This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.Ps. to pay of sum of Rs.2,33,491/- as repairing cost of the vehicle bearing No.WB-61/4719, to pay compensation of Rs.20,000/-, litigation cost of Rs.5,000/- and any other reliefs to the complainant.
The complaint case in short is that the complainant is the owner of a vehicle bearing No. WB-61/4719 insured under the O.P. insurance company vide policy No. 313501/31/2012/9712, valid from 18.03.2012 to 17.03.2013. On 09.04.2012 at about 4:00 A.M. when the said vehicle loaded with news paper proceeded from Siliguri to Raiganj then met with an accident with a ten wheelers vehicle under Islampur P.S. Due to the said occurrence staff of the vehicle severely injured and the vehicle was badly damaged. As a result the complainant lodged a complaint before the local P.S. and informed the matter to the O.P. insurer. Thereafter, the complainant submitted all the bills and vouchers regarding the repairing work of the said damaged vehicle for reimbursement of his claim. But without any valid ground on 25-03-2013 the O.P. insurer illegally by issuing a letter repudiated his claim. So, finding no other alternative, the complainant filed this complaint before this Forum to get proper relief.
On the other hand, the O.P. No.2 by filing W.V. has contested this case denying all the material allegations against him made by the complainant rather contended that this case is not maintainable in its present form and law. His specific case is that the vehicle-in-question was a passenger carrier vehicle but at the time of accident complainant was carrying goods on his vehicle and the said accident occurred due to rash and negligent of the driver. Moreover the O.P. No.2 stated that at the time of accident there was no valid permit and fitness certificate of the said vehicle; due to that above reasons insurance company repudiated his claim. So, the O.P. No.2 prays for dismissal of the petition of the complainant with cost. In spite of receiving notice, the O.P. No.1 has not appeared in this case. So, this case is heard ex-parte against the O.P. No.1.
To establish the case, the complainant has relied upon an affidavit-in-chief sworn by him as P.W.1 along with documents and the O.P.No2 files Policy copies, Registration Certificate and the Ruling II (2008) CPJ 25(SC).
DECISIONS WITH REASONS
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -
It is admitted fact that the complainant is an owner of the vehicle being No. WB-61/4719 , has a motor insurance policy under the O.P. insurance company vide No.313501/31/2012/9712 , sum assured of Rs.3,00,00/- and the above noted vehicle met a road accident on 09.04.2012 at about 04:00 A.M. under Islampur P.S. during the insurance coverage period. It also revealed from the record that after the said accident the complainant lodged FIR and informed the matter to the O.P. insurer within stipulated time. Thereafter he submitted all necessary papers including bills, vouchers of total Rs. 2,33,491/- as repairing cost of the damage vehicle for getting his claim before the O.P. insurance company. The complainant as P.W.-1 in his evidence deposed these facts and submitted all those documents bills, vouchers copies of insurance policy, FIR, permit etc.
It reveals from the record, the O.P. insurance company by issuing a letter dated 25.03.2013 repudiated his claim on the ground that the said accident occurred due to rash and negligence of the driver and at the time of accident there had been no valid permit, fitness certificate of the vehicle; moreover the vehicle was carrying goods instead of passengers as per contract of insurance policy. It has been revealed from the copy of the permit of the vehicle-in-question, issued by the concern department on 25.01.2010 filed by the complainant in this case, which expired on 14.01.2015 i.e after the accident on 09-04-2012. As per the document, permit the vehicle-in-question was allowed to carry newspapers and also staff (9+1) of Natural Publishing House Limited, Siliguri and the same also allowed to ply in the district of (i) Dakshin Dinajpur, (ii) Uttar Dinajpur and (iii) Darjeeling (except hill area).From the copy of insurance policy it has been revealed that there is specifically mentioned in the policy about the ‘limitation as to use’ of the vehicle. It is found from the photocopy of the policy that ‘the policy covers use only under a permit within the meaning of the Motor Vehicle Act, 1988’. So, from the above discussion it is clear that at the time of accident there was a valid permit of the vehicle-in-question and according to the said permit the above vehicle was carrying news paper.
Neither the complainant nor the O.P. insurance company filed the fitness certificate of the vehicle-in-question in this case. Even, the O.P. insurance is not in a position to show that non-availability of the fitness certificate which would amount to violation of the terms and condition of the policy and did not give any evidence from which it may be proved that due to rash and negligence of the driver of the vehicle that accident had occurred . In the light of the cases as reported in 2014 ACJ 2389 M.P.H High Court and 2014 ACJ 265 the Punjab and Hariyana High Court as passed by the Hon’ble High courts, we can easily say that in the present case, though the insurance company argues that there had been no valid permit or fitness certificate, but these are no defences which shall be allowed for exclusion of liability of the insurance company under the Motor Vehicle Act. So, the liability shall, therefore, be borne by the insurance company, and the complainant is entitled to get total repairing charge of his damaged vehicle as per his claim.
Fees paid are correct.
Hence, it is
ORDERED,
That the consumer complaint being No. CC - 03/15 be and the same is allowed on contest without cost.
The complainant do get an order of Rs.2,33,491/- as repairing cost of his damaged vehicle and also compensation of Rs.2,000/- for harassment and mental pain together with litigation cost of Rs.1,000/- against the O.P. Insurance Company, which is in total of Rs.2,36,491.00/- (Rupees two Lakh thirty-six Thousand four Hundred ninety-one) only and be paid within one month from the date of passing of this order; failing which the awarded amount will carry interest @ 9% p.a. till full realization; otherwise the complainant will be at liberty to realize his claim in accordance with law.
Let copies of this order be supplied to the parties free of cost.
