C.F. CASE No. : CC/2012/53
COMPLAINANT : Tushar Goswami,
S/o T. Goswami,
20 R.N. Tagore Road,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
OPPOSITE PARTIES/OPs : 1) The Branch Manager
National Insurance Co. Ltd.
Krishnagar Branch
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia, PIN 741101
2) Manager,
Magma Finance Corporation Ltd.
Berhampore Branch,
Dist. Murshidabad, PIN 742101
3) Manager,
Bhandari Motors Pvt. Ltd.
1154A, B.T. Road Sukchar
Kolkata - 115
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SHRI SHYAMLAL SUKUL, MEMBER
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 25th October, 2013
: J U D G M E N T :
The instant case was filed by one Sri Tushar Goswami, S/o T. Goswami, a resident of 20, R.N. Tagore Road, P.S. Kotwali, P.O. Krishnagar, Dist. Nadia, against the opposite parties i.e., National Insurance Co. Ltd., Krishnagar Branch and Magma Finance Corporation Ltd., Berhampore Branch and Bhandari Motors Pvt. Ltd., Kolkata with an allegation of deficiency in service.
Shorn off the unnecessary details, the material facts of the present case are: the complainant insured a vehicle, a lorry, bearing the Registration No. WB 23C-1287 in the sum of Rs. 14,50,000/- with the OP No. 1, Insurance Company and the policy was issued by the OP No. 1, Insurance Company on 03.08.11 and it was to remain in vogue up to midnight of 02.11.2012. Unfortunately, the said vehicle met with an accident on 30.04.11 and the said accident did a lot of damage to the vehicle. OP No. 1 Insurance Company was also intimated about this accident. After the receipt of the intimation surveyors were deputed by the OP No. 1 Insurance Company. The complainant claims that he has provide all necessary documents to the OP No. 1 Insurance Company but claim was not settled. On the other hand, the OP No. 1, Insurance Company claim that the Insurance Company asked the complainant to supply some necessary documents, (vide letter No. 154001/Motor OD/PNM dtd. 26th April, 2012, and letter No. 154001/Motor Claim/2012 dated 09.07.12 which were utmost necessary to settle the claim. But the complainant paid no heed to the request of the OP No. 1, Insurance Company rather he appeared this Forum with a hop and filed a petition of complaint under Section 12 of the Consumer Protection Act, 1986, praying for reliefs as stated in the petition of complaint.
Upon notice, the opposite parties entered appearance and contested the case by filing written versions challenging, inter alia, the very maintainability of the case. The opposite parties have got to say that the proceeding is misconceived, malafide, groundless and unsustainable in law as because of claim of the complainant is premature claim. On such ground the opposite parties pray straightway dismissal of the case.
We have heard the ld. Advocate for both sides and have gone through the entire materials available on record.
Ld. Advocate for the parties have raised number of pleas while contesting the claim in present case. However, we are of the view that we need not go into all the pleas urged in support as well as against the claim. Reason being that no final decision have been taken by the insurer / OP No. 1, meaning thereby that it has yet to come to the conclusion whether the complainant / insured is entitled to any claim or not in the fact of its admitted stand that the claim cannot be settled for want of documents being supplied by the complainant.
In this context it is pertinent to state that as long as a claim/petition does not disclose a cause of action it (claim/petition), in stricto sensu, it shall not be a complaint/ plaint as per Or. VII R 1(e) of the Civil Procedure Code and that complaint/plaint shall be rejected (Or. VII R II (a) of the Civil Procedure Code) Or. VII R II (a) states, “ The plaint shall be rejected in the following cases:
- Where it does not disclose a cause of action ……….” In the present case the petition of complaint does not disclose a cause of action and the corollary of that it shall be rejected.
Under the facts and circumstances, we ought not to decide the complaint on its merit as the complaint is premature and does not disclose the cause of action. Cause of action in our opinion would arise in favour of the complainant/insured when the claim was either repudiated or was settled lesser amount than to which complainant / insured felt he was entitled to. None of these situations admittedly arose so as to enable the complainant/insured to maintain the complaint.
The legal position as crystallized by a case, Naresh Chadha v. United India Insurance Company Ltd. II (2011) CPJ 11, of the Hon'ble State Commission, Himachal Pradesh, is clear that a premature complaint should out to be decided, on its merits. It needs to be mentioned here that in the aforesaid case the Hon'ble State Commission (HP) has held that Forum below fell into error by deciding the (premature) complaint on its merits…….. Order passed by District Forum, Kangra, in consumer complaint No. 125/2008 is set aside, as the complaint was premature.
In the present case as the petition of complaint is premature and does not disclose the cause of action the complaint cannot be decided on its merits. Accordingly it is,
Ordered,
that the complainant/insured shall supply necessary documents to the opposite party No. 1 on before 05.11.2013 and thereafter, the OP No. 1 Insurance Company shall take a decision. It is further ordered that in case the complainant/insured is aggrieved from the decision of the OP No. 1/insurer, it will provide him a fresh cause of action to seek redressal of his such grievance before appropriate Forum in accordance with law.
