This appeal is directed against the final order of Ld. DCDRF, siliguri dated 11.05.2022 in CC No. 34/2022.
This CC No. 34 of 2022 was registered on 27.04.2022 and it was placed on 11.05.2022 for admission hearing.
On the admission hearing stage on 11.05.2022 Ld. Forum has rejected the consumer complaint under the provisions of sec 36 of CP. Act, 2019.
Being aggrieved with the order this appeal follows.
The appeal has contested by the OP/respondent New India Assurance Co. Ltd. Through Ld. Legal Counsel.
Ld. Advocate. S. Gupta and other has represented the appellant in hearing whereas Ld. Advocate Mrs. S. Sanyal has participated in the hearing on behalf of respondent. Both parties submitted WNA.
Decision with Reasons
The consumer case is very short from is that the appellant is the registered owner of the vehicle which was covered by 1st party insurance after making payment of annual premium to the respondent. During the policy period, the appellant on 27.08.2020 provided the vehicle on rent to one Chotelal Mohato who has sold out the vehicle to a person unknown to the appellant and misappropriated the sale price. So, the appellant registered a case against said Chotelal U/S 406/506 IPC which is under investigation by police.
In the meantime, he raised insurance claim which was repudiated by insurance company. So this case.
During the course of hearing, Ld. Advocate of the appellant mentioned that the Appellant/Complainant kept visiting the Respondent/Opposite Party to request him for redressal of his insurance amount through he declined his request firmly. At last, the Appellant/Complainant has to beg before Respondent/ Opposite Party for the insurance amount.
That the finance company has started to pluck pressure upon the Appellant/Complainant for the payment of his piling up EMI's. This is not the only loan he has to pay. To continue his livelihood, he has to borrow money from other sources. It is needless to say that he could not be able to pay the EMI unless he gets his insurance money.
That the Appellant/Complainant bought insurance from the Respondent/Opposite Party which made him a "Consumer as defined under Section 2(7)(ii) of the Consumer Protection Act, 2019 That the Respondent/Opposite Party is duty-bound to provide services to the consumer as mentioned under section 2(42) of the Consumer Protection Act, 2019. But the Respondent/Opposite Party is denying to do so by showing some unjustified reasons.
That being a consumer Appellant/Complainant should have the Opportunity to proof the legal liability of the Respondent/Opposite Party.
It is humbly prayed before this Hon'ble Commission to kindly grant an opportunity to the Appellant/Complainant to proof this case by allowing this appeal.
Ld. Advocate of the respondent of the time at her turn canvassed her points of view by submitting WNA and stated that from the copy of F.I.R., it appears that the appellant has given the aforesaid vehicle to said Chhotelal Mahato to run the said vehicle for the commercial purpose and the said Chhotelal Mahato did not returned the said vehicle to the Appellant and threatened the Appellant with dire consequences and thereafter the Appellant came to know that the said Chhotelal Mahato sold the said vehicle to someone. Thereafter the appellant lodged a claim to the Respondent for mis appropriating the vehicle of the Appellant but the case was initiated U/S. 406 and 506 of I.P.C. and no copy of Chargesheet or F.I.T has been submitted by the Appellant before the Respondent and due to this reason, the Respondent has repudiated the claim of the Appellant.
That Ld. District Forum rightly rejected the said complaint case being No. 34/2022.
That the vehicle was hypothecated to Cholamandalam Investment & Finance Company Limited, but the Appellant never disclosed the facts of mis-appropriating of the said vehicle to the said Cholamandalam Investment & Finance Company Limited.
That when the vehicle is hypothecated to any company unless and until the loan amount is cleared, any private individual can't be a sole owner of any vehicle.
That the vehicle in issue was used for commercial purpose and so the Appellant can't be treated as bonafide consumer under the Consumer Protection Act and so he is not entitled to get any relief under Consumer Protection Act.
That if any hypothecated vehicle is stolen or mis-appropriated by any person, the concerned Finance & Investment Company is entitled to come before the proper Forum for getting any relief.
After hearing both sides, it is established beyond any doubt that there exists, the relation of insurer and insured in respect of the vehicle in question and whether there was any violation or branch of policy terms and conditions and whether the insured had his own fault in missing the vehicle are all question of fact and laws that cannot be settled without giving opportunity of both parties to bring the evidences.
The appellant is a suffered. He has lost his vehicle which has not yet recovered. Whether he is entitled to have the right of compensation through the existing insurance policy first party in nature to be determined after giving him an opportunity to prove his case with the process of recording evidence.
Ld. District Commission, without giving him such opportunity, has rejected the complaint which is unwanted in the arena of Judicious adjudication.
So, for the interest of justice, the appellant/complainant should get an opportunity to ventilate his grievances in a proper manner.
Hance it is ordered
That the appeal be and the same is allowed on contest without cost.
The order of Ld. DCDRF, Siliguri dated 11.05.2022 in CC No. 34 of 2022 stands set aside.
The instant consumer complaint bearing No. 34 of 2022 is hereby admitted.
The OP/Respondent has already become aware about the consumer case, so the OP/Respondent is entitled to file W.V. against the said consumer complainant within 45 days before the Ld. DCDRC, Siliguri. Ld. DCDRC, Siliguri is requested to proceed with the case as per procedure of CP Act, 2019.
The parties are directed to appear before the Ld. DCDRC, Siliguri on 17.11.2022 for fixing the schedule. Let a copy of this order be supplied to the parties and also communicated to Ld. DCDRC, Siliguri.
