The brief facts of the complainant case, is that, the complainant is the permanent resident of Alipurduar district and the complainant is the owner of one vehicle bearing No. WB73C-4743. Complainant was covered a policy of the said vehicle bearing policy No. OG-18-2404-1811-00000576 of the O.Ps company and the policy was covered from 17/02/2018 to 16/02/2019 midnight. On 06/12/2018 at about 9:00 P.M. the said vehicle took accident on the road where the vehicle was standing. One reckless bike hit the said vehicle which is standing on the roadside and one Pratap Tirkey died on spot and the said vehicle was sustaining heavy loss and damaged badly. Regarding this matter one Hiramuni Tirkey lodged FIR and PS Case No. 144/2018 dated 10/12/2018 before Birpara Police Station was started. Thereafter, the complainant inform the matter to the company agent namely Manoj Kumar Sharma over telephone on 07/12/2018. After investigation of the company, complainant repaired the said vehicle an incurred expenses of Rs. 1,10,155/-. Since then the complainant submitted claim petition, vide claim No. OC-19-2404-1811-00000029 Dated – 10/12/2018. Complainant was visited the Regional Office of the O.Ps several times but the O.Ps repudiated the claim by sending the letter dated – 25/02/2019. The complainant has filed this complaint for deficiency in service and for making claim of Rs. 1,10,155/- along with the litigation cost of Rs. 5,000/-.
The O.P Nos. 1 and 2 filed their written version and denying all the materials allegations made by the complainant. The specific case of the O.Ps is that the complainant is the policy holder bearing Policy No. OG-18-2404-1811-00000576 for a period of one year which starting from 17/02/2018 to 16/02/2019. The complainant filed a claim petition before then for expenses of his vehicle which was damaged due to an accident but the said information was received on 29/12/2018 although according to the terms of condition it was required to be informed immediately after the accident. The specific case of the O.Ps is that the vehicle (JCB) was standing on the roadside and at the time of one bike negligently, rashly dashed the alleged standing vehicle of the complainant and one Pratap Tirkey was died on spot, the complainant has stated in his petition like this. But one FIR was lodged by Hiramuni Tirkey, the mother of the deceased before the local police station in which it was written by her that her son was going to Birpara with his friends and at that time one JCB car rashly came there and pushed her son and he died on the spot. So, according to the O.Ps the facts are totally different the complainant has suppressed all the facts before this Commission and for that reason his claim was repudiated. There is no merit in this case. The complainant made the false statement. They have prayed for dismissal of the case.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Is there any cause of action to file this case against the O.Ps?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
Both the parties file their evidence-on-affidavit. O.P Nos. 1 and 2 also filed the Xerox copy of some documents. O.P Nos. 1 and 2 have filed the written argument on their behalf but the complainant did not file any written argument and the Ld. Advocate of the complainant argued the case orally.
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 35 of the Consumer Protection Act, 2019 by the complainant.
Point Nos. 1, 2 and 3:- In this case it is an admitted position that the complainant is a policy holder with the O.Ps for his JCB vehicle bearing Registration No. WB73C-4743 and the said policy was covered from 17/02/2018 to 16/02/2019. So, according to the Consumer Protection Act, 2019 the complainant is the consumer within the specific period of policy time and there is no hesitation to hold the same. The complainant resides within the jurisdiction of this Commission and O.P Nos. 1 and 2 runs their business through his agent O.P No. 3 within the jurisdiction of this Commission so as per the C.P. Act, 2019 this Commission has the jurisdiction to try this case. Regarding cause of action the alleged accident was taken place on 06/12/2018 at about 9:00 P.M. within the jurisdiction of this Commission and the complainant has claimed insurance relief for damage of this vehicle. So we find that there is a cause of action of filing of this case.
Point Nos. 4 & 5:- The case of the complainant is that on 06/12/2018 while his vehicle bearing No. WB73C-4743 was standing by the side of a road and one motor cycle came there and rashly dashed his vehicle. As a result one Pratap Tirkey was died on the spot and the vehicle was badly damaged. The FIR was lodged and he informed the matter to the O.P No. 3 who is the agent of the O.P Nos. 1 and 2 regarding the said accident over telephone on 07/12/2018. The complainant has the Xerox copy of the formal FIR as well as the written FIR which was on the formal FIR is (Annexure – 1), Insurance policy (Annexure – 2), Payment of cost (Annexure – 3 and 4), Driving license (Annexure – 5), RC Registration (Annexure – 6), Repudiation Letter (Annexure – 7) and Reply of repudiation Letter (Annexure – 8). The O.Ps has straightly denied that no motor cycle was dashed to the vehicle of the complainant rather the vehicle of the complainant made an accident on the spot and one Pratap Tirkey died on spot. After perusal of the written complaint we find that the mother of the deceased lodged the written FIR before the Birpara Police Station wherein he has stated that “HAMARA LADKA DOST KE SATH BIRPARA SE GHAR PAIDAL JA-RAHA THA ….EK JCB GARI TEJ SE DHAKKA MARKE GIRA DIYA AUR MERE LAKDA KA MAUT HO GAYA”. So, according to the statement of Hiramuni Tirkey, the mother of the deceased it is clear that the vehicle of the complainant met an accident on 06/12/2018 and due to that accident his son Pratap Tirkey died on the spot. There is no whisper of the said written FIR regarding the story of motor cycle as stated by the complainant. It also appears that the complainant did not file any written complaint or FIR before the police station regarding the accident caused by the motor cycle to his vehicle rather he relied on the FIR lodged by the mother of the deceased. So from the FIR the story of motor cycle is totally absent. On the other hand it appears from the FIR that it was lodged against the driver of vehicle (JCB) bearing No. WB73C-4743 that is the driver of the vehicle of the complainant. It also appears from the documents filed by the O.P Nos. 1 and 2 that the drive of the complainant Ajay Oraon was surrendered before the court of law against the FIR of Birpara PS Case No. 144/18 it also appears that the vehicle of the complainant was seized by the local Police Station and it was released on the basis of the court order of law by executing bond of Rs. 20 lakh in favour of Ganesh Sharma. So, from all this documents we find that the vehicle of the complainant made an accident on that date as a result one person was died. The FIR was lodged against the offending driver of the offending vehicle of the complainant. Police seized the offending vehicle from the spot and the driver of the complainant was surrender before the court of law. We never find any materials regarding the presence any of the motor cycle which was allegedly dashed the vehicle of the complainant on that date. If the motor cycle dashed the vehicle of the complainant then why the complainant was silent regarding the matter without lodging any FIR before the local Police Station.
Considering this facts we find that the complainant has filed a false case before this Commission suppressing all the material facts which was actually done on that date on the spot for getting some benefits from the insurance company. The complainant did not file this case in clean hand he has misleading the Commission by making false statement. The O.Ps are rightly repudiated the claim of the complainant due to their false allegation and claim. The complainant is not entitled to get any benefit from this false case. The case should be dismissed.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is dismissed on contest against the O.Ps without costs.
Let a c opy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me-
