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. 53/17 in this Forum.
The fact of the case as revealed from the petition as well as the evidence is that the complainant/petitioner Alam is the actual owner of the vehicle bearing registration No.WB-59B/2270 Tractor ELCHER. From the petition it is also revealed that the complainant/petitioner purchased a goods carrying Insurance policy in respect of his vehicle vide Insurance Policy No.2316201001671502000 and the said policy was valid from 10.02.16 to 09.02.17. From the petition of complaint as well as the evidence it is revealed that the said vehicle of the complainant suddenly met with an accident on 24.03.17 near Kaltahar Kalibari over N.H.31 under P.S.Chakulia District Uttar Dinajpur. As a result of which said vehicle was badly damaged. After the accident on 25.03.17 the complainant lodged written complaint before the I.C. Ramganj Police out post. Accordingly the complaint was registered as Ramganj O.P G.D.E. No.772 dt.25.03.2017. The complainant also intimated the fact to the Insurance Co.. According to his information O.D.Claim No.C230016190512 was registered by the O.P/Insurance Co. Ltd regarding the badly damage of he insured tractor. The complainant after getting the verbal assurance from the O.p repair the damage tractor at AGRO Trade Centre at Bogram, Karnojora, Raiganj, Uttar Dinajpur and paid Rs.2,67,855/- for repairing of the damaged tractor on 30.03.17. After repairing of the said tractor the complainant submitted the claim with proper documents and estimate of damaged tractor. After receiving the information a surveyor was appointed by the O.P to survey the damage of the vehicle and the surveyor submitted the report. On the claim petition and evidence it is further revealed that in the first week of May 2017 the complainant received a letter from the O.P that the claim file has been closed due to non submission of documents. The complainant further submitted that all he documents was submitted before the office of the O.P but the O.P did not allow his legitimate claim, as such the complainant has been filed this case before this Forum claiming Rs.2,67,855/- for repairing cost of the vehicle , Rs.50,000/- as compensation and Rs.5,000/- as litigation cost.
The petition has been contested by the OP/HDFC ERGO General Insurance Co. Ltd. by filling the written version denying all the material allegations as leveled against the OP contending inter alia that the instant petition is not maintainable in law and present form. There is no cause of action to file this case against the O.P. and the claim is barred by law of limitation.
The definite defence case is that the damage vehicle was being used as commercial purpose at the time of alleged accident and the said tractor was attached with a trolley and it was loaded with potato at the time of accident and that trolley was not insured with the Insurance Co., only the vehicle was insured at the time of accident. The further defence case is that at the time of accident the driver of the vehicle in question had no valid driving license. The further defence case is that at the time of accident there was no valid fitness certificate as well as valid permit as per registration certificate. The fitness was valid up to 10.02.2017 whereas the accident took place on 24.03.2017. As such the owner as well as the driver has grossly violated the terms and conditions of the Motor Vehicle Rules and the terms and condition of the Insurance Policy. As such the Insurance Company has no liability to make any payment towards the repair of the damage vehicle.
During trial the complainant Mr. Alam was examined as P.W.1 and he was cross examined. No other witness was examined on behalf of the complainant. On behalf of the O.P one Truban Dutta was examined as O.P.W.1 and he was cross examined. During trial both the parties filed the documents to prove their respective case. The Ld. Lawyer for the O.P/Insurance Co. refers the following case laws to prove his case.
- Natwar Parik and co Ltd. Vs State of Karnataka AIR 2005 SC 3428.
- United India Insurance Co. Ltd. Vs Dharam Raj (2005) 4 CPJ 115 (NC).
- Aerojet saiisol Airlines vs United Insurance co Ltd. (2006) 4 CPJ 62 (NC).
- Oriental Insurance Company Ltd. Vs Seema CJ 762, v2014 (NC).
- Oriental Insurance Company. Ltd. Vs Roop Ram Saini (2016) CPJ 534(NC).
Now the point for determination whether the complainant/petitioner is entitled to get any compensation or not.
DECISION WITH REASONS:
At the time of argument the Learned Lawyer of the O.P./Insurance Company argued that the tractor was used for commercial purpose and the trailer attached to the tractor was not insured with the Insurance Company. According to the argument as advanced by the Learned Lawyer of the O.P. is that the tractor is used for the commercial purpose for transporting any materials. The tractor should have a separated number and insured with the Insurance Company. So, it is no doubt that the tractor was insured with the Insurance Company at the relevant time of the accident. Now the main question is that the vehicle was used for transporting any materials or not. The Learned lawyer of the O.P. submitted that the tractor was carrying potatoes, so definitely it is used for commercial purpose. On the other hand the Learned Lawyer of the complainant argued that no documents have been produced by the Insurance Company. Now, let us consider the documents and evidence on record. On considering the same it is found that the complainant in his petition of complaint did not stated that the vehicle was carrying any materials. But on perusal of the Xerox copy of the complaint it is found that the complainant (Mr. Alam) lodged a complaint before the I.C. Ramganj Police out post that the tractor was carrying materials and the vehicle was moving from Kaltahar Kalibari. So, definitely from the F.I.R it has been cleared that the tractor was carrying materials. But form his cross examination it is found that the trolley was empty. So, the evidence advanced by the complainant (Mr. Alam) as PW1 is not at all believable and completely he has suppressed the real facts. In the F.I.R it has been clearly stated that the vehicle was carrying materials. So, the complainant has not come to the Forum with a clean hand. The Learned Lawyer of the complainant argued that the tractor was carrying potatoes. According, to his argument that the potatoes are an agricultural produce and the tractor is used for the agricultural purpose. So, the potatoes are to be carried by a tractor. So, definitely there is no doubt that the agricultural produce is to be carried by a tractor attached with a trailer. But the main problem is that whether the complainant insured the trailer of the tractor with the Insurance Company or not. But on perusal of the record it is found that the trailer was not insured. On perusal of the record it is found that the tractor was insured for cover of hood, bumper, hitch but no where it is found that the trailer was insured with tractor. In this regard the Learned lawyer of the O.P. referred a case law reported in AIR Supreme Court 3425 where it has been clearly stated that when a tractor having a trailer it must be regarded as a transport vehicle. According to the “Section 61 of 1988 of M.V. Act, which comes within Chapter IV dealing with registration of motor vehicles, registration of trailers, is made compulsory. Under Section 61, the registration mark assigned to a trailer is required to be displaced on the side of the drawing vehicle”. But in the instant case we did not find the registration mark of a trailer which should displace on the side of the drawing vehicle. So, the argument raised by the Learned Lawyer of the Insurance Company as there was no registration mark of the trailer and the vehicle in question was not insured along with the tractor, so the Insurance Company has no liability to make any compensations. This Forum is also with same view with the submission of the Learned Lawyer of the O.P. On perusal of the record it is found that there was no valid permit and fitness on the date of accident. So, the Insurance Company has no liability to make any compensation. So, the trailer of tractor falls as good carriage under Section 2 of Motor Vehicle Act. The learned lawyer of the complainant argued that the driver had the valid license but the license is authorized to Light Motor Vehicle and Tractor only. On perusal of the record it is found that at the time of accident the driver of the vehicle had the license to drive only Light Motor Vehicle and tractor but when the tractor attached with a trailer then it will be treated as goods carriage. So, driver is required to obtain driving license for commercial purpose that is heavy license. But at that time the driver had no heavy license. Moreover, from the evidence it is found that driver had the license to drive the tractor that means the tractor was not attached with trailer. The tractor was used for commercial purpose that means towing, pulling or hauling. On perusal of the registration it is found that the tractor was a commercial vehicle, so definitely the driver should have a commercial license to drive the vehicle. But no valid license has been produced by the complainant that at the time of incident the driver had the valid license. On perusal of the registration certificate it is found that the tractor was commercial in nature but no document has come before this Forum that the trailer was insured with the Insurance Company. In this regard the Insurance Company has no liability to make payment. So, considering such facts and circumstances the instant case is liable to be dismissed.
C.F. paid is correct,
Hence, it is
ORDERED
That the instant case being No. CC- 53/17 be and the same is dismissed on contest but without any cost.
Let a copy of this order be given to the parties free of cost.
