West Bengal

Siliguri

105/S/2012

SRI TAPASH CHAKRABORTY - Complainant(s)

Versus

THE ORIENTAL INSURANCE CO. LTD., - Opp.Party(s)

02 Apr 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 105/S/2012.                DATED : 02.04.2015.   

             

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI  BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                 : SRI TAPASH CHAKRABORTY,  

                                       S/O Late Sambhu Nath Chakraborty,

                                       resident of Durga Das Banerjee Road,

                                       Ashrampara, Siliguri, P.O. & P.S.- Siliguri,

  Dist.- Darjeeling.

                                                              

O.Ps.             1.                     : THE ORIENTAL INSURANCE CO. LTD.,

  Malhotra Towers, Pradhan Nagar, Siliguri,  

                                                              P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling.

                                                               

               

                                    2.                     : MAGMA FINCORP. LTD.,

                                                              Sevoke Road, City Plaza, Siliguri,

                                                              P.O. & P.S.- Siliguri, Dist.- Darjeeling.

 

Proforma   OP          1.                     : OSL AUTOMOTIVES PVT. LTD.,

  having its office at Sevoke Road, Siliguri,

                                                              P.O. & P.S.- Siliguri, Dist.- Darjeeling.

                                                           

                                                                                                                                                                  

FOR THE COMPLAINANT         : Sri Prasanta Joarder, Advocate.

 

FOR THE OP No.1                          : Sri K. L. Kundu, Advocate.

 

FOR THE OP No.2                          : Sri N. Chakraborty, Advocate.

 

 

J U D G E M E N T

 

Succinctly summarized the case of the complainant is as follows :- 

The complainant purchased a vehicle No.WB 73B 3665 TATA ACE Pick-Up Van of 2008 by financial assistance of OP No.2.  The vehicle was insured with OP No.1 for the period commencing from 01.2.2010 to

 

Contd……P/2

-:2:-

 

30.11.2011.  The OP No.1 did not verify the Engine Number and Chassis Number of the said vehicle even at or prior to time of covering insurance of vehicle.  The said vehicle met with an accident on 12.12.2010.  Intimation was given to OP No.1.  Surveyor was appointed by OP No.1.  The vehicle was repaired by the complainant with cost of Rs.52,356/-.  The said amount was sent to the OP No.1 for payment.  OP No.1 did not make the payment.  But Manager of the OP No.2 took some papers signed by the complainant in the pretext of payment.  The OP No.1 also took some Xerox papers from the complainant.  The vehicle again met with an accident on 08.06.2011.  The matter was intimated to OP Nos.1 & 2 vide letter no.8611.  G.D. Entry was made at Bagdogra P.S.  The complainant repaired the vehicle by his own cost of Rs.3,000/- with other cost.  In spite of requests on several occasions, OP Nos.1 & 2 did not compensate the complainant by paying the repairing cost.  Accordingly, complainant served legal notice with A.D. on OP Nos.1 & 2.  Some documents have been filed Annexure 6, 7, 8 & 9.  In the meantime surveyor was appointed.  But in spite of that the repairing cost was not compensated by OP Nos.1 & 2.  One plea was taken by OP No.1 that Engine Number and Chassis Number of the vehicle was tallied with the insurance policy.  Accordingly, the claim was instituted before this Forum praying for compensation and for expenditure of first and second accident and other cost. 

The OP No.2 contested the case filing written version denying inter-alia all the material allegations raised by the complainant.  The positive case of the OP No.2 is that complainant is a debtor and OP NO.2 is a creditor.  Relationship between them is debtor and creditor.  This OP No.2 is only financer.  It is positive case is that the OP No.2 did not deny the claim of the complainant on any flimsy ground that the Engine Number and Chassis Number is differing from the Insurance policy.  Accordingly, it is prayed that case may be dismissed against the OP No.2.

 

Contd……P/3

-:3:-

 

OP No.1 has also contested the case filing written version denying inter-alia all the material allegations raised by the complainant.  The raising dispute of OP No.1 Insurance Company is that there was mismatch of Engine Number and Chassis Number of the complainant from Insurance Policy to R.C. Book.  The Insurance Company is sent a repudiation letter dated 26.03.2012.  It is stated that in contract of insurance, rights and obligations strictly governed by the policy of insurance.  In this present case, there is mismatch of Engine Number and Chassis Number of the vehicle from the Insurance Policy to R.C. book, for which OP No.1 Insurance Company has repudiated the claim.  Accordingly, it is submitted that the complainant petition shall be dismissed with cost. 

To prove the case, the complainant has filed affidavit-in-chief. 

OPs have also filed affidavit-in-chief. 

The complainant has filed 14 copies of documents.

1.       Xerox copy of Certificate of registration.

2.       Xerox copy of Insurance Policy.

3.       Xerox copy of Statement of Loan Account.

4.       Xerox copy of Intimation letter dated31.12.2010.

5.       Xerox copy of bill dated 28.01.2011. 

6.       Xerox copy of Intimation letter dated 08.06.2011.

7.       Xerox copy of G.D. Entry. 

8.       Xerox copy of Bill dated 11.06.2011.

9.       Xerox copy of Notice dated 10.09.2011.

10.     Xerox copy of Notice dated 26.03.2012.

11.     Xerox copy of 3 (three) Cash Memo.

12.     Xerox copy of Bill dated 08.08.2012.

13.     Xerox copy of Money Receipt dated 10.08.2012.

14.     Xerox copy of Notice dated 21.08.2012. 

 

 

Contd……P/4

-:4:-

 

 

The complainant has also filed Xerox copy of decision.

1.       Xerox copy of Decision of Hon’ble National Commission reported in CPJ 2005 Volume IV page 275.

2.       Xerox copy of Decision of Hon’ble National Commission reported in 2012 CPJ Volume II Page 169.

3.       Xerox copy of Decision of Hon’ble National Commission reported in 2011 CPJ Volume II Page 111.

 

OP No.1 has filed some documents. 

1.       Insurance Policy and certificate of insurance from 01.12.08 to 30.11.09.

2.       Insurance Policy for the period from 01.12.09 to 30.11.2010.

3.       Motor Insurance certificate from 01.12.10 to 30.11.2011.

4.       Motor Survey report issued by the IRDA independent Surveyor. 

5.       Motor Survey report-Spot by surveyor Mr. Pranay Pal. 

6.       Motor Survey report by Mr. B.R. Chakraborty. 

7.       Letter dated 01.12.2012. 

8.       Repudiation letter dated 26.03.2012.

 

After going through the documents of both sides mainly Insurance Policy, and statement of witnesses PW No.1 and PW No.2, it appears that parties are in dispute regarding mismatch of Engine Number and Chassis Number in the policy.  The OP No.1 admits policy.  The OP No.1 admits the incident, but only dispute is mismatch of Engine Number and Chassis Number. 

 

Points for consideration

 

1.       Whether there was mismatched?

2.       Whether there was deficiency in service on the part of the OPs.

3.       Whether the complainant is entitled to get any relief as prayed for.  

 

Contd……P/5

-:5:-

 

Decision with reason

 

Let us see what comes from the document filed by the OP No.1.

Insurance Policy from 01.12.2008 to 30.11.2009, Insurance Policy from 01.12.2009 to 30.11.2010 and from 01.12.2010 to 30.11.2011 were issued by OP No.1.  In those three insurance policies Engine Number and Chassis Number have been shows same.  The accident occurred on 12.12.2010 and 08.06.2011.  Before the claim, raised by the complainant, the OP No.1 has taken the amount of policy from the complainant by issuing certificate.  The insurance authority did not see at all regarding arithmetical mistake in the Engine Number and Chassis Number laid down in those policies.  It is the time when claim has been raised by the complainant only within the Engine Number and Chassis Number arose therein have been looked. 

It is argued by the ld advocate of the complainant that complainant is entitled to get the claim.  As the policy is admitted, Registration Certificate number is same as admitted by the OP No.1, not matching Engine Number and Chassis Number shall not piclude the complainant from getting the repairing cost which has been denied by the OPs.  As such the complainant is entitled to get cost of repairing and other cost. 

Ld advocate of the OP No.1 has admitted that due to variation in the Engine Number and Chassis Number shall not cause entitlement of cost as prayed by the complainant. 

The OP No.2 has submitted that the complainant is entitled to get cost.

Heard the laborious arguments of both sides and case made out in complaint and written version and other materials, and principles of law laid down by them.  We are firm opinion that the complainant is entitled to get repairing cost from the OP No.1, when the accident occurred.  But the OP No.1 did not pay any attention to the prayer of the complainant. Such omission on the part of the OP No.1 Insurance Company is

 

Contd……P/6

-:6:-

 

deficiency in service and negligence to the complainant.  So, we are of opinion that the complainant is entitled to get Rs.1,44,038/- towards garage bill and cost of spare parts and cost of crane fare. 

This Forum allows Rs.50,000/- towards compensation for extreme mental pain, agony, harassment, hardship and loss suffered by the complainant.

In the result, the case succeeds. 

Hence, it is 

                   O R D E R E D

that the Consumer Case No.105/S/2012 be, and the same is hereby, allowed on contest.

The complainant is entitled to get Rs.1,44,038/- towards garage bill, cost of spare parts and cost of crane fare from OP No.1. 

The complainant is further entitled to get Rs.50,000/- towards compensation for extreme mental pain, agony, harassment, hardship and loss suffered by the complainant from the OP No.1.

The OP No.1 is directed to pay Rs.1,44,038/- by issuing an account payee cheque in the name of the complainant for garage bill, cost of spare parts and cost of crane fare within 45 days of this order. 

The OP No.1 is further directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant for extreme mental pain, agony, harassment, hardship and loss suffered by the complainant within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of filing the petition before this Forum till final payment is made.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

 -Member-                        -Member-                           -President-