Tripura

StateCommission

A/4/2018

National Insurance Co. Ltd. - Complainant(s)

Versus

Sri. Uttam Adhikari - Opp.Party(s)

Mr. R. Purkayastha

30 May 2018

ORDER

Appeal Case No.A.4.2018

 

 

1. The National Insurance Company Ltd.,

To be represented by its Divisional Manager,

Agartala Divisional Office, 42, Akhaura Road,

P.O. Agartala HPO, P.S. West Agartala,

District - West Tripura.

        

… … … … Appellant/Opposite Party No.1.

 

​

1. Sri Uttam Adhikari,

S/o Sri Manoranjan Adhikari,

Resident of P.O. & Vill: Chebri, P.S. Khowai,

District - Khowai Tripura, Pin - 799207.

… … … … Respondent/Complainant.

2. Sri Mantosh Roy,

S/o Sri Madhab Roy,

Resident of Chebri, Basanti Tilla, 

P.S. Khowai, District - Khowai Tripura,

Pin - 799207.

       … … … … Respondent No.2/ Proforma Opposite Party.
 

 

 

For the Appellant:                                           Miss Rajashree Purkayastha, Adv.

For the Respondent No.1:                               Mr. Tanmoy Chakraborty, Adv.

For the Respondent No.2:                               Absent.

Date of Hearing:                                              21.05.2018.

Date of Delivery of Judgment:                        30.05.2018.

 

J U D G M E N T

 

U.B. Saha, J,

Both the appeals being Appeal Case No. A/58/2017 and A/4/2018 are directed against the judgment dated 01.11.2017 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.80 of 2017 wherein the learned District Forum directed the National Insurance Company Ltd. to pay the repairing costs of the insured vehicle amounting to Rs.1,66,450/- and Rs.20,000/- as compensation and also Rs.5,000/- as cost of litigation, in total Rs.1,91,450/- to the petitioner within two months, if the same is not paid, it will carry interest @ 9% per annum.

2. The Appeal Case No.A/58/2017 is filed by the appellant, Sri Uttam Adhikari (hereinafter referred to as complainant/petitioner) for enhancement of the awarded amount and Appeal Case No.A/4/2018 is filed by the National Insurance Company Ltd. (hereinafter referred to as opposite party no.1/Insurance Company) for setting aside the impugned judgment.
3. Opposite party no.1-Insurance Company also filed a condonation petition in Appeal Case No.A/4/2018 for condoning the delay of 44 days in preferring the appeal. The condonation petition was taken up for hearing and after hearing the parties, the delay was condoned vide order dated 10.05.2018 passed by this Commission.
4. As both the appeals are directed against the same judgment, they are taken up together for hearing and disposal.
5. Heard Mr. Tanmoy Chakraborty, Ld. Counsel appeared for the complainant as well as Miss Rajashree Purkayastha, Ld. Counsel appeared on behalf of the opposite party no.1-Insurance Company. None appeared on behalf of the respondent no.2 (hereinafter referred to as proforma opposite party).
6. Brief facts of the case needed to be discussed are as follows:-

The complainant, Uttam Adhikari, filed an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum stating, inter alia, that on 04.04.2014, at about 09.30 am, his vehicle bearing registration No.TR-01 B 3933 (Tata Sumo) while coming from Teliamura for its destination at Chandrapur Motor Stand, Agartala met with an accident and fell outside the road at Baramura Range. After the aforesaid accident, a police case was registered vide the Jirania P.S. Case No.19/2014 and the concerned police officer submitted charge-sheet after thorough investigation. The vehicle was badly damaged and at the relevant time, the said vehicle was driven by Sri Mantosh Roy, the proforma opposite party. Due to the accident of the vehicle, all the passengers including the driver, the proforma opposite party, were injured. As the vehicle was badly damaged, the same was repaired at Kanan Mata Engineering Works and Rs.1,66,450/- was spent for such repairing. As the aforesaid vehicle was insured with the opposite party no.1-Insurance Company and the accident was occurred within the lifetime of the insurance policy, Sri Adhikari, the complainant approached the opposite party no.1-Insurance Company claiming the repairing costs, as it covered by the insurance policy of the vehicle, but the claim was rejected on the ground that permit condition was violated by the complainant-petitioner.

7. Being aggrieved by the action of the opposite party no.1-Insurance Company, the complainant has preferred the complaint petition before the learned District Forum claiming compensation as stated in the complaint petition.
8. Opposite party no.1-Insurance Company appeared and filed its written objection denying the claim of the complainant. It is stated that the complainant violated the terms and conditions of the permit. Proforma opposite party, Sri Mantosh Roy also filed written statement denying the claim.
9. On the basis of the pleadings of the parties, the learned District Forum framed the following points for deciding the complaint case:-

1. Whether the vehicle was damaged and petitioner is entitled to get cost of repairing?
2. Whether there was deficiency of service by the National Insurance Company and petitioner is entitled to get compensation?

10. Complainant-petitioner in support of his case produced copy of the charge sheet, copy of bills issued by M/s Kanan Mata Engineering Works regarding the cost of repairing of the vehicle, advocate's notice and the reply to the advocate notice. He also produced original bill, registration certificate, pollution certificate, tax token, permit, Insurance Policy, copy of the fitness certificate. He has also produced his statement on oath as one of the witnesses and examined himself as P.W.1.
11. Proforma opposite party Sri Mantosh Roy also submitted his statement on oath and examined himself as P.W.2.
12. Opposite party no.1-Insurance Company failed to give any evidence in support of its contention though the opportunity was provided. So the evidence by the opposite party no.1 was closed.
13. The learned District Forum considering the pleadings of the parties and evidence on record passed the impugned judgment.
14. Being aggrieved by both the complainant and the opposite party no.1-Insurance Company filed the aforesaid appeals.
15. Mr. Chakraborty, Ld. Counsel for the complainant while urging for enhancement of the awarded amount would contend that the learned District Forum failed to consider the fact that the vehicle in question was the only means of income of the complainant and due to the detention of the vehicle in the workshop for a period of 28 months, he has lost his earnings at the rate of Rs.21,000/- per month and that amount is required to be compensated by way of enhancement of the award. He has further submitted that the learned District Forum ought to have allowed the detention charge of the vehicle amounting to Rs.1,00,000/- which it did not do so. Regarding the appeal preferred by the Insurance Company, Mr. Chakraborty has submitted that when the Insurance Company has not pressed its application for adducing additional evidence, the evidence available in the record of the learned District Forum is final and this Commission has to consider only those evidences.
16. Miss Purkayastha, Ld. Counsel of the opposite party no.1-Insurance Company while urging for setting aside the impugned judgment has submitted that from the accident information report submitted by the police before the Motor Vehicle Accident Claims Tribunal, West Tripura, Agartala, it is evident that the number of the injured persons is eleven that is more than the sitting capacity of nine persons for which the Insurance Policy was taken. According to her, the accident occurred due to the overloading of the vehicle which was nothing but a wrong on the part of the complainant. She has finally contended that this is a fit case for remanding the matter before the learned District Forum for deciding the case afresh.
17. We have gone through the evidence on record as available from where it appears that the complainant Sri Uttam Adhikari had filed his examination-in-chief by way of affidavit and he was also cross-examined by the opposite party no.1-Insurance Company. The Insurance Company though filed its written statement, but did not file any examination-in-chief in support of their case by way of affidavit to prove that the alleged accident was occurred due to the carrying of passengers more than the required number. According to us, the pleadings are not evidence to prove the case. Each party has to adduce their evidence in support of their pleadings. We have also gone through the impugned judgment. The learned District Forum upon perusing the police report found that nine passengers were carried of which two died and seven got injured and the sitting capacity of the vehicle admittedly was nine. So condition of permit was not violated. The learned District Forum had also gone through the original bills of M/s Kanan Mata Engineering Works as produced by the complainant, where the vehicle was repaired and from the bill of the said M/s Kanan Mata Engineering Works, it was found by the learned District Forum that Rs.1,66,450/- was spent for repairing. Admittedly, in the instant case, the opposite party no.1-Insurance Company neither accepted the claim of the complainant nor appointed any surveyor for assessment of the damage of the vehicle. The accident occurred on 04.04.2014 and due to the said accident, the vehicle got damaged. The Insurance Policy covers the same, as the said policy was valid till 19.04.2014. For better understanding, it would be proper to reproduce the findings of the learned District Forum and accordingly, the same is reproduced hereunder:-

“13. We have gone through the original bills of Kanan Mata Engineering works where the vehicle was repaired. From the report it is found that 1,66,450/- was spent for repairing. The system in such case is to survey the damage through Insurance Company. But Insurance Company did not accept the claim and did not appoint any surveyor for assessment of the damage. So petitioner had no other alternative but to arrange the repairing and he is definitely entitled to get the amount spent for repairing.

14. We have gone through the Insurance Policy Certificate issued by the National Insurance Company. Policy was valid till 19.04.2014. Accident occurred as per police report on 04.04.2014. Own damage was covered. Limits of liability arising out of one event was Rs.7,50,000/-. So petitioner Uttam Adhikari is entitled to get the amount spent for repairing. But he is not entitled to get detention charge as claimed. It is not covered by the policy certificate. O.P. Insurance company failed to pay the amount Rs.1,66,450/- to the petitioner when it was claimed on the ground of violation of permit condition. But condition of permit was not violated. For this deficiency of service by the insurance company they have to pay Rs.20,000/- as compensation and Rs.5,000/- as cost of litigation. In total petitioner is entitled to get Rs.1,66,450/- + Rs.20,000/- + Rs.5,000/-. In total petitioner is entitled to get Rs.191,450/-. Both the points are decided accordingly.”

Keeping in view the above, we are of the considered opinion that the learned District Forum did not commit any wrong while passing the impugned judgment and thus, no interference is called for.

Both the aforesaid appeals are dismissed being devoid of merit.

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