FINAL ORDER
The simple version of this complainant that enumerated in the complaint is that the son of complainant namely Sanjoy Bhowmik, now deceased purchased a Bajaj Motor Cycle vide Model No. Discover-125, Chassis No.MOZDSJZZZUPF-29224, Engine No.JZYBUF-71908 Registration No.WB-64 E/9771 in a consideration amount of Rs.53,045 from the O.P i.e. Brahmachari Bajaj (auto) which was insured with Bajaj Insurance Company Ltd. Vide Cover Note No.MC-1002226039, Policy No.1224041802000223201 period of insurance from 25-10-2011 to 24-10-2012 type of policy “package”.
Unfortunately, on 30-12-2011 while the son of complainant i.e. Sanjoy Bhowmik was returning back from Mathabhanga by driving his said motor cycle towards his house then suddenly a mini bus bearing Registration No.WB-63/2011 dashed the said motor cycle in rash and negligent manner and thereby the son of complainant fell down from his motor cycle and sustained severe bleeding injuries and thereby he succumbed to his injuries. Then the complainant informed to the O.P about the matter over the telephone and the O.P asked the complainant to place the said damaged motor cycle to their showroom for necessary repairing. Accordingly, on 03-02-2012 at about 6 pm the complainant does the same as per O.Ps direction. Thereafter the O.P issued a Job Card being No.624 dated 03-02-2012 to the complainant and assured that he will get back the delivery of his motor cycle after fortnight with full repairing without any costs as because the said motor cycle was within the insured period with package policy. Thereafter passing the said period the complainant went to the showroom of the O.P for get back the delivery of said motor cycle as per assurance of the O.P. On that time the complainant was informed by the O.P to submit the certified copy of F.I.R along with Formal F.I.R., Seizure List M.V. Report, Vehicle Release Bond with Vehicle Release Order, Post Mortem Report of Deceased Sanjoy Bhowmik in connection with G.R. Case No.850/2011, and Registration Certificate & Insurance Policy of said motor cycle being Registration No.WB-64-E/9771 and accordingly the complainant submitted the same to the office of O.P. Thereafter, on several times the complainant went to the showroom of the O.P for bringing back the said motor cycle after duly repair but the O.P did not make any initiative to make repair the said damaged motor cycle and also did not pay any heed to the request of the complainant.
Afterwards, finding no other alternative way on 18-07-2012 the complainant sent a Legal Notice to the O.P with Registered Post with acknowledgement through Mr. Alok Kumar Debnath, Ld. Lawyer of Mathabhanga Bar Association and the same was acknowledged by the O.P by putting his seal & signature of the showroom but till date the O.P did not make any reply of the said Notice dated 18-07-2012 nor they make any repairing to the said damaged motor cycle. Thus, the complainant suffered huge loss for the said motor cycle due to such unfair trade practice and deficiency in service of the O.Ps. The complainant also suffered from mental pain and agony, due to act and conduct of the O.Ps. That due to such activities of the O.Ps and finding no other alternative the complainant files this complaint before this Forum for redress of all disputes and further prays for relief(s) as incorporated in the prayer portion of the complaint.
The complainant filed the instant case No. DF-155/2013 with enclosed some Xerox copy of documents together with I.P.Os. of Rs.100/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to (1) Replacement of damaged motor cycle by new one of same model or make payment a sum of Rs.53,045/- with interest @12% per annum from the date of purchase of motor cycle till final payment, (2) Rs.10,000/- for mental pain, agony, (3) Rs.20,000/- for deficiency in service & unfair trade practice, (4) Rs.10,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
In the present case the Opposite Party appears through Ld. Agents and contesting the case by filing W/ V. By filing W/V the O.P. contended that the Complaint has no prima facie case and bad for non-joinder and mis-joinder of necessary party and make denial against all most all the allegation of the Complainant.
The further contention of the Opposite Party is that after purchasing the alleged motor cycle the Complainant duly insured the Motor Cycle with the Bajaj Allianj General Insurance Company Ltd. from Siliguri Branch Office bearing Cover Note No. MC 1002226039, Policy No.1224041802000223201 covering Insurance from the period from 25.10.2011 to 24.10.2012 and the Type of policy was “Package”. The Motor Cycle of the Complainant fall in an accident upon Cooch Behar to Mathabhanga High Road on 30.12.2011 during the insurance period. The O.P. is only liable to take the responsibility for repairing the Motor Cycle if there are any manufacturing or technical defects appear within the warranty period but has no liability to repair the defect in the Motor Cycle occurred due to an accident. In that event complainant had to move before the Insurance Company to get accidental benefit as the Motor Cycle was duly insured with the Bajaj Allianz General Insurance Company. This O.P. also averred that the Complainant badly failed to make party to the Insurance Company and financer The Bajaj Finance Ltd. as such the complaint is defective one and liable to be dismissed. The Complainant never approached to the O.P. alleging manufacturing or technical defect of the Motor Cycle. In case of the accident the Complainant is entitled to get relief from the Insurance Company but the O.P. is not liable to compensate the Complainant for damage of his Motor Cycle. Moreover, the Complainant did not disclose the actual fact and intentionally filed the present case which deserve to be dismissed with cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service as alleged by the Complainants and are they liable in any way?
- Whether the Complainants are entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and also heard both the counsel at a length. Perused the Evidence on affidavit of the parties along with Written Argument.
Point No.1.
The Complainant Sri Sukomal Bhowmik in view to his personal use purchased a Bajaj Motor Cycle with payment of Rs. 53,045/-from the Opposite Party and the Opposite Party issued a Tax Invoice in favour of the Complainant. Thus, in view of the status of the Complainant and the relationship with the O.Ps so established from the documents; we are of the clear opinion that the Complainant is the Consumer as per provision of section laid down in C.P. Act, 1986.
Point No. 2.
The Complainant has filed this case with claim of Rs.93,045,/- i.e. within Rs.20,00,000/- and the office of the Opposite Parties is situated in this district also cause of action arose within this district. Hence, this Forum has pecuniary as well a territorial jurisdiction to try this case.
Point No. 3.
Evidently, the Complainant purchased one Bajaj Motor Cycle from the authorized dealer of the Bajaj Auto Ltd. It is the case of the Complainant that though the Motor cycle is under the Insurance coverage but the Opposite Party avoids making payment of the damaged vehicle. The said vehicle met an accident on 30.12.2011 and the vehicle damaged fully. The further case of the Complainant is that he placed the vehicle before the Opposite Party for replacement/repair but the Opposite party did not do that. Thus, the present case arisen out.
It is the case of the Opposite Party that the Complainant purchased the Motor Cycle from its show room and as per terms and condition the O.P. is only liable to give service if there is any technical /manufacturing defect appears but has no liability to repair the defect due to an accident. The further case of the Opposite party is that the alleged Motor Cycle was duly insured with the Bajaj Allianz General Insurance Company, the motor Cycle of the Complainant damaged due to an accident which is under the policy coverage and the Insurance Company is liable to compensate the Complainant.
In the Complaint petition as well as in the Evidence on affidavit the Complainant stated that his Motor Cycle was duly insured with the Bajaj Allianz General Insurance Company bearing No. 1224041802000223201 under Policy “Package”. The Complainant did not file the Policy Certificate. It is the general principle that in case of accident if the vehicle was duly insured, and the accident happened within the policy period the liability born by the Insurance Company. It appears from the Owner’s Manual, Annexure “I”, in Warranty Scope and Limit clause “10”that “the warranty is not applicable to parts of the vehicle that have been subjected to misuse, accident etc.”
Thus, we hold beyond any manner of doubt that though the vehicle met an accident and damaged within the warranty period, the Opposite Party has no liability to repair or replace the parts as per terms and condition of the Warranty.
The Opposite Party has also taken right plea that the Motor Cycle was duly insured and the liability to compensate the Complainant is upon the Bajaj General Insurance Company. It is pertinent point to mention a Job Card bearing No.624 dated 03.02.2012 has been filed by the Complainant and stated that the O.P. received the alleged Motor Cycle in question for repair. On perusal Annexure “C” & “D” it appears that the Job Card No. 317 is duly sealed and signed by the O.P. but in the job Card No.”D” there is no seal and signature of the O.P. also there is no note or comment of the O.P. as to the received of the Motor Cycle. The Opposite Party in its Written Argument clearly stated that after starting the G.R. case the police seized both the vehicle and produce the same before the court.
Besides, the Complainant stated in his complaint petition as well as Evidence on affidavit that as per request of the Opposite Party the Complainant submitted the certified copy of F.I.R along with Seizure list, M.V. Report, Vehicle release Bond with vehicle Release Order, Post Mortem report, R.C. Book and Insurance Policy to the Opposite Party but there is no received endorsement of the same in this case and also there is no whispering in the W/V or in the Evidence of the Opposite Party that they have actually received such document and motor cycle. Thus, in our view the Complainant has failed to prove that the motor Cycle is till now in the possession of the Opposite Party.
In the light of the above discussion we are in a considered opinion that the Opposite Party has no deficiency in service as it has no liability to compensate the Complainant/purchaser of the Motor Cycle that damaged due to an accident.
This complaint also bad for mis-joinder of necessary party as Insurance Company has not been made party to this case.
Point No. 4.
No deficiency service of the Opposite Party is proved thus, the Complainant is not entitled to get any relief.
The complaint fails.
ORDER
Hence, it is ordered that,
The DF Case No.155/2013 be and the same is dismissed on contest. Complainant is at liberty to prefer claim before the Insurance Company.
No order to costs.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
Member President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member
District Consumer Disputes
Redressal Forum, Cooch Behar
