Tripura

StateCommission

A/9/2017

Cholamandalam M.S General Insurance Company Ltd. - Complainant(s)

Versus

Sri. Raiharan Datta - Opp.Party(s)

Mr. B.Deb, Miss. S.Deb, Miss. P.Roy, Mr. D.Majumder, Miss. A.Bhattacharjee

11 Oct 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.9.2017

 

 

1. Cholamandalam MS General Insurance Co. Ltd.,   
   Represented by its General Manager,

Registered office and Head Office at 
Dare House, 2^nd Floor, No.2,
N.S.C. Bose Road, 
Chennai-600001.

 

2. Sri Mani Sankar Saha,
   The Authorized Signatory of
   Cholamandalam M.S. General Insurance Company Ltd.,
   Teen Sanghi, 2^nd Floor, 
   Akhaura Road, Krishnanagar,
   Agartala, West Tripura.

 

Present Address:

Mantribari Road,

RMS Chowmuhani, Pin-799001.

….    ….    ….    ….    Appellant/Opposite Party Nos.1 & 2.

                   Vs

 

1. Sri Raiharan Datta,
   S/o Late Ramesh Chandra Datta,
   Chhanban, South Tripura,
   P.S. R.K. Pur,
   Udaipur, Gomati.

                                                ….    ….    ….    ….    Respondent/Complainant.

2. Sri Paresh Biswas,
   Proprietor of Maa Bipadnashini Body Builder,
   Kashipur (Cooperative),
   A.A. Road, P.S. East Agartala,
   West Tripura.

                                      ….    ….    ….    ….    Respondent/Opposite Party No.3.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

 

For the Appellant:                                  Mr. Prabal Kumar Ghosh, Adv.

For the Respondent No.1:                       Mr. Pradip Chakraborty, Adv.

Date of Hearing & Delivery of Judgment:        11.10.2017.

 

J U D G M E N T [O R A L]

 

U.B. Saha,J,

The instant appeal is filed by the appellants, Cholamandalam MS General Insurance Co. Ltd. and Sri Mani Sankar Saha, Authorized Signatory of
Cholamandalam M.S. General Insurance Company Ltd. (hereinafter referred to as opposite party nos.1 & 2/Insurance Company) under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 19.08.2016 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 17 of 2016 along with an application for condoning the delay of 167 days in preferring the appeal against the aforesaid judgment.   

2. The delay of 167 days in preferring appeal was condoned by this Commission on 05.08.2017 subject to payment of Rs.20,000/- as cost within a period of one month from the date of order to the complainant through its Ld. Counsel. Accordingly, the appellants paid the amount of cost to the Ld. Counsel of the respondent no.1 (hereinafter referred to as complainant).
3. Today the matter is fixed for admission hearing.
4. Heard Mr. Prabal Kumar Ghosh, Ld. Counsel appearing for the appellant-opposite party nos.1 & 2 as well as Mr. Pradip Chakraborty, Ld. Counsel appearing on behalf of the complainant. None appears on behalf of the respondent no.2, Sri Paresh Biswas, Proprietor of Maa Bipadnashini Body Builder, Kashipur.
5. As agreed to by the Ld. Counsel appearing for the parties, the appeal is taken up for final disposal at this admission stage.
6. Facts needed to be discussed are as follows:-

The complainant, Sri Raiharan Datta filed an application under Section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum against the opposite parties, Cholamandalam M.S. General Insurance Company Ltd. and Sri Mani Sankar Saha, Authorized Signatory of the Cholamandalam M.S. General Insurance Company Ltd. and also against Sri Paresh Biswas, Proprietor of Maa Bipadnashini Body Builder alleging that, he purchased one vehicle, which was insured with Cholamandalam MS General Insurance Company Ltd., opposite party no.1 and the validity of insurance policy was up to 25.09.2015. The insured vehicle met road traffic accident on 08.04.2015 at Maharanipur and it was badly damaged. After the accident of the insured vehicle, the matter was informed to the Officer-in-Charge, Teliamura Police Station and also to the opposite party nos.1 & 2. Spot survey was conducted by the opposite party, Insurance Company and mechanical examination of the said damaged vehicle was also conducted. The General Diary reference of police station and the mechanical inspection report were also communicated to the Insurance Company. Thereafter, the vehicle was shifted into the workshop of the opposite party no.3 Sri Paresh Biswas, Proprietor of Maa Bipadnashini Body Builder for getting necessary repairs of the damaged vehicle. The opposite party no.3 after careful inspection of the damaged vehicle prepared a thorough estimate amounting to Rs.3,28,330/- for necessary repairing of the damaged vehicle. The insurer-opposite parties have also furnished a claim form supposed to be submitted by the complainant along with all necessary vehicular documents together with complaint before the O/C, Teliamura Police Station and also a copy of estimate. The complainant has accordingly, submitted duly filled in the claim form as desired by the opposite party-insurer. The vehicle in question was repaired in the workshop of the opposite party no.3 and accordingly the opposite party no.3 submitted bill after repairing of the damaged vehicle and the opposite party no.3 charged Rs.3,28,330/-. After he received the vehicle, the complainant made his insurance claim bearing claim No.3379138713 to the opposite party insurer, but the opposite party insurer did not entertain the claim of the complainant. Instead of settlement, the complainant received a letter from the opposite party no.2 on behalf of the opposite party no.1. He became astonished after going through the contents of the said letter where the insurance liability was shown only Rs.87,675/-. It is also contended in the complaint petition that thereafter, the opposite party no.2 vide his letter dated 06.08.2015 requested the Manager of the opposite party no.3 to provide some documents and accordingly, as per the requirement of the opposite party no.2, the opposite party no.3 provided all documents as per requirement of the opposite party no.2 by its letter dated 28.08.2015. The complainant again on 16.10.2015 received letter from the opposite party insurer regretting their inability to consider the claim of the complainant on the ground of misrepresentation, but there was no such misrepresentation from the side of the complainant and the claim of the complainant is genuine and based on documents.

7. The Ld. District Forum after receipt of the complaint petition filed under Section 12 of the C.P. Act admitted the same as a complaint case and issued notice upon the opposite parties, but none appeared for the opposite parties. Thereafter, notice was sent to the opposite party no.2 by registered post. As the opposite party no.2 did not appear, the Ld. District Forum presumed that the notice was properly served and proceeded with the case ex parte against the opposite parties. After examining the complainant and considering the documents submitted by the complainant including cash memo given by the opposite party no.3, Maa Bipadnashini Body Builder for Rs.2,42,230/-, another cash memo for Rs.3,28,330/- the Ld. District Forum allowed the complaint petition with the following orders:-

“6. We have also gone through the policy documents, photocopy. On perusal of the policy it is found that total value of the vehicle was Rs.18,88,178/-. Total premium is Rs.37,739/-, so for own damage coverage was about Rs.18 lakhs. From the correspondence of Cholamandalam it is found that they were aware about the accidental damage. Some correspondence in this regard also made. Authorized signatory refused to accept the notice. The company also did not appear to avoid the responsibility. Policy was alive at the time of accident. Its coverage was up to 25.09.15. Accident occurred on 08.04.15. As during the coverage period accident occurred so cost of repairing of the damage is to be paid by the company. Cholamandalam assessed it Rs.87,675/- but assessment report not given. Actual repairing cost as per cash memo is Rs.3,28,330/-. Therefore, we have decided that petitioner is entitled to get this amount from the O.P. petitioner is also entitled to get Rs.10,000/- as compensation for the deficiency of service, cost of litigation Rs.5000/-. Thus, in total petitioner is entitled to get the amount of Rs.3,43,330/- from the O.P. No.1 and 2, Cholamandalam M.S. General Insurance Company Ltd. and  Chola M.S. General Insurance Company Ltd., Mani Sankar Saha, Authorized Signatory. Direct both the O.Ps, Cholamandalam M.S. General Insurance Company Ltd. and Mani Sankar Saha authorized signatory of Chola M.S. General Insurance Company Ltd. to arrange the payment. Authorized signatory received the notice of Cholamandalam M.S. General Insurance Company Ltd.    Therefore, service of notice on O.P. No.2 is    sufficient in respect of service  to Cholamandalam General Insurance Company Ltd. Apart from this Cholamandalam issued several notices, letters to the petitioner and was aware about the fact but they did not appear. Therefore, the direction will be applicable to both O.Ps No.1 and 2. Not to O.P. No. 3. Case is decided accordingly. O.Ps shall pay the amount within 2 months from the date of judgment. If not paid it will carry interest @ 9% P.A.”

8. Mr. Ghosh, Ld. Counsel for the opposite parties while urging for setting aside the impugned judgment submits that the Ld. District Forum passed the impugned judgment ex parte against the appellants without ascertaining as to whether the notice was properly served upon the appellant-opposite parties or not. Therefore, it would be proper to set aside the impugned judgment and in consequent thereto remand the matter before the Ld. District Forum to decide the case afresh providing an opportunity to the appellant-opposite parties to file their written statement and also adducing their evidence. He specifically stated that the notice was not received by the appellant-opposite parties, but they came to know about the case filed by the respondent no.1-complainant after passing of the judgment. 
9. Mr. Chakraborty, Ld. Counsel appearing on behalf of the complainant submits that from the order dated 18.07.2016 passed by the Ld. District Forum, it would be evident that no step was taken by the complainant for service of notice upon the O.P. No.2 but on 02.08.2016 Ld. District Forum in its order mentioned that “Learned advocate for the petitioner present. Notice sent to the O.P. No.2 by registered post. It is presumed that it is served but no step taken. So, case will proceed exparte against the O.P.” and ultimately, as none appears for the O.P. No.1 & 2, the matter was taken up ex parte. Admittedly, the opposite parties did not get opportunity either to cross-examine the complainant or to file their written statement and adducing their evidence, thus he has no objection if the impugned order is set aside and matter is remanded before the Ld. District Forum to decide the case afresh after providing opportunity to all the parties to participate in the proceeding, as the appellant-opposite parties have already paid Rs.20,000/- as cost for condoning the delay.
10. We have gone through the impugned judgment as well as the orders passed by the Ld. District Forum. In the instant case, the complainant filed the complaint petition on 11.02.2016 and the same was admitted on 15.03.2016 and notices were issued upon the opposite parties. From the report of the process server as well as the order dated 29.04.2016, it appears that the wife of the opposite party no.3 refused to receive the notice. Therefore, it can be said so far the opposite party no.3 is concerned, the notice was properly served. But the facts remain that the opposite party no.3 also did not appear in the proceeding. Now, remains as to whether the opposite party nos.1 and 2 received the notice or not. From the order dated 02.08.2016 of the Ld. District Forum, it appears that notice was sent to the opposite party no.2 by registered post and the Ld. District Forum presumed that the notice was served, but no step taken. In the record, there is nothing when the notice was sent to the opposite party no.2 by registered post and no postal receipt is also available in the record of the Ld. District Forum though regarding service of notice upon the respondent no.1, postal receipt of speed post is available.
11. We have considered the entire facts and circumstances and also perused the orders of the Ld. District Forum. In the order dated 18.07.2016 the Ld. District Forum has noted that no step was taken by the complainant for service of notice upon the O.P. No.2 whereas in the order dated 02.08.2016, it was mentioned that the notice was sent to the O.P. No.2 by registered post. Thus the order dated 18.07.2016 and the order dated 02.08.2016 are contradictory to each other. There is no doubt that if the notice was sent by registered post, then after completion of a certain period Court can presume that the notice was properly served, but in the instant case, the Ld. Counsel for the complainant himself stated that after 18.07.2016, the complainant did not take any fresh steps for service of notice upon the respondent no.2, thus the order of the District Forum about sending of notice by registered post has no force.
12. Keeping in view of the above, it can be easily held that the respondent no.2 was not served notice at any point of time and when both the parties agreed to, the matter may be remanded back to the Ld. District Forum to decide the complaint case afresh in accordance with law.
13. We are of the further opinion that the appellants i.e. opposite party nos.1 & 2 should be given opportunities to contest the case filed by the complainant against them by way of filing written statement and adducing their evidence, if so advised.  

In the result, the impugned judgment dated 19.08.2016 is set aside and the matter is remanded back to the Ld. District Forum to decide the case afresh providing an opportunity to the opposite parties for filing their written statement and to cross-examine the complainant and also adduce evidence, if so advised. The opposite party nos.1 and 2 as well as complainant are directed to appear before the Ld. District Forum on 17^th of November 2017. Ld. District Forum shall issue a fresh notice upon the opposite party no.3. No order as to costs.               

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

 

 

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura