The instant case was instituted on the basis of an application filed under Section 12 of the Consumer protection act, 1986 filed by the complainant which was registered as Consumer Case No. 07/17 in this Forum.

The fact of the case is that the complainant/petitioner Sahajahan Ali is the owner of a truck bearing No.59/8152 and the said truck was insured with Bajaj Allianj General Insurance Co. Ltd. and the period of insurance was from 04.11.15 to 03.11.16 bearing policy No.OG16-2414-1803-00000646, cover note No.DY1302405798. It has been further stated in the petition of complaint as well as the evidence that during the continuance of the Ins. Policy the vehicle in question met with an accident on 28.07.16 at Khaprail More, Matigara and the vehicle was moving from Malda to Siliguri. The driver of that vehicle lodged a written complaint before the O.C. Matigara P.S and the complainant/petitioner also informed the matter to the O.P./Ins. Co. It has been further stated in the petition of complaint as well as the evidence is that the surveyor of the/Ins. Co. inspected the vehicle and as per instruction of the surveyor the complainant/petitioner took the vehicle for repairing of the vehicle and all the necessary repairing was done at the cost of Rs.1,50,290/- and the complainant also handed over the original bills and vouchers to the appointed surveyor of that Ins. Co. The appointed surveyor of the O.P/Ins. Co. made contact to the complainant and informed him that the loss assessed by the O.P/Ins. Co. is Rs.48,823/-and the complainant will have to receive the amount with full satisfaction.

After knowing such fact the complainant became disappointed as the loss assessed by the Company is much lesser than the amount of the repair of the vehicle. Thereafter complainant/petitioner requested the Ins. Co to make payment but the Ins. Co. did not pay any heed to his request. As such on 05.11.2016 the complainant through his Ld. lawyer sent a letter requesting him to make payment the entire amount of loss which the complainant suffered due to the accident, but the Company did not pay any heed. As such the complainant has filed this case before the Forum claiming Rs.1,50,290/- for cost of repair the vehicle, Rs.30,000/- for mental pain and agony and Rs.10,000/- as litigation cost.

The petition has been contested by the OP by filling the written version denying all the material allegations as leveled against the OP/Ins. Co. contending inter alia that the complainant has no cause of action to file this case.

The definite defence case is that the complainant /insured did not informed the matter of the alleged accident to the insurer/Bajaj Allianj General Ins. Co. within the prescribed period nor the insured clarified the delay to inform the matter to the insurer and nearer P.S within the prescribed period. The further defence case is that at the time of accident the driver had no valid and effective driving license; as such the Ins. Co. has no liability to pay any compensation as at the time of accident the driver of the offending vehicle had no valid license. Moreover, the further defence case is that in violation of the permit the vehicle was carrying excess weight as per limit. As such the Ins. Co. is not liable to pay compensation. It has been mentioned in the W.V. that the Ins. Co. appointed an independent surveyor for assessing the loss damage of the vehicle and deputed surveyor/assessor who assessed Rs.48,223/- for repair of the said damage vehicle. Complainant has claimed a huge amount more than Rs.49,973/- but no basis of claiming higher amount has been mentioned. It has been further stated in the W.V that at the time of accident the vehicle was carrying over loaded goods weighing about 11,000 Kgs. whereas the permitted weight of carrying goods is 7,990 Kgs. As such considering the facts and circumstances the instant case is liable to be dismissed.

During trial the complainant himself was examined and cross examined as P.W.1. One Akhtar Hossain was examined as p.w.2 and one Shankar Kr. Saha was examined as p.w.3. P.W.2 and P.W.3 was cross examined in the form of questionnaires. The complainant filed some documents by way of firisti. All are Xerox copy.

On the other hand the O.P/Ins. Co. filed examination in chief of one Souvik Chatterjee, a legal executive of Kolkata Branch but he did not face the cross examination.

Now the point for determination whether the complainant/petitioner is entitled to get any relief as prayed for.

DECISION WITH REASONS:

At the time of argument the Ld. Lawyer of the O.P argued that the vehicle in question was carrying excess load in the vehicle weighing about 11,000 kgs whereas the permitted limit is 7990 kgs. As there is a violation of the permitted limit so the Ins. Co. has no liability to pay any compensation for repairing of the vehicle. On the other hand the Ld. Lawyer for the complainant argued that the complainant examined P.W.3. He has clearly stated that one Pranab Mondal who is the proprietor of Mondal Potato Company purchased 6.5 Quintals (6500 kgs) from his Ma Manasha Sabji Arat and he is the owner of that Sabji Arat. But at the time of answer to the question filed by the O.P he has clearly stated that Pranab Mondal purchase 6500 kgs of potatoes and he has mentioned the name of his Manager who issued the road challan. The Ld. Lawyer for the O.P filed a document in Xerox copy. By that document the Ld. Lawyer of the O.P wants to impress upon the Forum that at the time of accident the driver of the offending vehicle was carrying 11 quintals of potatoes but such documents was not filed earlier. Moreover, the owner of the Sabji Arat has been examined by the complainant. At that time such document was not produced by him. So, the P.W.3 had the opportunity to say whether such document was issued from his Arat or not. So the document filed by the O.P is not at all a believable and convincing document. Moreover, on perusal of the evidence and other witnesses it is found that the vehicle in question was carrying 6.5 quintals of potatoes which is permissible limit. So, the argument raised by the Ld. Lawyer of the O.P that driver of the offending vehicle has violated the terms and condition of the permit is not at all believable.

The next point is to be considered that whether at the time of accident the driver of the offending vehicle had any valid license or not.

On perusal of the document filed by the complainant it is found that at the time of accident the driver of the offending vehicle had the valid license. No document has been filed by the O.P so that the driving license of the driver of the offending vehicle is fake and invalid. So in such circumstances we shall have to hold that the driver of the offending vehicle had valid license.

Next point is to be considered that whether the matter was informed to the P.S or to the office of the O.P.

On perusal of the copy of FIR it is found that after the accident the matter was informed to the nearest P.S. Matigara on 29.07.2016 whereas the accident took place on 28.07.2016. So within 24 hours the matter was informed to the P.S. Unless and until the matter was informed to the office of the O.P how the surveyor of O.P came to the spot for assessing the damage of the vehicle.

Next point argued by the Ld. Lawyer of the complainant is that this Forum has got the jurisdiction to try this case though the Division Office is situated at Malda.

In this regard the Ld. Lawyer of the complainant refers a case law reported in 2008(2) CPJ 202 (Air France Vs. Sonali Orora). By that case law the Ld. Lawyer of the complaint wants to impress upon the Forum that this Forum has jurisdiction as the agent of the O.P.No.1 is residing within the jurisdiction of the Forum. On perusal of the petition of complaint the address of O.P.No.3 has been given Tulshitala, Kulick Apartment, P.O & P.S. Raiganj, Dist. Uttar Dinajpur. So, the fact of the reported case is same with the instant case. So, this Forum has got the jurisdiction to try this case.

Next point to be considered the amount of damage.

The Ld. Lawyer of the complainant submitted that the complainant incurred a cost of Rs.1,50,290/- for repair of the vehicle. Whereas the Ld. Lawyer of the O.P argued that the surveyor appointed by the Company assessed the loss of Rs.48,223/-. In this regard the Ld. Lawyer of the complainant refers a case law reported in 2009(7) SCC 787 (New India Assurance Co. Ltd. Vs. Pradip Kumar). By that case law the Ld. Lawyer of the complainant wants to argue that the surveyor’s report is not the last and final word. It is not a sacrosanct that it cannot be departed from…………

On perusal of the case law it is found that the case of the complainant was accepted by the Consumer Forum as it was duly supported by the original vouchers, bills and receipts. But in this case the original vouchers, bills and receipts have not been filed by the complainant. Though in reply the Ld. Lawyer has given an explanation that original bills were filed to the Ins. Co. and it was shown to the surveyor. But such argument cannot be tenable as because the complainant may call for the original from the Ins. Co. or the surveyor, but nothing has been done. When it is found that there was an accident and necessary repair was done and the complainant assessed the damage of Rs.1,50,290/- whereas the investigator assessed damage to the tune of Rs.48,223/-. If we take the mean of two amounts neither party will have highly prejudiced as because no original bills, vouchers and receipts has been filed. So the amount comes to Rs.99,256/-. Besides that the claimant is also entitled to get compensation of Rs.30,000/- for mental pain and agony and Rs.10,000/- as litigation cost.

C.F paid is correct,

Hence, it is

                                                ORDERED

That the instant case being no. CC-07/17 is allowed on contest against O.P.Nos. 1 & 2 and ex-parte against O.P.No.3.

The complainant is entitled to get sum of Rs.99,256/- as compensation for damage of the truck. Besides that he is entitled to get Rs.30,000/- for mental pain and agony and Rs.10,000/- as

Litigation cost. Total amount comes to Rs.1,39,256/- (Rupees one lac thirty nine thousand two hundred fifty six) only..  

The O.P.Nos.1 & 2 are  directed to make the payment by A/C Payee cheque in the name of claimant within one month from the date of passing of this order failing which it will carry interest at the rate of 5% per annum over the awarded amount after expiry of one month till the recovery. In case of failure of payment, the petitioner/ complainant will have the liberty to execute the order for recovery of the amount as per provision of law.

Let a copy of this order be given to the parties free of cost.