Date of filing: 04.07.2016 Date of disposal: 19.02.2018
Complainant: Sumita Dey, W/o. Paresh Nath Dey, resident of 178, Kali Bazar Amtala, P.O.,
P.S. & Dist.-Burdwan, Pin-713101.
-VERSUS-
Opposite Party: The Divisional Manager, National Insurance Company Ltd., Burdwan Division,
having its office at Bhanga Kuthi, 548, G.T. Road, Kundu Mansion, Town,
P.O., P.S. & Dist.-Burdwan, Pin-713101.
Present: Hon’ble President: Smt.Jayanti Maitra(Ray).
Hon’ble Member: Miss Nivedita Ghosh.
Hon’ble Member : Dr. Tapan Kr. Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kr. Ganguli.
JUDGEMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to pay a sum of Rs.1,25,000/- for deficiency in service as well as unfair trade practice, to pay Rs.1,00000/- as compensation for mental pain, agony and harassment and to pay Rs.50,000/- as litigation cost to the complainant.
The complainant’s case in hand is that she is a house wife and for maintaining her livelihood she purchased a bus bearing No. WB 11A1772 from her ‘Stridhan’. For covering the risk of the said vehicle she applied for insurance policy before the O.P. and O.P. also issued the policy after taking premium of Rs.34,138/- bearing policy No.154100/ 31/14/6300011026 from 18.2.2015 17.2.2016. The complainant purchased the vehicle for plying the same in any route but she did not get any permanent route permit. So, she gives the vehicle on several reserve passengers under contract with the party.
In the 1st week of the month of April, 2015 some persons of Gayeshpur village made a proposal for getting the vehicle on hire for carrying pilgrimage party from Gayeshpur to Mayapur. The complainant entered into an oral agreement with them for carrying passenger with her bus. The passengers were agreed to take be bus on 10.4.2015 and as such one application was made for the route permit before the RTA, Burdwan on 9.4.2015 by the complainant. Statutory form was filled up for permit and deposited in the cash counter of RTO. But due to link failure the fees was not deposited on that day. On the next day fees was deposited and permit was granted in favour of the complainant from 10.4.2015 to 16.4.2015 vide permit No.92/2015-2015.
That the bus was started on 10.4.2015 for Nabadwip from the village Gayeshpur and was proceeding towards Nabadwip as per the route applied before the RTA, Burdwan. Due to ill luck the of the complainant the said bus met with an accident near Dewandighi at Burdwan and the same was capsized. Several passengers got injuries and out of them some persons were also expired. The bus was badly damaged. Police authority seized all the papers along with the bus.
That after releasing the said vehicle from the police custody intimation was given to the Opposite Party on 13.04.2015 along with all the documents. The bus was also put in the workshop after releasing from the police custody. The complainant submits her claim before the office of the O.P. and one person inspected the bus by representing himself as surveyor and as per his requirements all the documents were produced before the surveyor. After completion of survey the bus was repaired and an amount of Rs.1,25,000/- was expended for repairing purpose.
2nd week of the month of August, 2015 the complainant got a letter from the O.P. stating that the permit of the vehicle was not valid at the material time of accident. The complainant rash to the office of the O.P. and narrated that the vehicle was covered under valid permit. The complainant vide her letter dated 19.8.2015 produce the copy of the permit . Several times the complainant asked the O.P. for settling the claim but the O.P. vide their letter dated 9.10.2015 illegally and arbitrarily repudiated the claim of the complainant on 9.10.2015 on the ground ‘Claim no supported by valid documents/information’. Finding no other alternative the complainant filed this case before this Forum.
The O.P. contested this case by filing written version denying all the material allegations as alleged by the complainant. This O.P. submits that he issued one insurance policy in respect of vehicle No.WB 11A/1772 of a Tata make bus under ownership of Mrs. Sumita Dey under coverage of Insurance Policy No.154100/31/14/6300011026 for coverage period from 18.2.2015 to 17.2.2016 with specific terms and condition along with limitation as to use which is binding on both the parties and the policy was issued subject to compliance of Sec.147 and 149(2) (a) (i). it also stated that in the policy itself the coverage was extended for liability of passenger/passengers upto 41 nos. and WC to employee for 4 nos. based on which the premium was charged and coverage extended.
That the complainant on 13.4.2015 intimated about one incident of accident of vehicle No.WB 11A 1772 which occurred on 10.04.2015 around 8.15 A.M. at Mirjapur Ghosh Para under Burdwan P.S. it has been further stated that in the said accident many passengers were severely injured and some passenger were died. That photocopy of FIR was lodged by one Tushar Kanti Bhattacharyya a resident of Mirjapur village with Burdwan P.S. dated 11.4.2015 at 15.15 hrs. vide P.S. case No.340/15 dated 11.4.2015 U/s. 279/337/338/304/427 IPC.
From the FIR it has been noted that the bus bearing No.WB 11A 1772 which was moving towards Nabadwip and was carrying passenger from Khudkuri, Sankari about 50-60 passenger including men, women, children for holi deep at Nabadwip when reached Mirjapur on Burdwan-Nabadwip road due to rash driving by the driver loss control and fell down in a ditch and the bus over turned due to above 13 persons died and more than 33 persons were injured while the bus was carrying over crowded passenger. On 20.4.2015 the complainant filed a complain in the prescribed claim form claiming an amount of Rs.1,25,500/- as per estimate and repairing expenses submitted from Haque Auto Engg.
On receipt of claim form the insurance company vide their letter dated 5.8.2015 stated that permit of the ill fated bus was not valid at the material time of occurrence and the claim is not payable. It was further stated to the complainant to provide any contrary facts. On 12.8.2015 the complainant stated that she was having a valid permit from 10.4.2015 to 16.4.2015 which he was already submitted.
That the Insurance Company further verified the details of the permit through his investigator and it reveals that although the permit valid 10.4.2015-16.4.2015 vide No.92/15-16 it confirm that at the material time of accident on 10.4.2015 at about 8.30 hrs. which is about 3-4 hours before the subject permit issued or in other words at the time of accident, the permit was not valid. On further verification it reveals that RTA issued the road permit on 10.4.2015 after receipt of the fees of Rs.1540/- deposited by complainant vide receipt No.TD 681842 dated 10.4.2015 10.30 A.M. i.e. after opening of the office of MV Dept., Burdwan.
From the above facts it is amply cleared that the insured/complainant violated the policy condition since the bus having capacity of 41 passengers and carrying overload passengers 55-60 numbers as noted from FIR and the bus was plying without valid route permit and only after incident of accident which have cost life of 13-14 passengers and injured 33 -36 numbers of passengers. Due to such illegal acts carrying overloaded passengers when actual incident occurred to cover up the lapses of the complainant they approached to RTA Burdwan and deposited requisite fees to obtain route permit after opening of office on 10.30 AM -11 AM on the date of accident on10.4.2015 i.e. when the accident occurred at 8.30 A.M. and considering adverse fall outs and liability on the part of the owner only. Hence, this case.
DECISION WITH REASONS
To prove this case the complainant has filed her evidence on affidavit where she has stated all the facts of this case and prays as per prayer of her complaint petition along with documents. The O.P. prays for accepting his written version supported by affidavit as his evidence. As per direction of this Forum the RTO, Burdwan also produced required documents.
From the evidence of the complainant it is found that she purchased the vehicle (Bus) bearing No. WB 11A 1772 and purchase the policy with premium of Rs.34,138/- and the said policy of O.P. Insurance was valid from 18.2.2015 to 17.2.2016. She did not get route permit to run the bus but she used to run the vehicle along with passengers on contractual basis with the help of temporary permit. On 9.4.2015 she made application for the temporary route permit before the RTA, Burdwan but she failed to deposit the requisite fees for the said permit in the cash counter of RTA, Burdwan due to link failure and thereafter on the next day i.e. on 10.4.2015 fees was deposited along with the application form dated 9.4.2015. The permit was granted in her favour for the period from 10.4.2015 to 16.4.2015 vide special permit No.92/2015-2016. On that very day on 10.4.2015 the bus started for Nabadwip from village Gayeshpur and due to ill luck the accident occurred at Dewandighi at Burdwan and the bus was capsized. Several passengers were injured and some were expired in that accident. The bus was badly damaged and police seized all the papers along with the bus. After release the vehicle from the police custody the complainant intimated O.P., Insurance Company on 13.4.2015 and the bus was sent to the workshop. Thereafter, the complainant submitted claim form after repairing of the bus. The complainant also stated that surveyor of the O.P. company inspected the bus along with documents that after completion of survey the bus was repaired and expenditure of Rs.1,25,000/- was incurred by the petition for repair. The complainant submitted all the documents but on second week of August, 2015 she received letter repudiating the claim on the ground that the vehicle was not having valid permit at the material time of accident. That in response she submitted letter to the O.P. No.1 on 19.8.2015 along with copy of permit stating that she had already submitted the documents to realize her claim from the O.P. Insurance Company. She denied that the vehicle was not having valid permit at the time of accident and also denied that the bus was carrying 50-60 passengers though, the policy coverage is for liability of passengers up to 41 numbers. She also denied that due to over loading and rash and negligent driving the bus overturned causing death of 13 passengers and 33 seriously injured. She also denied that at the time of relevant time at 8.30 A.M. the vehicle was not having valid route permit and or that the same was issued only after opening of the office of RTA, Burdwan at 10.30 A.M. to 11 A.M. on 10.4.2015 as claimed by the O.P.
From the FIR No.340/2015 dated 11.4.2015 and GD Entry on that day at 15.15 hours it is clear that the time of accident is on 10.4.2015 at 8.30 hours. The copy of which is also filed. The written complaint was received on 15.15. hours on 11.4.2015 and Burdwan P.S. Case was started U/s.279/337/304/427 IPC. In the FIR is mentioned that at the place of occurrence namely Mirzapur one villager gave a clear statement in the complaint how the accident occurred. The bus was on its way to Nabadwip while reached the village- Mirzapur the driver of the bus was found very rash and negligent in driving the bus having 50-60 passengers and loss control and over turned on a road side ditch. The local villagers rash to the place to rescue passengers under the bus and in that accident 13 passengers died and 30-35 passengers seriously injured and taken to the hospital with the help of the villagers. In the complaint the name of the deceased were also put.
The O.P. Insurance Company in its written version admitted that the policy was valid from 18.2.2015 to 17.2.2016 and that complainant intimated about the accident on 13.4.2015. O.P. stated that the incident occurred on 10.4.2015 at 8.30 AM and the villager Tushar Kanti Bhattacharyya lodged the written complaint and the Burdwan P.S. Case No.340/2015 was started. O.P. alleges that the bus was carrying 50-60 passengers and due to rash and negligent driving of the driver loss control and fell down in a ditch being over turned causing death of 13 persons and other 33 persons seriously injured that the complainant in prescribed form made a claim of Rs.1,25,000/- as cost of repair of the vehicle. The O.P. submitted the copy of RC Book, Tax Token, Route Permit, Driving License copy of insurance (Annexure-A), the copy of charge sheet (Annexure-B series), copy of claim form and the copy of permit(Annexure-D).
The O.P. Company verified the details of permit through their investigator. The permit was valid from 10.4.2015 to 16.4.2015 vide No.92/2015-2016. The RTA issued Temporary Route Permit after receiving the requisite fees on 10.4.2015 vide receipt No.YD681842 dated 10.4.2015. The receipt was issued was issued from the office of M.V Department (Annexure-G). The O.P. Insurance Company stated specifically in its written version that the bus having capacity of 41 passengers over loaded with 50-60 passengers on that fateful day and was plying without valid route permit while the accident occurred at 8.30 A.M. on 10.4.2015. The O.P. specifically stated that the complainant has committed a fundamental breach of insurance contract and it is a clear case of violation of material of insurance contract having direct bearing on the extension of insurance coverage and justifying the repudiation of the claim vide its letter dated 5.8.2015. In the repudiation letter it is clearly stated that the route permit of the ill fated bus was not valid at the material time of occurrence at 8.30 A.M. on 10.4.2015 and the claim is not payable.
From the route permit (exbt.G) it is shown that the permit was valid from 10.4.2015 to 15.4.2015 and the show cause of reply and submission of documents as called for by this Forum, from RTA, Burdwan vide letter dated 16.3.2017 goes to show that special permit of the complainant for the bus as per M.V. Rules submitted by the complainant Sumita Dey on 9.4.2015. The certified copy of which is enclosed and original was also produced at the time of hearing. The extract of the permit register is also filed showing entry No.63 on 9.4.2015 upto entry No.126 dated 10.4.2015. The entry No.92 dated 10.4.2015 is for the complainant Sumita Dey for the vehicle WB 11A 1772, from 10.4.2015 to 16.4.2015 reference TD No.681842 dated 10.4.2015 with requisite fees Rs.1540/- deposited for Temporary Route Permit. The RTA specifically stated in the show cause reply letter dated 16.3.2017 that applicant has deposited requisite fees for the said permit on 10.4.2015 at 4.05 P.M. (copy of application enclosed) that the permit applications are processed only after payment of requisite fees. Form-P TEM.A(Application in respect of a temporary permit) filled up by the complainant, Sumita Dey with her signature and date in the filled up form and the bottom portion of the said form ordered that issued permit No.92/2015-2016 with seal and signature of Secretary, RTA, Burdwan dated 10.4.2015.
On perusal of the documents and after hearing arguments from the both sides it is clear to this Forum that the complainant cannot deny the occurrence of accident which occur in the morning at 8.30 P.M. on 10.4.2015. The FIR also supports this fact. The report of the investigator is also supporting the case of the O.P. and we do not find anything to discard the same. The Insurance Company through his investigator also proved this fact that the permit was valid from 10.4.2015 to 16.4.2015 but at the material time of accident at 8.30 hours. The vehicle was plying without any valid permit. The Temporary Rote Permit was issued on 10.4.2015 necessarily after 10.30 A.M. after receiving requisite fees in that office during office hours and thereafter ordered to issue permit on 10.4.2015 to 16.4.2015 on that day. The, accident therefore, occurred about 3/4 hours before the subject permit was issued. This factual aspect cannot be denied by the complainant and therefore, has been able to prove by sufficient documentary evidence that the bus was not having valid permit at the material time of accident/occurrence and rightly repudiated the claim.
The complainant cited 2017(1) CPR 4 (SC) that delay in lodging claim cannot be a ground for repudiation and appointment of second surveyor without explaining the reason of such appointment the report of first surveyor prevails but this judgment is not applicable herein as no such ground were taken by the O.P. in repudiating the claim. The complainant also cited 2017(1) CPR 57 (SC) that claim of the complainant be settled on non-standard basis upto 75% of the amount spend for repair of the damaged vehicle where breach of policy must not be fundamental in nature. This judgment is also not applicable in this case. The complainant further cited 2009(1) CPR 556 where the accident was not reported to the police and the vehicle was driving by a person not having valid license as reported by the investigator and affidavit of surveyor’s report or evidence of surveyor has not been filed 2008 (3) CPR 262. However, this two judgments are not applicable in this case of the complainant.
The O.P. argued citing Section-66 of the M.V. Act that no vehicle shall be used as a transport vehicle in a public place with passengers without having a permit granted and counter signed by RTA. O.P. also cited various judgment and breach of fundamental policy conditions, 1999 CPJ 13 (SC), Manu/SC/0810/2002, Manu/SC/0202/2001 etc. and argued that the vehicle in question plied in violation of ‘Limitation as to Use’ clause which is fundamental breach, in justification of its reputation.
After going through the evidence of both sides and questionnaire put to the O.Ps. by the complainant and answers thereto we have also gone through the written argument filed by the parties along with series of citation in support of their respective case.
In the light of our above discussions and after giving patience hearing of the arguments tabled by the Ld. Lawyers of both parties and on perusal of evidence on record as well as documents filed by the parties and citations referred to this Forum, this Forum finds that the complainant has not been able to prove her case and she is not entitled to get any relief as prayed for. Hence, the complaint case fails. C.F. paid is correct. Hence, it is
Ordered
that the case be and the same is dismissed on contest against the O.P.
Let the copies of this order be supplied to the parties free of cost.
Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
Jayanti Maitra (Ray)
President
D.C.D.R.F., Burdwan
(Nivedita Ghosh) (Dr. Tapan Kr. Tripathy)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
