This case has arisen out of an application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that he was a part-time teacher of Darivit High School under Islampur Sub-division District-Uttar Dinajpur & to attend the school situated at a distance near about 3 km from his residence, he purchased Hero Honda Super Splendor motor cycle on 11.07.2018 from Bharat Automobiles of College More, Islampur & got the vehicle insured on 14.07.2018 through Bharat Automobiles vide Policy No:0188655160/000000/00 valid from 14.07.2018 to 13.07.2019 & registered with RTO, Islampur vide Registration No:WB92C 4555. After purchase he used to attend his school by said motor cycle.
That on 20.09.2018 an incident held in Darivit High School, two youth were killed in a clash between students and police in respect of recruitment of two urdu teachers and several vehicles burnt by fire including complainant’s motor cycle & Police filed tear gass cells and resorted to a lathi charge to control the situation.
That complainant lodged written complaint with IC, Islampur PS and lodged insurance claim through Bharat Automobiles by submitting all necessary documents to O.P/Insurance Company. He several times contacted Bharat Automobiles who after lapse of long period provided Insurance Claim No:0821010004A to complainant and asked to contact with official of O.P to know the progress in respect of his claim. When he enquired every time official of O.P stated that there are some complications to process the claim & assured that he would get insurance claim within short period. Thereafter, process was stuck due to Covid-19 lockdown. Lastly on 02.01.2021 he went to Bharat Automobiles to know the current status of his claim but he got reply that they are unable to help complainant to get the insurance claim. He failed to understand whether he will be able to get his insurance claim or the O.P repudiated his claim.
That complainant sent legal notice on 06.01.2021 to O.Ps to make payment of insurance claim within time specified, in default, he assumed that Insurance Company repudiate his claim. The O.Ps received the letter and sent reply to complainant’s Advocate stating that complainant have not responded to their request for survey the vehicle, instead of receiving two letters dated 04.01.2019 & 08.01.2019. Actually, complainant did not receive any letter from Insurance Company as stated by them. The complainant through his Advocate again gave same reply to O.Ps requesting to make payment but O.Ps did not do the same. Hence, this complaint for a direction upon O.Ps to pay insurance amount of damaged vehicle of Rs.54,816/-, compensation of Rs.50,000/- for mental pain & agony and litigation cost of Rs.25,000/-.
O.P.No:1&2 contested the case by filing W.V stating that the complainant insured his Hero Honda Super Splendor motor cycle No:W.B92C/4555 with O.P/Insurance Company vide said policy for the said period, as a Two Wheeler Package policy subject to terms, conditions, exclusion, exception and limitation mentioned in the insurance policy. It is found from complaint that alleged incident occurred on 20.09.2018 at Darivit High School & said motor cycle was parked in the school campus at the time of alleged incident.
That the complainant intimated the said matter to the Insurance Company on 29.09.2018 after 09 days from the occurrence of the alleged incident. Upon intimation O.P/Insurance Company duly registered the claim No:082101004 against said insurance policy & Insurance Company has served two letters in this regard to the complainant dated 04.01.2019 & 08.01.2019 but the complainant did not answer said letters and did not respond to their request to produce the damaged vehicle for survey. As such, complainant has violated policy condition No:1. It is mandatory to lodge FIR/written complaint in the nearest P.S where the alleged incident was occurred and also complaint in nearest Fire Brigade office in case of fire accident but the complainant did not submit any police report or other report before the Commission or the insurer. It is proved that said motor cycle of the complainant has not been damaged due to said alleged accident as is stated in his claim petition and documents must require for getting claim in regard to vehicle damaged by fire accident had not been produced. The O.P/Insurance Company thereafter closed the claim in respect of the alleged damaged vehicle of the complainant. The claim could not be processed due to non-submission of necessary documents by the complainant, through filing of consumer complaint the complainant wants to take dis-advantage of his own omission in furnishing documents to O.P. The complaint is frivolous, vexatitious and liable to be dismissed U/s 26 of the said act.
Point for consideration is:-
- Whether there was any deficiency in service on the part of the O.Ps which gives rise cause of action to file the complaint and the complainants are entitled to get the claim?
D e c i s i o n w i t h r e a s o n s
Tax Invoice, Form-22, Tax Token, Hero good life package & Insurance policy (xerox copies) show that the complainant Md. Sajjad Alam of Bijokhore P.O:Amoljhari, P.S:Islampur, Uttar Dinajpur, purchased a Hero Honda Super Splendor motor cycle on 11.07.2018 from Bharat Automobiles of College more, Islampur and got the vehicle insured on 14.07.2018 through Bharat Automobiles & got insurance policy No:0188655160/000000/00 valid for the period from 14.07.2018 to 13.07.2019 & total IDV of the vehicle was Rs.54,816/- & subsequently he got the vehicle registered with RTO, Islampur, bearing Registration No:WB92C/4555.
The O.P admits insurance of said vehicle with O.P/TATA AIG GIC Ltd adding that it is a Two Wheeler package policy subject to terms, conditions, exclusion, exception and limitation mentioned in the insurance policy.
The case of the complainant is that he was a part-time teacher of Darivit High school situated under Islampur Sub-Division, District- Uttar Dinajpur & facing inconvenience to attend the school he purchased said motor cycle and that on 20.09.2018 an incident held in Darivit High school and several vehicles including complainant’s motor cycle burnt into ashes and since purchase he used to attend that school by said motor cycle.
Thus onus lies on the complainant to prove that he was a part-time teacher of Darivit High School and/or on the date of incident i.e 20.09.2018 he attended the school through his motor cycle and/or parked the motor cycle in an around to school campus.
Written deposition by way of affidavit has been filed & accepted as examination-in-chief of P.W.1 without tender by the complainant. So O.P/Insurance Company submits questionnaire-
- Has the complainant submitted any document in support of the said alleged vehicle was parked in the above noted place as mentioned in his complaint or not?
Reply of questionnaire was submitted by complainant–
- That complainant was part-time teacher of Darivit High school and on the date of occurrence complainant went to school & from School Register it can be found that complainant remain present on the particular date.
School Register of relevant date i.e 20.09.2018 has not been produced or admitted in evidence and O.P got no opportunity to cross-examine on that point. Appointment letter or no other relevant document(s) is/are produced to show that he was a part-time teacher of said school or he attended the school in that capacity has been produced or admitted in evidence. Besides in written deposition his occupation has been disclosed “self employed”. The complainant failed to discharge the burden that he was a part-time teacher of Darivit High School or he attended the school on 20.09.2018 through his motor cycle or he parked the motor cycle in an around to school campus on 20.09.2018.
The complainant replied that he lodged police complaint on 29.09.2018. Copy of his written complaint dated 29.09.2018 is produced. On complainant’s requisition ASI, Asit Chakraborty of Islampur P.S brought and produced certified copy of F.I.R, Complaint of Nilkamal Sarkar, complaint of Badal Barman & original report of W.B Fire & Emergency Services, Islampur Fire Station, Uttar Dinajpur & he is examined as P.W.2 who stated that Islampur P.S Case No:611/2018 was started on 20.09.2018 regarding the incident-in-question when he was not posted to Islampur P.S, so he has no personal knowledge about the said incident & documents will speak.
Have a look at documents Rajen Chetri, IC Islampur P.S, Uttar Dinajpur submits suo moto complaint registered as F.I.R No:611/18, dated 20.09.2018 U/s 147/148/149/186/353/332/333/326/307/302 IPC r/w Sec 3/5 of ES Act, Sec 25/27 Arms Act & 9 MPO Act, reference GDE No:894, the gist of which is that over the issue of appointment & joining of one Urdu PG teacher & one Sanskrit PG teacher in Darivit High School (having no vacancy/such post being not a Higher Secondary School) there was agitation of about 500 students & mob consisting approx 1000 persons in one hand, members of another group assembled at Golapara, Amoljhari to counter the agitation in another hand, to control the situation/apprehension of serious communal conflict, the Police personnel fired tear gas cells, resorted to Lathi-charge & fired bullet, as a result few Police personnel received injuries & huge number of agitators got injured, out of which 02 youth/injured person, namely, Rajesh Sarkar, S/o: Nilkamal Sarkar & Tapash Barman, S/o: Badal Barman both of Darivit succumbed to injuries & another injured, namely, Biplab Sarkar, S/o: Gobinda Sarkar was hospitalized but somehow saved.
On requisition of SI Jayanta Kr. Jha of Islampur P.S dated 27.02.2023, the Officer-in-Charge, Islampur Fire Station submits preliminary fire report that there is no official record related to Darivit incident which took place on 20.09.2018, no fire service vehicle or even fire brigade team was present on that day as no messenger came to their office & there were no calls from outside to get fire service assistance regarding the Darivit incident, so no question of publication or reporting in this regard arises. He informed the Islampur PS by letter dated 27/02/2023 that as per the contents of your letter, on 26.09.2018 there was fire incident in few vehicles and Islampur Fire Brigade attended the fire near College More, P.S: Islampur where 03 buses of NBSTC were involved in fire. The Fire Brigade put out the fire. A report related to this back is attached here for ready reference. Preliminary Fire Report dated 26.09.2018 having Analysis of fire fighting-after receiving fire call on telephone, Fire Brigade led by Station Officer Mr. Rajib Kundu (Station Officer of Islampur Fire Station) quickly reached the fire above with 02 fire tenders and full crue. Another fire tender joined the members of the fire fighting team from Islampur Fire Station due to lack of water there as requested by the Fire Officer on duty at the fire spot. First, the Fire Brigade reached the spot and found that 03 nos of NBSTC buses bearing registration nos WB 63A/0532, WB63A/2305 & WB 63A/9108 had been set on fire by miscreants. Finally, Fire Brigade 03 nos of water jets and put out the fire completely. All the buses were seriously damaged by the fire. Observation-1. No casualty/injury were found at the incident spot. 2. At that time, Police Officers and Police personnel were present.
The F.I.R & report of Fire Brigade bears no whisper as to burn of any other vehicle in the alleged incident dated 20.09.2018 rather disclosed burn of above mentioned 03 NBSTC buses only on subsequent date 26.09.2018. Therefore, complainant’s case that his motor cycle was burnt into ashes due to the agitation/fire incident dated 20.09.2018 has no leg to stand.
Though we find not so relevant the other fact of the case but for abundant precaution we are discussing in nutshell. Undisputedly, the complainant lodged written complaint before IC, Islampur P.S on 29.09.2018 and thereafter lodged insurance claim through Bharat Automobiles by submitting necessary documents vide insurance Claim No:0821010004. Explanation of 09 days delay appears to us satisfied.
Policy Condition No:1 reads as under-
“Notice shall be given in written to the Company immediate upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. Every letter, claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured………….”
For getting fire damage claim following documents are required:-
. Copy of insurance policy
. FIR filed with the Police
. Charge sheet and Seizure list
. Duly filled up and signed Claim Form
. Copy of the registration certificate of the car
. Copy of driving license
. Report of Fire Brigade office/concern authority.
The complainant presumably submits copy of insurance policy dully filled up and signed claim form, copy of registration certificate of the car & his driving license. Rest 03 documents i.e FIR filed with the Police, Charge Sheet & Seizure list and report of Fire Brigade Office/concern authority has not been filed, which are for the 1st time called for during evidence.
Positive defence case is that the O.P/Insurance Company informed the complainant by letter dated 04.01.2019 & 08.01.2019 but being not responded, the claim was closed. Both the letters invite reference to complainants claim, for his said motor cycle, for reported damages in the accident on 20.09.2018, reminding policy condition No:1.
Questionnaire submitted by the complainant that whether insurance company filed any postal receipt or AD Card which reflect that complainant received letter dated 04.01.2019 & 08.01.2019, answered in negative. Once the letters have been issued to the complainant at his proper corresponding address these with deemed ‘duly served’ under provision of General Clauses Act, irrespective of production of postal receipt or AD Card.
The complainant tried to make out his case basing upon Advocate’s letter dated 06.01.2021, replied by O.P on 24.02.2021 disclosing service of 02 letters dated 04.01.2019 & 08.01.2019, to be countered by another Advocate’s letter dated 22.03.2021, is/are in our opinion not suffice.
Under above facts and discussion, we are of the opinion that the complainant has failed to prove that he was a part-time teacher of Darivit High School and/or he attended the school by his motor cycle No:WB92C/4555 on 20.09.2018 and/or said motor cycle was parked in and around Darivit High School compound and/or said motor cycle was damaged/burnt by fire in relation to agitation dated 20.09.2018, so there exists no deficiency in service on the part of O.P/Insurance Company, consequently the complainant is not entitled to get the claim as prayed for.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-18/2022 be and the same is dismissed on contest against the O.Ps.
Let a copy of this order be given to the parties free of cost.
