IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC- 18/2013.
Date of Filing: 01.03.2013. Date of Final Order: 11.02.2015.
Complainant: Najma Bibi, W/O Zamer Ali as a attorney of Zamer Ali, S/O Lt. Taslim Sk.
Vill. Mohanbagan P.O.& P.S. Kandi, Dist. Murshidabad.
-Vs-
Opposite Party: 1. The Manager, The Oriental Insurance Company Ltd. Office Code-311890.
Magma Cell, 4th Floor Delta House, 4, Govt. Place (North), Kolkata-1.
2. Magma Finance Corporation Limited, 24, Park Street, Kolkata-16.
3. The Manager, the Oriental Insurance Co. Ltd. 3/26A, K.K. Banerjee Rd.
Berhampore, Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya—Presiding Member.
This complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for compensation of Rs.1, 00,000/- for harassment and for payment of insured amount as per terms and condition of the policy.
The complainant’s case, in brief, is that the complainant purchased a mini truck by hypothecation from OP No.2 by way of loan and against that loan the complainant insured the said vehicle with OP No.1 for Rs.1, 15,000/- at a premium of Rs.8, 082/- which paid for the period from 01.02.2009 to 31.01.2010 and on 14.02.2009 the said vehicle was stolen away. The complaint was lodged with the Kandi P.S. for which a theft case was started before the Ld. A.C. J.M, Kandi court and on the basis of Kandi P.s. Case No. 104/09 dt. 05.04.2009u/s 380/34 I.P.C .The OP refused to pay the Insurance claim to the complainant. Being aggrieved by the complainant files this case for insurance claim along with compensation of Rs.1, 00,000/- for harassment. Hence, this instant case.
In the Written Version filed by the OP no.1 Insurance Company, in brief, is that the alleged theft was committed on 14.02.2009 where the complainant was filed in the year 2013 and for that reason the case is barred by law of limitation. The alleged theft case is still pending in the court of law and that that the complainant is not entitled to get any compensation. The complainant never informed the alleged theft to the OP Company within the specific period and for that the complainant is not entitled get any compensation and for that the OP Insurance Company has prayed for rejection of the claim case. Hence, this Written Version filed by the OP Company.
Written Version filed by OP No.2 Magma Finance Corporation Limited, in brief, is that the complainant is not a consumer as per Consumer Protection Act. The complaint is also barred under the principles of estoppels, waiver and acquiescence. The complainant and Hannan Sk entered into a Loan-cum-Hypothecation Agreement on 3oth January with Magma Fincorp. Limited. With the terms of Arbitration clause the complaint wherein it is mentioned that if the complainant as per terms and conditions, the dispute should be referred to an Arbitrator. The complainant has not hired or availed of any service from the OP No.2 as there is no debtor and creditor relationship between the complainant and the OP No.2. The OP no.2 is neither an Insurance Agent nor an Insurance Broker. The OpNo.2 is only a Financer. There is no unfair trade practice on the part of the Op No.2 and for that the OP No.2 is not liable in any way in this case. Hence, the instant written Version.
Considering both sides the following points have been framed for disposal of the case.
- Whether the case is maintainable in law and fact?
- Whether the case is barred by law of limitation?
- Whether the complainant is entitled to get any award as prayed for?
- To what other relief/reliefs the complainant is entitled to get.
Decision with reasons.
All these points are taken up together for the sake of convenience.
This is a case for realization of Insurance claim along with compensation for theft of vehicle purchased by hypothecation being financed by OP No.2 and insured with OP no.1. The complainant has filed evidence-on-affidavit along with relevant documents particularly the Insurance Policy and the rent premium receipt of the OP No.1 Company.
Admittedly, the complainant purchased mini-truck, hypothecating the same with OP No.2 Magma Finance Corporation Limited but the said hypothecation agreement has not submitted before this Forum.
The complainant has also filed copy of FIR relating to the theft of vehicle, copy of FRT report relating to this case. From this FRT it appears that the same was signed by the Ld. A.C.J.M on 13.02.2009 but there is no order as to show that the said FRT was accepted by the Ld. Court. It appears from the Written Version filed by the OP No.1 Insurance Company that the alleged criminal case relating to theft of vehicle is still pending.
In the absence of cogent evidence this Forum cannot come to a conclusion that the said theft case of the disputed vehicle was disposed of rather it appears from the FRT that no sufficient evidence could be collected and none could be arrested relating to the alleged theft of vehicle. Also there is no mention in the FRT whether the alleged vehicle was recovered or not.
From the complaint filed by the complainant it appears that he lodged complaint regarding theft of his mini-truck stating the name of the persons who committed and carried away his mini-truck and the said case has been chargesheeted . But from the FIR, it appears that no evidence against the alleged person could be collected, accordingly FRT was submitted.
Before this Forum there is no cogent evidence to show that the FRT was accepted or not. But it is clear that FRT was filed or in other words, it can safely be concluded that theft of impugned mini-truck was committed as charge-sheet against FIR for theft of said mini-truck was filed and for that the complainant is entitled to get insurance claim from the OP-Insurance Company.
From the record it appears that theft of impugned mini-truck was committed on 14.02.2009 and the same was informed to OP No.1 Insurance Company on 24.02.2009 and to prove the same the complainant has filed postal receipt dt. 24.02.2009. Also, there is no rebuttable evidence to disprove the same.
Regarding the delay in filing the case it appears from the documentary evidence adduced by the complainant that the complainant lastly sent a letter to OP No.1 Insurance Company on 12.11.12 claiming insurance claim for theft of her vehicle.
There is nothing to rebut this piece of evidence and as such we can safely conclude that the instant case is not barred by limitation.
Regarding the liability of the OP No. 2 Financer, it appears that the complainant has not hired or availed of any service from the OP no.2 as there is no debtor and creditor relationship between the complainant and the OP No.2. The Op No.2 is neither an Insurance Agent nor an Insurance Broker. The OP No.2 is only a Financer. There is no unfair trade practice on the part of the OP No.2 and for that we are of view that the OP No.2 is not liable in any way in this case.
Considering the above discussion as a whole we have no other alternative but to conclude that all the points are disposed of in favour of the complainant in part and as such we find that the complainant is entitled to get insurance claim from the OP-Insurance Company.
Hence,
Ordered
that the Consumer Complaint No. 18/2013 be and the same is allowed in part on contest against the OP No.1 and dismissed against the OP No.2. The OP No.1 is directed to pay the insurance claim amount to the complainant as per Insurance Policy within 30 days from the date of the receipt of the order, failing which the OP No.1 Insurance Company is to pay Rs.50/-as fine for each day’s delay and the amount so accumulated shall be deposited in the State Consumer Welfare Fund.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under registered past with A/D to the concerned parties as per rules, for information and necessary action.
Member Member President
District Consumer Disputes District Consumer Disputes District Consumer Disputes
Redressal Forum. Redressal Forum. Redressal Forum.
Murshidabad. Murshidabad. Murshidabad
