Skip to content

Mojammel Haque v Ashoke Talukdar

30-Dec-09

Before the Honorable

Consumer Disputes Redressal Forum,

Uttar Dinajpur at Raiganj.

(Super Market Complex, Block – 1, 1st Floor.)

Consumer Case No.:       50/2008.

Date of filing            : 30.09 .2008.

Date of final order   :  30.12.2009.

Present:

A)        Sri  Saurish Chakraborty                President.

B)        Smt.Swapna Kar                               Member.

C)        Sri Swaraj Kumar Biswas               Member.

Muzamell @ Mojammel Haque,

Son of Late Hazi Afajuddin,

Village – Purba Malgoan, P.O. – Palgaon,

P.S. – Kaliyaganj, Dist. – Uttar Dinajpur.            Complainant.

versus

1.         Ashoke Talukdar,

Wife of Shyamal Talukdar,

C/O – Polay Ghosh,

East Rabindra Nagar, (Near Talak Sandhu Dokan),

P.O. – Rabindra Sarani, Dist. – Darjeeling.

2.         Finance Zone,

(To be represented by Ashoke Talukdar),

Bidhan Market (Opposite Gostha Gopal Statue),

P.O. – Siliguri, Dist. – Darjeeling.                 Opposite Parties.

Order No.: 16.

Date: 30.12.2009.

Record is put up for delivery of final order exparte of the application filed U/S 12 of Consumer Protection Act, 1986.

The fact of the case in short that the Complainant paid a sum of Rs.70,000.00 (rupees seventy thousand) on 18.12.2007 in cash to the Opposite Parties, who deals with the sale of vehicles of various companies. The said sum was paid to the Opposite Parties against the promise by them (Opposite Parties) to deliver the vehicle within 17.01.2008. But, delivery was not made within the stipulated period, Complainant contacted the representative of the finance company, but finally Opposite Party No. 1 issued two cheques, drawn on Federal Bank of India, Siliguri, bearing cheque Nos. 852996, dated 18.02.2008 for Rs.40,000.00 (rupees forty thousand); and cheque No. 852997, dated 19.02.08 for Rs.30,000.00 (rupees thirty thousand). But both the cheques were dishonored with the remark of the bank “fund is insufficient” so this case has been filed by the Complainant praying for the return of Rs.70,000.00 (seventy thousand) along with interest at the rate of 12 percent from the date of 18.12.07 and also prays the compensation of Rs.1,24,000.00 (one lac twenty four thousand) for cancellation of route permit and unnecessary harassment, mental pain and agony and lastly litigation cost of Rs.5,000.00 (five thousand).

The Opposite Party/ men, who avoided the NOTICEs initially, finally made their appearance, but abandoned the case amid the hearing.

Complainant has adduced his evidence in the form of Affidavit-in-chief and also filed the two dishonored cheques along with the remark of drawee bank and the route permit sanctioned in his favour by the STA, Government of West Bengal. His statement on affidavit together with the documents, are sufficient to make out a prima-facie case to pass an order in favour of him.  So the complaint succeeds exparte.

Fees paid are correct.

Hence, ordered,

That the complaint is allowed exparte with cost against the Opposite Party Nos. 1 and 2. The Complainant do get an order of return Rs.70,000.00 (rupees seventy thousand) together with interest at the rate of 6.5 (six and half) percent from 18.03.2008 (the date of cheques being bounced) till the date of full payment of the awarded sum (Rs.70,000.00). Besides, the Complainant do get an order of Rs.5,000.00 (rupees five thousand) on account of his harassment, mental pain and agony being suffered due to cancellation of his route permit, in addition, he do also get an order of litigation cost of Rs.1,000.00 (rupees one thousand) against the Opposite Parties. The compensation amount and the litigation cost must be paid by the Opposite Parties within one month from the date of this order; in default the Complainant will be at liberty to claim the interest at the rate of 6.5 percent till full realization.

Furnish the true photocopies of this Final Order to the Complainant and send the copy to the Opposite Parties by Registered Post free of cost.

Sd/-……………..………..        Sd/-………………….        Sd/-…………………

Swaraj Kumar Biswas                      Swapna Kar                  Saurish Chakraborty

Member,                                    Member,                              President,

D. C. D. R. F.,                             D. C. D. R. F.,                      D. C. D. R. F.,

Uttar Dinajpur, Raiganj.           Uttar Dinajpur, Raiganj.     Uttar Dinajpur, Raiganj.

Filed in Uttar Dinajpur | Tagged | Comments (0) »

Chakrapani Sahu v Sri Ram Enterprises

30-Dec-09

District Consumer Forum, Ganjam,Berhampur.

consumer case(CC) No. CC/08/93

Sri Chakrapani Sahu,Gandhinagar 8th line, Po: Berhampur.Dist: Ganjam.
………..Appellant(s)

Vs.

1. M/s Sri Ram Enterprises, Divisional Sales Office, ASG (R&D) Park Street, Berhampur-2, Ganjam, Orissa

2. M/s ASG Research & Development, Area Sales Office, H.B.Colony,MIG-I 22/3, Phase-1, Chandrasekharpur Bhubaneswar , Dist: Khurda,Orissa.

3. M/s ASG Research & Development, S-3 Thambu Chetty, Palaya Cross, Bangalore- 560 049.(Karnatak)
………..Respondent(s)

BEFORE:
1. Mr.Harish Chandra Nayak
2. Smt. Shanti Panigrahi
3. Mr. N Tuna Sahu

OppositeParty/Respondent(s):
1. Mr. Krushna Mohan Panigrahy and Mr. Niranjan Mahapatra,

ORDER

Shri Haris Chandra Nayak, President: Deficiency in service against the Opposite parties is the grievance of the complainant. 2..Briefly stated, the case of the complainant is that on 17.11.2007 he purchased one water purifier (Smart Brand) pure and healthy Drinking water RO, by paying Rs. 12,240/- vide invoice No.18 dt.17.11.2007 from O.P.No.1 with a warranty/guarantee period of one year and four free services. The costliest water purifier (Smart Brand) is a defective one and not worked properly and started troubles within a month of purchasing date and also R.O. could not discharge quality water as per written assurance given by him in the reverse side of Bill too, stating that the RO will maintain water TDS levels up to 50 to 65 within 1800 days. On 14.1.2008 the complainant reported about the defect of RO to O.P.No.1 and requested him to rectify the defects as early as possible on health grounds of his family members. Again the complainant personally requested on dt.25.1.2008, 11.2.08, and 1.3.08 (three times) to OP No.1 to rectify the defects if any in water purifier or to refund the price or to exchange of the same because he is spending more money for purified water by purchasing in the open market as per advise of his family doctor. The complainant sent a Regd. Letter to OP No.1 but the said letter returned as per postal remarks that addressee absent, hence returned to sender. At last the complainant approached to Ganjam District Consumer Protection Guild at Berhampur for redressal of his difficulties but all in vain. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to exchange the water purifier or to refund the cost of the water purifier with interest, Rs.50,000/- towards compensation and litigation cost of Rs.2000/- in the best interest of justice. 3. On receipt of notice issued by this Forum, the O.P.No.1 filed version through his Advocate. It is contended that all the allegations enumerated in the petition are false and baseless and the complainant should be asked to strict proof of the same. The complainant has purchased a water purifier (Smart Brand) from OP No.1 on 17.11.2007 vide invoice No.18. The O.P.No.1 has not issued a one year warranty card in respect of the alleged water purifier to the complainant due to non paid the full amount. The complainant has never contacted to O.P.No.1 after purchase of the alleged produce and regarding requesting to O.P.No.1 on various dates are false and imaginary. The complainant has never brought the defect of the alleged product to the knowledge of the O.P.No.1. As such the question of negligence and deficiency of service by the O.P.No.1 does not arise. Hence prayed to dismiss the case in the interest of justice. 4. On the date of hearing we heard argument. We perused the complaint petition, version, documents available in the record. The complainant filed affidavit in support of his case. It is stated that the O.Ps failed to exchange the defective water purifier or to refund the cost of the water purifier. One Sri Satya Narayan Satapathy working as Group Leader-cum-Sales service and service Technician filed affidavit that the complainant paid Rs.10,000/-only towards the cost of the purchased water purifier (smart Brand). On receipt of complaint on dt. 21.6.08 he visited the complainants house checked the water purifier and finding it defective and changed the membranes and fitted the same to the water purifier without any cost and given free service with endorsement in the warranty card. The purchaser has not paid the full and final amount of the water purifier for which the original warranty card and the bill has not been issued to complainant. The said documents are in custody of the organisation i.e. Sri Ram Enterprises. The O.Ps failed to exchange the defective water purifier or to refund the cost of the water purifier during the warranty period. We feel that there is deficiency in service on the part of the O.Ps. In the result, we direct the Opposite parties who are jointly and severally liable, to replace the defective water purifier (smart Brand) and to supply a new water purifier (smart Brand) or in alternative to refund the cost of the said water purifier Rs.10,000/- with 9% interest per annum from the date of his complaint i.e. dt. 10.12.2008 till the date of payment to the complainant. We also direct the O.Ps to pay cost of Rs 1000/- to the complainant. The above order should comply by the O.Ps within one month of receipt of this order. The order is pronounced in the open Forum on this day of 7th December 2009. Typed to my dictation and corrected by me.

Shri Haris Chandra Nayak, President: Deficiency in service against the Opposite parties is the grievance of the complainant. 2..Briefly stated, the case of the complainant is that on 17.11.2007 he purchased one water purifier (Smart Brand) pure and healthy Drinking water RO, by paying Rs. 12,240/- vide invoice No.18 dt.17.11.2007 from O.P.No.1 with a warranty/guarantee period of one year and four free services. The costliest water purifier (Smart Brand) is a defective one and not worked properly and started troubles within a month of purchasing date and also R.O. could not discharge quality water as per written assurance given by him in the reverse side of Bill too, stating that the RO will maintain water TDS levels up to 50 to 65 within 1800 days. On 14.1.2008 the complainant reported about the defect of RO to O.P.No.1 and requested him to rectify the defects as early as possible on health grounds of his family members. Again the complainant personally requested on dt.25.1.2008, 11.2.08, and 1.3.08 (three times) to OP No.1 to rectify the defects if any in water purifier or to refund the price or to exchange of the same because he is spending more money for purified water by purchasing in the open market as per advise of his family doctor. The complainant sent a Regd. Letter to OP No.1 but the said letter returned as per postal remarks that addressee absent, hence returned to sender. At last the complainant approached to Ganjam District Consumer Protection Guild at Berhampur for redressal of his difficulties but all in vain. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to exchange the water purifier or to refund the cost of the water purifier with interest, Rs.50,000/- towards compensation and litigation cost of Rs.2000/- in the best interest of justice. 3. On receipt of notice issued by this Forum, the O.P.No.1 filed version through his Advocate. It is contended that all the allegations enumerated in the petition are false and baseless and the complainant should be asked to strict proof of the same. The complainant has purchased a water purifier (Smart Brand) from OP No.1 on 17.11.2007 vide invoice No.18. The O.P.No.1 has not issued a one year warranty card in respect of the alleged water purifier to the complainant due to non paid the full amount. The complainant has never contacted to O.P.No.1 after purchase of the alleged produce and regarding requesting to O.P.No.1 on various dates are false and imaginary. The complainant has never brought the defect of the alleged product to the knowledge of the O.P.No.1. As such the question of negligence and deficiency of service by the O.P.No.1 does not arise. Hence prayed to dismiss the case in the interest of justice. 4. On the date of hearing we heard argument. We perused the complaint petition, version, documents available in the record. The complainant filed affidavit in support of his case. It is stated that the O.Ps failed to exchange the defective water purifier or to refund the cost of the water purifier. One Sri Satya Narayan Satapathy working as Group Leader-cum-Sales service and service Technician filed affidavit that the complainant paid Rs.10,000/-only towards the cost of the purchased water purifier (smart Brand). On receipt of complaint on dt. 21.6.08 he visited the complainants house checked the water purifier and finding it defective and changed the membranes and fitted the same to the water purifier without any cost and given free service with endorsement in the warranty card. The purchaser has not paid the full and final amount of the water purifier for which the original warranty card and the bill has not been issued to complainant. The said documents are in custody of the organisation i.e. Sri Ram Enterprises. The O.Ps failed to exchange the defective water purifier or to refund the cost of the water purifier during the warranty period. We feel that there is deficiency in service on the part of the O.Ps. In the result, we direct the Opposite parties who are jointly and severally liable, to replace the defective water purifier (smart Brand) and to supply a new water purifier (smart Brand) or in alternative to refund the cost of the said water purifier Rs.10,000/- with 9% interest per annum from the date of his complaint i.e. dt. 10.12.2008 till the date of payment to the complainant. We also direct the O.Ps to pay cost of Rs 1000/- to the complainant. The above order should comply by the O.Ps within one month of receipt of this order. The order is pronounced in the open Forum on this day of 7th December 2009. Typed to my dictation and corrected by me.

………………….
Mr.Harish Chandra Nayak

………………….
Smt. Shanti Panigrahi
………………….
Mr. N Tuna Sahu

Filed in Ganjam | Tagged | Comments (0) »

Runu Das v Duncan Industries

30-Dec-09

District Consumer Disputes Redressal Forum, Kolkata, Unit-II

8 B, Nelie Sengupta Sarani, 7th floor, Kolkata – 700 087.

Case No. CDF/Unit-II/C.C. No. :  1192 / 2008

Date of Filing : 23-12-2008

Date of Order : 30-12-2009

Complainant /Complainants

– Vs –

O.P. / O.P.s

1) Smt. Runu Das

2) Smt. Supriya Ghosh

74/1A, Durga Charan Mitra Street,

Kolkata – 700 006.

– Vs –

The Director

Duncan Industries Ltd.

31, Netaji Subhas Road,

Kolkata – 700 001,

P.S.- Hare Street

Before : Hon’ble President

Before : Hon’ble Member

:

:

Shri S. Bhattacharyya

Shri S.K. Deb

O R D E R

This is a case u/s. 12 of the C.P. Act, 1986 (as amended upto date) alleging deficiency of service against the OP. The case of the complainant is that they has invested Rs. 24,000/- (Rupees Twenty Four thousand only) in 2 (two) fixed deposits on non-cumulative basis in their names of the OP Company. The details of the fixed deposits are given below :

Sl No

FD No

Principal Amount

(Rs/-)

Term

Date of Maturity

Rate of interest

Interest Scheme

1)

124866

12,000

3 years

20-12-2002

@ 14.5%

NC MNT

2)

204012

12,000

1 years

05-12-2002

@ 12%

NC MNT

Total Principal Amount:

24,000

The original FDRs were deposited to the OP/Company for re-payment of the amount of the fixed deposit 28-11-2002. The complainants received only contractual interest in the meantime. As the OP Company defaulted to make payment of the principal amount alongwith post maturity interest of the fixed deposits, the complainants approached the respondent company for payment to the OP Company, but to no effect. Thereafter, a complaint was lodged in this Forum against the OP on 23-12-2008. Prayer has been made for giving direction on the OP Company for making payment of the due principal amount of Rs. 24,000/- (Rupees Twenty Four thousand only) alongwith post maturity interest till recovered, cost and any other order as the Forum may deem fit and proper.

OP contested the case by submitting written statement denying deficiency of service. According to it, the complaint is time barred and there has been misjoinder of parties and cause of actions, violation of Sub Section 2 of Section 12 of the C.P.Act., 1986 and the matter is subjudice in the Hon’ble High Court, Calcutta vide C.P.Case No. 472 of 2003 and that it is a sick industrial company within the meaning of Clause (0), Sub Section (1) of Section 3 of the Sick Industrial Companies (Special Provision) Act, 1985 (SICA) and a reference has been made to BIFR in terms of provision of Section 15 (1) of the Sick Industrial Companies (Special Provision) Act, 1985 (SICA), which was duly registered as Case No. 70/2006. It has been mentioned that the company was declared sick by BIFR on 21-02-2007 and the State Bank of India has been appointed as Operating Agency under SICA and directed to formulate a draft rehabilitation scheme. It has been submitted that there is no deficiency of service on the part of OP as re-payment of the deposit to holder is under judicial process by BIFR. The matter was heard on 02-12-2009 in presence of both the parties. The documents as produced were perused and considered alongwith the respective submissions. Affidavit has been filed by the complainants. The complainants did not lodge any complaint in any other Court.

Decision

The complainants invested Rs. 24,000/- (Rupees Twenty Four thousand only) in fixed deposit in their names under non-cumulative monthly interest payment scheme. The complainants received only contractual interest in the meantime. But the OP Company did not pay the due principal amount Rs. 24,000/- (Rupees Twenty Four thousand only) of the fixed deposits alongwith post maturity interest to the complainants though fixed deposits matured is in the year 2002. The OP Company issued a letter dated 15-07-2002 in favour of the complainants. The complainants were informed that the due amount of the fixed deposit will be re-paid in 4 (four) instalments from 2004 / 05 to 2007 / 08 and that interest upto March. 2004 will be paid at the reduced rate as applicable to the Banks/Financial Institutions to be determined by them will be paid in instalments after the re-payment of the principal and that interest will be paid from 2004 / 05 onwards at the reduced rate as applicable to the Banks/Financial Institution to be determined by them. But re-payment of the fixed deposit was not made in pursuance of this letter. The OP was a reputed company previously and so it is expected that the complainants will wait to see as to how the re-payment of the fixed deposit is made, because no one wants to be involved in a litigation. Moreover, the fixed deposit was lying with the OP. The Hon’ble West Bengal State Commission has held in the case of Narayan Kr. Khaitan –Vs- Duncan Industries Ltd. that there will be continuous cause of action as long as the fixed deposit is not repaid in full alongwith interest to the depositor. We are, therefore, of the opinion that there was continuous cause of action. The complaint was lodged on 23-12-2008 and it is not time barred.

The fixed deposit holders are in urgent need of money and they have invested their life’s savings in fixed deposits of the OP Company with the hope that the maturity amount will be helpful to support her at the time of her need. But their hope was shattered. OP failed to produce any order of the Hon’ble High Court at Calcutta staying the proceeding of this Forum. The Hon;ble National Commission has laid down in a ruling reported in 2006-CTJ-1008 that the complaint before a District Forum is maintainable in spite of the fact that a reference has been made to the BIFR under provision of SICA, 1985. Hence, the present complaint is maintainable in the eye of law. We do not think that plea of limitation has any role to play in this case. The fixed deposit is held in the names of Smt. Runu Das and Supriya Ghosh. According to us there is no misjoinder of cause of actions or parties.

Considering the documents and submission of respective parties, we are of the opinion that the OP is liable in deficiency in service in not re-paying the due principal amount as per the scheme and due post maturity interest at contractual rate. Considered the decision reported in “ I (2004), WBLR – (CPNC) – 997 ”.

Hence,

Ordered

1)       The complaint is allowed against the OP on contest.

2)       The OP shall pay a sum of Rs. 24,000/- (Rupees Twenty Four thousand only) being the principal sum to the complainants against the FDRs in question. The OP is further directed to pay post maturity interest @ 8% p.a. (at the rate of Eight percent per annum) from the date of maturity till realisation.

3)       The complainants are in urgent need of money. In consideration of the above, the OP is directed to pay compensation of Rs. 2,000/- (Rupees Two thousand only) to the complainants for causing harassment, mental agony and dragging her to this Forum.

This order, aforesaid is directed to be complied with by the OP within 30 (Thirty) days on and from the date of communication.

The complainants are directed to serve a copy of this order upon the OP for compliance.

The CDF-II/CC bearing no. 1189 / 08 is disposed on contest, but in the circumstances, without any cost.

Supply copies to the parties free of cost as per rules.

Dictated & Corrected by me

President

Member (M)                                                  President

Filed in Kolkata-II | Tagged | Comments (0) »

Md. Israil v Sachidanand Prosad

30-Dec-09

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLKATA, UNIT-II

8B, Nelie Sengupta Sarani, 7th floor, Kolkata – 700 087

Case No.CDF/Unit-II/C.C.No.328 of 2009                               Date of filing : 23-02-2009

Date of Order : 30-12-2009

Complainant :

Vs.

O.P. /O.P.s  :

Md. Israil s/o. Late Chamari Mia,

21/1, Rubber Street, P.S. Bowbazar, Kolkata – 700 012.

Sachidanand Prosad,

16, Convent Road, P.S. Entally, Kolkata – 700 014.

.

Before :      HON’BLE PRESIDENT :   SHRI S. BHATTACHARYYA

HON’BLE MEMBER :   SHRI S. K. DEB

HON’BLE MEMBER  :   SMT. J. SAHA

ORDER

This is to consider an application u/s.12 of the C.P. Act, 1986 claiming realization of amount, interest and compensation on the ground of deficiency in service.

Briefly stated the fact that the complainant is a Labour Contractor in respect of fitting of marbles and tiles and the OP is a building contractor and marble supplier.

OP took over a project work for chipping, floor tiles and granite fitting from M/s. Bengal Silver Spring Project Ltd. at 5, J.B.S. Halder Avenue, Kolkata as a contractor and, thereafter, invited quotation for Labour Contract.  Complainant submitted quotation dated 25-02-2007 for chipping charge, floor tiles fittings, granite fitting, cutting etc. which was accepted by OP.  Complainant after completion of work submitted bill for Rs.3,54,184-96.  OP paid only Rs.1,83,889-75.  Despite repeated reminders OP failed to pay the balance amount of Rs.1,70,295-21.  Hence, the application claiming realization of balance amount, interest and compensation.

Notice was issued against OP which was returned with postal comment “Not claimed”.  So, the same was treated as “good service” according to law and the case was heard ex party.

Questions fall for consideration in this case are –

1)      Whether complainant is a consumer within the meaning of C.P. Act?  and

2)      Whether he is entitled to get any order in terms of Section 14 of the said Act?

Decision with Reasons

Admittedly, the complainant is Labour Contractor in respect of business of fitting, marbles and tiles etc. and he sold his service to OP through quotation and after completion of work he submitted bill which was not fully paid.

Now, in view of the above admitted fact question arose whether complainant is a consumer within the meaning of the C.P. Act.

In terms of Section 2(1)(d) of the Act consumer means a person who buys any goods for a consideration or hires or avails of any services for consideration.  It is the consumer who alone can come before the Consumer Fora.  Unless the complainant is a consumer within the meaning of Section 2(1)(d), he is not entitled to any relief under the Act.

In the instant case complainant is a service provider and claims realization of money from a purchaser of service.  So, he is not a consumer within the meaning of the Act.\

Therefore, for the reasons stated above the application is not maintainable and liable to be dismissed.

Hence,

Ordered

That the consumer complaint is dismissed ex parte against OP without cost.

Let a copy be supplied to the parties as per rules.

Dictated & Corrected

by me

(PRESIDENT)

MEMBER(M)             MEMBER(L)              PRESIDENT

Filed in Kolkata-II | Tagged | Comments (0) »

Jagdish Chand v Oriental Insurance

30-Dec-09

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SOLAN, H.P.

Consumer Complaint No: 34/2008

Date of presentation: 29.02.2008

Date of decision: 30.12.2009

­­­­­­­­­­­­­­­­

Sh. Jagdish Chand S/o Sh.Mansa Ram,

Resident of    Village and Post Office Shargaon,

Tehsil Rajgarh, District Sirmour, H.P.

… Complainant

Versus

1.         The Oriental Insurance Company Limited,

Through its Regional Manager, Opp. Anup

Petrol Station, Kaithu, Shimla-3.H.P.

2.         Oriental Insurance Company Ltd.,

The Mall Solan (H.P.)

through its Branch Manager.

…Opposite Parties.

­­­­­­­­­­­­­­­­­­­

For the complainant:                   Mr. Anirudh, Advocate vice

Mr. Sudhir Thakur, Advocate.

For the Opposite Parties:          Ms. Anju Kohli, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:-  The  instant complaint has been filed by the complainant,   by invoking the provisions of Section 12 of the Consumer Protection Act, 1986.  The complainant avers that, he is owner of vehicle bearing registration No.HP-16-2108, which was insured by him, with the OP-Company, and was valid up to, 22.03.2008. It is averred that the aforesaid vehicle met with an accident, on, 25.07.2007, during the currency of the insurance policy, in which both the legs of the complainant were grievously injured , as a result of which permanent disablement was caused to him. He further averred that, he, was admitted in Zonal Hospital Solan as an indoor patient w.e.f. 25.07.2007 to 06.08.2007, hence, he is  not in a position to perform his daily normal life and there is total loss to the earning of the complainant, on account of total incapability. The complainant further proceeded to aver that he has paid premium for his personal accident amounting to Rs.100/-, hence, he is entitled for compensation of Rs.10,000/-, from the  OP-Company. But the OP-Company, failed to settle the insurance claim, and is playing delay tactics. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2.                The OP-Company, in its version, to the complaint, admitted that the complainant is registered owner of the vehicle and the same was insured with it. It is denied that the complainant was seating on a parapet and was waiting for his truck at Sanaura, the deriver lost control over the same vehicle which hit against the tree and parapet on which the complainant was seating. It is denied that the complainant received grievous injury. They further contend that the claim was not lodged within six calendar months of such injury. It is further contended without  admitting the liability, the insured shall not in the aggregate excess the sum of Rs.2,00,000/-. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3.                Thereafter the parties led evidence by way of affidavits and documents in support of their respective rival contentions.

4.                We have heard the learned counsel for the parties at length and, have, also, thoroughly scanned the entire record of the case meticulously.

5.                The parties do not wrangle over the fact, that, the vehicle bearing registration No.HP-16-2108 was insured with the OP-Company, as, is, succored upon the existence of insurance cover Annexure-B, placed on record. It is also not in dispute that the accident occurred during the currency of the insurance policy. It is also not in dispute that the driver-cum-owner of the insured vehicle was insured under personal accident.  The complainant, is, having a grievance, that, the action of the OP-Company, in, not settling his insurance claim, qua the injuries received by him in the accident, tantamounts to both deficiency in service, as well, as, an unfair trade practice, on the part of the OP-Company. The OP-Company, in its reply, has contended, that, as the complainant was admittedly sitting on a parapet and was waiting for his truck, the driver lost control over the same, which hit against the tree and parapet, hence, he has received the injuries, if any, while the vehicle was not being driven by him, as such, the OP-Company, is exculpating its liability to indemnify the insured. As also, it, is, contended, that,  hence, while he was not  occupying the vehicle, rather, was  purportedly hit by the purported negligent use, of, the vehicle in a Public place, the claim for, compensation for, injuries, if any, sustained can be laid before the competent Motor Accident Claims Tribunal.

6.                Assuming that he was badly injured in the accident, even then, the complainant has not been able to place on record medical evidence to prove the indemnifiable insurable disablement, he, had come to receive in the aforesaid accident. He has only placed on record the discharge slip Annexure-A, wherefrom, we are unable to adjudge the disablement accruing from the injuries, if any received by him. For lack of adduction of cogent, convincing and apposite evidence, it cannot be construed, that, both legs of the complainant were grievously injured and, that, too, within the scope of the, insurable indemnifiable cover.

7.                Besides, the complainant has also not been able to place on record any proof qua lodging of the claim arising from the very incident, with the OP-Company, as it has been categorically, contended on behalf of the OP-Company, that, no claim whatsoever, was lodged with them, by the complainant. It was incumbent upon the complainant, to have lodged the claim with the OP-Company. His failure to do so, also smacks suspicion regarding the genuineness of the claim, so lodged by him before this Forum. Therefore, we have no hesitation, in, concluding that the complaint has not been able to prove on record any deficiency in service on the part of the OP-Company.  Moreover, we are of the view, that, in the manner the accident take place while with his not occupying the vehicle, rather, with his admittedly sitting on, a parapet, at, which place he was hit, by, the insured vehicle, constitutes an injury to him caused by the purported negligent user of the insured vehicle in a public place, which manner of his receiving injuries, by the purported negligent manner of its being driven, hence, may vest jurisdiction, for, awarding of compensation, if any, by the competent Motor Accident Claims Tribunal.

8.                The result of the above discussion, is, that there is no force in this complaint and it being merit less, is, liable to be dismissed and we order accordingly. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules.   The file after due completion, be consigned to record room.

Announced on this, the 30th day of December, 2009.

(Sureshwar Thakur)

President.

NMehta)                               (Virender Thakur)         (Arun Bala Sharma)

Member                                      Member.

Filed in Shimla | Tagged | Comments (0) »