Tripura

StateCommission

A/41/2022

Shri Soumitra Banerjee - Complainant(s)

Versus

The Divisional Manager, National Insurance Company Limited - Opp.Party(s)

Mr. S. Bhattacharya

15 May 2023

ORDER

J U D G M E N T [ORAL]

 

Heard Mr. Suman Bhattacharya, learned counsel appearing for the appellant (here-in-after referred to as complainant). Also heard Mr. Srikanta Bal, learned counsel appearing on behalf of the respondent-Insurance Company (here-in-after referred to as opposite party/Insurance Company). 

1. This appeal is directed against the judgment and order dated 08.04.2021 passed by the learned District Commission, Gomati, Udaipur in connection with Case No.C.C.1 of 2018, titled as Shri Soumitra Banerjee Vs The Divisional Manager, National Insurance Company Ltd.
2. Briefly stated, the complainant had filed an application under Section 12 of Consumer Protection Act, 1986 before the learned District Commission claiming total compensation to the tune of Rs.11,50,000/- along with interest and other monetary benefits from the opposite party-Insurance Company.  
3. The case of the complainant as couched in the petition is that, the complainant is the owner of a vehicle bearing No.TR-01-BC-0666 (Scorpio), which met with a road traffic accident on 14.04.2016 at 1840 hrs at Natintilla, Garjee, Udaipur, and accordingly, a case was registered bearing Case No.38/2016 at R.K. Pur Police Station subsequently PRC (WP) 146/2016, then S.T.01 (G.T/U) 2017.
4. It is the claim of the complainant that a sum of Rs.10,00,000/- was required for repairing the vehicle. The opposite party-Insurance Company had repudiated the claim of the complainant on the ground that the vehicle was used as private vehicle for hiring purpose and the driver of the vehicle was in drunken condition at the material time of accident of the vehicle. It is mentioned in the policy that it covers use of the vehicle for any purpose other than (a) hire or reward (b) carriage of goods (other than samples of personal luggage) (c) organised racing (d) pace making (e) speed testing and reliability trials (f) use in connection with motor trade.
5. Against the said repudiation of claim, the complainant filed the instant complaint before learned District Commission. Being summoned, the respondent-opposite party-Insurance Company appeared and contested the complaint by filing written objection. Thereafter, both the parties adduced their respective evidences.
6. On consideration of evidence and having heard the learned counsel appearing for the parties, the learned District Commission had dismissed the complaint on the ground that the complainant had violated the policy conditions mentioned in the insurance policy rules.

Hence this appeal before this Commission.

7. We have heard the learned counsel appearing for the parties.
8. While dismissing the complaint, the learned District Commission had observed that the complainant had failed to make out a case of damage of the vehicle and the preponderance of probability is found against the complainant due to the reason that he failed to establish that on the relevant date of accident his vehicle was not used for commercial purpose and therefore, it could be said that he violated the terms and conditions of the policy of which he was aware at the time of purchasing of the said policy.
9. Mr. Bhattacharya, learned counsel appearing for the appellant-complainant has submitted that the vehicle was never used as commercial vehicle and it was not hired by any person. It is further submitted that on being approached by his friends and neighbours, the vehicle was used for going to Matabari with a view to perform ‘Yatra’ (Pilgrimage) on the occasion of Bengali New Year. The complainant never received any hiring charges from his friends and neighbours.
10. We have perused the statements made in the complaint by the complainant as well as his evidence. The complainant has clearly stated that his friends and neighbours while proceeding towards Matabari by his vehicle bearing No.TR-01 BC-0666 (Scorpio) had met with an accident which was unavoidable.
11. After perusal of the judgment passed by the learned District Commission, it comes to fore that the learned District Commission had banked upon the statements made by the Investigation Officer in the charge-sheet. The learned District Commission has failed to appreciate the principal issues whether the vehicle was taken on hire paying rent to the owner and whether the driver of the vehicle was in drunken condition.
12. Learned counsel appearing for the opposite party-Insurance Company has strongly emphasized on the evidence of Shri Dipankar Debnath who deposed as PW.2 before the learned District Commission.
13. We have perused the evidence of PW.2 Shri Dipankar Debnath. We find that Shri Debnath never deposed that they had taken the vehicle on hire paying rent to the owner of the vehicle i.e. Shri Soumitra Banerjee. Rather in cross-examination, in reply to a question put by the opposite party-Insurance Company, the said Shri Dipankar Debnath has specifically denied the fact that the vehicle was hired on rent for commercial gain of the appellant-complainant.
14. After perusal of the entire impugned judgment, we find that the learned District Commission had relied upon the statements made in the FIR and the charge-sheet. It is settled proposition of law that the FIR and other criminal records should not be used as conclusive proof in a civil proceeding or in a proceeding under the Motor Vehicles Act. The Consumer Protection Act, 1986 is an independent enactment introduced for the benefits of the consumers. All the facts relied upon by the parties must be established before this Commission by independent evidence and not banking upon the records of the criminal case.  The insurance company, the respondent herein, has failed to substantiate their grounds of repudiation that the vehicle was taken on hire paying rent to the owner of the vehicle. There is absolutely no evidence to establish the fact that the driver was driving the vehicle in drunken condition. During the proceeding before the learned District Commission, the Investigating Officer of the criminal case i.e. Shri Raju Bhowmik, S.I. of R.K. Pur P.S. was called upon and he adduced evidence. After perusal of his evidence, it comes to fore that he had specifically stated that there is no record in his investigation that the driver of the vehicle had consumed alcohol. He had further stated that it is not mentioned in his investigation report that Shri Soumitra Banerjee, the complainant had rented the said vehicle to anyone.
15. It is further revealed from the evidence and the submission of learned counsel appearing on behalf of the opposite party-Insurance Company that the Insurance Company itself had collected the estimate for repairing the vehicle and it is within their knowledge that, to repair the vehicle a sum of Rs.10,92,475/- was required. In cross-examination, OPW.1, Shri Arup Kumar Dey, Sr. Divisional Manager of National Insurance Company stated that “...........In this case the claim can be raised up to Rs.9,60,000/- as per the vehicle policy in the event of own damage. In every case we make an investigation on our own level. In this case we did not make any such investigation from our end and for that reason we have not submitted any investigation report.”             
16.   From the above clear statement in cross-examination, it is an admitted position that to repair the vehicle a sum of Rs.9,60,000/- is required and it is covered within the policy. It further comes to fore that in this case the Insurance Company had not investigated at their own level which they were supposed to conduct. It is the established rule that the plaintiff/complainant has to prove his case and the defendant/respondent/opposite party has to proof its own case. The Insurance Company admitted that they had not investigated the case at their own level that to repair the vehicle a sum of Rs.9,60,000/- would be required.
17. In his examination-in-chief, Shri Arup Kumar Dey, the Sr. Divisional Manager of National Insurance Company adducing evidence as OPW.1 had deposed that he submitted the certified copies of the police report and they found that the vehicle was carrying passenger and moreover, the driver was in intoxicated condition. As we said earlier, that the records of the criminal case cannot be used in a case under the Consumer Protection Act or under the Motor Vehicles Act. The opposite party-Insurance Company had not made any endeavour to justify their pleas. They also failed to substantiate that the driver of the vehicle was in intoxicated condition. The respondent-Insurance Company was only banking upon the statements available in the charge-sheet which is not sufficient to justify the claim/plea taken by the Insurance Company.
18. In our considered view, the learned District Commission had failed to exercise its jurisdiction vested upon it under Consumer Protection Act, 1986 that the Commission is to proceed and decide the case on its independent grounds and merits. The learned District Commission had proceeded on different notion and deviated from the basic principle of law, when the Commission unreasonably relied upon the statements made in the charge-sheet i.e. the statement of witnesses made under Section 161 of Cr. P.C.
19. As we have noted earlier, in the preceding paragraphs that the complainant had specifically pleaded and adduced evidence in support of his plea that he allowed his friends and neighbours to take his vehicle for ‘Yatra’ on the occasion of the Bengali New Year. There is absolutely no evidence to come to a finding that the owner had taken rent from his friends and neighbours for allowing them to take his vehicle to go to Udaipur Matabari for ‘Yatra’.
20. For the reasons stated and the discussions made here-in-above, we find that the impugned judgment passed by the learned District Commission deserves to be interfered. Accordingly, we have interfered. Consequently, the impugned judgment dated 08.04.2021 passed by the learned District Commission, Gomati, Udaipur in connection with Case No.C.C.01 of 2018 stands set aside and quashed.
21. The respondent-opposite party, Insurance Company is directed to pay Rs.9,60,000/- in favour of the appellant-complainant within a period of 2 (two) months from today. The said amount will carry interest @6% per annum. The respondent-Insurance Company is further directed to pay Rs.50,000/- to the complainant as compensation and another Rs.25,000/- as cost of litigation. The entire amount shall be paid to the appellant-complainant within a period of 2 (two) months, failing which, it will carry interest @8% per annum.                   

Accordingly, the instant appeal stands allowed and disposed.