IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/151/2013.
Date of Filing: 20.12.2013. Date of Final Order: 07.08.2015.
Complainant: Somen Haldar, S/O Milan Haldar, Vill& P.O. Goaljan, P.S. Berhampore,
Dist. Murshidabad. W.B. Pin-742188.
Vs
Opposite Party: The Manager, National Insurance Company Ltd.,
26/23/1, S. S. Sen Road, Berhampore, Dist. Murshidabad, Pin 742101.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for Rs. 3.77 lac for repairing of the insured Truck damaged in road accident and Rs.10, 000/- towards compensation.
The complainant’s case in brief, is that the insured Tata Truck of the complainant bearing No. WB-65389 met with an accident at Nakashipara, Dist. Nadia and was damaged. Then, FIR was lodged on 22.6.10 and informed the incident to OP-Insurance Company who appointed surveyor/valuer for inspection. After inspection the complaint repaired the damaged Truck and had to pay Rs. 3.77 lacs to Garage Owner for the cost of repair. On 30.12.10 the OP sent a letter to the complainant asking for furnishing the fitness certificate and driving licence for the relevant period for verification and the complaint furnished the same within 30 days of the said letter. The complaint then asked for payment of the repairing cost from the OP Insurance Co. but did not pay any heed to it. Then, the complainant has filed this complaint for relief. Hence, the instant complaint case.
The written version filed by the OP-Insurance Co., in brief, is that the complaint has violated the condition of the policy and also the complainant had no valid fitness certificate at the relevant time. Further, the complainant had no valid permit to ply on the road where the alleged accident took place and for that the complainant is not entitled to get any relief as prayed for. So, the compliant is liable to be rejected. Hence, the instant written version.
Considering the pleadings of both parties the following points have been framed for the disposal of the case.
Points for decision
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the present case?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled?
Decision with reasons.
Point Nos. 1 & 2.
Both the points are taken up together for the same of convenience.
During hearing of argument the Ld. Lawyer for the OP has not raised any objection against those points.
Considering the materials on record we do not find anything adverse against those points and as such both the points are disposed of in favour of the complaint.
Point Nos. 3 & 4.
Both the points are taken up together or the sake of convenience.
The instant complaint is for realization of the cost of repair of the insured Truck for Rs.3.77 lacs plus compensation of Rs.10, 000/-.
On the other hand the OP-Insurance Company has raised objection that during the relevant period the complaint had no valid fitness certificate for plying on the road as well as road permit and for such violation of terms of the policy the complainant is not entitled to get any relief and for that the complaint is liable to be dismissed.
In this case both the parties filed documentary evidence in support of their respective case where, complainant himself has also adduced evidence-on-affidavit.
The complainant’s case is that his Truck was insured with OP-Insurance Co. and met with accident on 19.6.10 and was damaged and claimed cost of repair from the OP-Insurance Co. The complainant has adduced documentary evidence to prove his case. Those are Insurance Policies, seizure list of vehicle relating to Nakashipara P.S case No. 347/10 dt. 22.6.10 , Driving Licence and two bills dt. 8.7.10 for repair of damaged Truck bearing No. WB-65/9389 for Rs.2.47 lacs and Rs.1.30 lack.
On the other hand, the OP Insurance Co. repudiated the claim of the complainant on the ground that the vehicle in question was not fit for plying and that is the only case of the OP-insurance Co.
To prove the OP’s case the OP-Insurance Co has adduced the report dt. 31.08.2011 of their Investigator Mr. Arpan Roy of Berhampore appointed by them.
From this report that the fitness certificate of the concerned insured vehicle No. WB-65/9389(Truck) was discontinued for the period from 23.4.10 to 13.07.2010 where the accident admittedly took place on 19.06.10.
To justify the same the OP-Insurance Co. has filed the report of RTO, Malda in respect of the impugned Truck bearing No. WB-65-9389 collected by the valuer Kumaresh Sarkar and forwarded by him in his letter dt. 30.6.2015 to the Divisional Manager, OP Insurance Co, Berhampore.
In this letter there is deal as “Kumaresh Sarkar, Malda, Investigator”.
In the report of RTO dt. 09.6.15 there is Govt. Seal of the Office of D.M. Malda, M.V. Deptt. and another seal of designation of RTO, Malda beneath the signature.
Relying to his document of RTA, Malda and Kumaresh Sarkar Investigator of Malda of OP-Insurance Co. filed by firisti by the Ld. layer for the OP-Insurance Co. during hearing argument the ld. lawyer for the complaint has advanced argument challenging those documents to the effect that Mr. Kumaresh Sarkar had no authority to collect and submit the report and also the report of RTO, Malda has no basis of such report and for that the same cannot be entertained as well as relied upon.
But, the ld. lawyer for the complaint has not adduced any documentary evidence to rebut this piece of evidence that at the relevant time the impugned Truck had valid fitness certificate.
The OP –Insurance Co. has discharged their onus by adducing evidence in support of their case, now the onus is upon the complainant to rebut the same.
It is true that the said report of Mr. Kumaresh Sarkar along with the report of RTO are both of Malda but the same is relating to this particular Truck bearing No. WB-65/9389 which is the matter in question of this case.
In this case there is no such dispute relating to jurisdiction of the RTO, Malda.
The impugned report of RTO, Malda is relating to this particular Truck showing that the same had no valid fitness certificate at the relevant time. i.e at the time of accident on 19.6.2010.
To our mind the basis of such certificate is not vital, the only question is whether the report of RTO is correct or wrong.
And for that there is only way to rebut this evidence by adducing cogent evidence from the side of the complaint that the same is wrong and the complainant had valid fitness certificate at the time of accident on 19.6.2010.
It also appears from the above report of RTO that after the accident the said Truck again had valid fitness certificate from 14.7.10 to 13.7.2011.
There is no scope of any presumption that for the subsequent valid fitness certificate after the accident there was valid fitness certificate at the time of accident.
The complainant is to prove by cogent evidence that at the relevant time the impugned Truck bearing No. WB-65/9389 had valid fitness certificate at the time of accident.
For absence of valid fitness certificate of the Truck at the time of accident as per settled rule the complainant is not entitled to get any relief.
On the basis of above discussions as a whole, we have no other alternative but to conclude that the complainant has failed to prove that the impugned Truck bearing No. WB-65/9389 had valid fitness certificate at the time of accident on 19.6.2010 and for that the complainant is not entitled to get any relief.
Considering the above discussions we find that all these points are disposed of against the complainant.
Also, considering the decisions of all the points together we find that the case be dismissed.
Hence,
Ordered
that the Consumer Complaint No. 151/2013 be and the same is hereby dismissed on contest.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member Member President
District Consumer Disputes District Consumer Disputes District Consumer Disputes
Redressal Forum. Redressal Forum. Redressal Forum.
Murshidabad. Murshidabad. Murshidabad.
