Smt. Bandana Roy, President
Brief fact of the case is that the complainant is a businessman and purchased a vehicle with financial assistance of Tamluk Ghatal Co-operative Bank Ltd., Tamluk Branch. The vehicle was hypothecated with the aforesaid Bank.
Further case of the complainant is that the complainant purchased an insurance policy for the vehicle from the opposite party bearing policy no. 150305/31/13/6100010887 which was issued on 05.11.2013. OP issued the policy certificate on 05.11.2013 and the said insurance policy was valid from 05.11.2013 to 04.11.2014 midnight. Complainant stated that on 26.04.2014 after dropping the complainant’s daughter and her husband at Kharagpur Rly. Station at about 4.00 PM the driver of the vehicle parked the vehicle near Mangaldwari stoppage and went for a nature’s call. When he returned he could not find the vehicle at the parking place. The driver then and there informed the complainant and husband of the complainant lodged FIR before Panskura P.S. and u/s 379 IPC the case was started. The complainant intimated the OP about the incident. The criminal case has been ended with a Final Report on 31.08.2014. After the incidence, as per advice of the OP, complainant submitted original key of the vehicle and all papers including policy certificate and final claim form with the OP.
That after lodging of the claim by the complainant, one A. Das was appointed as Investigator of the theft matter and demanded graft of Rs.35000/- from the complainant for submitting a favourable report. As complainant did not pay the same, the said investigator submitted report against the complainant.
Complainant alleged the OP illegally repudiated the claim of the complainant. Hence, the case.
Opposite Party contested the case by filing W/V and denied all the allegations of the complainant. The OP submitted that the complainant availed the insurance policy subject to the strict terms and conditions of the policy certificate in respect of his vehicle bearing Registration no. WB-30K-8339 (Maruti Omni Pvt. Car). According to the OP, the complainant used to ply two vehicles which have been purchased by taking loan from the Bank. Both the complainant and complainant’s husband has no personal income. Investigator reported that the driver of the car left the vehicle leaving the boarded person in the car. It is also alleged that the driver also negligently kept and left the key of the car when he got down from the vehicle. As the terms and conditions are not complied, OP rightly repudiated the claim of the complainant.
Points for consideration
- Whether the complainant is a ‘consumer’ under Consumer Protection Act, 1986?
- Whether the alleged vehicle was used for commercial purpose?
- Whether the complainant is entitled to get relief, as prayed for?
Decision with reason
Point no. 1 and 2
Both issues are taken up together for discussion for the purpose of convenience. OP alleged that the complainant used to use the vehicle for ‘commercial purpose’ and hence complainant’s case is not maintainable in the Consumer Forum. We have perused the policy of insurance filed by the complainant and OP. In the policy it is written that the car has been purchased for private purpose. The vehicle has allegedly been stolen. So, Surveyor’s report that the vehicle ran above 16000 KM is a hearsay evidence. OP could not provide any cogent evidence to show that the complainant used to use the car for commercial purpose. According to the complainant, she and her husband used the car for private purpose. So, we are of the view that the complainant is a ‘consumer’ under the Consumer Protection Act, 1986 and is entitled to file the present complaint.
Both the points are, thus, decided in favour of the complainant.
Point no. 3
Complainant has filed copy of FIR and FRT and complainant started the compliance, on the same day intimated OP which has not been controverted. OP filed a letter, allegedly filed by the complainant. But it appears that the letter is written by the Investigator and though there is signature of complainant and her husband, but the letter started in the name of complainant but not ‘we’. This is very significance and it cannot be ruled out that the OP manufactured this letter. Another copy of the letter dtd. 12.06.2014 filed by the complainant and OP shows that there is ‘blank’ in the place of ‘date’. Forum cannot rely on this type of letter. Surveyor’s report is important, no doubt, but here the report has not been prepared on the basis of any cogent evidence. Complainant has filed affidavit along with copy of FIR, copy of FRT and copy of letter of intimation of the incidence of profit to the OP. It appears that OP has repudiated the claim of the complainant on the basis of presumption but not on basis of any genuine evidence. In view of the aforesaid discussions, we are of the view that the complainant is entitled to get relief in this case.
Hence, it is,
ORDERED
that the complaint case being no. CC/45/2016 be and the same is allowed on contest against the OP. OP is directed to pay Rs.168000/- to the complainant within one month from the date of this order failing which OP will have to pay interest at the rate of 12% per annum till final payment. OP is also directed to pay compensation of Rs.5000/- and Rs.2000/- as litigation cost within one month, in default, OP will have to pay Rs.100/- per day as punitive charges which will be payable to the Consumer Welfare Fund.
Let the copies of the judgement be supplied to all the parties free of cost.
