FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:-This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant has purchased a vehicle of the make “Tata Sumo Gold – EX” bearing engine no.30CR401KWY649640 chassis no.MAT446248D9K21368, and having registration no.WB-15A-8585 and the complainant purchased the said vehicle through finance by M/s Mahindra and Mahindra Financial Service Limited. The total price of the schedule mentioned vehicle stand Rs.6,79,989/- out of which OP no.2 financed a sum of Rs.5,72,837/- and on 03.04.2014 at 13.00 hrs driver of the complainant namely Hari Sankar Barui took four persons including two women on hire and left Ranaghat with the vehicle of the complainant having registration no.WB-15A-8585 through Piu travelers and reached at Auxilium Convent School near Bandel Church at about 20.00 hrs. and then one of the passengers offer the driver fruit juice and egg roll. After drinking the fruit juice the driver became sense less and the said passenger took away the vehicle Tata Sumo Gold bearing no.WB-15A-8585 with money and one mobile of the driver after dropping him beside tea stall mood on 04.04.2014 near Bandel Church and the complainant has lodged a complainant before Ld. C.J.M Hooghly Chinsurah for the offence u/s 328/380419/34 of Indian Penal Code and Ld. CJM Hooghly has been pleased to send the same to the Chinsurah P.S vide process no.656/2014. That after that on 04.04.2014 the complainant lodge a complaint in the Ranaghat Police Station about the missing vehicle and the Police of Chinsurah P.S after due inquiry has been pleased to submit final report and the same was forwarded by I.C Chinsurah P.S on 28.02.2015 to the Ld. CJM Hooghly and the report was seen by Ld. CJM Hooghly on 22.03.2016 and the said final report the complainant did not filed any petition before the Ld. CJM Hooghly challenging the said final report and at the time of the purchase of the schedule mentioned vehicle the complainant has obtained insurance from the OP no.1 vide policy / cover note no.9901942338000937. That during the coverage of the aforesaid policy the schedule mention vehicle was theft and the complainant has filed his theft claim vide no.2141048185 lodged on 14.04.2014 under policy / cover no.9901942338000937. The OP no.2 vide its letter date 08.04.2015 asked the complainant to deposit the following: a) original registration certificate b) the final report from the Court (original) c) vehicle non-possession letter from finance d) NOC and from 35 duly signed by financer (if loan complete) e) KYC (Pan card and voter ID) f) Financer Bank details for NEFT (A/c no., IFSC Code, Bank name, Bank address) g) confirmation require from financer after receiving of claim amount when he will provide NOC & from 35, of the above-mentioned requirement the complaint is in a position to file only the requirement covered under point no.2,5 & 6. The original registration certificate was lying in the schedule mention theft vehicle. So, there is no question at all to produce same before the OP no.2 regarding point no.4 of the requirement of the vehicle was theft at very early stage of loan and there is no question of obtaining NOC and from 35 duly signed by the financer and by the letter date 08.04.2015 OPs have deliberately denied complaints claim of the insurance of the schedule mentioned theft vehicle and after obtaining the certified copy of final report in connection with Chinsurah P.S case no.148/2014 dated 22.04.2014 (P no.656/2014) on 21.05.2016 the complainant went to the office of the OP no.2 on 23.05.2016 but the manager of the OP no.2 did not entertain complainant and denied the provide a single farthing towards his insurance claim.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 6,79,989.00/- as compensation and to pay a sum of Rs. 1,00,000/- for litigation cost.
Defense Case:-The opposite party Nos.1 and 2contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant obtained an insurance coverage from the OP no.1 & 2 to cover the risk of loss of a particular vehicle and by virtue of such policy the OP no.1 & 2 undertook to indemnify the loss to the complainant if any during the period of such coverage and the alleged incident of theft was occurred on 03.04.2014 but from the face of the complaint actual date of theft was not cleared. The insurance company without any prejudice to their right and contention todeny and dispute their claim did not appoint independent investigation agency for conducting investigation on the reported loss due to lack of documents which the petitioner did not produce the same to the insurance company inspite of repeated reminder and request and the OP insurance company vide its letter dated 11.10.2014, 17.02.2015, 08.04.2015 requested the petitioner to supply documents as stated in those letter but inspite of receipt of those letter the petitioner did not produce the same to the OP no.1 finally and then on 17.09.2015 this OP insurance company expressed that since the petitioner has not supplied those documents his said thief clients is closed on their record and there is no deficiency in service on the part of the OP insurance company as alleged by the complainant, and the op insurance company relies upon the judgment laid down by the Hon’ble Supreme Court in the judgment of Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 wherein the Hon’ble Supreme Court laid down that the test of deficiency in service lay in the complainant proving that there was some fault, imperfection, shortcoming or inadequacy in the manner of the Insurance company and further such fault etc must be willful. More importantly the Hon’ble Supreme Court has held that where there is a bona fide dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner, then such acts will not amount to deficiency in service as stated in the petition.
The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous act of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there isno deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the life may be the factors to ascertain the deficiency in rendering the service and the petitioner has not fulfilled the above conditions and by suppressing the actual material facts and with malafide intention only to gain illegally filed the above petition before the Ld Forum and in the above premises the complaint is liable to be dismissed with costs for the lack of jurisdiction otherwise this OPs will suffer irreparable loss and injury.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the points of consideration adopted in this case are taken up for discussion jointly as the questions and/ or issues involved in these points of consideration are interlinked/ interconnected with one another other. Regarding the above noted five issues the point of maintainability of this case and cause of action matters are very vital and so these two matters are taken up for discussion at first. Relating to these issues it is very important to note that the op nos. 1 and 2 insurance company asked the complainant to produce documents and the said documents are;-
a) Original registration certificate
b) The final report from the Court (original)
c) Vehicle non-possession letter from finance
d) NOC and from 35 duly signed by financer (if loan complete)
e) KYC (Pan Card and voter ID)
f) Financer Bank details for NEFT (A/c no., IFSC Code, Bank name, Bank address)
g) Confirmation require from financer after receiving of claim amount when he will provide NOC & from 35.
But facts remain that the complainant of this case failed to produce all the above noted documents. As a result of which op nos. 1 and 2 insurance company issued repeated reminder and request to the complainant on 11.10.2014, 17.2.2015 and 8.4.2015 requesting the complainant/ petitioner to supply the documents but inspite of receiving the above noted letters the complainant/ petitioner had not produced the same. For non-production of the above noted documents by the complainant the op insurance company nos. 1 and 2 failed to appoint independent investigating agency for conducting investigation in the matter of assessing the actual loss sustained by the complainant. It is important to note that the ops insurance company have closed the case but has not repudiated the claim. All these factors are clearly indicating that the complainant has no cause of action for filing this case. As there is no cause of action for filing this case by the complainant this case is also not maintainable. Thus, the points of consideration nos. 1 to 3 adopted in this case are decided against the complainant.
Now the question is whether there is deficiency of service on the part of the ops or not? In this connection the judgment passed by the Hon’ble Apex Court in the case of Ravneet Singh Bagga vs. KLM Royal Dutch Airlines which is reported in (2000) 1 SCC 66 is very important wherein the Hon’ble Supreme Court laid down that the test of deficiency in service lay in the complainant proving that there was some fault, imperfection, shortcoming or inadequacy in the manner of the Insurance company and further such fault etc must be willful. More importantly the Hon’ble Supreme Court has held that where there is a bona fide dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner, then such acts will not amount to deficiency in service as stated in the petition. Thus is it crystal clear that the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has not established any willful fault, imperfection, shortcoming or inadequacy in the service of the complainant. The deficiency in service has to be distinguished from the tortuous act of the complainant. But facts remains that in the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Consumer Protection Act for the alleged acts of commission and omission attributable to the complainant which otherwise do not amount to deficiency in service.
A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove that there was/ is deficiency of service on the part of the ops. So, the points of consideration nos. 4 and 5 which have been adopted in this case are also decided against the complainant.
Recapitulating the above noted discussion this District Commission is of the view that the complainant has filed this case before arising any cause of action and so this case is prematured and not maintainable. In view of this position this District Commission has no other way but to dismiss this case and to return the complaint petition to the complainant with liberty to file the same afresh after arising of proper cause of action.
In the result it is accordingly
ordered
that the complaint case being no. 173 of 2016 be and the same is dismissed on contest. Let the complaint petition filed in this case be returned to the complainant with liberty to file the same afresh after arising of proper cause of action.
No order is passed as to costs and compensation.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
