State Consumer Disputes Redressal Commission
The Branch Manager vs Utpal Banerjee on 20 June, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/369/11 (Arising out of Case No. 109/2008 of District Consumer Disputes Redressal Forum, Burdwan.) DATE OF FILING : 19.08.11 DATE OF ORDER: 20.06.12 APPELLANTS : 1. The Branch Manager, The New India Assurance Co. Ltd. 70, B.C. Road, Shibrampur Super Market, Burdwan. 2. The Divisional Manager, The New India Assurance Co. Limited Chinsurah, Division, Khadina More Chinsurah, Dist. Hooghly, Both 1 and 2 are the same and one company. RESPONDENT : Utpal Banerjee, Vill: Nandanpur. P.O. Uchalan, P.S. Madhabdihi, Dist- Burdwan. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri. Jagannath Bag. FOR THE APPELLANTS : Mr. Swaraj Kumar Chatterjee. Advocate. FOR THE RESPONDENT : Mr. K. Dey. Advocate. Debasis Bhattacharya ,Member.
Being aggrieved by and dissatisfied with the judgment and order dated 26.5.11 in case no. 109/2008 as passed by the Ld. District Forum, Burdwan, the OPs thereof have preferred this appeal.
The case of the Respondent/Complainant is that he is owner of the vehicle bearing no. WB-41-8897 which is used for the purpose of carrying goods and the said vehicle was insured by OP No.1 vide Policy No. 512502/31/02/37531 for the period 7.1.03 at 12.00 to 6.1.04 midnight. The said vehicle met with an accident on 17.7.03 at Chandur Siristala on Burdwan Arambag Road and an FIR was lodged with Arambag P.S. being P.S. Case no. 143/03 dated 17.7.03, u/ss. 279/338/337/304A/427, I.P.C. The Complainant immediately informed such accident to the OP no. 1 on 22.7.03 praying for enquiry through surveyor for assessment of loss / damage and the claim form was issued on that date. At the direction of OP no.1, the Complainant deposited the said damaged vehicle for repairing at Biswakarma Motor Welding works and the surveyor appointed by the OP No.1 surveyed the vehicle and submitted a report on assessment of loss dated 7.10.03 which was not perfect. The Complainant submitted all the receipts of cost for repairing the damaged vehicle before the OP no. 1 on 19.12.03 praying for disbursement of claim to which the OP No.1 asked the Complainant on 20.12.03 to submit some documents being Claim No. 512502/31/03/00053, which was complied. Lastly, the Complainant gave a legal notice to the OP No. 1 dated 20.4.07 requesting to settle the matter immediately, to which a reply was made on 24.5.07 informing that the claim has already been disposed of as No claim. Accordingly, the case for negligence and deficiency in service.
On the other hand, the case of the Appellants / OPs in their W.V is that the insured vehicle (Tata truck) was covered under Goods Carrying Public Carriers Policy. On scrutiny of the FIR, it was found that at the material time of alleged accident, the said vehicle was carrying bridegroom parties / passengers, though it was a goods carrying vehicle, violating the terms and conditions of the policy as well as provisions of Section 66 of the M.V. Act, which is apparent from the policy as well as condition regarding limitation as to use, which tantamounts to violation of policy condition and as such the OPs being the insurer of the said truck in question have no liability to pay any compensation for the loss sustained due to the alleged accident in question and for that the OPs have duly repudiated the claim of the Complainant and closed the claim file and duly informed its decisions to the insured / complainant vide letter dated 28.2.05, and that there has not been any deficiency in service or negligence on the part of the OPs within the scope of the C.P. Act and that the Complaint is liable to be summarily dismissed.
By the impugned judgment and order, the Ld. Forum below by allowing the case of the Complainant awarded him a compensation for the damage of the vehicle to the tune of Rs.25,000/- together with the cost of litigation of Rs.2,000/-, totaling Rs.27,000/-.
It is to be considered if the impugned judgment and order suffer from material irregularity and illegality, or not.
Decision with reasons The only contention of the Ld. Advocate of the Appellant is that the insured vehicle was at the material time was carrying bridegroom party which was not covered by the policy and referred to General Exceptions as per Section IV, Personal Accident Cover for Owner Driver, in that the Company shall not be liable under this Policy in respect of any accidental loss, damage and / or liability caused, sustained or incurred whilst the vehicle insured herein is being used otherwise than in accordance with the Limitations as to Use, and by referring Section 3, C.P. Act highlighted that when the insured violated the terms and conditions of the policy, repudiation of the claim by the insurer would be justified and also made a passing reference of the decision in this respect by the Honble Supreme Court in Oriental Insurance Co. Ltd. -vs- Sony Cheriyan (1999) 6 SCC
451. He also made out that the Complaint case was barred by limitation as the repudiation was made by the Insurance Company on 28.02.05, but a cause of action has been introduced by way of a legal notice issued by the Complainant dated 20.4.07 and the reply to such notice by the OP no.1 dated 24.5.07.
Ld. Advocate for the Respondent has submitted that the insured vehicle was damaged in an accident and was informed to the Insurance Company immediately after the accident and it was got repaired as per direction of the Insurance Company and that the Respondent did not seek compensation for the gratuitous passengers but only for the insured damaged vehicle and there has been no violation of the terms and conditions of the policy.
It is found that the Ld. District Forum below has considered all the aspects of the matter and found that the surveyor engaged by the insurance company in his report dated 7.10.03 assessed the damage to the tune of Rs.16,543/- and that this case not being a M.A.C. Case under the Motor Vehicles Act, 1988 but under the C.P. Act, 1986 the alleged refutation by the O.P. Insurance Company is not proper and that admittedly the damage was assessed by the surveyor of the insurance company and accordingly got repaired. In fact, the nature of accident does not show that it only happened for carrying gratuitous passengers and not goods. There is no reason to discard the surveyors report assessing the damage to the tune of Rs.16,543/-. There is, however, no paper to substantiate that the insurance company had offered Rs.22,000/- but the Complainant had refused to accept that amount on one plea or the other and also no such documents relating to the cost of repair. So, the finding of the Ld. Forum below that in absence of any document regarding the actual cost or damage which is not ascertainable, the damage of the vehicle is to be assessed at Rs.25,000/-. There is thus no reason to accept the surveyors contention of the damage at Rs.16,543/-. Only this part of the impugned judgment is modified.
In the result, the appeal fails.
Hence, Ordered that the appeal be and the same is dismissed on contest with a total cost of Rs.2,000/-. The Complainant/Respondent is entitled to get compensation for the damage of the vehicle to the tune of Rs.16,543/- together with the aforesaid cost of Rs.2,000/-, i.e, Rs.18,543/-. The O.P / Appellant is directed to pay such amount to the Complainant / Respondent within one month from the date of this order, otherwise the Complainant/ Respondent will be at liberty to execute the same.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)