The Complainant has filed this complaint under section 35 (1) (a) read with section 34 (1) and 34 (2) (b) & (c) of the Consumer Protection Act, 2019 against the O.P. and praying for following Order/ Relief :-

1. Direction against the O.P. to reimburse the complainant a sum of  Rs. 3,61,000/- which the complainant spent in treatment of his broken limbs.
2. Direction against the O.P. to pay a sum of Rs. 10,000/- to the complainant for unfair trade practice.
3. Direction against the O.P. to pay Rs. 10,000/- to the complainant for deficiency in service.
4. Direction against the OP to pay sum of Rs. 10,000/- to the complainant for harassment caused by the OP to the complainant.
5. Direction against the OP to pay a sum of Rs. 5,000/- to the complainant towards the cost of legal proceedings.
6. Direction against the OP to pay the complainant the interest accrued on the awarded amount @ 12 % per annum till actual realization.  
7. Any other relief or reliefs. 

 BRIEF FACTS OF THE COMPLAINT

1. The Complainant is a citizen of India/ he is a consumer as per the provisions of the C.P. Act.
2. That, the complainant met with an accident on 15.08.2020 at about  4 to 4:30 PM near Kanailal Cold Storage on Asian Highway 48, PS Dhupguri, Dist Jalpaiguri / over the incident one Basanta Ray lodged an FIR at Dhupguri PS being Dhupguri PS Case No. 290/2020 dated 15.08.2020 under section 279/304A of the IPC.
3. That, at the relevant time of accident the complainant was riding on his motor cycle bearing No. WB 74- V/ 9650 which was registered at RTO Siliguri / he has valid driving license bearing no. 85955/ KOJ/ NT  valid upto 05.04.2036 issued by RTO Kokrajhar Assam .
4. That, the Motorcycle of the complainant was insured vide policy no. OG-21-9906-1806-0000334952 issued by the OP Insurance Company having coverage from 17.06.2020 to 16.06.2021 and at the time of accident the insurance policy was valid and effective.
5. That, as per IRDA guidelines owner driver is compulsorily covered under all the two wheeler policies and the complainant in this case is owner driver of his motor cycle bearing no. WB 74 V 9650 
6. That the complainant was seriously injured/ he was admitted at Santi Swasthyalay and Anusandhan Kendra, Siliguri from 16.08.2020 to 29.08.2020 as impatient and follow up treatment is still going on.
7. That the complainant spent a sum of Rs. 3,61,000/- for his treatment at Santi Swasthyalay and Anusandhan Kendra, Siliguri from 16.08.2020 to 29.08.2020.
8. That the complainant received notice dated 30/03/2021) on 12.04.2021 from the investigator on behalf of the OP company stating that, an application being MACC Case No. 397/2020 before the Motor Accident Claim Tribunal at Jalpaiguri filed by Shyama Roy on the death of one Tapan Roy , who died in the accident on 15.08.2020 near Kanailal Cold Storage.
9. That the complainant received a notice dated 01.04.2021 on 23.04.2021 from the OP Insurance Company which was similar to the earlier notice and asked for several documents to be submitted within 15 days although it was stated that , an application , being MACC No- 305/2000 was filed before the Motor Accident Claims Tribunal at Jalpaiguri . .
10. That the complainant was un-aware that, every insurance company follows a timeline within which the insured person has to intimate the company about the loss and file the claim, rather the complainant assumed that, he can file a claim application whenever he wants and thus owing to the treatment as well as owing to lockdown the complainant stayed at home and could not file his claim / the delay was genuinely disclosed as the complainant was injured and underwent prolonged treatment for his damaged limbs and that’s why he could not managed to inform OP company.
11. That the complainant was not able to intimate the OP Company immediately after accident but informed the OP at the earliest and also submitted proof regarding the cause of delay / the OP and his company received the intimation on 06.09.2021 did not contact the complainant and thereafter the complainant on 16.10.2021 sent a notice through Ld. Advocate to the OP through Speed Post and the complainant on several occasion went to the OP but of no result and the OP was very much reluctant to reimburse the amount claimed by the complainant / the complainant suffered mental torture, financial losses and harassment in order to bear additional expenses in the interest of future prospect of being reimburse.
12. The complainant alleged that the OP indulged in unfair trade practice because they compelled the complainant to pay the subscription for the insurance but has deliberately withheld to provide proper service.
13. That the complainant is legally entitled to recover the expenses incurred along with compensation as well as damages for causing the complainant harassment due to the irrational act of the OP.
14. That the cause of action for filing the complaint firstly arose on 16.06.2020 when the complainant took the insurance policy from the OP insurance company, thereafter on 15.08.2020 when the complainant was seriously injured in a road traffic accident and was admitted at Santi Swasthyalay and Anusandhan Kendra, Siliguri, thereafter on 12.04.2021 on receipt of notice dated 30.03.2021 from Sri Bappa Manna investigator of the OP Insurance company, thereafter on 23.04.2021 receipt of notice dated 01.04.2021 from the OP Insurance Company and lastly on 06.09.2021 when the intimation of the complainant was duly delivered to the OP but they did not contact with the complainant and the same is still continuing.

To prove the case the Complainant has filed the following documents by making a firisty :-

1. Photocopy of Formal FIR in connection with Dhupguri PS Case No. 290/2020 dated 15.08.2020 ( Annexure 1)
2. Photocopy of driving license valid upto 05.04.2036 issued by RTO Kokrajhar, Assam (Annexure 2).
3. Photocopy of policy no. OG-21-9906-1806-00034952 issued by OP Insurance Company having coverage from 17.06.2020 to 16.06.2021 (Annexure 3)
4. Photocopy of admission and treatment at Santi Swasthyalay and Anusandhan Kendra, Siliguri from 16.08.2020 to 29.08.2020 (Annexure 4).
5. Photocopy of notice dated 30.03.2021 received on 12.04.2021 from the Sri Bappa Manna, Investigator on behalf of the OP Insurance Company. (Annexure 5).
6. Photocopy of notice dated 01.04.2021 received on 23.04.2021 from OP Insurance Company (Annexure 6)
7. Photocopy of intimation to the insurance company by the complainant on 03.09.2021 delivered on 06.09.2021 (Annexure 7).
8. Photocopy of notice through Ld. Advocate on behalf of complainant sent through speed post on 16.10.2021 to the insurer.

Notice was issued from this Commission for servicing the same upon the O.P. and on receiving the notice the O.P. appeared before this Commission through Vokalatnama, filed written version. The O.P. in his written version has denied all the material allegations of the complainant and has stated that, the instant complaint case is not maintainable either in law or facts / the case is barred by principle of estoppels, waiver, acquiescence / the case is barred by law of limitation / the complainant has no cause of action against the O.P. for which the case is liable to be dismissed. The OP has also stated that, the complainant had taken a Liability only Policy vide policy no. OG-21-9906-1806-00034952 and a claim for personal accident is not covered in the said policy and thereby the complaint is liable to be dismissed / as per terms and conditions of the policy information of any incident must be given to the insurer within 24 hours and not later than 72 hours but the complainant in the instant case did not intimate the fact to the OP and has violated the terms and conditions of the insurance policy and thereby the complainant is not entitled to get any relief as prayed for / the complainant has filed this case by suppressing the material facts / the case is speculative, vexatious, malafide and bad for non-joinder of necessary party / the present dispute involves serious and complicated questions of law as well as facts which has arisen out of the contract between the insurer and the insured and the same cannot be decided by a summary proceeding but are to be decided in a regular trial in a competent court by voluminous evidence and this Commission has no jurisdiction to entertain the present case/ there was no negligence of service on the part of the OP / the complainant is not a consumer under the provision of the CP Act / the complainant has no locus standi to file the case / the compensation for loss sustained in an accident involving any motor vehicle are governed by the provisions of the Motor Vehicle Act and Rules framed there under and thus this forum has no jurisdiction to adjudicate the present dispute. The OP Insurance company did not admit the statements made in para no. 1 to 5 of the complaint , and the OP denied the allegation of the complainant regarding the accident which was allegedly taken place on 15.08.2020 / the statements made in the para no. 6 and 7 of the complaint it is stated that, the OP Insurance Company had issued the Liability only policy subject to specific terms and conditions as stipulated therein and if any insured suffered or sustained loss he needs to be intimated to the insurer immediately within 24 hours and not beyond 72 hours of the date of loss. The OP Insurance Company has further denied the statements made in para no. 8 to 17 and has stated that, those statements are cleverly engineered for the purpose of the vexatious and malafide case and the allegations are absolutely false which the complainant is bound to prove the same. The OP has further stated that, the complainant intimated the alleged incident on 03.09.2021 where as the loss if any sustained by him relate back to 15.08.2020 so the right of the opposite party to investigate on spot the alleged accident and the alleged injuries in order to unveil the truth / actual loss, immediately on happening of an incident curtail owing to in action on the part of the complainant which also violates the terms and condition of the policy. The OP has further stated that, there was no cause of action for filing of this case by the complainant and for which the OP is not liable to pay any compensation to the complainant as there was no deficiency in service on the part of the OP.

To falsify the case of the complainant the OP insurance company filed the copy of insurance policy being no. OG-21-9906-1806-00034952 (Annexure A).

Having heard, the Ld. Advocate of both the sides and on perusal of the complaint filed by the Complainant, Written Version filed by the O.P. and on perusal of documents /other materials in record filed by both the parties the following points are taken to be considered by this Commission.

Points for consideration :-

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the Consumer Protection Act 2019?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Whether the Complainant is entitled for the relief sought?                           

 Decision with reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

In order to prove the case the complainant himself has filed examination in chief in the form of an affidavit. He also filed brief notes of argument and also filed the documents which are already annexed with the complaint petition. In the written deposition as well as in its brief notes of argument the complainant has specifically corroborated the contents of his complaint and the complainant has stated in his deposition that he is a consumer of the O.P. and from the documents submitted by him which is crystal clear or evident for the acts or omissions of the O.P. with fault, unfair trade practice, deficiency in service causing mental pain, sufferings, agony, financial harassment. The complainant in his written evidence as well as in his written argument has also stated  on which day he purchased the insurance policy from the OP Insurance Company and also stated the validity period of that policy. He also corroborated on which day the complainant met with an accident and was admitted in the hospital and also stated on which day he was discharged from the hospital and further corroborated how much amount of money he incurred for the purpose of his treatment. By filing  evidence on affidavit the complainant has also stated / corroborated the contents of the complaint regarding issuance of legal notice upon the OP  and also explained why delay was caused to give intimation to the insurer which was due to his injury as well as prolonged treatment for his damaged limbs.

At the time of argument Ld. Advocate of the complainant submits that, the complainant has been able to prove this case against the OP insurance company not only by filing written evidence in the form of an affidavit but also by filing some documents before this Commission. Ld. Advocate of the complainant further argued that, the complainant intimate the fact of accident to the OP Insurance Company and also produced documents on 03.09.2021 but despite receiving intimation on 06.09.2021 the OP did not pay any heed to that and also ignored the legal notice dated 16.10.2021 and the complainant has also been able to prove the fact that, on several occasions he went to the OP but the OP Insurance Company was very much reluctant to reimburse the claim of the complainant and for which he suffered mental torture, financial losses as well as harassments and thereby the OP indulged unfair trade practice. At the time of argument Ld. Advocate of the complainant referred decisions reported in 2023 (3) T.A.C 706 (S.C) in Hem Raj VS New India Assurance Co. Ltd. and also filed all general insurance (except ECGC, AIC and Stand-Alone Health Insurers) & Decision of Writ Petition (Civil) No. 295/2012 in the case of S.RAJASEEKARAN Versus UNION OF INDIA AND OTHERS dated 20.07.2018 and also filed Compulsory personal accident- stand alone policy. By referring those decisions Ld. Advocate of the complainant submits that in case of third party insurance the owner of the vehicle who sustained injuries and incurred monetary loss due to medical treatment is entitled to get reimbursement of the amount which he incurred.

To falsify the case of the complainant the OP Bajaj Allianz General Insurance Co. Ltd. filed written deposition in the form of an affidavit. In the written deposition the OP has corroborated the contents of their written version and has also stated that, by suppressing the actual fact the complainant has filed this case to extort compensation amount by causing monetary loss to the OP and for wrongful gain of the complainant. The OP in his written evidence has further stated that, the complainant has violated the terms and conditions of the insurance policy documents and the policy in question is only for liability and the complainant had not filed / lodged any complaint before the OP within 24 hours but not later than 72 hours.

At the time of hearing of argument Ld. Advocate of the OP Insurance company submits that, the complainant has not been able to prove the case against the OP and knowing fully well aware regarding the terms and conditions of the insurance policy documents. He also argued that the complainant has filed this case with an ulterior motive though no cause of action had arising for filing of the instant case.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, W/V, documents filed by the parties including their evidence it is admitted fact that, the complainant had purchased insurance policy from the OP. It is also admitted fact that, within the effective period of the policy the complainant met with an accident. But from perusal of the Annexure A which is the insurance policy issued by the OP Insurance Company it reveals that, the policy was issued as liability only policy for the two wheeler which was also issued only on receiving premium of Rs. 1193/-  for total own damage premium. It is settled provisions of law that, The Liability only Policy only covers third party loss, subject to the terms and conditions of the said policy. In the case in hand it is admitted by the complainant that, he filed the policy document as Annexure -3. From the said policy document it is very much clear that the said policy is meant only as “Liability only policy for two wheeler Certificate cum Policy Schedule”.

It is also not the case of the complainant that he purchased the policy not only for the Third Party Liability but also covers personal accident.

Moreover, from the Annexure-3 (Insurance Policy Certificate) it reveals that the Complainant has only paid premium for basic Third Party Liability. By making payment of premium only for Third Party liability how the Complainant is claiming benefit for own injury is not explained in his Complainant/evidence. If Third Party Policy would covers Third Party liability as well as owners liability then, no one will purchase first Party liability policy/comprehensive policy.

As per terms and condition of the policy if any accident occurs the information of any accident need to be given to the insurer within 24 hours, not later than 72 hours. But in the case in hand the incident of the alleged accident was taken place on 15.08.2020 and the Complainant intimated the fact to the insurer 03.09.2021 which is clear violation of the terms & condition of the policy and that’s why the Complainant being the insured will have no right to claim for reimbursement of the Medical Expenditure from the insurer.

The decision referred by the Complainant is not applicable to the facts and circumstances of this case.

Considering all we are of the view that the Complainant has not been able to prove its case against the O.P.

Hence, it is therefore,

 O R D E R E D

That the instant Consumer Case being in No. 69/2022 is hereby dismissed on contest but without any cost. 

Let a copy of this Judgement be given to the parties free of cost.