This case has arisen out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that In the year 2019 applicant’s vehicle / recovery van bearing Registration No:-W.B59B/4602 was duly insured by the O.P vide Policy certificate No:-0314033119p106859535 dated 02.09.2019. On 12.03.2020 at evening said vehicle loaded with rice started for Bhutan along Islampur-Goalpokhar road and at about 9.00 PM said vehicle was capsized into the gutter by the right side of road at the turning point of Vill-Bherothan under Goalpokhar P.S due to loss of control over the vehicle by the driver, as a result the vehicle was damaged but the driver and cleaner of the vehicle were saved. After visiting the spot and vehicle on 14/03/2020 the applicant lodged Golapakhar P.S GDE No:-431/20 dated 14/03/2020.
That thereafter, applicant lodged claim petition to the O.P to get compensation in respect of damage of his vehicle and investigator Subhash Chandra Das investigated the vehicle and its damage and he asked the appellant to take the vehicle to Fulbari Garage for repairing of body and engine of the vehicle as the compensation would be given in accordance of the bill with the garage.
That since 3 months back prior to the incident, the driver Chandan Ghosh had been driving said vehicle but on 08/07/2020 he committed suicide and after his death O.P informed the applicant through a letter dated 22.03.2021 that the DL vide No:-WB0120151036380 is fake, but it was /is not possible for the applicant to find out sanctity of said DL.
That the original bill of Rs.27,500/- of recovery van and garage bill of Rs.2,05,098/- in respect of applicant’s vehicle is lying with O.P since 16.12.2020. The applicant is praying for recovery of Rs.232598/- towards damage of vehicle and Rs.5,00,000/- as compensation for mental torture and unfair trade practice & means.
O.P /Insurance Company contested the case by filing written version denying case of the applicant stating that the complainant has got no cause of action, the claim application for compensation is not maintainable, that at the time of accident DL of the driver namely Mr. Chandan Ghosh DL No:-WB0120151036380 was fake. So the O.P is not liable to pay compensation which is a breach of policy condition it prays for dismissal of the case.
Points for consideration:-
- Whether there was/ is any deficiency in service or unfair trade practice on the part of the O.P which gives rise cause of action to file the case?
- Whether the applicant is entitled to get relief (s) as prayed for?
D e c I s I o n w I t h r e a s o n s
Admittedly, the applicant’s vehicle/recovery van bearing Registration No:-WB59 B/4602 was duly insured with O.P/Insurance Company vide Policy No:-0314033119p106859535 dated 02.09.2019.
The case and evidence of the applicant is that on 12.03.2020 in the evening applicant’s vehicle loaded with rice proceeded with Bhutan along Islampur-Goalpokhar road and at about 9.00 PM the driver lost control over the vehicle and the vehicle was capsized into the gutter by the right side of the road at the turning point of village Bherothan under Goalpokhar, P.S, as a result his vehicle was damaged and after visiting the spot and vehicle he lodged Goalpokhar PS GDE No:-431/20 dated 14.03.2020. Goalpokhar PS GDE No:-431/20 dated 14/03/2020 supports such statements of the applicant.
Admittedly, thereafter the applicant lodged a claim petition to the O.P and Investigator Subhas Chandra Das investigated the matter.
It is also admitted that at the material time of accident the vehicle of the applicant was driven by Chandan Ghosh, DL No:-WB0120151036380 issued by LA, Behala, Kolkata.
According to the applicant the driver and cleaner of his vehicle were saved. Admittedly, Chandan Ghosh the driver of applicant’s vehicle committed suicide on 08.07.2020. The applicant neither disclosed the name of his vehicle’s cleaner nor he (said cleaner) come forward to adduce evidence.
The case and evidence of the applicant is that he was asked to take the vehicle to Fulbari garage for necessary repair with assurance to pay the bill for such repair, accordingly after repair he submits original bill of Rs.27,500/- of his recovery van and also garage bill of Rs.2,05,098/- in total Rs.2,32,598/-.
No report of Investigator Subhash Chandra Das is produced. No written direction of the Investigator regarding repair or assurance of payment of bill towards repair charges is/are produced and no one corroborate applicant’s such statement.
It is stated by the applicant that said bills are lying with the O.P since 16.12.2020. At the same time he admits that the O.P informed him through a letter dated 22.03.2021 that the above numbered DL in name of Chandan Ghosh is fake.
A.R.T.O, P.V.D, Behala-60(Kolkata) by its Memo No:-PVD-Behala-572 dated 10.02.2021, in response to R.T.I of Investigator Subhash Chandra Das “confirmed” the same, also corroborated by O.P.W.1 Chanchal Pramanik, Assistant Branch Manager, United India Insurance Co. Ltd., Raiganj Branch.
Ld. Advocate for the applicant referred judgment of Hon’ble Supreme Court in Re: Nirmala Kothari Vs United India Insurance Co. Ltd., in Civil Appeal Nos:-1999-2000 of 2020 & the judgment of Hon’ble High Court at Calculta in Re:-Smt. Rita Dhar & Ors Vs United India Insurance Co. Ltd, in FMA 3394 of 2013.
In both the judgments guiding factors and guidelines of Motor Vehicle Act, 1988, have been discussed relating to claim/compensation in connection with motor accident. We are concerned with claim available in connection with Consumer Protection Act, so we are of the view that the guiding factors/ guidelines given in those judgments are not applicable in this consumer’s complaint case.
We find no deficiency in service or unfair trade practice on the part of the O.P, so there was no cause of action to file the complaint and same is not maintainable in its present form.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-26/2021 be and the same is dismissed on contest against the O.P.
Let a copy of this order be given to the parties free of cost.
