Tripura

West Tripura

CC/39/2016

Shri Tinku Ghosh. - Complainant(s)

Versus

The National Insurance Co. Ltd. - Opp.Party(s)

Mr.B.Saha, Mr.S.Pal.

04 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
WEST TRIPURA :  AGARTALA

CASE   NO:   CC- 39 of 2016

Shri Tinku Ghosh,
Lt. Nandulal Ghosh,
Sherowali Tour & Travels,
L.N. Bari Road, Agartala, 
P.S. East Agartala, 
West Tripura.                ….....…...Complainant.

             VERSUS

The National Insurance Co. Ltd.,
Agartala Divisional Office,
Akhaura Road, Agartala,
West Tripura.                .........Opposite parties.

 

      __________PRESENT__________

 SRI A. PAL,
PRESIDENT,
  DISTRICT CONSUMER  
DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. Dr. G. DEBNATH
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SRI U. DAS
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

    For the Complainant        : Sri Bijan Saha,
                          Sri Saptarshi Pal, 
                          Advocate.  

For the O.P.             : Sri Sandip Dutta Chowdhury,      
                      Advocate.

 

    JUDGMENT  DELIVERED  ON: 04.10.16

J U D G M E N T
        This case arises on the petition filed by one Tinku Ghosh U/S 12 of the Consumer Protection Act. Petitioner's case in short is that on 08.08.12 his insured vehicle met an accident on National Highway at Meghalaya. The vehicle fell in a deep lunga and it was fully damaged and 32/33 passengers sustained severe injuries. Some of the passengers also died. FIR was submitted. Thereafter claim for compensation of the damage was filed but no positive response was given by the Insurance company. Finally the National Insurance company repudiated the claim on the ground  that policy condition was violated. Petitioner has spent a huge amount for repairing the vehicle and claimed an amount of Rs.19,92,100/- .
2.            The O.P. Insurance company appeared, filed W.S denying the claim. It is stated that as per policy condition petitioner is supposed to carry 38 passengers. But the vehicle carried 39 passengers more than sitting capacity.  Therefore, the policy condition was violated. Petitioner is not entitled to get any compensation.
3.        On the basis of contention raised by the parties following points cropped up for determination;
        (I) Whether the policy condition was violated by the petitioner?
        (II) Whether the petitioner is entitled to get  the Insured Declared Value and compensation?
4.        The petitioner side produced the letters, legal notice, Registration, Permit, Tax Token, Certificate of Fitness, Insurance Policy, Test report, copy of deposition, marked as Exhibit- 1 Series.
        Petitioner also produced the statement on affidavit of the petitioner, Tinku Ghosh and also copy of FIR. 
5.            On the other hand O.P. produced statement on affidavit of Snehasish Das,  and also produced FIR, Charge sheet, Road Permit, Insurance Policy Certificate, marked as Exhibit- A Series.
On the basis of evidence on record we shall now determine the points.
        Findings and decision:
7.            O.P. National Insurance Company repudiated the claim of the petitioner on the ground that policy condition was violated. We have gone through the copy of the letter issued by the Insurance company. In that letter it is clearly written that  for the violation of permit competent authority repudiated the claim. In the written statement it is stated that 39 passengers were carried. All though capacity of the vehicle was 38. O.P. relied on the certified copy of FIR. In the FIR it is written that 28 passengers died on the spot and 27 passengers sustained injuries. O.P. also produced the copy of charge sheet. In that charge sheet it is written that 28 passengers died on the spot including 2 female. 26 passengers sustained injuries including the driver. This facts comes out from the investigation. If investigation is relied upon, then it appears that total 28 + 26 = 54 passengers were carried though seating capacity was 38. Snehashis Das O.P.W. 1 stated that Insurance Company is not liable as policy condition was violated. We have gone through the policy certificate. In the policy certificate liability of the passengers is written 38. In case claim of more than 38 passengers is placed insurance company is not liable to pay. In this case no such question raised. It is a case of overloading as per police investigation. Police investigation is not a sacrosanct. It is not final. No decision can be taken on the basis of police investigation unless it is proved by definite evidence. The declared value of the vehicle is Rs.7,21,150/- as per policy certificate. Petitioner claimed Rs.19 lakhs for repairing. It is baseless and can not be supported. Liability  is written in the 'B' schedule of the policy. From the total liability the passengers liability is to deducted. Total premium was Rs.30,409/- for passengers and the vehicle. The vehicle was insured from 17.2.12 to 16.2.13. It is admitted position that within the policy certificate period the accident occurred on 08.08.12. Petitioner produced the vouchers of the workshop to  support that Rs.19 lakhs was spent for repairing. After declaring the value of the vehicle Rs.7, 50,000/- he can not spend a huge amount for a damage vehicle. He paid premium on the declared value Rs.7,50,000/-. So, liability of the insurance company will be confined to this amount not more than that. Apart from this depreciation is to be counted. Insurance company did not appoint any surveyor to assess the damage.  It repudiated the claim for violation of the condition of permit. But no evidence given to support that  any condition of the permit  violated. Therefore, we may come to conclusion that condition of the permit was not violated at all. 
8.            Petitioner in this case by convincing evidence proved that the vehicle was badly damaged. Firstly he claimed Rs.15 lakhs from the Divisional Manager. Thereafter this claim petition filed stating that Rs.19,92,100/- was spent for repairing the vehicle. 
We have gone through all the evidence and documents and it is revealed that the declared value of the vehicle was Rs.7,50,000/- vehicle was badly damaged. Petitioner paid premium and therefore O.P. insurance company has the liability to compensate such damage. Policy condition was not violated. Therefore petitioner is entitled to get compensation amounting to Rs.7 lakhs after exclusion of the depreciation value of vehicle. Petitioner is also entitled to get Rs.10,000/- for cost of litigation. O.P. insurance company failed to pay the compensation amount to the petitioner and it is deficiency of service.
11.            We therefore,  direct the O.P. Insurance company to pay Rs.7,10,000/- within 2 months to the petitioner. If the amount not paid it will carry interest @ 9% P.A.   
         

                     Announced.

SRI A. PAL
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SMT. DR. G. DEBNATH,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
WEST TRIPURA, AGARTALA    SRI U. DAS
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.