This case has arisen out of an application U/s 12 of the Consumer Protection Act, 1986.
The case of the complainant is that he purchased a TATA LPT 1109/36 vehicle being Registration No:W.B73A/4449, Chassis No:416323FVZ122433497, Engine No:TC87VFJ11618 to maintain his livelihood and got an insurance policy vide No:OG-19-4812-1803-00000004, valid from 28.02.2019 to 27.02.2020 from Bajaj Allianz GIC Ltd (in short Insurance Company) through online, sum assured Rs.3,20,000/-.
That on 19.10.2019 when the vehicle was proceeding from Tungidighi side towards Raiganj side another vehicle being No:NI-01-AD/3609 was coming from Raiganj side towards Dalkhola side dashed complainant’s vehicle being No:W.B73A/4449 at Bhangabari bridge under Karandighi Police Station and complainant’s vehicle was badly damaged which was carrying dhush and Ghanesh Ch. Roy the driver of complainant’s vehicle was injured.
That one Shamaji Pandey lodged a written complaint to IC, Karandighi P.S on 23.10.2019 & Karandighi P.S Case No:352/19, dated 23.10.2019 U/s 279, 337, 338 of IPC was started.
That immediately the complainant informed the matter to the Insurance Company through Insurance Company’s complaint register on 20.10.2019. After receiving information the Insurance Company engaged a panel Surveyor, namely, Avhijit Saha who came at spot & the Surveyor asked the complainant to supply some document to process the claim & he also told the complainant if he write some information as per his instruction, the complainant get damage claim immediately & as per instruction of Surveyor the complainant write some false information in the blank paper. Then complainant shifted the vehicle by recovery van on 04.11.2019 at Das Body Builders, N.H.34, Sudarshanpur, Raiganj, Uttar Dinajpur for repairing & said garage issued a service quotation of Rs.2,86,100/- & said garage repaired the damaged vehicle.
That thereafter complainant submitted claim before the Insurance Company with all necessary document but the O.P/Insurance Company issued a letter dated 01.11.2019 stating over seating which does not fall under the purview of policy coverage as per Policy General Exception 3(a). He contacted with the Insurance Company & explained at the time of accident how many person carrying the damaged vehicle & also explained that as per instruction of the Surveyor he wrote the information but he was not present at the time of accident. Ultimately the O.P/Insurance Company repudiated his claim by letter dated 15.01.2019 & 01.12.2019, for which he has been suffering from mental pain and agony. He prays for a direction to O.Ps to pay Rs.2,86,100/- for repairing charges + Rs.4,200/- for recovery van charges with interest @9% pa from the date of loss i.e 19.10.2019, compensation of Rs.1,30,000/- for harassment and mental pain & agony and litigation cost of Rs.10,000/-.
O.P.No:1 & 2 contested the case by filing written version admitting ownership of the vehicle of Arindam Sarkar & coverage by policy, subject to terms, conditions, exclusion and limitation mentioned in the Insurance policy.
That upon intimation from the complainant about the damage of the insured vehicle due to road traffic accident, O.P/Insurance Company duly registered the claim and deputed a Surveyor to assess damage of the vehicle & also investigate the incident in details, who went to the spot & came to know from the vehicle’s owner that there was 10 passengers in the said damaged vehicle at the time of accident, who were travelling/boarding in the vehicle as gratuitous passengers. The driver Ganesh Ch. Sarkar of said goods carriage vehicle has breached the terms & conditions of the insurance policy, as also violated the terms & conditions of Motor Vehicles Act, so the complainant is not entitled to get any compensation.
That without prejudice to admitting any liability it is submitted that if the forum founds the O.P liable for loss then the liability should not be more than the assessment done by the Surveyor i.e Rs.1,25,438/-. They pray for dismissal of the case.
Points for consideration is:-
- Whether there was any deficiency in service on the part of the O.Ps which gives rise cause of action to file the complaint and the complainant is entitled to get the claim?
D e c i s i o n w i t h r e a s o n s:-
Admittedly, complainant Arindam Sarkar is the registered owner of TATA LPT 1109/36 vehicle being Registration No:W.B73A/4449, Chassis No:416323FVZ122433497, Engine No:TC87VFJ11618 and got the vehicle insured vide policy No:OG-19-4812-1803-00000004, valid from 28.02.2019 to 27.02.2020 from Bajaj Allianz GIC Ltd (in short O.P/Insurance Company) for sum assured Rs.3,20,000/-, subject to terms, conditions, exclusion & limitation mentioned in the insurance policy.
It is not disputed that on 19.10.2019 when complainant’s goods carriage vehicle which was carrying paddy tush/bhusa from Tungidighi side towards Raiganj side another vehicle being No:NL-01-AD/3609 (Container) was coming from Raiganj side towards Dalkhola side were collided at Bhangabari bridge under Karandighi Police Station and both the vehicles were damaged and one Shamaji Pandey, an eye witness of that accident lodged a written complaint to IC, Karandighi P.S on 23.10.2019 & Karandighi P.S Case No:352/19, dated 23.10.2019 U/s 279, 337, 338 of IPC was started.
It appears from complaint/F.I.R of Mr. Pandey that few passengers of (complainant’s) vehicle were injured and were taken to hospital for treatment but he does not know names and addresses of injured person. Police seized both the vehicles, investigated the case, collected injury report of injured persons, namely, Amal Barman @ Ardhan Barman, Sukanta Singha & submitted Charge Sheet No:402/19, dated 30.11.2019 U/s 279,337,338 IPC against Bittu Kumar Singha and Ghanesh Ch. Roy the driver of container & LPT vehicles, vide GR 2748/19 which is pending for trial.
Complainant/P.W.1 in cross-examination stated that except the complaint of Shamaji Pandey no complaint has been lodged by him at Karandighi P.S regarding the accident. He does not know from where the goods were loaded in his truck or for whom. He has not filed the challan for carrying the dhush/tush and the Police did not seize the goods. He admits that two persons of his vehicle were injured at that time. He denied that his vehicle was carrying 10 passengers at the time of accident. He admits that he has reported the investigator of O.P/Insurance Company that some/few persons were injured in his vehicle.
Admittedly, complainant’s vehicle was a goods carriage vehicle, which carries some/few persons, whose status would be gratuitous passenger(s). So the driver of the vehicle breached the terms & conditions of the insurance policy as well as M.V.Act.
Complainant submits questionnaire dated 30.11.2022 with suggestion:- It is not a fact that the owner of vehicle Arindam Sarkar has stated in writing that 10 passengers were travelling in the said damaged vehicle at the time of alleged accident on 19.10.2019 and the driver Ghanesh Ch. Sarkar of said vehicle has breached the terms & condition of the insurance policy, which O.P/Insurance Company denied and stated it is a fact.
In complaint petition the complainant stated that under instruction of Surveyor he write some(false) information. Thereby he admits supply of information in writing, (false as alleged by him), it might be. If he wrote that information in blank paper it was his own fault.
Investigation report dated 2 Dec 2019 depicts version of insured on claim-I, Mr. Arindam Sarkar that on 19.10.2019 my TATA LPT 1109 W.B 73 A/4449 was coming from Karandighi to Raiganj with paddy loaded. In this journey at about 8:30 p.m near Behinagar my vehicle lost his control & hit one another truck. In this accident driver with 10 labors were injured. The local public took them and sent to nearest Raiganj Hospital for treatment. The version of Eye witness Mr. Pandey in this accident W.B73A/4449 driver & 10 passengers were injured. Investigation finding/conclusion-in this accident TATA LPT 1109 driver with 10 labors were injured. Observation of Social Network Analysis-during investigation visited Raiganj Hospital & collected all injured person’s name and found in this accident 10 passengers were injured. They try to meet the driver but till date IV driver was out of station TATA LPT 1109 was goods vehicle but at the time of accident IV carry goods with 10 passengers.
Ghanesh Ch. Roy deposed as P.W.2 claiming himself the driver of the vehicle of Arindam Sarkar on the date of accident dated 19.10.2019 but he did not produce letter of authorization to drive the vehicle on that date.
O.P/Insurance Company by letter dated 01.11.2019 requested the complainant to fulfill the below requirement for further processing of the claim.
1. Driver statement.
Document submitted by your good self and Investigation report we have following observation to make:
As per the statement, at the time of accident 10 passengers are in the vehicle but as per RTO the seating capacity of the said vehicle is 3 including driver. Hence, at the time of accident over seating occurred. As per Policy General Exceptions, 3(a):the Company shall not be liable in respect of being used otherwise than in accordance with the “limitations as to use”. It is therefore further evident that the above reported loss does not fall under the purview of policy coverage. In view of the above kindly clarify within 07 days as to why your claim should not be repudiated.
O.P/Insurance Company sent same reminder letter dated 15.11.2019 to the complainant. Lastly by letter dated 01.12.2019 informed the complainant that-we have not received any response or positive reply to our letter dated 01.11.2019 & 15.11.2019 which would have enable us to assess the liability to your above mentioned reported claim. Therefore, in view of the above noted facts we express our inability to be of any assistance on this occasion & hence your claim stands repudiated.
Whatever complainant stated that he write some false information in the blank paper under instruction of the Surveyor has thus no leg to stand. Whatever amount the complainant spent for shifting his vehicle to the garage by recovery van & repairing of the damaged vehicle, done at his own wish, without having any written communication of the insurer.
Under above facts & discussion we are of the same view that since the driver of the complainant’s vehicle has violated the terms & conditions of both the insurance policy & M.V.Act the complainant is not entitled to get any compensation for said accident.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-15/2020 be and the same is dismissed on contest against the O.Ps but without any cost.
Let a copy of this order be given to the parties free of cost.
