DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _97 _ OF ___2017
DATE OF FILING : 21.7.2017 DATE OF PASSING JUDGEMENT: _13.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Maidul Baidya, son of Asraf Baidya, Vill. & P.O Krishnachandrapur, P.S Mathurapur, Dist. South 24-Parganas, Pin-743351.
O.P/O.Ps : 1. The Branch Manager, The New India Assurance Co. Ltd. Diamond Harbour Branch, P.O & P.S Diamond Harbour, Dist. South 24-Parganas, Pin-743331.
2. The Regional Transport Authority, M.V Department, Burdwan, Collectorate Building, Burdwan- 713101.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Briefly stated , the facts leading to the filing of the instant case by the complainant are that the complainant got his vehicle bearing no.WB-41D 2893 (Lorry) insured with the O.p-1 and the said insurance was valid from 24.9.2014 to 23.9.2015. Thereafter, all on a sudden the vehicle met with an accident on 25.2.2015 under Ekbalpore P.S. The complainant lodged a claim for reimbursement with O.P-1. But the said claim of the complainant has been repudiated by the said O.P-1. Therefore, the complainant has filed the instant case praying for reimbursement of his claim, compensation etc. hence, arises the case.
The O.Ps have been contesting the case by filing written statement, wherein it is contended inter alia that the complainant violated the terms of the insurance and, therefore, the claim was rightly repudiated. According to the Insurance company the permit issued in favour of the complainant does not allow him to run the vehicle in Kolkata Area but the complainant drove in Kolkata area and thereby he violated the terms of the permit. Furthermore, the Lorry carried excess load and thus limit of load capacity was also violated by the complainant and, therefore, the claim of the complainant for reimbursement has been repudiated. There is no cause of action arising against the O.Ps and, therefore, the complaint should be dismissed in limini with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the rejection of the complainant’s claim an act of deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The petition of complaint is treated as evidence of the complainant vide his petition dated 17.1.2018. Evidence is also filed on behalf of the O.P and the same is kept in the record after consideration. BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is to be seen now whether the rejection of the claim of the complainant by the O.Ps is made lawfully or arbitrarily.
It has been stated by the O.P in their evidence and also in the written statement filed by them that the Lorry of the complainant carried 400 CFT of sand and thereby exceeded the carrying capacity of Lorry. The carrying capacity of the Lorry is 10,000 kgs. So, it is the O.Ps who will have to prove that the weight of 400 CFT of sand exceeds 10,000 kgs. But no such document has been filed on behalf of them to prove this fact. In absence of such cogent document, we feel it very difficult to rely upon the averment of the O.Ps that the weight of 400 CFT of sand will exceed 10,000 kgs. Averment of a party cannot be treated as substitute for cogent evidence. This being so, it is held that the O.Ps have failed to substantiate that the vehicle was carrying load exceeding its limit of capacity.
The claim has also been rejected on the ground that the vehicle has violated the condition of permit issued in favour of the complainant by the O.P-2 i.e Regional Transport Authority. A copy of such permit is produced herein by the complainant and on perusal of the said permit, it is found that there is a condition which runs as follows:
“Areas excluding Calcutta Municipal Corporation Area and the areas under Salt Lake and Laketown P.S”.
The accident took place within the jurisdiction of Ekbalpur P.S which falls in Calcutta Area . The condition imposed upon the complainant in the permit reveals that the vehicle is not allowed to ply within Calcutta area. The vehicle has certainly violated the condition of permit. It is to be seen now whether the complainant is entitled to get reimbursement from the Insurance Company even when the condition of the permit has been violated by him.
It is settled in Vikram Grentech India Ltd. Vs. The New India Assurance Co. Ltd. reported in (2009) 5 SCC 599 by the Hon’ble Apex Court that the terms of the Insurance Policy are to be strictly construed to determine the extent of liability of the Insurer and extra liberalism may result in re-writing and/or re-casting of the contract, in other words, substituting the terms which are not intended by the parties.
In the instant case, the complainant has palpably violated the terms of the permit. It is specifically provided in Insurance Policy under “Limitation as to use” that the policy covers the use of the vehicle only under a permit within the meaning of the Motor Vehicles Act. The permit has restricted the plying of the vehicle in Calcutta Area. But the vehicle has entered into Calcutta Area and has thereby violated the terms and conditions of the permit. So, in the circumstances, the insurance policy does not cover the use of the vehicle and the complainant is not entitled to get the reimbursement from the O.P-1 for the damage sustained by the vehicle due to accident. The repudiation of the claim of the complainant for reimbursement by the O.Ps is thus seen to have been made rightly and lawfully. There is no deficiency in service on the part of the O.P-1, and therefore, the complainant is not entitled to get the relief or reliefs as prayed for.
In the result, the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.Ps, but without any cost.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
