IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

             CASE No.  CC/16/2019.

 Date of Filing:                    Date of Admission:                Date of Disposal:

     30.01.19                                      12.02.19                                 23.10.19

Complainant: Protiva Sen

                        W/o Late Swapan Kr. Sen

                        Vill&PO-Fatepur, PS-Barwan

                        Dist-Murshidabad, Pin-742130

-Vs-

Opposite Party: 1.The Branch Manager, National Insurance Co. Ltd.

                        26/23/1 S.S. Sen Road,

PO&PS-Berhampore,

Dist-Murshidabad,

Pin-742101

                          2. The Regional manager/I.C

National Insurance Co. Ltd.

3 Middletan St.

Kolkata-71

Agent/Advocate for the Complainant            : Sri. Chandan Ch. Saha

Agent/Advocate for the Opposite Parties      : None

  Present: Sri Asish  Kumar Senapati………………….......President.                              

                                             Smt. Aloka Bandyopadhyay……………………..Member.

                                     FINAL ORDER

 Asish Kumar Senapati, Presiding Member.

            One Protiva Sen (here in after referred to as the Complainant) filed the case against the  Branch Manager, National Insurance Co. Ltd. and another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.

   The sum and substance of the complaint case is as follows:-

            The Complainant filed the case against the OPs alleging that her husband Swapan Kr. Sen died on 08.09.05 when he had a Motor Cycle Insurance Policy being No. 154000/31/05/620004075 for his motor cycle being No. WB52A2604. That in spite of receiving the notice dated 23.09.05, 18.11.15 and 17.05.17, the OP No. 1 did not pay any heed to it and did not pay the death benefit amounting Rs.1,00,000/- to the Complainant. Hence, the Complainant has filed the case against the OPs praying for compensation of Rs.1,00,000/- as death benefit of her husband against the OPs. The OPs did not turn up in spite of service of notice.

            On the basis of the above version the following points are framed for proper adjudication of the case :

Points for consideration

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

3. Have the OPs any deficiency in service, as alleged?

4. Is the Complainant entitled to get any relief, as prayed for?

Point no.1

The Ld. Advocate for the Complainant submits that the Complainant is a consumer being legal heir of her husband Swapan Kr. Sen who hired services of the OPs for consideration.

On going through the complaint, written version and other materials on record and on a careful consideration over the submission of the Ld. Advocate for the Complainant, we find that the Complainant is a consumer in terms of section 2 (I )(d) (ii) of the C.P.Act, 1986.

Point No.2

The Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.

On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint.

Point Nos.3&4

            The Ld. Advocate for the Complainant submits that Swapan Sen died on 08.09.05 when he along with his friend Rohit Kr. Mondal were taking tea by parking their Motor Cycle on 07.09.05 at about 2.45 P.M. at Bahadurpur crossing when two vehicles being Nos. WB65/7038 and WB02J/0533 dashed together causing damage of two motor cycles being registration Nos.  WB52A/2604  and WB58C/9049 and also caused death of Swapan Sen. It is contended that the Complainant received the insurance policy through her advocate in March’17 and lodged the claim on 17.05.17 praying for death benefit of Rs.1,00,000/- but the OPs did not pay any heed to it. He contends that Swapan Sen was the owner of motor Cycle No WB52A/2604  having Insurance covering personal accident of Rs. One lakh. .It is urged that the OPs have deficiency in service and the Complainant is entitled to get Rs.1,00,000/- for death benefit as the owner of the motor cycle was covered under Personal Accident Policy amounting Rs.1,00,000/-.

            Perused the written complaint and documents filed by the Complainant. We have also considered the evidence submitted by the Complainant. According to the Complainant an FIR was lodged by one Rohit Kr. Mondal on 07.09.15 alleging that he along with his friend Swapan Kr. Sen were taking tea in a road side tea stall at bahadurpur crossing by parking their motor cycles being registration Nos.  WB52A/2604  and WB58C/9049 on 07.09.15 at about 2.45 P.M. when two vehicles being No. WB0250533 and WB65/7038 dashed together causing  damage of two motor cycles being Nos. WB52A2604 and WB58C9049 and bodily injury of Rohit Kr. Mondal  and Swapan Sen , subsequently, Swapan  Sen succumbed to his injury. Police investigated the case and submitted the charge sheet against the drivers of the offending vehicles U/ss 279/ 338/427/304 (A) IPC. Now the question is whether the OPs, the Insurer of vehicle No. WB52A/2604 has any deficiency in service  and whether the Complainant is entitled to get any compensation from the OPs.

            On a careful consideration we find that motor cycle No. Wb52A/2604 was parked by the side of a tea stall near Bahadurpur Chowrasta at about 2.45 P.M. on  07.09.05 and Swapan Kr. Sen met an accident causing his death due to rash and negligent driving of vehicle Nos. WB65/7038 and WB02J/0533. It is clear from the documents filed by the Complainant that the vehicle No. WB65/7038 and WB025/0533 were responsible for death of Swapan Kr. Sen. It is not the case of the complainant that Swapan Sen died of an accident when his Motor Cycle was in use. Therefore, we do not find any deficiency in service of the insurer of vehicle No. WB52A2604 as motor cycle No. WB52A2604 was not in use at the time of accident of Swapan Kr. Sen. The Complainant may lodge complaint before the appropriate Motor Accident Claims Tribunal for compensation due to death of her husband Swapan Kr. Sen if she so desires and if it is not barred by law. We think that the Complainant is not entitled to get any relief against the OPs.

Reasons for delay

The Case was filed on 30.01.19 and admitted on 12.02.19 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

Fees paid are correct.

In the result, the complaint case fails. Hence, it is

                                    ORDERED

that the Consumer Complaint Case NO. CC/16/2019 be and the same is hereby dismissed ex-parte against the OPs without cost.

Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

Dictated & corrected by me.

          President

  Member                                                                                                   President.