District Consumer Disputes Redressal Forum

Dakshin Dinajpur

Surya Sen Sarani Municipal Building, 1^st Floor, Balurghat Dakshin Dinajpur Pin - 733101.

Telefax: 03522-270013

Consumer Complaint No.:15/2005

Order No.34

Dt. 30.05.2008

Present :- (1) Sri S. K. Ghosh - Presiding Member

(2) Samiksha Bhattacharya - Lady Member

Counsel(s):- (1) Sri Shibatosh Chatterjee - Advocate for the complainant

(2) Sri Goutam Das - Advocate for the OPs.

This is to consider an application U/s 12 of the C.P. Act, 1986 filed by the complainant praying for compensation after considering all vouchers/bills submitted by the complainant and other relief or reliefs.

Facts of the case, in brief, is that the complainant is the owner of a heavy goods vehicle bearing Registration No. WB/61/1727. The complainant, ever since purchasing the said vehicle at all material times, had the same insured by the National Insurance Company as an ample precaution in case of any loss, theft or damage that may be suffered by the complainant with regard to the said vehicle. The insurance policy, being annual in nature, was diligently renewed each year by the complainant. The policy bearing No.150703/31/02/6304724 was issued on 13.02.2003 upon payment of requisit premium amounting to Rs.13,351/-. The aforementioned insurance policy for the said vehicle was valid from 13.02.2003 at 12:00 A.M. to midnight of 13.02.2004. The complainant stated that the said vehicle was being driven on 2^nd February 2004 by driver viz. Sri Ratan Mali for delivery of goods to Balurghat Bhata from Bholanath Enterprise, Jogighapa District Bongaigoan, Assam. On 02.02.2004 at morning the said vehicle was returning from Jogighapa Assam.

The accident took place between North Shalmara out post (Forest Gate) and Gorha Dukan at about 20/25 kilometer away from Jogighapa. One mentally unbalanced lady was trying to cross the road and at that time the driver of the vehicle suddenly applied break to save the lady and as a result the vehicle was capsized in the right side of the road i.e. on the side of driver. Thereafter driver and his assistant got down from the vehicle. After a few minutes the driver felt that the starting of the vehicle was not stopped and at that moment the driver proceeded towards the vehicle but at that time the engine of the vehicle suddenly burst out, most probably for increasing the pick up or any other difficulties which was happened for the reason of accident. Thereafter the complainant lodged a G.D. Entry to the local police station. After intimating the matter to the police a letter was issued to the District Transport Officer on 02.02.2004 for mechanical examination of said vehicle. A motor vehicle Inspector conducted a physical examination of the said vehicle and prepared a report of the same on 5^th February, 2004 (Annexure-F). In respect of expenditure incurred for repairing of the said vehicle, all bills/cash memo /vouchers were forwarded to the OP for consideration of claim which was duly received under seal & signature by the said OP on 14^th June, 2004. OP No.2, thereafter, issued a letter dt. 15^th October, 2004 stating inter alia, that the above claim has been passed for Rs.23,000/-. The complainant issued a letter on 10^th November 2004 stating that the claim lodged for compensation against the said vehicle was for more than Rs.1,50,000/- and as such the amount of compensation is very poor. OP No.2 issued another letter dated 9^th December 2004 to the complainant stating therein a break-up of the assessment. The said calculation is arbitrary and not in accordance with the damages as laid down in the certificate issued by the Motor Vehicle Inspector. The OP No.2 by its letter dated 8^th January 2005 for the first time made an allegation that the complainant has not taken necessary caution after the incident to prevent further loss and the complainant has violated the policy condition. OP also stated that the said alleged violation has resulted in the loss of engine component items and thus they have not considered the related expenses. Hence the application.

That the OP contested the case by filing written version stating inter alia that after perusing the reports submitted by the surveyor and other reports, the OP perused the same and allowed a claim of Rs.23,000/- only and accordingly agreed to pay the same. But the complainant refused to take that amount which was informed on dated 15^th October 2004. The OP Insurance Co. rightly assessed the amount and the OP Insurance Co. never agreed with the views of the complainant that the amount allowed by the OP was inadequate. The OP Insurance Co. time to time informed the matter to the complainant and made survey about the incident as well as perused the survey report including all bills, vouchers etc.

Thereafter OP considered all bills/vouchers and allowed the amount of Rs.23,000/- in favour of the complainant. There is no negligence on the part of OP Insurance Co. The OP also stated that from the report dated 05.02.2004, it is clear that on 02.02.2004 there was no bursting of the engine. It is also evident that on 03.02.2004 to 05.02.2004 the M.V.I. found no bursting of the engine of the said vehicle bearing NO.WB/61/1727. It is clear from the statement of the driver, Ratan Mali, that after checking by M.V.I. the vehicle was lifted and upto that date and time there was no bursting of the engine of that vehicle. The fact was also admitted by the complainant herself. The incident of bursting was clearly happened due to negligence and fault from the end of the driver. The complainant violated the policy condition and for which the Insurance Co. was not at all liable to pay any compensation. The OP further stated that due to over-turn of the vehicle, the engine oil came on the top of the Piston. Subsequently after lifting the vehicle the driver started the engine to leave the spot of accident without checking the mobil and oil piston of the engine and for that reason the engine was burst out. OP Insurance Co. is not liable to pay any compensation as the bursting of the engine was caused due to negligence of the driver. So there is no deficiency in service on the part of OP Insurance Co.

In view of the contentions of the both parties following points arose for consideration :-

1. Whether the consumer-complainant is entitled to get any relief as prayed for?

2. Whether there is any deficiency in service or gross negligence on the part of OP-NIC ?

Decision with reasons:

Point Nos. 1 & 2 : Both parties file relevant documents at the time of hearing which are kept with the record.

We heard contentions of Ld. Counsels for both parties and perused all material documents produced before us with reference to relevant provisions of law.

It is fact that accident was occurred on 02.02.2004. It is also admitted fact that the policy bearing No.150703/31/02/6304724 was issued on 13.02.2003 upon payment of requisite premium amounting to Rs.13,351/- in respect of truck bearing registration No.WB/61/1727 and the aforementioned insurance policy for the said vehicle was valid from 13.02.2003 at 12:00 A.M. to midnight of 13.02.2004. The driver viz. Sri Ratan Mali and his assistant both are only direct witnesses of the spot accident . It is also fact that the driver Sri Ratan Mali informed regarding said accident to the local police station on 02.02.2004. Motor Vehicle Inspector came to the spot of accident on 05.02.2004 upon prayer submitted by the complainant on 03.02.2004. Inspector inspected the capsized truck and prepared a report in respect of damages due to accident.

The following particulars were damaged due to accident as per report dt.05.02.2004 submitted by the Inspector:-

1. Cabin Unit R.H.S.

2. Load body rear side RHS

3. Main spring leaf RHS with 2^nd Main

4. Chasis slightly displaced

5. Front axel displaced

6. Front show i.e. fron guard RHS slightly deshaped

The said inspector further noted that in the remarks column that most probably the accident occurred due to breakage of main spring leaf RHS front. In this respect it is the view of the Ld. Forum that there is no story regarding bursting of engine of the said vehicle in the said report dated 05.02.2004 submitted by the Motor Vehicle Inspector.

Now turning to the point regarding deposition of the drive viz. Sri Ratan mali in cross examination. In cross, driver Ratan Mali stated that the truck turned over thrice after accident occurred. He also stated that the work of inspection was done in presence of driver viz. Sri Ratan Mali. After accident occurred, Insurance Co. asked me some questions and I answered. Insurance Co. prepared a statement as per may view and instructions and thereafter I signed on the particular documents marked Ext-2. He further stated that the Mobil was drained out after accident was occurred. Driver Ratan Mali stated more that if the mobil comes at the top of the piston and in this situation if the vehicle is started, the engine can be burst out and he submits that when I started the truck at that very time the engine was burst out. Ext-2 speaks also that the Ratan Mali, driver tried to keep the vehicle in secured place and tried to start the vehicle, thereafter the engine was burst out.

So, from the above discussion it is clear that the statement given by driver Ratan Mali in cross examination is corroborated with the Ext-2. Depositions of both witnesses viz. Narayani Roy and Shibasis Roy are to be treated as ‘hearsay evidence’ because ‘hearsay evidence’ is the evidence of a witness who deposes to what he heard from others or was informed by others – AIR 1982 SC 673. In the instant case the complainant Narayani Roy and her son Shibasis Roy both were absent at the place when accident was occurred. Both the witnesses heard the description of accident from their driver viz Ratan Mali and ‘hearsay evidence’ is not admissible in evidence in the eyes of law. Therefore, the deposition of driver Ratan Mali is very much relevant because he is a direct witness of the said accident.

Ld. Counsel for the complainant argued that the assessment is arbitrary and baseless because the labour charges are higher and all other charges regarding parts (after depreciation), towing expenditure and survey fees are very lower. In this respect Ld. Counsel for OP Insurance Co. argued that there is no question of supply of new accessories but there is a question to repair only the defects of cabin unit, chassis, front axel front show etc. So the labour charges are higher. The Ld. Forum also accept the said view submitted by Ld. Counsel for OP Insurance Co.

From the above analysis the Ld. Forum comes into conclusion that on 03.02.2004 to 05.02.2004 the Motor Vehicle Inspector found no bursting of the engine of the said vehicle. It is the view of the Ld. Forum that there is an ample opportunity from the end of complainant to produce a Mechanical & Technical Expert to prove her case but the complainant failed to do so. Further Ld. Forum seems that it should be necessary to produce witness of Assistant Driver who was staying with the driver Ratan Mali in the said vehicle. But the complainant further failed to do so. On earlier occasions the Ld. Forum comes into conclusion that there is no story regarding bursting of engine in the report dated 05.02.2004 submitted by the Motor Vehicle Inspector.

From the above discussions the Ld. Forum hold and conclude that the engine was burst out when the driver tried to start the vehicle. So, there is a gross negligence on the part of driver and the complainant violated the policy condition. In the policy condition it is clearly mentioned that “in the event of any accident of break down, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are affected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”.

It is fact that OP Insurance Co. time to time informed the matter to the complainant and made survey about the said incident as well as perused the survey report including all bills, vouchers etc. Thereafter OP considered all bills/vouchers and allowed the amount of Rs.23,000/- in favour of the complainant. But the complainant refused to take it. Therefore there is no deficiency in service or gross negligence on the part of OP Insurance Co. and the consumer – complainant is not entitled to get any relief as prayed for. Point Nos. 1 & 2 are decided accordingly on the basis of aforesaid findings. Hence.

O R D E R E D

That the Consumer Complaint No.15/2005 is dismissed on contest without cost.

That the consumer-complainant is not entitled to get any relief as prayed for due to violation of policy condition of the Insurance Co.

That the amount of Rs.23,000/- allowed by OP Insurance Co. is just and proper. So there is no deficiency in service or gross negligence on the part of OP N.I.C.

That the OP NIC is hereby directed to issue the claim cheque of Rs.23,000/-, which already been allowed by OP NIC, in favour of complainant within 15 days from the date of order.

That the case could not be disposed of within the specified period of time due to noting down the deposition of witnesses and for taking adjournment several times by the Ld. Counsels for both sides.

Let a copy of this order be supplied to the parties free of cost.

By order of this Forum

I agree