IN THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL   FORUM   

                                                    SONITPUR  AT  TEZPUR

District:                    Sonitpur  

Present:                    Smti A. Devee

                                      President,

District Consumer D.R Forum,

Sonitpur, Tezpur

Sri  P.Das

Member(Gen.)

District Consumer Disputes

Redressal  Forum, Sonitpur

                                      CONSUMER COMPLAINT NO.32/2018

1.Md Naushed Ali                                                          :           Complainant

S/o Samser Ali

R/o of Vill: Rupkuria Solmara ,

P.O: Napam, P.S: Tezpur

Dist:Sonitpur (Assam)

Vs.      

1.The Oriental Ins.Company Ltd.                                :           Opp parties

Tezpur, Dist: Sonitpur, Assam-784001

2.Mr.Debasis Das Gupta

Surveyor, Oriental Ins.Co.Ltd.Tezpur Branch  

Appearance:

        Mr.Salim.Khan, Adv                                                                            :               For the Complainant 

        Mr. Ajay Paul,Adv.                                                                               :               For the Opp. party No.1

Mr. Pranjyoti Saikia,Adv.                                                                              :               For Opp. party No.2

Date of argument                                                                                                :               15-07-2019

Date of Judgment                                                                                               :               29-07-2019                                                                                                                                                                                                                                                                             Contd.Pg..2

                                                                                      (Page…2)

J U D G M E N T                      

1.  Brief of the complaint, is that-Complainant is owner of the Bolero Pick up vehicle bearing registration No.AS-12-AC-0963. Complainant is an unemployed person and the vehicle was obtained to earn a living. The vehicle was purchased through financial assistance of Mahindra & Mahindra Finance Co.Ltd.,Tezpur Branch  and the same was insured with the opposite party No.1, Oriental Insurance Company Ltd. for the period from 24-01-2017 to 23-01-2018. During subsistence of the insurance, the vehicle, on 17-11-2017, on its way to Lanka from Tezpur, met with an accident and suffered extensive damage at a place Bhagiram Pathor under Dabaka Police Station in the district of Nagaon. A case was registered by Dabaka Police vide Dabaka P.S Case No.285/17. The incident was immediately reported to opposite party No.1, and the opp. party registered a claim being numbered 321202/31/2017/4707 and deputed one Sri Das Gupta as Surveyor. It has been alleged that the surveyor took to demanding a sum of Rs.30,000/- from the complainant to settle the claim but was refused by complainant on grounds of his financial crisis. Further alleged that on 30/05/2018 the complainant was served with a letter by opp. party No.1 stating thereunder that the vehicle, having been sold to some Alam Ali, the claim as such will not be settled. A notice to that effect was issued and accordingly on receipt of notice, Complainant visited the opposite party and produced a copy of Cancellation of Sale Deed. Only on receiving copy of cancellation of sale deed the opposite party assured to settle the claim. Complainant received another notice dated 06/06/2018 from the opp. party intimating to turn down the claim on ground that license of the driver Intajul Haque has been suspended by Dabaka Police under Section 273/338/427/340. Perceiving that the opposite party has been indulging in cavils and less intended to settle the claim, Complainant served legal notice dtd 01/07/18 upon the opp. party, but to no avail. To get rid of harassment from the financier, complainant took loan from other sources to settle the loan of the financier.
2. With the averments as above and alleging that the opp. party, by not settling the claim had indulged in unfair trade practice amounting to deficiency in service, the Complainant is therefore, before the Forum praying IDV of the vehicle of Rs.3,90,000/- compensation of Rs.1,90,000/- for mental tension agony etc. Rs.6,00,000/- for loss of business and Rs.300/- per day till realization of damage claim with 18% interest per annum from the date of filing the case.
3. Opposite party Insurance Company contested the case by filing written version, questioning the status of the complainant as consumer as defined under the Consumer Protection Act. It has also been contended that the complainant has violated the terms and conditions of the Policy insofar as the complainant has transferred the vehicle to a third party by way of sale at Rs.1,60,000/- on 07/02/2013 i.e.prior to the date of alleged accident and the vehicle was operating under the control and management of the purchaser namely one Md Alam Ali S/o Md Mustafa, resident of 1-No Dolabari,Tezpur without transferring the R/C and Insurance in the name of the purchaser. Further that the driver of vehicle namely Md. Intazul Haque did not possess valid driving license and driving in a rash and negligent manner had rammed the vehicle behind a truck in broad day light. Further that the complainant having failed to substantiate and clarify certain postions as sought for vide letters dated 30-05-18, 06-06-18 and 05-07-18, the opposite party was left with no alternative but to issue letter of repudiation of the claim on 16/10/18. With the above contentions in main, the opposite party has denied any deficiency on its part and prayed for dismissal of the complaint.
4. Complainant having failed to adduce evidence despite sufficient opportunity been given, therefore, vide order dated 12-06-19, the opposite party was asked to submit argument. Accordingly, heard argument advanced by Sri A.K.Paul, learned counsel appearing for the opposite party. We have carefully gone through the materials available on record. The following points are drawn up for determination of the dispute.

POINTS FOR DETERMINATION

1. Whether there was deficiency in service on the part of the opposite party ?
2. Whether the Complainant is entitled to get any compensation ?

DISCUSSION ON THE POINTS WITH DECISION

5. Under Sub-Section 2(c) to Section 13 of the Consumer Protection Act, where the Complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merit. Here, in the instant case, Complainant failed to appear on several dates fixed for hearing. To decide the case on merit, we have gone through the pleadings of the parties.
6. On a very careful scrutiny of the pleadings of the parties, we have found that burden of prove to establish the case squarely rests on the Complainant. The Complainant, except producing photocopy of certain documents, failed to adduce any evidence.
7. Case record reveals that on 12-03-19 learned advocate for the Complainant filed petition No.62/19 for adjournment stating that “due to physical illness” he, (Complainant) could not come to sign the affidavital evidence. On the next date fixed for evidence on 05-04-2019, one advocate Reshma Khatun filed petition No.85/19 for adjournment stating  that advocate for the Complainant is out of station for his treatment and therefore, he could not draft the evidence. That means affidavit was not ready on 12-03-2019. However, adjournment as prayed for was allowed. Thereafter again on 23-04-19, petition No.94/19 was filed for the Complainant for adjournment. Reasons for adjournment stated in para 2 of the petition is quoted below -

“That due to non-contact with the Complainant, he is out of station (Mumbai) evidence could not       

  file today”.

8. On 23-04-2019, petition for adjournment was allowed with cost of Rs.500/-. Thereafter, neither the Complainant nor his advocate has yet taken any step.
9. Since Complainant fails to adduce any evidence to establish his claim of deficiency in service on the part of the opposite party, the Point No.(i) is decided in the negative for want of evidence. Consequently, Point No.(ii) is also decided in the negative.

                For the reasons stated above, we are constrained to dismiss the case for want of evidence.

                                                                                                O R D E R

                The case stands dismissed. No order as to cost.However the opposite party is at liberty to realize the adjournment cost of Rs.500/- imposed vide order dtd 23-04-19.

Given under our hands and seal of this Forum this 29th day of July, 2019.

Dictated and corrected by:

(A.DEVEE)                                                                                                                       (A. DEVEE)  

President                                                                                                                               President

Dist.Consumer D. R Forum                                     District Consumer Disputes Redressal Forum

Sonitpur,Tezpur                                                                                                           Sonitpur,Tezpur

I  agree:-                                                               (Sri P.Das)       

                                                                                   Member