Consumer Complaint No. 35 of 2016
Date of filing: 04-03-2016 Date of disposal: 13-01-2017.
Present :
Sri Asoke Kr. Mandal Hon’ble President,
Smt. Silpi Majumder Hon’ble Member,
Prangopal Mondal, S/o.Lt. Lakshmikanta Mondal,
Resident of Bamungram, P.O.-Jabagram,
P.S.-Mangalkote, District-Burdwan,
Pin-713141. Complainant.
VERSUS
- National Insurance Company Ltd., Burdwan Division,
Represented by its Division Manager, having its office
At 548, G.T. Road, Bhangakuthi, Kundu Mantion,
Town, P.O., P.S. & Dist.- Burdwan, Pin-713101.
- Chalamondalam Investment and Finance Co. Ltd.,
Represented by its Branch Manager, having its
Office at Mangolik, 2nd Floor, 888, Bhangakuthi,
G.T. Road, Burdwan, Pin-713101.
Opposites. Parties.
Appeared for the complainant : Ld. Advocate, Suvro Chakraborty.
Appeared for the O. P. No. 1 : Ld. Advocate Shyamal Kumar Ganguli.
Appeared for the O. P. No. 2 : None.
JUDGEMENT
This is a case U/s 12 of the C.P. Act for an award directing the O.P. No.1 to pay a sum of Rs.70,211/- towards repairing cost of the vehicle, to pay Rs.15,000/- as compensation for mental pain & agony and to pay Rs.10,000/- as litigation cost to the complainant.
The complainant’s case in short is that the complainant purchased one truck taking financial help from the O.P. No.2. Said truck was registered being No.WB 41G9133. The complainant applied for insurance policy and on the basis of the said application, the O.P. No.1 on receipt of premium issued a policy bearing No.154100/31/15/6300000326 for the period from 08.04.2015 to 07.04.2016. The complainant to obtain goods carriage permit deposited permit fees of Rs.540/-. On receipt of said amount of Rs.540/- the Motor Vehicle Department issued the permit in respect of the vehicle as mentioned above on 11.06.2015. On 10.06.2015 while said truck was carrying 50 bags of paddy of the complainant towards Burdwan for sale, on the way near Gorja More said truck met an accident. In said accident, the truck of the complainant was damaged to some extent. The complainant intimated the fact to the O.P. No.1 the Insurance Company. The O.P. No.1 receiving such intimation, deputed a spot surveyor who conducted his survey work on 12.06.2015. Thereafter, the complainant brought the vehicle at Mumpy Body Builders, Bhangakuthi, G.T. Road, Burdwan and the surveyor of O.P. No.1 inspected the vehicle in the garage of said Mumpy Body Builders. At that time said Mumpy Body Builders handed over an estimate of Rs.70,211/- related to the repair of the truck, to the surveyor. As per advice of the surveyor, the complainant submitted all the documents along with claim form before the O.P. No.1 on 29.07.2015. The O.P. No.1 by issuing a letter dated 24.09.2015 intimated the complainant that as the permit was issued on 11.06.2015 and the accident occurred on 10.06.2015, the claim is not payable. By said letter the O.P. No.1 requested the complainant to submit valid permit for the day of accident. The complainant submitted money receipt showing payment of fees for permit. Inspite of that, the O.P. No.1 without considering the document issued the letter dated 23.12.2015 asking the complainant for submitting reply and thereafter issued letter dated 20.01.2016 repudiating the claim of the complainant with remarks ‘No Claim’. This act of the O.P. No.1 is illegal and for this act of the O.P. No.1 the complainant has been suffering mental pain and agony and has been forced to come before this Forum. So, the complainant is entitled to get such estimated value of Rs.70,211/-, compensation and litigation cost. Hence, this case with the prayer as mentioned above.
Inspite of service of notice upon the O.P. no.2, the O.P. No.2 did not appear in this case. As such this case was heard ex-parte against the O.P. no.2.
The O.P. No.1 contested this case by filing written objection while stating inter-alia that the complainant has no locus standi to file this complaint, the case is not maintainable and this Forum has no jurisdiction to try this case. It has been further stated by this O.P. that a package policy was issued in favour of the complainant vide policy No.154100/31/15/6300000326 by O.P. No.1 covering the period from 8.4.2015 to 7.4.2016(midnight) as package goods carrying other than three wheeler public carrier in respect of vehicle Tata 709 truck with engine No.497TC96BUI808646, in said policy the terms and conditions was mentioned specially with limitation as to use, in the policy it has been mentioned that the policy covers use only under a permit within the meaning of M.V. Act 1988 or such a carriage falling under sub-sec. 3 of sec. 66 of M.V. Act 1988, the policy covers use only under a permit within the meaning of the M.V. Act 1988, said vehicle was registered in the name of the complainant vide vehicle No.WB 41G 9133 dated 28.4.2015 for its validity up to 21.4.2017, the office of the RTA, Burdwan issued permit in the name of the complainant in respect of the vehicle No.WB 41G 9133 on 11.6.2015 stating the date of issue of permit as on 11.6.2015 with date of expiry 10.6.2020 for the area or route all West Bengal under Sl. No.6A, 6B & 8,9 vide Sl. No.00625, the complainant by a letter dated 10.6.2015 intimated the Sr. Divisional Manager, NICL, Burdwan stating that on 10.6.2015 at about 9 A.M. while the truck being No.WB 41G 9133 was travelling from his residence towards burdwan, met an accident due to applying break by the driver to save one bullock cart, as a result the driver lost the control of the truck resulting the accident and the truck was damaged to some extent in said accident, in another letter dated 12.6.2015 written to Sr. Divisional Manager, NICL, Burdwan the complainant has admitted that on 10.6.2015 in the morning his truck being No.WB 41G 9133 was moving from his residence to the destination of Gour Sankar Rice Mill, Burdwan to sell his own 50 bags of paddy (30 kg each) and at that time said truck was involved in an accident, the complainant submitted claim intimation along with estimate showing cost of repair at Rs. 70,211/-, issued by Mumpy Body Builders, Burdwan, the O.P. No.1 received the same on 12.6.2015, the O.P. No.1 appointed surveyor named Khandakar Amir Ali who submitted his report assessing the repairing cost of Rs.19,400/- on 15.7.2015 and subsequently said surveyor on 22.7.2015 assessed total amount of loss at Rs.23,301/- including labour charges as Rs.19,400/- and value of spare parts as Rs.4,405/-, the O.P. No.1 then on 24.9.2015 by sending a letter intimated the complainant that the permit of ill fated vehicle was not valid at the material point of time, as the permit submitted by the complainant was valid for the period from 11.6.2015 to 10.6.2020 where the date of accident was 10.6.2015 and accordingly the claim was not payable with a request to the complainant to submit valid permit for the material point of time, if any, but the complainant did not give any reply, the reminder was issued vide letter dated 23.12.2015 and also further request was made vide letter dated 20.1.2016 to the complainant to give the answer of queries, thereafter again the O.P. No.1 made further request by letter dated 27.1.2016 to supply the reply on the point of validity of permit with intimation that failing which the claim will be treated as ‘No Claim’ and lastly on 18.3.2016 by a letter the O.P. No. 1 intimated the complainant that the claim file was closed with the note ‘No Claim’ and as such there was no deficiency in service on the part of the O.P. No.1. It is therefore, claimed by the O.P. No.1 that the case is liable to be dismissed with cost.
DECISION WITH REASON
In support of his case the complainant has relied upon the photocopies of registration certificate, insurance certificate, tax token, money receipt showing payment of Rs.540/-, driving license, Form-X/Part A showing permit for the period from 11.6.2015 to 10.6.2020, estimate issued by Mumpy Body Builders, one bill showing payment of Rs.30,000/-, another one bill showing payment of Rs.5,567/-, another bill showing purchase of some spare parts, letter dated 24.9.2015 issued by the Sr. Divisional Manager of the Insurance Company Ltd., letter dated 23.12.2015 issued by Deputy Manager of O.P. Insurance Company Ltd., and letter dated 20.1.2016 issued by Deputy Manager of O.P. Insurance Company Ltd. The complainant has also submitted his evidence on affidavit.
On the other hand from the side of the contesting O.P. photocopies of several documents on which the complainant has also relied upon, have been filed. The contesting O.P. No.1 has also filed the copies of letters dated 10.6.2015 and 12.6.2015 issued by the complainant to the Sr. Divisional Manager, report of the surveyor and the letter dated 18.3.2016 showing closure of the claim with note ‘No Claim’.
We carefully perused the evidence adduced by the parties. It is admitted that the complainant is the owner of the vehicle No.WB 41G 9133 and said vehicle was insured by a package policy as mentioned in W.V. under National Insurance Company Ltd. By adducing evidence and in complaint the complainant has admitted that while the truck being No.WB 41G 9133 loaded with paddy was moving from his residence towards Burdwan on 10.6.2015, on the way near Gorja More said vehicle met an accident causig its damage to some extent. It has been claimed by the complainant that after giving intimation to the O.P. No.1, said truck was taken to the Mumpy Body Builders, Burdwan and there the repairing cost was estimated at Rs.70,211/- and as such the O.Ps. being the insurers are liable to pay such Rs.70,211/-. In any corner of the complaint the complainant has not stated that the truck as mentioned was finally repaired and has not mentioned the actual amount which he incurred to repair the truck. During the course of hearing the complainant also did not adduce any evidence showing the actual cost of repairing of the truck as mentioned. As per terms of the policy the complainant is not entitled to get the estimated cost from the O.Ps. insurer. So, we find that the complaint is defective and unless and until it is proved that the truck in question is repaired and the repairing cost is finally assessed, no award could be passed against the O.Ps. and in favour of the complainant.
The copy of insurance policy has been filed in this case. On scrutiny of the insurance policy, it appears that a package policy was issued in favour of the complainant vide policy No.154100/31/15/6300000326 by the O.P. No.1 covering the period from 8.4.2015 to 7.4.2016(midnight) as package goods carrying other than three wheeler public carrier, in respect of vehicle Tata 709 truck with engine No.497TC96BUI808646 with a note that the policy covers use only under a permit within the meaning of M.V. Act 1988 or such a carriage falling under sub-sec. 3 of sec. 66 of M.V. Act 1988, So, it is clear that the vehicle as mentioned above must be used as carriage vehicle with the necessary permit U/s.66 of the M.V. Act,1988. The copy of permit has been submitted in this case. On perusing this, it appears that the permit to use the truck in question as carriage vehicle was granted for the period from 11.6.2015 to 10.6.2020. It is admitted that on 10.6.2016 while said vehicle loaded with 50 bags of paddy of the complainant, was running from the residence of the complainant towards Gouri Sankar Rice Mill, on the way, near Garja More, said vehicle met an accident. From the admission of the complainant it is clear that on 10.6.2015 the vehicle in question was used as carriage vehicle in public place. The copy of the permit on which the complainant has relied upon, shows that on 10.6.2015 there was no permit U/s.66 of the M.V. Act, 1988 to use the vehicle as carriage vehicle in public place. During the course of hearing, the Ld. Advocate for the complainant placed an argument stating that on 8.6.2015 the complainant paid Rs.540/- to get permit U/s.66 of the M.V. Act. The money receipt dated 8.6.2015 shows that on said date the complainant paid total Rs.540/- to get new permit for the vehicle in question but the permit was issued on 11.6.2015 mentioning the period of permit starting from 11.6.2015 ending with 10.6.2020. So the truck loaded with paddy as mentioned was plying on 10.6.2015 in public place violating the mandatory provisions of the act. In this connection the Ld. Advocate for the complainant has relied upon the Provisions of 130 of WB Motor Vehicles Rules 1989. Rule 130 provides that fees in respect of all classes of a permit for the whole period for which the permit is granted or renewed and at the time of its grant or renewal, shall be payable in cash and not otherwise. For argument sake, if any violation in the matter of issuance of permit, was made, such violation was on the part of the Motor Vehicles Department. So the complainant in this connection, is not entitled to get any benefit against these O.Ps. From the materials on record it is clear that at the time of accident there was no valid permit to use the vehicle as carriage vehicle in public place. In this connection the Ld. Advocate has also relied upon the observation of the Hon’ble National Commission made in New India Insurance Company Ltd. Vs. Sebti Devi and another cases, reported in 2015(4) CPR 13 (NC). In the above case, the Hon’ble National Commission has been pleased to observe ‘claim can be settled on non-standard basis where breach is not fundamental in nature’. In the above case the fact was that the driver had license to drive the light vehicle but he was driving the goods vehicle without required license. Considering the such facts the Hon’ble National Commission has been pleased to observe that non-existence of driving license of goods vehicle is nothing but a breach which is not fundamental in nature. Considering the fact of this case and considering the fact of the case as mentioned above we are of the opinion that the observation of Hon’ble National Commission is not applicable in this case.
On the other hand the Ld. Advocate for the contesting O.P. has relied upon the observation of
Hon’ble Panjab & Haryana High Court made in Pratap Singh Vs. National Insurance Co. Ltd.
and others case, reported in 2016 (2) T.A.C. 166(P&H). In the above case the Hon’ble Panjab & Haryana High Court has been pleased to observe ‘transport vehicle requires a permit in terms of section -66 of M.V. Act. Section-66 falls within the chapter V which allows the power of the State to control transport vehicle and Section-66 mandates the necessity of permit’. The materials on record clearly show that the package policy was issued by the O.Ps. with note that the policy covers use only under a permit within the meaning of MV Act, 1988 or such a carriage falling under Sub-section-3 of section-66 of MV Act, 1988. So, there was a breach of specific terms of the policy. This breach of terms shall not be treated as non-fundamental in nature. The further case of the O.P. No.1 is that the O.P. No. 1 on 24.9.2015 by sending a letter intimated the complainant that the permit of the vehicle was not valid at the material point of time, as the permit submitted by the complainant was valid for the period from 11.6.2015 to 10.6.2020 where the date of accident was 10.6.2015 and accordingly the claim was not payable with a request to the complainant to submit valid permit for the material point of time, if any, but the complainant did not give any reply, the reminder was issued vide letter dated 23.12.2015 and also further request was made vide letter dated 20.1.2016 to the complainant to give the answer of queries, thereafter again the O.P. No.1 made further request by letter dated 27.1.2016 to supply the reply on the point of validity of permit with intimation that failing which the claim will be treated as ‘No Claim’ and lastly on 18.3.2016 by a letter the complainant was intimated that the claim file was closed with the note ‘No Claim’. This specific case has been proved by the materials on record. Moreover the complainant has not denied this case of the O.P. specifically. In the above premises we are of the opinion that the repudiation of the claim by the O.Ps. is justified and there is/was no deficiency in service on the part of the O.Ps. and in view of the above discussions the complainant is not entitled to get the relief as prayed for.
Accordingly, the case fails. Fees paid is correct. Hence, it is
ORDERED
that C.C. Case No. 35 of 2016 is be and the same is dismissed on contest against the O.P. No.1 and ex-parte against the rest without any cost.
Let copies of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member
D.C.D.R.F., Burdwan
