The case of the complainant Sanjoy Deb, in brief, is that he is the actual owner of private Bolero Plus vehicle bearing No.WB62C/0975 and was insured under the O.P New India Assurance Co. Ltd. and the policy number is 51300231160100004545 was valid from 25.11.16 to 24.11.17. The said vehicle suddenly met with an accident on 19.02.17 at New Gachhia police outpost under Gopalpur P.S in Bihar with one pick up van due to negligence and rash driving on the part of the driver of the pick up van for which the BoleroPlus vehicle being No.WB62C/0975 was badly damaged. The vehicle in question was taking by the relatives of the complainant to visit Deoghar Ashram at the time of accident. As a result of accident four persons died on the spot and other three persons received severe bleeding injuries. On 20.02.17 complaint has been lodged at Gopalpur P.S. and Gopalpur P.S.Case No.31/2017 dt.20.02.17 was started. Further case of the complainant is that after receiving his intimation letter dt.23.02.17 regarding the damage vehicle the O.P New India Assurance Company Ltd. deputed a surveyor to assess the damage, who told him that it was not possible to repair the said damaged vehicle because it is fully been damaged. The owner Sanjoy Deb issued authorize letter in favour of his driver Sandip Kr. Das who has valid driving license at the time of accident to drive his vehicle and he has also sent the particulars of the said vehicle to the O.P Insurance Co. to settle the compensation in respect of the said damage vehicle. But on 06.08.18 the O.P/Ins. Co. sent a letter to him to the effect that the said claim of the petitioner was without any cause, but as the Insurance policy was valid at that time the O.P/Ins. Co. is liable to pay the damage claim as claimed by the complainant. The cause of action arose on 06.08.18 when the Insurance Co. has repudiated the claim of the complainant.
Upon this back ground the complainant prayed that the O.P. New India Assurance Company Ltd be directed to pay the assured amount of Rs.3,50,000/- with 9% interest from the date of accident and compensation of Rs.50,000/- and litigation cost of Rs.15,000/-.
The O.P New India Assurance Company Ltd. has filed Written Version against the complaint denying all the material allegations as leveled against the O.Ps contending inter alia that the present case is not maintainable in law in its present form and that the case is barred by law of Jurisdiction and liable to be dismissed and that the complainant has strict liable to prove his case though he has no locus standi to file the case against the O.P.
The specific case of the O.P. Insurance Co. is that the complainant has valid driving license number and authorize letter which was for driving commercial purpose and violated the condition of insurance policy. The O.P has clearly intimated to the complainant in writing about the reason of repudiation which has been communicated and no such cause of deficiency in service happened on the part of the Insurance Co. The O.P clearly stated that as per terms and condition of Insurance policy this insurer has no liability against the present claim as the complainant was used for commercial purpose on hiring the passengers by violating the terms and condition of the policy. The O.P Ins. Co. also denied that the vehicle was carrying the relatives of the complainant.
Upon this back ground the O.P. Ins. Co. prayed for dismissal of the case.
Points for decisions
- Is the case maintainable in law in its present form and prayer?
- Was the vehicle used for commercial purpose?
- Whether the vehicle was driven by the driver Sandip Kr. Das at the time of accident.
- Is there any deficiency in service on the part of O.P/Insurance Co.?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons
All the above points are taken up together for consideration as they are co-related to one another.
In order to prove the case the complainant has examined himself as P.W.1 and he has been cross examined in full by the O.P Ins. Co and the O.P Ins. Co. did not adduce any evidence separately. The document certified copy of deposition has been marked Exbts.A and B on the part of the O.P./Ins. Co. Ltd.
Perused the complaint, deposition of P.W.1 and document i.e exhibited document Exbts.A and B and Xerox copy of repudiation letter issued by the New India Assurance Company Ltd. to the complainant, Insurance policy issued by O.P Ins. Co. and Xerox copy of judgement of MAC Case Nos.115/2017, 117/2017 and 118/2017.
From all the documentary evidence as well as the oral evidence it is clear that the accident occurred on 19.02.17 at New
Gachhia under P.S Gopalpur within the State of Bihar and both parties admitted the said occurrence. But the O.P/Ins. Co. did not admit the manner of accident and carrying the passengers of his relatives. In MAC cases both the Insurance Co. has been directed to pay the compensation to the petitioners of the MAC Cases as both the Insurance Co. are liable.
It appears from the evidence of P.W.1 that he issued authorize letter to Sandip Kumar Das who has valid driving license to drive the vehicle and he was engaged at that time but Exbt.A i.e the deposition of P.W.1 Mina Rani Choudhuri disclosed that one Asim Kr. Dey who is the son in law of Minarani Choudhury after taking the vehicle in question from his relative Sandip Kr. Das was driving the vehicle at the time of accident and that he was not the regular driver. Even the complainant did not produce the authorize letter so given to Sandip Kr. Das. There is no whisper in the evidence of P.W.1 that Sandip Kr. Das is the relative of the complainant. On the other hand Sandip Kr. Das is the driver of the complainant and he is relative of Asim Kr. Dey who was driving the vehicle at the time of accident. P.W.2 Antara Ghosh of MAC Case No.116/2017 which has been marked as Exbt.B. In cross examination it is clearly stated that there were eight passengers including the driver at the time of accident and she cannot say as to how much money was fixed for hiring the Bolero car with Asim Dey. From her evidence it is indirectly clear that the vehicle in question was hired on charge and the vehicle was driving by one Asim Kr. Dey who was not authorized to drive the said vehicle. The P.W.1 who is the complainant of this case clearly admitted in his cross examination that Antara Ghosh who was the passenger of the vehicle at the time of accident stated that the vehicle was taken on hire basis. More so, the complainant could not produce any document to show that seven passengers of the vehicle were his relatives. Therefore it can safely be said that the vehicle was taken on hire basis. From the repudiation letter dt. 06.08.18 issued by the O.P. New India Assurance Co. Ltd. to the complainant shows that Asim Kr. Dey was driving the vehicle at the time of accident as per deposition of Mrs Mina Rani Choudhury of MAC Case No116/17 and the declaration made by the complainant before the Insurance Co. is contradictory and as the policy of the vehicle was covered only for private use of the car which has been immerged from the evidence of the MAC Case and accordingly the O.P. Insurance Co. has repudiated his claim. From the Insurance Policy along with note it is clear that the limitation as to use of the vehicle was the policy covers use of the vehicle for any purpose other than a) Hire or Reward b) Carriage or goods (other than samples or personal luggage) c) Organized racing d)Pace making e)Speed testing f)Reliability Trials etc. and any purpose in connection with Motor Trade. Therefore, it is clear that as the vehicle was driving by one Asim Kr. Dey other then authorize driver Sandip Kr. Das having a valid driving license and with commercial purpose by carrying passengers on hire basis, the complainant has violated the terms and condition of the Insurance Policy. The Ld. Advocate for the O.P. Ins. Co. Ltd. cited a decision reported in 2005 (3) CHN 524 wherein the Hon’ble Court has observed that the “vehicle was not issued with a permit to ply for hire or reward. The specific condition of the policy, as appearing from the certificate of insurance, is that the same was not permitted to be plied for hire or reward”. It is evident of this case that the vehicle was plying on hire basis. As the vehicle was insured under the O.P. Ne India Assurance Co. Ltd., Karnojora Branch Office within P.S.Raiganj Dist. Uttar Dinajpur, the Forum has jurisdiction to try the case and the case was valid within the period of limitation as per cause of action of the complaint.
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Under the above foregoing facts, circumstances and evidence on record it is clear that the complainant is not entitled to get the relief as prayed for and the case is not maintainable in its present form and prayer and the O.P. Insurance Co. has no deficiency in service in this connection.
Hence, it is
ORDERED
That this complaint case being no. CC-62/18 be and the same is dismissed on contest but without cost.
Let a copy of this order be given to the parties free of cost.
