West Bengal

Bankura

CC/79/2014

Kripasindhu Bhui - Complainant(s)

Versus

The Oriental Insurance Company Ltd. - Opp.Party(s)

Amitava Chattopadhyay

31 Jan 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

Consumer  Complaint  No. 79/2014

Date of Filing : 26.06.2014

Before:

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

For the Complainant: Ld Advocate Amitava Chatterjee

For the O.P. Ld Advocate Chandi Charan Advuryya

Complainant

1. Kripasindhu Bhui , Tewari Danga, Mejia, Bankura
2. Bidhan Ch. Mandal, Sarakdihi, Mejia, Bankura

Opposite Party

The Oriental Insurance Co. Ltd., Bhuban Smriti, Machantala, Bankura

 

ORDER / JUDGEMENT

Order No.52

Dt. 31-01-2023

Both Parties file hazira.

The case is fixed for argument.

Heard argument from both sides.

Written argument is filed on behalf of the Complainant and O.P.

After hearing arguments from both sides the Commission proceeds to dispose of the case as hereunder.

The Complainants’ case is that the Dumper owned by the Complainants Registration No. being WB-37-B/7538 having Policy No.313106/31/2012/9485 insured with the O.P., valid from 22-12-2011 to 21-12-2012 met with a road accident on 26-10-2012 at about 1.15 Hrs. when the Dumper was coming from Bankura to Mejia with a load of iron ore whereby the driver lost his control and dashed with the road side boundary wall of Lafarge Cement Factory at Durlavpur, Bankura.

                                                                                                                                                                                      Contd……..p/2

Page: 2

The Dumper was severely damaged and the accident was reported and registered as Gangajal Ghati P.S. Case No.95/2012, dt.26-10-2012 u/s 279/427 I.P.C. and the claim application was preferred before the O.P. on 03-12-2012 with due intimation of the accident. The Complainants got the damaged Dumper repaired by Najrul Body Mechanics, Mejia at Rs.85,000/- together with other ancillary expenses amounting to Rs.1 Lakh in all.

The O.P. contested the case by filing a written version contending inter alia that the Complainants are not entitled to get any claim as the accident took place due to gross negligence of the driver of the Dumper who was found sleeping at the relevant time of accident which is evident from the very F.I.R. lodged on behalf of the Lafarge Cement Factory whose boundary wall was damaged by such accident. The O. P. has got the damaged Dumper assessed through their Investigator Tusar Kanti Chattopadhyay who submitted 1^st Survey Report dt.25-02-2013 with an estimate of Rs.42,500/- and thereafter a re-inspection Survey report was submitted by the same Investigator on 10-03-2013 assessing the loss and damage  of the Dumper to the tune of Rs.35,271/-. According to the O.P. the Complainants may at best get Rs.35,271/- as the Accidental damage  of the Dumper.

The Commission has gone through the entire facts and circumstances of the case and all the relevant documents on record and considered the submission and contention on both sides. Ld. Advocate appearing for the Complainants has submitted before the Commission that mere statement in the F.I.R. by an interested party does not establish that the driver was negligent at the time of accident as he was alleged to be in sleeping condition. Even if the driver was found sleeping at the time of accident it cannot be a ground for repudiation of claim as it is after all a road accident.

On this point Ld. Advocate appearing for the O.P. has however contended that  driving in sleeping condition is an act of gross negligence which contributes to the cause of accident and as such it is a fit case to deny the claim of the Complainants as prayed for. His further contention is that the extent of loss and damage of the Dumper  has been assessed at Rs.35,271/- after consideration and examination  of all the material points and the Commission may award that amount if they may deem fit and proper.                                                                                                         

                                                                                                                                                                                          Contd…….p/3

Page 3

So far the loss and damage of the Dumper is concerned the Commission is confronted with two Surveyor’s reports of the O.P.- the 1^st one as referred to above  is an estimate of Rs.42,500/- but the 2^nd one is a reduced amount of Rs.35,271/-. On the other hand the Complainants have produced four separate expenditure bill for the damaged Dumper for Rs.85,000/-, Rs.6,600/-, Rs.2,500/- and Rs.6,540/- respectively which comes to around Rs.1 Lakh.

Coming to the point of negligence the Commission is of the view that the driver of the Dumper had a contributory negligence to the cause of the accident as he ought to have been more alert and vigilant at the time of driving the Dumper.

As regards the loss and damage of the Dumper the Commission finds that two Surveyor’s reports cannot inspire confidence of the Commission in assessing actual loss and damage and in the same way the estimated cost of repairing and other charges for the damaged Dumper submitted on behalf of the Complainants can also not be accepted as reliable proof. But the fact remains that the Dumper was damaged to such extent that a repairing work was required to be done to make it road worthy and taking into consideration both the Surveyor’s reports of the O.P. and estimated cost of the Complainant the Commission thinks it just and proper to assess the extent of accidental loss and damage of the Dumper to the tune of Rs.80,000/- and taking into account the contributory negligence factor to the cause of the accident on the part of the driver of the Complainants the Commission thinks it reasonable to award Rs.50,000/- as the accidental damage of the Dumper.

Accordingly it is ordered that the case be and the same is allowed in part against the O.P.

The O.P.s are directed to pay to the Complainants Rs.50,000/- together with compensation of Rs.10,000/- within a month from this date in default the decretal amount may be realized in due process of law.

Both parties be supplied copy of this judgement free of cost.

 

                 __________________                                  ________________                                       ________________

           HON’BLE   PRESIDENT                             HON’BLE    MEMBER                             HON’BLE    MEMBER