Tripura

StateCommission

A/16/2018

National Insurance Co. Ltd. - Complainant(s)

Versus

Sri. Tinku Ghosh - Opp.Party(s)

Mr. S. D. Choudhuri

25 Jul 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.16.2018

 

 

 

1. National Insurance Company Ltd.

42 A.K. Road, Agartala,

Tripura West.

[To be represented by the

Divisional Manager, Tripura]. 

… … … … Appellant/Opposite Party.

 

Vs

 

 

1. Sri Tinku Ghosh,

S/o Late Nandadulal Ghosh,

C/o Sherowali Tour & Travels,

L.N. Bari Road, Agartala,

Tripura West.

… … … … … Respondent/Complainant.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

 

 

 

 

For the Appellant:                                          Mr. Sandip Datta Choudhuri, Adv.

For the Respondent:                                      Mr. Bijan Saha, Adv.

Date of Hearing & Delivery of Judgment:     25.07.2018.

 

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha, J,

This appeal is directed against the judgment dated 21.03.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala  in Case No. C.C. 86 of 2017 whereby and whereunder the learned District Forum while allowing the complaint petition directed the appellant, National Insurance Co. Ltd. (hereinafter referred to as opposite party/Insurance Company) to pay amounting to Rs.1,92,000/- to the petitioner, the respondent herein.  The amount is to be paid within two months, if not paid, it will carry interest @ 9% per annum.       

2. Heard Mr. Sandip Datta Choudhuri, Ld. Counsel appearing for the opposite party/Insurance Company as well as Mr. Bijan Saha, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as complainant).
3. Brief facts needed to be discussed are as follows:-

The complainant filed an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging that on 13.09.2015 while his vehicle bearing No.AS-01-EC-7649 (Bus) was going towards Guwahati from Agartala, it met with an accident at Sindhu Kumar Para. Due to the said accident, the vehicle got damaged and the said fact was informed to the opposite party-Insurance Company. Thereafter, he submitted his claim for compensation. After so many correspondences, the opposite party-Insurance Company repudiated the claim on the ground that the insured-complainant had violated the policy condition by carrying excess passengers though the complainant had spent amounting to Rs.2,69,000/- for repairing of his vehicle and entitled to get the compensation as per terms and conditions of the insurance policy. In his petition, he claimed Rs.2,69,000/- as cost of repairing of the vehicle along with up to date interest @12% per annum.  

4. The opposite party-Insurance Company filed their written statement denying the claim of the complainant. It is stated in the written statement that the complainant failed to submit the required documents in support of his claim. It is also stated that the complainant violated the policy condition by carrying excess passengers in his vehicle and as such, the complainant is not entitled to get the cost of repairing as claimed.
5. On the basis of the contention made in the respective pleadings of the parties, the learned District Forum framed the following points for deciding the case:-

1. Whether the petitioner violated the terms and conditions of the policy and whether not entitled to get cost of repairing of the damaged vehicle?
2. Whether the petitioner is entitled to get compensation for the deficiency of service by the O.P. Insurance company?

6. In support of the claim, the complainant produced the Certificate of Registration of the bus, Driving License, money receipts, Insurance Policy Certificate, ASTC Permit, Fitness and Pollution Certificate, estimate regarding the cost of repairing of the vehicle, registered letters, passengers list etc. which were marked as Exhibit-1 series and he also produced his statement on affidavit.
7. On the other hand, the appellant-Insurance Company produced the F.I.R., charge sheet, letter of the complainant to the opposite party which were marked as Exhibit-A series and also filed the statement on affidavit of one Biswajyoti Bora, Administrative Officer of Insurance Company.
8. The learned District Forum after hearing the parties and also considering the evidence on record passed the impugned judgment.
9. Being aggrieved by the impugned judgment, the appellant-opposite party/Insurance Company filed the instant appeal on the ground that in the FIR it is specifically stated that the accident occurred due to carrying of excess passengers even in the driver’s cabin and the learned District Forum failed to consider the said facts while passing the impugned judgment for which itself the impugned judgment is liable to be set aside.  
10. Mr. Datta Choudhuri, Ld. Counsel while urging for setting aside the impugned judgment would contend that the learned District Forum failed to discuss the evidence on record particularly the contention made in the FIR and charge-sheet. He again submits that the learned District Forum disbelieved the FIR and charge-sheet which are public documents though relied upon the bill, voucher and the money receipts submitted by the respondent-complainant.
11. On the other hand, Mr. Saha, Ld. Counsel appearing for the respondent-complainant while supporting the impugned judgment would contend that the opposite party-Insurance Company though took a plea before the learned District Forum that the accident occurred due to carrying of excess passengers even in the driver’s cabin, but the said contention did not prove adducing any evidence. He also submits that the opposite party-Insurance Company in its written statement before the learned District Forum even not denied the contention of the complainant, particularly, the documents like retail invoice and the money receipts submitted by the complainant. Therefore, the learned District Forum rightly relied upon those documents while passing the impugned judgment. He further submits that by this time, it is settled law that when any party disputes the contention of other party, then the same has to be proved by the party who disputes the contention. He again submits that neither the FIR nor the charge-sheet is a substantive evidence unless the maker of the document is examined and in the instant case, admittedly, the opposite party-Insurance Company did not examine the police personnel who have recorded the FIR and filed the charge-sheet. Thus the learned District Forum rightly allowed the complaint petition filed by the complainant.  
12. We have gone through the evidence on record as well as the impugned judgment. The opposite party-Insurance Company though examined one Sri Biswajyoti Bora as D.W.1, but the said D.W. in his examination-in-chief nowhere questioned the genuineness of the invoice, bill and money receipts produced by the complainant. The only contention of the said D.W. was that the Insurance Company asked for some documents from the complainant, but the complainant did not submit those documents in time and he has violated the policy condition of the insurance policy as well as the terms of the permit issued by the Motor Vehicles Authority. The complainant in his examination-in-chief specifically stated that in the letter dated 09.10.2016, the opposite party-Insurance Company asked for the passengers’ list and some other documents. He sought for extension of time since at that relevant time he could not collect all required document and thereafter he had submitted the documents required by the opposite party-Insurance Company. It is also stated that the original passengers’ list which has been at that time in the said vehicle had been lost and subsequently he was able to collect the ‘carbon copy’ of the passengers’ list which was accordingly submitted to the opposite party-Insurance Company. The learned District Forum in its judgment specifically stated that “…………Nothing revealed about how many passengers were carried and what was the capacity of the bus. From the investigation it is found that accident occurred not due to taking excessive passengers but due to collision with a truck. Petitioner in his statement on affidavit stated that O.P. Insurance company sought some documents and he submitted all such documents in support of his claim.”  It is also stated that the list of passengers had also given to the opposite party-Insurance Company which will be evident from Paragraph-9 and 10 of the impugned judgment. For ready reference paragraph-9 and 10 of the impugned judgment are reproduce hereunder:-

“9. We have gone through the Exhibit- 1 Series documents furnished by the petitioner. In the letter dated 09.10.16  it is found that the O.P. Insurance company asked the petitioner to produce all documents list of passengers, police report, M.V. Report within 15 days. Again by letter dated 9th March 2017 O.P. Insurance company requested the petitioner to produce bill/ vouchers, vehicle documents, list of passengers, driving license, police report, M.V.I. Report. Reminder sent on 25.03.17. Documents were furnished again on 27th April 2017. O.P. asked for passenger list, police report, cash memo of spare parts, bills, vouchers of repair. Those were also submitted. List of passenger also given. Inspite of that the claim was repudiated on the ground that the petitioner violated the terms and condition as excessive passenger were carried. When such plea is taken by the Insurance company burden lies on him that actually excessive passenger were carried by the petitioner. From the passenger list as furnished and police report nothing comes out to support that excessive passenger was carried. Accident occurred due to collision with another truck not for carrying excessive passenger. As such it is established that petitioner did not violate the terms and conditions of the policy and he is entitled to get the cost of repairing of the vehicle. 

10. We have gone through the Insurance Policy certificate. Period of Insurance was 10.01.15 to 09.01.16. The accident occurred on 13.09.15 when the policy was very much alive. From the Policy certificate it is found that the petitioner paid premium Rs.25,143/- for covering over own damage of the vehicle at the relevant period. The vehicle had registration, driven by the licensed driver, all papers were O.K. Petitioner also informed the Branch Manager, National Insurance Company about the accident in time. But surveyor not appointed in time to assess the claim. Petitioner made correspondence, produced all required documents but damage was not assessed, compensation not paid. All these are deficiency of service by the National Insurance Company.” 

13. We are in agreement with Mr. Datta Choudhuri that the detailed discussion of evidence is not there in the impugned judgment. But some discussion is there. Proceeding in a Consumer Court is a summary proceeding, therefore, detailed discussion of evidence is not required, but being the original Court, it would be better for the learned District Forum to record the submission of the parties and discuss the evidence on record. According to us, in the impugned judgment, certain discussions of evidence are there. Therefore, for mere non-discussion of evidence, in detail, it would not be proper to set aside the impugned judgment.

Considering the entire facts and circumstances, we are of the considered opinion that the learned District Forum did not commit any error in its judgment so far the decision in the case is concerned. Thus, no interference is called for.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.             

Send down the records to the Ld. District Forum, West Tripura, Agartala.