Tripura

StateCommission

A/31/2018

M/S. Cholamandalam MS General Insurance Company Limited. - Complainant(s)

Versus

Sri. Raiharan Datta - Opp.Party(s)

Mr. Prabal Kr. Ghosh

06 Apr 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.31.2018

 

1. M/s Cholamandalam MS General Insurance Company Limited,

Registered Head Office at Dare House,

2^nd Floor No. 2, N.S.C. Bose Road, Chennai-1, 

Represented by its Manager (Legal Claims),

A.K. Road, Mantri Bari Road Extension,

P.S. West Agartala, District - West Tripura,

Pin: 799001.

… … … … … Appellant/Opposite Party No.1.

Vs

 

1. Sri Raiharan Datta,

S/o Late Ramesh Ch. Datta,

Resident of Chhanban, 

P.S. R.K. Pur, Udaipur,

District - Gomati, Tripura.

… … … … … Respondent/Complainant.

2. Sri Paresh Biswas,
   Proprietor of Maa Bipadnashini Body Builder,
   Kashipur, P.S. East Agartala,
   District - West Tripura.

… … … … … Respondent/Opposite party No.3.

 

3. Sri Mani Sankar Saha, General Manager,
   Authorized Signatory of
   Cholamandalam M.S. General Insurance Company Ltd.,
   Teen Sangee, 2^nd Floor, Akhaura Road (Mantribari Road),

P.S. West Agartala, District - West Tripura,

Pin: 799001.

… … … … … Respondent/Opposite party No.2.

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

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

For the Respondent/Complainant:                  Mr. Sagar Banik, Legal Aid Counsel.

For the Respondent No.2:                                In person.

For the Respondent No.3:                                Absent.

Date of Hearing & Delivery of Judgment:     06.04.2019.

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

 

U.B. Saha, J,

The instant appeal is filed by the appellant, Cholamandalam MS General Insurance Company Ltd. (hereinafter referred to as opposite party nos.1/Insurance Company) under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 23.05.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 17 of 2016 whereby and whereunder the learned District Forum allowed the complaint petition and held that the petitioner (hereinafter referred to as complainant), the respondent no.1 herein, is entitled to get Rs.2,69,000/- out of which Rs.2,44,000/- was allowed for repairing of the vehicle and Rs.15,000/- as compensation for deficiency in service and Rs.10,000/- for cost of litigation. Payment is to be made within two months, if not paid; it will carry interest @9% per annum. Appellant has also filed an application for condoning the delay of 80 days in preferring the appeal, which was allowed by this Commission subject to payment of Rs.10,000/-.

2. Heard Mr. Prabal Kumar Ghosh, Ld. Counsel appearing for the appellant-opposite party no.1 as well as Mr. Sagar Banik, Ld. Legal Aid Counsel appearing on behalf of the complainant. Respondent no.2, Sri Paresh Biswas (hereinafter referred to as opposite party no.3) appears in person. The respondent no.3 (hereinafter referred to as opposite party no.2), Sri Mani Sankar Saha filed an application before this Commission for deleting his name from this case which was rejected by this Commission and thereafter, he did not appear/participate in the case.
3. 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 learned District Forum against the opposite party no.1, Cholamandalam M.S. General Insurance Company Ltd. and opposite party no.2, Sri Mani Sankar Saha, Authorized Signatory of the Cholamandalam M.S. General Insurance Company Ltd. and also against the opposite party no.3, Sri Paresh Biswas, Proprietor of Maa Bipadnashini Body Builder alleging that, he purchased one vehicle, which was insured with the Insurance Company, the opposite party no.1 and the validity of insurance policy was up to 25.09.2015. The insured vehicle met with an 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 no.1 and 2 i.e. the Insurance Company and its Authorised Signatory, Sri Mani Sankar Saha. 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 the 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 opposite party-Insurance Company has 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 submitted duly filled 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 with 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 vide 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.

4. The learned 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 learned 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 learned 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.”

5. Thereafter, the opposite party-Insurance Company preferred an appeal against the ex parte judgment dated 19.08.2016 passed by the learned District Forum and this Commission after hearing the parties, set aside the ex parte judgment dated 19.08.2016 and the matter was remanded back to the learned 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 to adduce evidence, if so advised. The opposite party no.1 and 2 as well as complainant were also directed to appear before the learned District Forum on 17.11.2017 and the learned District Forum shall issue a fresh notice upon the opposite party no.3.
6. After remand, the learned District Forum allowed the opposite parties to file their respective written statement and adduce evidence. Accordingly, the opposite party no.1 and 2 filed their objection against the complaint petition wherein the opposite party no.1 and 2 admitted the accident of the vehicle of the complainant and also the survey which was conducted by the opposite party-Insurance Company and the mechanical examination done regarding the said damaged vehicle, but denied regarding the estimate submitted by the complainant wroth Rs.3,28,330/- for necessary repairing of the damaged vehicle. It is also the case of the opposite party-Insurance Company that on 02.07.2015, the complainant was informed to provide the driving license of the driver of his vehicle, but he did not respond, thus he is not entitled to get any amount for the accident of his vehicle.
7. The learned District Forum examined one Sri Kohinoor Mistry, Surveyor of the opposite party-Insurance Company as O.P.W.1 and Sri Paresh Biswas, the opposite party no.3, who has submitted his examination-in-chief, but did not file any written statement. Both the OPWs were cross-examined. Thereafter, the learned District Forum considering the evidence on record passed the impugned judgment.    
8. Mr. Ghosh, Ld. Counsel for the opposite party no.1-Insurance Company would contend that the impugned judgment is liable to be set aside on the ground that the learned District Forum did not consider the evidence on record properly. He further submits that though the opposite party no.3, Sri Paresh Biswas, the owner of Maa Bipadnashini Body Builder, in his affidavit-in-chief specifically stated that Sri Raiharan Datta, complainant had requested him to issue blank cash memo and letter head with his signature for the purpose of claiming some bills, but neither the amount nor the representative of Branch Manager, Cholamandalam M.S. General Insurance Company Ltd. was written by him and not only that, he did not issue any bill in his letter head and the signatures contained in those bills in his letter head are not of him. He has again contended that the learned District Forum considered some cash memos without any proof. He has finally contended that the complainant did not approach to the learned District Forum with clean hand.
9. Mr. Banik, Ld. Legal Aid Counsel appearing on behalf of the complainant while supporting the impugned judgment would contend that the learned District Forum considered the bills provided by the opposite party no.3, Sri Paresh Biswas as well as the cash memos relating to the parts purchased by the complainant, thus no interference is called for. He further submits that the complainant has no knowledge who has written in the cash memos/bills supplied by the opposite party no.3, but the same was handed over by the opposite party no.3 to the complainant.
10. Sri Paresh Biswas, opposite party no.3 appearing in person has specifically submitted that the bills in his letter head as submitted by the complainant is not provided by him, but he has admitted that the blank cash memos/bills were provided by him to the complainant. He also submits that the alleged signatures in the cash memos and letter dated 28.08.2015 addressing to the Manager Claim of the Insurance Company are not of him.
11. We have gone through the impugned judgment as well as the evidence on record. When the cash memos/bills submitted by the claimant-complainant are in disputes particularly when the opposite party no.3 specifically stated that those are neither written by him nor issued by him, then how the learned District Forum came to the conclusion regarding the genuineness of the cash memos/bills regarding expenditure amounting to Rs.3,52,981/-. Neither the cash memos were proved nor those were exhibited. More so, the cash memos/bills in the letter head of Maa Bipadnashini Body Builder are Xerox copies and the signature of the issuing authority of the bills are in English whereas the signature of the opposite party no.3 in his examination and cross-examination are in Bengali and totally different than the signatures in the letter head and cash memos/bills. According to us, the learned District Forum ought to have considered the aforesaid aspect while passing the impugned judgment. 

In view of the above, we are of the considered opinion that the learned District Forum failed to decide the case in its true sense. Thus the impugned judgment is set aside and the case is remanded back to the learned District Forum to decide the case afresh considering the facts as stated above, particularly, regarding the genuineness of the bills as well as the authenticity of the signatures of the opposite party no.3 as claimed by the complainant. Parties are directed to appear before the learned District Forum on 20.04.2019. Learned District Forum shall issue a fresh notice upon the opposite party no.2 and 3. No order as to costs.

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