DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./311/2018
Date of Filing Date of Admission Date of Disposal
02.08.2018 10.08.2018 17.05.2024
Complainant/s:- | RABIUL GAZI Son of Late Abdul Rashid Gazi, Age – 33 years, Residing at – village and Post Office – Gokulpur, P.S. – Swarupnagar, District – North 24 Parganas, PIN – 743286, West Bengal -Vs- |
Opposite Party/s:- | - THE DEUPTY MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD, Registered and Head office – New India Building, 87, Mahatma Gandhi Road, Fort, Mumbai – 400001.
- THE DIVISINAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD, 8 K.B. Bose Road, Post Office and Police Station – Barasat, Kolkata – 700124, District – North 24 Parganas, West Bengal.
|
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
Complainant above named filed this complaint U/s 12 read with Section 13 and 14 of the Consumer Protection Act, 1986 against the aforesaid Opposite Parties praying for direction upon the Opposite Parties to settle the claim of the Complainant together with interest, compensation amounting to Rs. 1,000,000/-, litigation cost and other reliefs.
He alleged in the petition of complaint that he had purchased one goods vehicle vide Registration No. WB 25 E 4367 to earn his livelihood by means of self-employment with a view to run his family.
Opposites Parties are insurance company. O.P No. 2 is the issuing branch of the insurance policy. Complainant bought necessary permission to run the vehicle on road throughout the West Bengal vide Permit No. PGDC/WB25/12816 and same was valid from 20/05/2013.
Contd. To Page No. 2 . . . ./
: : 2 : :
C.C. No./311/2018
Aforesaid vehicle was insured under the O.P No. 1 and 2 vide policy no. 51240131130100000306 and same was valid from 27/04/2013 to 26/04/2014.
During pendency of the said policy on 16/05/2013 at about 10 p.m. said vehicle was on the way to go to Taranipore at nearby of Balki School met with an accident due to safeguard one bi-cycle rider and as a result said vehicle was fallen down beside the road.
Due to the said accident, entire front portion of the said vehicle was totally damaged and broken down. Petitioner immediately on 17/05/2013 registered one General Diary vide no. 1206 dated 17/05/2013 before the Swarupnagar Police Station relating to the aforesaid accident.
On 17/05/2013 Complainant submitted an application before the O.P No. 2 and intimated about the aforesaid accident and also requested him to help the Complainant regarding the repairing of the said vehicle. O.P No. 1 duly acknowledge the same under seal and signature.
On 21/05/2013 Complainant submitted the claim form along with estimated cost issued by Binoy Motor Bodybuilders before the O.Ps for disbursement of the insurance claim amounting to Rs. 6,00,000/- in his favour. After receiving the said claim form Opposite Parties requested the Complainant to provide some reasonable time. Complainant waited for few months.
On 24/09/2013 Opposite Parties repudiated the said claim in respect of the aforesaid insurance policy for the reasons that route permit submitted by the petitioner does not cover the date of loss. Opposite Parties intentionally and deliberately rejected the claim of the Complainant. Hence, the Complainant filed this case praying for aforesaid relief.
O.P No. 1 and 2 appeared in this case and filed W/V and denied the entire allegations made in the petition of complaint contending inter-alia that the present case is not maintainable, Complainant has no cause of action, case is bad for miss-joinder and non-joinder of necessary and proper parties, case is barred by principles of estopple, waver and acquiescence and this Forum has no jurisdiction to enter the aforesaid complaint. They further contended that present complaint is nothing but vexious complaint and Complainant intentionally have not submitted relevant documents in support of his case.
Contd. To Page No. 3 . . . ./
: : 3 : :
C.C. No./311/2018
Complainant measurably failed and neglected to maintain exclusion clause relating to policy condition of the aforesaid policy.
It is crystal clear that at the time of plying the vehicle in question, vehicle had no valid route permit. O.P No. 1 and 2 vide his letter asked the Complainant for submitting the valid route permit at the material point and accident within 7 days from the date of receipt thereof. Complainant failed to provide the same and Opposite Parties had to close the claim as no claim. Moreover, present complaint is helplessly barred by the law of limitation. Insurance company repudiated the claim in the year 2013 but after lapse of 8 years Complainant came before this Commission which is nothing but helplessly barred by law of limitation. They prayed for dismissal of the case.
TRIAL
During Trial, Complainant filed affidavit-in-chief. O.P No. 1 and 2 filed questionnaire and Complainant gave answer. O.P No. 1 and 2 had filed a petition praying for treating their W/V as examination-in-chief on 28/12/2022 and same was allowed. Complainant filed questionnaire and O.P No. 1 and 2 filed reply.
DOCUMENTS:-
Complainant at the time of filing of this complaint produced the following documents:-
- Copy of registration of vehicle no. WB 25 E 4367 (valid from 27/02/2012 to 23/02/2014).
- Copy of Tax Token valid from 02/05/2013.
- Copy of money receipt dated 16/05/2018 relating to grant of new permit.
- Copy of money receipt dated 06/05/2013 relating to application fee for new permit.
- Copy of insurance policy valid from 27/04/2013 to 26/04/2014….3 sheets…Xerox.
- Copy of letter dated 24/09/2013 issued by O.P No. 2…..1 sheet…xerox.
Contd. To Page No. 4 . . . ./
: : 4 : :
C.C. No./311/2018
- Copy of letter of complainant dated 17/05/2013 issued by Complainant addressed to O/C Swarupnagar P.S. along with G.D. No. 1206 dated 17/05/2013…...1 sheet…xerox.
- Copy of letter of complainant dated 17/05/2013 issued by Complainant addressed to O.P No. 2…...1 sheet…xerox.
- Copy of claim form….2 sheets….xerox.
- Copy of Quotation issued by Binoy Mitra bodybuilders.
- Copy of Driving License in the name of complainant.
- Copy of route permit valid from 20/05/2013 to 19/05/2018….2 sheets….xerox.
BNA
Complainant filed BNA. O.P No. 1 and 2 filed BNA.
Decisions with Reasons:-
We have heard the Ld. Advocate for the Complainant and Opposite Parties at length. Perused the petition of complaint, affidavit-in-chief filed by Complainant, questionnaire filed by the O.P No. 1 and 2, reply submitted by the Complainant, W/V filed by the O.P No. 1 and 2, questionnaire submitted by the Complainant, reply filed by the O.Ps, BNA filed by the Complainant and BNA filed by the Opposite Parties.
Documents submitted by the Complainants were verified at the time of hearing of argument.
On perusal of affidavit-in-chief filed by the complainant we find that complainant corroborated his allegation which he made in the petition of complaint.
On perusal of the W/V of O.P No. 1 and 2 which was subsequently treated as evidence of O.Ps we find that O.Ps repudiated the insurance claim of the Complainant in respect of the aforesaid insurance policy and O.Ps rejected the claim of the Complainant.
It is admitted possession that Complainant is owner of vehicle no. WB 25 E 4367 and said vehicle was insured under O.P No. 1 and 2 and said insurance policy was valid for the period from 27/04/2013 to 26/04/2014.
Contd. To Page No. 5 . . . ./
: : 5 : :
C.C. No./311/2018
On perusal of copy of the said policy we find that said policy was started on 27/04/2013 and same was valid till 26/04/2014. Relating to the said policy Complainant paid Rs. 31,380/-. It has been described therein that said vehicle was commercial vehicle. In the said policy type of commercial vehicle has mentioned as goods carry. Registration No. of the said vehicle not yet been noted over the said policy. Said policy was issued mentioning the Chasis No. / Engine No., Model No., Colour etc. Accordingly we find that said policy was issued without registration number.
On perusal of application for tax token we find that tax amounting to Rs. 9,200/- was paid on 02/05/2013 and it was valid till 26/05/2013.
On pesural of money receipt issued by RTO North 24 Parganas, Barasat dated 06/05/2013 we find that Complainant paid application fee after by the said document.
On pesural of money receipt issued by RTO North 24 Parganas, Barasat dated 16/05/2013 we find that Complainant paid fees relating to grant of new permit through the said document.
On pesural of copy of permit issued by Motor Vehicles Department, Barasat, North 24 Parganas dated 22/05/2013 we find that by the said document permit was issued in favour of and said permit was valid for the period from 20/05/2013 to 19/05/2018.
On pesural of document dated 24/099/2013 issued by O.P No. 2 we find that O.P No. 2 issued a letter to the Complainant. In the said letter it has mentioned that they have asked the Complainant to submit the valid route permit at the material time of accident within 7 days from the date of receipt of the said letter failing which they will not in a possession to settle the claim and in that case they will close the claim as no claim.
Said letter speaks that O.P No. 2 asked the Complainant to produce the valid route permit at the material time of accident. Thereafter, Complainant did not make any compliance of the said letter.
So it is clear before us that Complainant did not comply the direction of O.P No. 2. Complainant failed to assign any reason before this Commission as to why he did not comply the direction of O.P No. 2. Even Complainant failed to produce any document before this Commission that at the material time of accident there was valid route permit of the aforesaid vehicle.
Contd. To Page No. 6 . . . ./
: : 6 : :
C.C. No./311/2018
On the other hand we find from the document dated 24/05/2023 issued by M V Department, Barasat, North 24 Pargana that route permit was issued in respect of aforesaid vehicle with effect form 20/05/2013.
Accordingly it is clear before us that route permit of the aforesaid vehicle was valid for the period from 20/05/2013 to 19/05/2018. As per record aforesaid accident took place on 16/05/2013. So it is clear before us that on the date of accident aforesaid vehicle had no valid route permit. It is known to everybody that no vehicle should ply on road without valid documents of the said vehicle including route permit. Accordingly we find that Complainant himself violated the necessary direction of Motor Vehicle Act and Rules.
Hon’ble Supreme Court in a decision reported in 2004 (8) SCC 517 held that insured vehicle being plyed without permit, insurer cannot be made liable.
Hon’ble Supreme Court in another decision reported in 2010 (10) SCC 567 held that breach of condition of insurance contact by insured, insurance not liable to pay compensation in case of law.
Hon’ble N.C.D.R.C in a decision reported in 2010 (4) CPR 145 held that vehicle must have road permit and fitness certificate. Hon’ble N.C.D.R.C further held that vehicle did not have valid permit and fitness certificate on date of accident is amounts not only to breach of policy but also to breach of law. Thus no compensation was awarded.
In view of aforesaid discussion it is clear before us that Complainant without route permit plyed the aforesaid vehicle on the road and thereby violated the policy condition as well as law of the land.
On perusal letter of O.P No. 2 dated 24/09/2013 we find that they directed the Complainant to produce the valid route permit at the material time and Complainant did not comply the same and thereafter filed this case before this Commission and in para no. 15 of the petition of complaint they stated that after perusal of aforesaid letter dated 24/09/2013 they decided to file this case against the Opposite Parties. By the aforesaid statement they described the date of cause of action on 24/09/2013.
Contd. To Page No. 7 . . . ./
: : 7 : :
C.C. No./311/2018
On perusal of record we find that Complainant filed this case before this Commission on 02/08/2018. Accordingly we find that present case has not filed within the next two years from 24/09/2013. The statutory period of two years has expired on 23/09/2015. The present case has filed almost after 02 years 11 months after expiry of period of limitation as described in Consumer Protection Act, 2019.
In this context we have carefully gone through the decision of Hon’ble Supreme Court reported in 2009 (7) SCC 768. We find that Hon’ble Supreme Court held that petition claiming compensation was filed after 9 years and it was barred by limitation.
Hon’ble N.C.D.R.C in a decision reported in 2012 (4) CPJ 365 held that Complainant did not file the complaint within the period of limitation and on the face of it complaint of the petitioner is hopelessly barred by limitation.
Hon’ble N.C.D.R.C in another decision reported in 2012 (4) CPJ 343 held that by serving legal notice or by making representation the period of limitation cannot be extended by the petitioner. Hon’ble N.C.D.R.C further held that complaint filed after the period of limitation and it was found as barred by limitation.
In view of aforesaid discussion it is clear before us that the present case is hopelessly barred by limitation.
On careful perusal of record we find that the complainant is the consumer and O.Ps are the service provider.
In view of aforesaid discussion it is clear before us that the complainant has not able to established his case and he is not entitled to any relief because at the material point of time aforesaid vehicle had no valid route permit and Complainant did not file the case before this Commission within the period of limitation.
Having regard to the aforesaid discussion it is clear before us that the complainant is not entitled to relief as per his prayer.
In the result the present case fails.
Contd. To Page No. 8 . . . ./
: : 8 : :
C.C. No./311/2018
Hence,
It is,
Ordered,
That the present case be and the same vide No.C.C.311/2018 is dismissed on contest against the O.Ps but without any order as to costs.
Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
