BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 30 of 2017
Mr. Altaf Uddin Ahmed,
S/o Alim Uddin Ahmed,
Central Road, Silchar. ……………………………………… Complainant.
-V/S-
1. The New India Assurance Co. Ltd.,
(Represented by the Divisional Manager,
Club Road, Capital Travels Building
P.O.& P.S- Silchar-1 O.P No.1
2. Sri Piyal Deb (Investigator)
C/o the New India Assurance Co. Ltd.,
Club Road, Capital Travels Building
P.O.& P.S- Silchar-1 O.P No.2
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Sri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared: - Mr. Rajat Ghosh Advocate for the complainant.
Mr. S.S Dutta Advocate for the O.Ps.
Date of Evidence 22-02-2018, 14-03-2018
Date of written argument 11-04-2018, 06-08-2018
Date of oral argument 04-09-2018 (none has argued)
Date of judgment 28-09-2018
JUDGMENT AND ORDER
Sri Bishnu Debnath
- This case has been brought by Mr. Altaf Uddin Ahmed (referred as complainant) against the New India Assurance Co. Ltd. (O.P No.1) and against investigator of the O.P No.1, name of the said investigator is Sri Piyal Deb (O.P No.2).The complaint filed for award of as per relief stated in the compliant.
- Brief fact:-
The complainant insured his Night Supper Bus bearing registration No. As-01/EC-7494 with O.P No.1 vide insurance policy No. 53060031150100011423. The period of insurance was from 29-03-2016 to 28-03-2017. It was a commercial vehicle package policy. But during the effect of the insurance policy, on 14-06-2016 at about night 9-30 P.M the vehicle met road accident at Sonapur near Mandir on NH 44 at the time of proceeding toward Guwahati from Silchar. In consequence the vehicle capsized and fell down about 500 fts. deep gorge. Due to that accident as many as 25(Twenty Five) passengers died on the spot and 9 (Nine) other sustain injury. The driver, handyman and conductor of that bus also died on the spot their name also included in the list of deceased of 25(Twenty Five) persons. The vehicle was completely damaged due to road accident. For which the complainant submitted claim form. But the O.P-Insurance company after receiving claim form. The investigator submitted report accordingly. On receiving investigator’s report repudiated the claim on 05-04-2017 on the plea that one of the deceased passenger Late Ashit Kr. Deb did not board in to the bus at the starting point at ISBT, Silchar but boarded into the bus on the way of the bus toward Guwahati for which the complainant violated the terms and conditions of permit of stage carriage in view of section 2(i)(d) of the M.V Act.
- During hearing the complainant submitted deposition of the complaint and exhibited relevant documents including MVI report, list of injured passengers of that bus, list of dead persons, police report in connection with Khliehriat P/S U/D Case No. 10/2016 dated 21-06-2016. The contesting O.P No.1 submitted deposition of Sri Bebhuti Bhusan Chanda and exhibited passengers list of the aforesaid vehicle for the relevant date of accident and other documents including report of its appointment investigator. The O.P No.2 did not contest the case. However, after closing evidence, both the Ld. Advocate of the complainant and the Ld. Advocate of the O.P No.1 submitted their written argument.
- I have perused the evidence on record and written argument, but none has argued the case orally.
- In this case the incidence of the accident and due to accident as many as 25 (Twenty Five) persons including driver of the vehicle, conductor and handyman of that vehicle died on the spot are not challenged by the O.P No.1. The fact of injury of 9 (Nine) other passengers are also not denied. But the plea of the O.P No.1 is that since the vehicle was a stage carriage vehicle, as per the provision of section 2(i)(d) of M.V. Act 1988 no passenger can be allowed to board in the vehicle on the way toward destination. But in the instant case in view of Ext-A passenger’s list name of deceased Ashit Kumar Deb is not available. Whereas, as per police report vide Ext-9 and investigation report vide Ext-C name of Ashit Kumer Deb is available among the said deceased person, which mean the said deceased Ashit Kumar Deb did not board into the bus at ISBT Silchar, rather he entered into the bus later on the way toward ISBT Guwahati. As such as per the O.P No.1, the complainant violated the permit condition of stage carriage and for which not entitled any relief from the insurance company.
- The complainant in his complaint as well as in the deposition made explanation that said deceased Ashit Kumar Deb boarded at the bus at ISBT Silchar after closing the ticket counter but before starting the bus, for which his name is not entered into the passenger list vide Ext-A.
- The O.P did not agree with the explanation above. So, I have gone through the case record meticulously. It is revealed from the evidence on record that at the date of accident the complainant was not present at ISBT Silchar at the time of starting the bus toward Guwahati rather he was at Guwahati. So, how the complainant got knowledge that deceased passenger Ashit Kumar Deb boarded at ISBT Silchar. No eye witness of the said fact is produced before this District Forum to establish the above fact.
- Therefore, this District Forum is of opinion that the aforesaid plea of the complainant is not established conclusively. On the other hand, it is a fact in view of the evidence on record including police report that late Ashit Kumar Deb was found as passenger of the aforesaid bus and his dead body was recovered along with other dead bodies. So, it is a believable fact that late Ashit Kumar Deb was one of the ill fate passenger of that bus. But the O.P raise only a doubt that the said passengers did not board at ISBT Silchar rather boarded after starting the vehicle for Guwahati. Then a question may arise at which place the said passenger boarded at that bus. No specific or reliable evidence is produced except the passengers list vide Ext-A.
- Hence, in this situation adopting the principle of the preponderance of probability on the evidence on record, it is opined that the said passengers boarded after leaving the bus from ISBT Silchar. So, the complainant violated the provision of section 2(i)(d) of M.V. Act 1988 because no person would be allowed to enter into the Bus as passenger afterclosing the ticket counter at the starting station of stage carriage bus.
- However, Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal {Appeal (Civil) 3409/2008} upheld the decision of National Commission passed in United India Insurance Co. Ltd. Vs. Gian Singh 2006 CTJ221 to pay compensation as per rule of non-standard basis. As per the decision of the Nation Commission in that case it was held that in case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on non-standard basis if the complainant obtained comprehensive policy.
- The guideline for non-standard basis has been set out by the National Commission in the case of New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Patak (2006) CPJ 144(NC) as below:
Sl. No. Description Percentage of settlement
(I) Under declaration of licensed Deduct 3 years difference in premium
carrying capacity.from the amount of claim or deduct 25%
of claim amount, whichever is higher.
(II) Overloading of vehicles beyond Pay claims not exceeding 75% of
Licensed carrying capacity.admissible claim.
(III) Any other breach of warranty/ Pay upto 75% of admissible claim.
Condition of policy including
limitation as to use.
- In this instant case, in view of evidence on record is to concluded that the complainant purchased a package premium policy which means he obtained a comprehensive policy vide Ext.2. So, in this case applying the case law referred herein above, the complainant is entitled compensation in spite of using the vehicle violating permit conditions on the non-standard basis.
- As such the O.P No.1 is liable to pay value of the damaged bus on calculation of the amount on non-standard basis by deducting 25% of the sum insured of the vehicle.
- Therefore, the O.P No.1 is to pay total amount of the damaged vehicle of Rs.(19,60,312 - 25% of the said amount of Rs.4,90,078) Rs.14,70,234 (Rupees Fourteen Lac Seventy Thousand Two Hundred Thirty Four) only and cost of the proceeding of Rs. 5,000 (Rupees Five Thousand)) only. Accordingly, the O.P No.1 is asked to make payment of aforesaid amount of Rs.14,70,234+5,000=Rs.14,75,234 (Rupees Fourteen Lac Seventy Five Thousand Two Hundred Thirty Four) only within 45 days from today. In default, interest at the rate of 10% per annum on the aforesaid awarded amount.
- It is to be noted here that the contesting O.P took another plea that the complainant is not a consumer because the vehicle in question as asked for commercial purpose to carry passenger. But it is a settled principle of law that where a commercial vehicle is insured by the complainant, he has insured it to protect his property only and to shift responsibility of any commercial service to the insurance company. Hence in my considered view, the complainant is a consumer as per the provision of Sec. 2(I)(d)(i) & (ii) of the consumer Act 1986 and as such his complaint is maintainable in this District Consumer Forum.
- With the above, the case is disposed of on contest. Supply free certified copy of judgment to the partiers. Given under my hand and seal of this District Forum on this the 28th day of September, 2018.
