Sikkim

East

cc/01/2021

Dheran Nepal - Complainant(s)

Versus

The Manager - Opp.Party(s)

19 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GANGTOK, SIKKIM

 

 DATED: 19.05.2023

 

                          CONSUMER CASE NO. 1 OF 2021

 

1.    Shri Dhiren Nepal,

    Son of Brihaspati Nepal,

    Resident of Singbel Makha,

    P.O and P.S Singtam, Gangtok, Sikkim.

                                                …          COMPLAINANT.

 

Versus 

 

1.    The Manager,

    Entel Motors Pvt. Ltd.,

    6th Mile, Tadong, Gangtok, Sikkim.    

 

2.     The General Manager,

    SBI General Insurance Co. Ltd.

    Parthiba (1st Floor), Opposite Stadium Main Gate, 

    Bidhan Road, Siliguri, Darjeeling, West Bengal. 

                               …      RESPONDENTS.

 

For the complainant: Mr. Madan Kr. Sundas, Learned Counsel.   

For Respondent No.1: Ex-parte. 

For Respondent No.2: Mr. Thupden G. Bhutia and Ms. Sushmita Ghalay, Learned Counsel.

 

CORAM:

1. K.W.Bhutia, President

2. Anita Shilal, Member

3. Rohit Kumar Pradhan, Member

 

Per: K.W.Bhutia, President

 

O R D E R

    By this complaint filed under Section 35 of the Consumer Protection Act, 2019, the complainant seeks compensation for harassment and deficiency in services against the respondents. 

2.    The case of the complainant is that he purchased a car (Maruti Alto) from respondent no.1 on 17.10.2019 and obtained temporary registration no. SK-1-TR-2019/3889 on the same day. The vehicle was insured with respondent no.2 bearing policy no. 900637261/N94598232 which was valid from 17.10.2019 to 16.10.2022. Twelve days later, on 28.10.2019 the said vehicle met with an accident at Rambi, West Bengal. The information about the accident was reported by the complainant to both the respondents on the same day (i.e. 28.10.2019) wherein he was advised by respondent no.1 to bring the vehicle to their workshop at Tadong, Gangtok for repair. The complainant, as advised, towed the vehicle to the workshop of respondent no.1 and incurred ₹ 22,000 as towing charge. That despite assurance given to him on several occasions by respondent no.1 that he will be indemnified, the vehicle was not repaired and is still lying in the said workshop. 

3.    It is the complainant’s case that due to indifferent attitude of respondent no.1, a legal notice was issued by him on 15.07.2020 but to no avail. Hence, he prays for the following reliefs:-

(i)    ₹ 4,00,000 for the cost of vehicle;

(ii)    ₹ 22,000 being refund for towing charge;

(iii)    ₹ 50,000 as compensation for delay in service;

(iv)    ₹ 40,000 as compensation for harassment/mental agony;     and    

(v)    ₹ 10,000 as legal expenses. 

4.    Respondent no. 1 never appeared before the Commission and was proceeded ex-parte.

5.    Respondent no. 2 filed their written objection stating that thought the accident may have occurred on 28.10.2019, respondent no.2 was never intimated within the prescribed period. The complainant may have taken the accident vehicle to the workshop of respondent no.1 on their advice but the complainant did not approach respondent no.2 with any claim. Further, there was violation of the terms and conditions of the policy – as per records, six persons were travelling in the accident vehicle while the seating capacity is only five. That the policy was issued under the seal and signature of respondent no.1, who will be responsible for damages and the complaint is not maintainable against respondent no.2.

6.    ISSUE FRAMED:

(1)    Whether the complaint is maintainable?

(2)    Whether the respondents are liable to settle the claim of the complainant arising out of the accident of his vehicle?

(3)    Whether there has been any deficiency in service on the part of respondent no.2 thereby making them liable to compensate the complainant?

(4)    Whether the complainant is entitled to the reliefs prayed for by them?

7.    On the issue of maintainability, Learned Counsel for complainant would contend that the vehicle was purchased by the complainant intending to use it as taxi and earn his livelihood. That he is a ‘consumer’ within the meaning of Section 2(7) of the Consumer Protection Act, 2019. Learned Counsel for  respondent no.2 would contend otherwise.

8.    The policy certificate bearing no. 900637261/N94598232 (Exhibit-C/1) would show that it was valid from 17.10.2019 to 16.10.2022. The policy was admittedly issued by an agent of respondent no.1 in view of corporate tie-up between the respondents. Admittedly, the vehicle was purchased by the complainant from respondent no.1 on 17.10.2019 itself and the insurance policy was also issued on the same day by respondent no.1 (on behalf of respondent no.2). Hence, he is a ‘consumer’ within the meaning of the Act of 2019. As there are disputable issues in the present case, the complaint is indeed maintainable. Issue no.1 has to be answered in affirmative.

9.    The complainant would depose (Exhibit-C/5) that when he purchased the said vehicle from respondent no.1, the finance was managed by respondent no.1 himself – from Mahindra and Mahindra Financial Services, Ltd. Gangtok. That temporary registration for the said vehicle bearing no. SK-01-TR/2019/3889 (Exhibit-C/1) was obtained on 17.10.2019, which was valid upto 16.11.2019. Further, the insurance for the said vehicle was arranged by respondent no.1 himself.

10.    It would be seen that the after the occurrence of accident at Rimbi, West Bengal on 28.10.2019, the incident was reported at Rimbi Police Post by the complainant himself (Document ‘A’). The complainant would testify that he brought the vehicle to the workshop of respondent no.1 on being asked to do so by respondent no.1. The estimate for repair of the vehicle dated 05.11.2019 prepared by respondent no.1 (Exhibit-C/4) would show that the total cost for the repair was ₹ 3,87,065. An intimation dated 05.11.2019 about the accident was handed over to respondent no.1 (Exhibit-C/3) though it was addressed to respondent no.2. This would show that the complainant had brought the incident to the notice of respondent no.1, who had to intimate respondent no.2 but did not do so. The reason is not known since respondent no.1 never appeared before this Commission to explain the same. 

11.     It would be seen that the complainant had been seeking assistance from respondent no.1 for the repair of his vehicle on the belief that respondent no.1 could indemnify the damages and settle his claim. Yet, respondent no.1 did not take any action despite service of legal notice dated 15.07.2020 issued to them. The fact that  respondent no.1 has paid no heed to the claim of the complainant could be demonstrated from their non-appearance before this Commission since the inception of this matter. 

12.    As the insurance policy was admittedly issued by the agent of respondent no.1 (which is evident from the seal of respondent no.1 on the body of the policy) and as the complainant was not guided by respondent no.1 to the proper forum for lodging his claim, we find respondent no.1 at fault. Had the complainant been led to respondent no.2, at the first instance, this fiasco would not have occurred at all since the insurance policy was valid and effective as on 28.10.2019. In this context, we find that there has been deficiency in service on the part of respondent no.1, who is liable to settle the claim of the complainant arising out of the accident of his vehicle. Hence, issue no.2 is answered in affirmative.

13.    So far as respondent no.2 is concerned, we do not find any deficiency in service on their part. Apart from a bare statement of the complainant that he had also intimated respondent no.2 about the accident, the same not supported by any evidence (oral or documentary). Issue no.3 is answered in negative. 

RELIEF:

14.    In view of our findings above, the complainant is entitled to the reliefs as under:-

(i)    Respondent no.1 shall indemnify the complainant to the tune of ₹ 3,87,065 (Rupees Three Lakhs Eighty-Seven Thousand Sixty-Five only) for damages sustained by the complainant’s vehicle in the said accident;

(ii)    Respondent no.1 shall pay to the complainant a sum of ₹ 50,000 (Rupees Fifty Thousand only) for delay in service;  

(iii)    Respondent no.1 shall pay to the complainant a sum of ₹ 40,000 (Rupees Forty Thousand only) for deficiency of services/harassment/pain and agony; 

(iv)    Respondent no.1 shall further pay to the complainant a sum of ₹ 10,000 (Rupees Ten Thousand only) as cost/lawyers fees;

(v)    The above-mentioned amount shall be paid with interest @ 10% per annum from the date of filing of this complaint (i.e. 19.03.2021) until full realization; and 

(vi)    The complainant’s claim of ₹ 22,000 for towing charge is without any proof and is accordingly rejected.

 

(Anita Shilal)              (Rohit Kumar Pradhan)         (K.W.Bhutia)           

     Member                                 Member                 President  

 

WITNESSES EXAMINED BY THE COMPLAINANT:

1.    Dheran Nepal              -    CW-1.

WITNESSES EXAMINED BY RESPONDENT NO. 2: NIL

DOCUMENTS EXHIBITED BY THE COMPLAINANT:

1.    Exhibit C-1           -     Temporary registration certificate

2.    Exhibit C-2           -    Insurance policy deed

3.    Exhibit C-3          -    Certified copy of intimation

4.    Exhibit C-4           -    Estimate receipts

5.    Exhibit C-5         -    Evidence-on-affidavit of CW-1

6.    Document A    -    Copy of general diary

7.    Document B    -    Copy of legal notice

8.    Document  C   -    Copy of acknowledgment card

DOCUMENTS EXHIBITED BY RESPONDENT NO. 2: NIL

 

(Anita Shilal)                 (Rohit Kumar Pradhan)          (K.W.Bhutia)             

      Member                                   Member                  President