Hon’ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case of the complainant Bishu Ghosh is that the Complainant Bishu Ghosh purchased a Bolero power plus vehicle on 19/02/2020 with financial assistance of proforma OP-2 the Manager Cholamandalam Investment and Financial Company Limited for his personal use from Khokon Motor Works Private Limited, Dharmatala, Cooch Behar vide engine number WJL6A12403. Subsequently an insurance policy was purchased for the said vehicle through Khokan Motors from OP and RTO, Siliguri issued RC number WB - 74/BB 8556. The OP after receiving Rs. 30,072/- from the Complainant issued full insurance for own damage being insured policy number 3404/0004325 for the period 20/02/2020 to 21/02/2021 and third party for the same period.
The OP-2, proforma OP, the Manager Cholamandalam Investment Company Limited is the financer of the aforesaid vehicle for which the complainant paid EMI. On 20/03/ 2020 at about 7:00 p.m. the Complainant’s vehicle met with an accident when he was coming from Mainaguri to Changrabandha site and the said vehicle dashed on roadside tree in order to save a cow and the vehicle was fully damaged near Changarabandha railway station. Subsequently the Complainant filed a written complaint on 22 /03/2020 against which Mekhliganj police station case number 1187 dated 22/03/2020 and Mekhliganj MA is number 7/20 dated 22/03/2020 was started. On 20/03/2020 the Complainant informed the entire matter to the OP and as per their instruction the Complainant submitted the vehicle to Gokul Mondal garage for repairing who issued an estimate for Rs. 6,90,000/- for repairing cost. The Complainant also submitted all the documents for Insurance claim to OP. Subsequently OP-1 called video calling from the Complainant and seen the damaged vehicle. Due to covid-19 the OP did not send any surveyor or investigator. Subsequently an authorised person sent RTI application to O.C. Mekhliganj police station for all information regarding the said accident. Accordingly Mekhliganj police station supplied all information to Hybarb Biswas the authorised person of OP-1 and xerox copy of all information collected by the Complainant. The Complainant also filed a petition to the proforma OP on 19/10/2020 regarding the said accident. After the said accident the Complainant requested to the OP-1 to release the claim but the OP did not release the claim nor did they reject the claim. Such activities of the OP amounts to deficiency in service. The Complainant thereafter filed a written complaint on 30/06/2021 which was served upon the OP but the Insurance claim was not released till date. Because of such misdeeds of the OP, the vehicle is still in the garage in damaged condition. The Complainant suffered mental pain and agony due to such an act. The cause of the action arose on 02/02/2020 and subsequent dates till the filing of the case. The Complainant prayed for an award for Rs. 6,90,000/- for damage claim with interest from OP-1, Rs. 2,00,000/- for deficiency in service from the OP and litigation cost of Rs. 3000 /-.
OP denied each and every allegation in their written version. The positive defence case of OP-1, is that the Complainant has no cause of action and the case is not maintainable. The further defence case in brief is that the Complainant purchased the vehicle with hypothetication from OP-2 Siliguri and received insurance through online from Siliguri. So the Commission has no jurisdiction to try the case as the party has no branch office. The said vehicle met with an accident on 20/03/2020 but the OP-1 received an information from the Complainant on 05/04/2020 after 14 days of the accident. The OP having received the information immediately registered Complainant by auto computerised system and as per rules of IRDAI and insurance Act appointed a surveyor namely Kaustabh Basu. So there was no deficiency in service. As per the Act and the norms FIR, tax invoice, registration certificate, DL, seizure list, chargesheet, final report are very much required to settle the claim. The OP requested the Complainant over telephone to supply the documents but the Complainant failed. It is the duty of owner to inform all matters within 24 hours to the insurance company but the owner Complainant informed it after 14 days. So the case is not maintainable and liable to be dismissed.
The Complainant filed the case to extract money in wrongful way. The OP after receiving the surveyor report of Hybarb Biswas, several questions arose interalia that there is 14 days delay in intimating the accident. Secondly, the Complainant lodged written complaint as FIR after 2 days. Thirdly the Mekhliganj police station seized the vehicle from custody of owner on 23/03/2020. Fourthly the Mekhliganj police station I.O. did not produce offending vehicle before the criminal court. Without an order of Court how can the IO release the offending vehicle on 20/03/2020 which is not permitted in the eye of law. Fifthly, there is inconsistency in recording statement under section 161 CRPC on 20/03/2020 while the sketch map was prepared on 20/03/2020. Sixthly, there is also inconsistency in preparing MVI report which was done 20/02/2020 but the requisition for mechanical examination issued on 15/04/2020 after 17 days and after 15 days from lodging FIR. These MVI report was prepared before the accident. The I.O. submitted chargesheet/final report on 20/03/ 2021 before the FIR. The next question raised under point no. 8, is due to covid-19 there was restriction in plying vehicle without permission of government or police but IO did not seize any permit. The question number 9 raised by OP is that without any number plate how could vehicle run. The further defence plea is that the Complainant violated all the IRDA rules and norms. The Complainant with the help of Mekhliganj police station illegally prepared report for extortion of money in wrongful way from the OP. The Complainant agreed to retain the vehicle on “as is where is” basis. The present case is filed in violation of the provision of Insurance Act and IRDA norms. The OP claimed the case is liable to be dismissed with cost.
The different points of disputes involved in this case led the commission to ascertain the following points for proper adjudication of the case.
POINTS FOR DETERMINATION
- Whether the Case is maintainable in its present form & prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the complaint is entitled to get?
DECISION WITH REASONS
Point No.1.
The OP challenged the case on different grounds as to the maintainability of the case. After perusing the pleadings of the parties it transpires that the OP raised as many as 9 points regarding different anomalies in regard to inconsistency in lodging the case, obtaining MVI report and other aspects. The Complainant in course of argument submitted that the Complainant is not responsible for any fault on the part of the police authority. But after scrutinizing the documents, it transpires that the accident occurred on 20/03/2020 and the FIR was launched on 22/03/2020 that is after 2 days of the accident. The police station released the vehicle without any order of the court.
Thus after perusing documents it appears that there is some inconsistency in regard to question raised by the OPs. So satisfactory answer is required to be obtained from the relevant parties who are actually not parties to the case. So the defence plea that the present case is bad for non joinder of necessary parties is considered and held that the present case is bad for defect of the parties.
Accordingly point number 1 is answered against Complainant.
Point No.2 & 3.
Both the points are interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
It is the admitted fact that the Complainant purchased the vehicle bearing number WB74BBA8556. The vehicle met with the accident on 20/03/2020.
It is also the admitted fact that the said vehicle was insured with OP-1. The Complainant in order to prove the case filed all documents relating to the insurance of the vehicle along with the copy of the FIR, seizure list, MVI report and other documents of the criminal case. As a preliminary condition the complainant filed the claim with OP-1. The OP-1 in compliance with the provision of Insurance Act and IRDAI norms appointed a surveyor who detected different loopholes in the criminal case. After scrutinizing all defects and loopholes raised by O.P. 2, it transpires that there is considerable delay of 14 days in intimating the O.P. against which the complainant could not give valid explanation.
It also appears that there is a delay of 2 days in lodging the FIR but the Complainant could not give valid explanation regarding the delay of lodging the FIR.
While a police case is lodged in regard to an accident it should be referred to the court after the seizure of the vehicle. But in the instant case despite starting a criminal case vide Mekhliganj MA case number 7/20 and GD entry number 1187 dated 22/03/2020 it was not referred to court. The vehicle was seized and it was later released without any interference of court.
The Complainant could not give any explanation about the said inconsistency. The concerned authority also did not explain the said anomaly but they are not party to the case. So no explanation came forward.
The OP also raised question that there was no number plate in the said vehicle but it was plying on the road. The Complainant could not explain specifically against the said allegation. It is also allegation that the statements of witnesses were recorded under section 161 CRPC on 20/03/2020 but prepared sketch map on 23/03/2020.
The MVI report also seems to have been prepared on 22/02/2020 but the requisition for mechanical examination was issued on 05/04/2020. So it is a big question as to how the MVI report would be prepared before issuance of the requisition.
The OP-1 also raised nine questions as to the submission of the final report on 20/03/2021 before filing of FIR against mekliganj police station MA case number 7/2020 dated 22/03/2020.
The Complainant could not satisfy the commission in regard to said inconsistencies. It is also a question raised on the part of the OP that during the time of the accident lockdown was going on and without permission or pass or permit of government or police authority no vehicle could run. But neither the police seize any pass nor could the Complainant file any such pass or permit before the commission. These loopholes on the part of the complainant is also a matter of consideration in granting relief to him.
Ld. Advocate for the complainant argued that the Complainant should not suffer for any irregularity done by the police authority.
The argument is not fully acceptable in as much as the Complainant has to prove his own case and he cannot succeed on the weakness of the OP. It was the bounding duty of the Complainant to make party to all the necessary authority for getting answer to the question raised by OP. Where a relief is granted, the case should be proved beyond reasonable doubt.
Therefore the Complainant could not prove the case up to the hilt. The anomaly and inconsistency which are raised by the OP should be answered by the Complainant and for that purpose he is at liberty to make relevant and concerned authority parties to this case. But having assessed the evidence on record and giving due consideration to the argument advanced by the parties, the Commission is of the view that the Complainant is not entitled to get the relief at this stage. However liberty is given for filing a case afresh.
In the result Point 2 and 3 are decided against the Complainant. Consequently the CC case fails contested without cost.
Hence, it is
Ordered
That the Complaint no. CC/39/2021 be and the same is dismissed on contest without cost.
DA to note in the Trial Register.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or hand over forthwith for information and necessary action. A copy of this Final Order/Judgement is also available at www.confonet.nic.in.
Dictated & Corrected by me.
