HEADING OF JUDGMENT IN CONSUMER CASES :

BEFORE THE PRESIDENT, DISTRICT CONSUMER FORUM,

GOLAGHAT.

Consumer Protection Case No. 11/2008.

Md. Dijaul Alam Ahmed.

...... Complainant.

Vs.
1.The Manager,
HDFC Chubb General Insurance Co. Ltd.
Christian Basti, Guwahati,

2.H.D.F.C. Chubb General Insurance Co. Ltd.

DBS House, Room No. 212,
10/2, Hunger Fort Street,
Kolkata.
........ Opposite parties.
3.M/S Ghosh Brothers Auto Mobiles,
G.S. Road, Christian Basti.
Guwahati.
....... Proforma opposite party.

Date of final hearing

......

02.02.2013.

Date of judgment & Order.

......

31.05.2013.

APPEARANCES :
For the complainant ......

Mr. P. Singh,
Advocate, Golaghat.

AND
For the opposite party ......

Smti. N. Dutta Bora,

Advocate, Golaghat.

PRESENT :
SHRI T. LOHAR,
PRESIDENT, DISTRICT FORUM,
GOLAGHAT.

SRI A. BARUAH,
MEMBER, DISTRICT FFOFRUM,
GOLAGHAT.

JUDGMETN & ORDER :

1.

This Consumer case, registered under the Provisions of

Consumer Protection Act filed by Md. Dijaul alam Ahmed, son of Md.
Alimuddin Ahmed, resident of Kacharihat, Bongaon, district- Golaghat
(hereinafter called as complainant) against the opposite party No.1,
the Manager, HDFC Chubb General Insurance Co. Ltd., Christian
Basti, Guwahati , opposite party, No.2 HDFC Chubb General
Insurance Co. Ltd., DBS House, Room No.212, 10/2 Hunger Fort
Street, Kolkata and opposite party No. 3, M/S Ghosh Brothers Auto
Mobiles, G.S. Road, Christian Basti, Guwahati, claiming compensation
of an amount of Rs. 39,542'00 as cost of repair of vehicle,
Rs.25,000'00 for mental shock and pain and another Rs.25,000'00 for
deficiency in service, cost of the case and interest @ 12% per annum
from the date of accident which took place on 28.2.2006.
2.

The case of the complainant, in brief, is that

he is the

registered owner of vehicle bearing Chesis No. 600142 BTZP 26104

and Engine No.

4751D105BTZP18631. The said vehicle was

purchased on 28.2.2006 from Ghosh Brothers, Guwahati and it was

delivered to the complainant on the said day, at about 7'30 P.M. The
vehicle was insured on the said day which was valid from 28.2.2006 to
27.2.2007 vide Indica DLS Euro-II, Cover Note No. VC 00747943
with O.P. No.1. The said vehicle involved in the accident on 28.2.2006
at about 10'30 P.M. under Khetri police station, in front of City Dhaba

on NH-37 and as a result, the vehicle badly damaged. At the same

time, the vehicle was taken to Ghosh Brothers Automobiles for
repairing. The matter of accident was reported to O.P. No.1. The O.P.
No.1 has appointed the Surveyor in order to assess the loss of the
vehicle. The complainant submitted all the documents, such as
Estimate of loss, other bills etc. But the opposite parties did not settled
the claim till date. The complainant paid to 'M/S Ghosh Brothers' an
amount of Rs.39,542'00 as cost of the repair of damage of the vehicle.
On 3.4.2006, the opposite party directed to furnish the R.C. Book, Taxreceipt, F.I.R. and claim form. The complainant has already submitted
the claim form. The vehicle involved in the accident after 3 hours from
the time of its purchase The opposite party himself presumed that the
claim has been withdrawn and informed the complainant that his
claim is not payable. The act of the opposite party is nothing, but
unfair trade and practice which constituted negligence and deficiency
in service. As a result, the complainant suffered loss. The complainant
was in good faith that his claim is settled by the opposite party and the
amount of compensation has paid to the financer. But on 15.6.2008, the
complainant came to know from the financer that the amount has not
been paid to the financer. The claim of the complainant has neither
settled nor repudiated till date. The cause of action arose only on
27.6.2008 when the Advocate's notice was issued. At the time of filing
the petition, the complainant filed an another petition u/s 24-A of the
Consumer Protection Act with a prayer to condone the delay in filing
the complaint case.
3.

My learned Predecessor condoned the delay by order dated

7.7.2008 in filing the petition.

4.

On receiving the notices, the opposite parties appeared before

the Forum and submitted the written statement stating therein that the
complaint petition is not maintainable for non-joinder and misjoinder
of necessary parties ; that the complaint petition is barred by limitation
; that the complainant failed to submit the required documents for
settlement of the claim. The opposite party vide letter

dated 6.6.2006 informed the complainant that the claim has been
pending for more than 60 days and the same could not processed for
non-submission of required documents. For the negligence of the
complainant himself, the answering opposite parties are not liable to
pay any compensation. The complainant was asked vide letter dated
3.4.2006, and again vide letter dated 6.6.2006 that the requisite papers
are not submitted for settlement of the claim and as such, the claim
could not be settled and the same was treated as withdrawn. The
answering opposite parties vide letter dated 6.6.2006 repudiated the
claim of the complainant.
5.

After hearing from both sides, my learned predecessor has

framed the following issues for giving decision in the case -

1.

Whether the complainant's petition is maintainable under the

provisions of Consumer Protection Act ?

2.

Whether there is any negligence or deficiency in service on

the part of the opposite party ?

3.

Whether the complainant is entitled to get compensation ? If

so,, what is the quantum ?

4.

Any other relief ?

6.

The complainant submitted two affidavit evidence as C. W. 1

and C. W. 2 to prove his case, whereas, the opposite parties did not
adduce any evidence inspite of giving several chances to them.
7.

Both the C.W.1 and C.W. 2 have been thoroughly cross

examined by the opposite party. Thereafter, the opposite party failed to

appear before the Court to adduce their evidence and subsequently, the
opposite party did not appear before the Court. Hence argument from
the side of the complainant has been heard exparte and the case is fixed
for judgment.
8.

The complainant as C.W.1 has submitted his affidavit

evidence U/O 18 Rule 4 of C.P.C. in order to prove the contents of the

petition. Apart from it, the complainant exhibited 8 numbers of

documents.
9.

Let me decide the aforesaid issues in the light of the evidence

as available on record.

ISSUES NO. 1 :
10.

The complainant filed his claim petition along with an another

petition U/O 24-A(2) of Consumer Protection Act praying for

condoning the delay of 3 moths 6 days.

The delay of filing the

complaint of 3 months 6 days was sufficiently explained by the

complainant and the delay has been condoned by order dated 7.7.2008
and the said order has not been challenged by the opposite parties. The
complainant insured his newly purchased vehicle (Indica DLS EuroII). When the complainant immediately after purchasing the said
vehicle from 'M/S Ghosh Brothers Automobiles', Guwahati on
28.2.2006 and took delivery of the said vehicle at about 7'30 P.M. on
the same day, the said vehicle met with an accident on the same day at
around 10'30 P.M. The vehicle was covered with insurance from 7'32
P.M. on 28.2.2006 till 27.2.2007 with the O.P. No.1. The O.P. No.1
took Rs.13613'00 as premium for the insurance of the vehicle from the
complainant. The insurance was package policy. The opposite party
has withdrawn the claim as submitted by the complainant. The conduct
of the opposite party in refusing

to honour of its obligation for

entertaining the claim as submitted by the complainant and treated the

said claim as withdrawn against the contrary of object of the insurance
policy undoubtedly constituted deficiency in service. Therefore, th
claim petition is maintainable in law.
Accordingly, the Issue No. 1 is decided in affirmative.

ISSUES NOS. 2, 3 & 4 :

11.

As the aforesaid three issues are interrelated to each other,

hence, for the sake of convenience, all the aforesaid three issues are
taken up together for discussions.

12.

The opposite party has withdrawn the claim by issuing letter

dated 3.4.2008 which is marked as Ext-8, wherein, he admitted the

institution of Motor Claim Registration No. 109503 lodged by the
complainant. The opposite party has withdrawn the same on 3.4.2006
within the period of 30 days pending for unable to process. The O.P.
No.1 has withdrawn the claim on the ground t of (i) not receiving
the Registration Certificate, (ii) Tax-receipt, (iii) F.I.R. and (iv) claim
form signed by the insured himself or authority letter.
13.

According to the evidence of the complainant (C.W.1) he has

already submitted the claim form before the O.P. No.1 The matter of
accident was not reported to the police. The vehicle involved in the
accident just after three and half hours of its purchased. Therefore,
question of submission of Registration Certificate Book does not arise.
The vehicle met with the accident within the grace period of 7 days as
per provisions of Section 43(3) of the Motor Vehicle Act. The opposite
parties have stated in Para 8 of their written statement the
complainant was requested for submission of authorization letter for
signing the claim form, as well as the Registration Certificate of the
vehicle, but he failed to submit the same. Therefore, the opposite party
vide their letter dated 6.6.2006 informed the complainant that the claim
has been pending for more than 60 days and the same could not be
processed for non-submission of above documents and treated the
claim as withdrawn. The copy of the said letter dated 6.6.2006 has
been annexed with the written statement and marked with Annexure-I.
The said Annexure-I is the photo copy of the original and some portion
of it is illegible. When we read Annexure-I along with Ext-8, we find
that the contents of both the documents are almost identical, but the
date and period of pending the claim for are different. The opposite
parties by Ext-8, the letter dated 3.4.2006 treated the claim as
withdrawn. Then how did again the same motor claim had withdrawn
in second time on 6.6.2006.
14.

According to the complainant (C.W.1), the said Annexure-I

has not been sent to him by the opposite parties. From the evidence on

record, we find that actually the Annexure-I has not been received by
the complainant and opposite party has not taken any care to prove the
said fact that the said document has been received by the complainant.
So, we can safely be concluded that Annexure -I has not been received
by the complainant.
15.

The complainant has sent the Advocate's notice on 27.6.2008

by registered post to the O.P. No.1 with a request to settle the claim.
Ext-5 is the said Advocate's notice. Ext-6 is the postal registration
receipt of sending the Ext-5 to the O.P. No.1. But the O.P. No.1 has not
taken any care to settle the claim of the complainant. Therefore, the
complainant has rightly stated that the cause of action arose on the said
date when the O.P. No.1 neither settled the claim of the complainant
nor repudiated the claim.
16.

At the time of registering the vehicle by the O.P.No.1, they

insured the vehicle without having any registration and the O.P. No.1
has received Rs.13,613'00 as premium on 28.2.2006 at 7'32 P.M. Then
after three and half hours, on the same day, the said vehicle had met
with an accident. Now, the O.P. No.1 has no right to say that as the
complainant

did not submit the Registration Certificate Book of the

vehicle, therefore, the claim form has withdrawn, as because, the O.P.
No.1 without having registration of the vehicle insured it with them
and therefore, there is negligence and deficiency in service on the part
of the O.P. No.1.
17.

The complainant has exhibited the documents, such as Ext-1, the Cover note-cum-insurance policy ;
Ext-2, the delivery challan, dated 28.2.2006,
Ext-3, the delivery receipt of Ghosh Brothers Automobiles;
Ext- 4, the vehicle delivery acknowledgment note,
Ext-5, the Lawyer's notice, dated 27.6.2008'
Ext-6, the postal receipt, dated 27.6.08,
Ext-7, the vehicle repairing bill/cost of Ghosh Brothers, and
Ext-8, the letter dated 3.4.2006.

18.

According to Ext-7, the cost of repairing bills of the vehicle

has been shown as Rs. 39,542'74. This Ext-7 has not been challenged
by the opposite parties. Hence, Ext-7 is accepted as true. Therefore, the
complainant is entitled to get Rs.39,542'00 as compensation for cost of
repairing of the vehicle along with Rs.20,000'00 for his mental shock,
pain and for deficiency in service on the part of the O.P. No.1 and 2
along with cost of the case. The complainant is also entitled to get the
interest on the aforesaid compensated amount at the rate of 6% per
annum from the date of filing of the claim petition till realization of the
entire amount. The opposite parties Nos. 1 and 2 are directed to pay the
aforesaid compensated amount along with interest thereon to the
complainant within 60 days from today.
19.

Accordingly, the claim petition is allowed on contest against

the O.P. Nos. 1 and 2 as stated above. The O.P. No.3 is exempted from
this case.
20.

Inform the parties accordingly.

Given under my hand and seal of the Forum, on this the 31st

day of May, 2013.

( T. Lohar ),
PRESIDENT,
DISTRICT FORUM,
GOLAGHAT.
Dictated & Corrected
by me.

( T. Lohar ),
PRESIDENT,
DISTRICT FORUM,
GOLAGHAT.

Dictation taken & transcribed

by me :- S.Borpatra, Steno.

( A. Baruah ),
MEMBER,
DISTRICT FORUM,
GOLAGHAT.