decision of Hon’ble D.C.D.R.C. North Thaltej Circle Gujrat in support of his case. As the said decision is a final order of another D.C.D.R.C of our country, so said decision is not applicable in the present case as Ruling.
Ld. Advocate for the OP No.2 cited a decision of Hon’ble Supreme Court reported in AIR 1999 SC 80. We find that Hon’ble Supreme Court held that an agent is bound by a contract entered into by his principal who, though disclosed, cannot be sued. Facts of the said case are totally different and accordingly said decision is not applicable in the present case.
Ld. Advocate for the OP No.2 cited another decision of Hon’ble Supreme Court of India (Prem Nath Motor Limited Vs. Anurag Mittal). Hon’ble Apex Court held that by virtue of section 230 the agent could not be sued when the principle had been disclosed. Fact of the said case is not matching with the present case. Accordingly, said decision is not applicable in the present case.
Ld. Advocate for the OP No.2 cited another decision of Hon’ble S.C.D.R.C Orissa Cuttack (Dipak Kumar Sahoo Vs. Branch in charge Indusind Bank Limited). In the said decision vehicle was repossessed. Hon’ble S.C.D.R.C held that under higher purchase transaction, the financer does not render any service within the meaning of Consumer Protection Act. Hon’ble S.C.D.R.C further held that opposite party has not committed any sort of deficiency and the complainant not being a consumer to maintain such a complaint. Fact of the said case is totally different; accordingly we find that said decision is not applicable in the present case.
In view of the aforesaid discussion, it is clear before us that complainant is the consumer and OP NO.1-3 are the service provider.
Having considered the facts and circumstances of this case evidence on record, documents on record and in view of aforesaid discussion, it is clear before us that complainant has failed to establish his grievance by sufficient documents beyond reason doubt.
Accordingly, we find that complainant has failed to establish his grievance by sufficient documents and accordingly complainant is not entitled to any relief as per his prayer.
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In the result, present case fails.
Hence,
It is
Ordered
that the present case be and the same is dismissed on contest against OP NO.1-3 but without any order as to costs.
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)
