Tripura

StateCommission

A/9/2021

Sri. Ranjit Goswami - Complainant(s)

Versus

The Senior Divisional Manager - Opp.Party(s)

Mr. P.k Debnath

29 Apr 2021

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.9.2021

 

 

 

 

1. Shri Ranjit Goswami,

S/o Late Jadu Kumar Goswami,

Vill + P.O. Battali, P.S. Sonamura,

District - Sepahijala, Tripura.

At present residing at Indranagar, (Shiksha Niketan School),

Agartala, West Tripura.

… … … … Appellant/Complainant.

 

Vs

 

 

1. The Senior Divisional Manager,

The New India Assurance Company Ltd.,

4, Mantribari Road, Agartala,

District - West Tripura,

Pin: 799001.

                                                          … … … … Respondent/Opposite party.

 

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Dr. Chhanda Bhattacharyya

Member,

State Commission

 

Mr. Kamalendu Bikash Das

Member,

State Commission

 

 

 

 

For the Appellant:                                                Mr. Prahlad Kumar Debnath, Adv.

For the Respondent:                                            Mr. Gitangshu Sekhar Das, Adv.

Date of Hearing & Delivery of Judgment:          29.04.2021.

 

J U D G M E N T [O R A L]

 

U.B. Saha, J,

The instant appeal is preferred against the judgment dated 17.02.2021 passed by the learned District Consumer Disputes Redressal Commission (hereinafter referred to as District Commission), West Tripura, Agartala in Case No. C.C.75 of 2019 whereby and whereunder the learned District Forum dismissed the complaint petition being devoid of merit.

2. Heard Mr. Prahlad Kumar Debnath, Ld. Counsel appearing for the appellant, (hereinafter referred to as complainant) as well as Mr. Gitangshu Sekhar Das, Ld. Counsel appearing on behalf of the respondent, New India Assurance Company Ltd. (hereinafter referred to as opposite party/ Insurance Company).    
3. Brief facts of the case are as follows:-  

The complainant being the registered owner of the vehicle No.TR07-1201 (Bus) and he was plying the same with valid Registration, Fitness, Road Permit, Driving License, Tax Token etc. and the vehicle was duly insured with the New India Assurance Co. Ltd. vide Policy No.531000031160100014907 w.e.f. 09.11.2016 to 08.11.2027, IDV of Rs.10,02,330/- only and the premium was paid by the complainant against the said policy and the vehicle was running for his livelihood with a financial help from the financier Cholamandalam INV FIN Co. Ltd., Agartala. On 22.01.2017, when the bus of the complainant was coming from Sonamura side towards Agartala via Bisharmganj, it met with an accident at Padmanagar, under the jurisdiction of Bishramganj Police Station and as a result of the said accident, the vehicle was badly damaged along with original vehicular documents due to capsized of the bus caused by the violent mob attack. The police registered a case vide BRG P.S. Case No.04/2017 U/S 279/338/435/511 of IPC against the driver of the accidental bus. The complainant made necessary arrangement to repair the damaged vehicle and 27.01.2017, the complainant intimated to the Divisional Office of the opposite party vide letter dated 25.01.2017 about the accident of the aforesaid vehicle and thereafter, the complainant submitted all the relevant documents of the damaged vehicle i.e. Registration, Fitness, Road Permit, Driving License, Tax Token, MVI Inspection Report etc. along with estimate list of repairing cost and bill dated 01.06.2017 of M/s J.K. Motors, Authorized Dealer of SM Isuzu Ltd. Khayerpur, West Tripura for the amount of Rs.3,61,706/- only (being the total repair cost of the said vehicle). Thereafter, the opposite party by issuing a letter dated 06.07.2017 asked the complainant to submit the fitness certificate of the vehicle and accordingly, he also submitted the same vide letter dated 25.07.2017. Then the opposite party issued another letter to the District Transport Officer, Bishramganj, Sepahijala dated 13.09.2017. In reply of the same the DTO, Bishramganj, Sepahijala clarified that the fitness certificate of the aforesaid vehicle is valid up to 28.05.2018. The complainant also submitted the Form No.24 of Motor Vehicle Registration wherein it is shown that the fitness was up to 28.05.2018 with Insurance Policy coverage from 09.11.2016 to 08.11.2017 with the New India Assurance Co. Ltd. The complainant on several time approached to the opposite party for getting the claim amount, but the opposite party had failed to release any amount with regard to the claim of the complainant and ultimately, by issuing a letter dated 07.12.2017 rejecting the claim of the complainant with a false plea that the vehicle had operated/plied as commercial vehicle (bus) without fitness certificate and for which the claim of the complainant is not maintainable.

Finding no other alternative, the complainant was compelled to serve a demand notice dated 26.012.2017 claiming compensation of Rs.4,61,706/- with 9% interest for the damages, unfair trade practice, illegal rejection and harassment. In response to the demand notice the opposite party on 06.01.2018 admitting the claim of Rs.2,05,862/- only asking further to submit valid fitness certificate of the vehicle without any basis.

Being aggrieved by the action of the opposite party-Insurance Company, the complainant filed a complaint petition before the learned District Commission claiming compensation of Rs.4,61,706/- along with interest.

4. The opposite party-Insurance Company contested the case by filing written objection denying the allegations of the complainant. The opposite party-Insurance Company admitted that the Insurance Policy was issued against the Bus bearing No.TR-07 1201 and the vehicle had valid Registration, Road Permit, Driving License, Tax Token etc., but the vehicle had no valid fitness certificate at the time of accident. It is also stated that the complainant did not submit the copy of fitness certificate at the time of claiming the benefit of the policy. It is further stated that the complainant is not entitled to get any compensation as he failed to submit fitness certificate of the vehicle. It is again stated in the written objection that there is no deficiency of service on the part of the Insurance Company and the complaint petition is not maintainable as per provisions of the Consumer Protection Act, 1986 and is liable to be rejected.
5. The complainant submitted his examination in chief by way of affidavit. He had produced 12 documents which were marked as Exhibit.1 series. He also examined himself as P.W.1 and accordingly cross-examined by the opposite party-Insurance Company.
6. On the other hand, the opposite party-Insurance Company also produced Examination-in-Chief of by way of an affidavit and produced 5 documents which were marked as Exhibit-A series.
7. Considering the pleadings of the parties as well as the evidence on record, the learned District Commission framed the following points for deciding the case which are as follows:-

1. Whether there is any deficiency of service on the part of the O.P. towards the Complainant?
2. Whether the complainant is entitled to get compensation/relief as prayed for?
8. The learned District Commission after considering the submissions of the Ld. Counsel for the parties and the law reports cited by them passed the impugned judgment.
9. Being aggrieved by the decision of the learned District Commission, the complainant, the appellant herein, has filed the instant appeal.
10. Mr. Debnath, Ld. Counsel while urging for setting aside the impugned judgment would contend that the learned District Commission committed error while passing the impugned judgment. According to him, the learned District Commission ought to have allowed the compensation to the complainant on non-standard basis as per the judgment of Hon’ble Apex Court. He has also contended that the opposite party-Insurance Company to avoid liability, must not only establish the available defense raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. In support of his aforesaid contention he has relied upon a judgment of Hon’ble Supreme Court in Lakhmi Chand Vs Reliance General Insurance [Civil Appeal Nos.49-50 of 2016 (Arising Out of SLP (C) Nos.37534-37535 of 2013)]. On query by this Commission, Mr. Debnath has submitted that the appellant-complainant lost the fitness certificate of the vehicle as issued by the Transport Authority.
11. On the other hand, Mr. Das, Ld. Counsel appearing for the opposite party-Insurance Company while supporting the impugned judgment would contend that from the evidence of record it is clear that the vehicle of the complainant had no valid fitness certificate at the time of accident for which itself the complainant was not entitled to ply his vehicle on the road and the opposite party, Insurance Company rightly repudiated the claim of the complainant. He has further submitted that though the appellant-complainant was asked by the respondent-opposite party, Insurance Company to submit the fitness certificate of the aforesaid vehicle to it, but the complainant failed to do so. He has also taken us to the letter of District Transport Officer, Bishramganj, Sepahijala dated 27.11.2017 written to the Senior Divisional Manager, New India Assurance Company Ltd., Agartala, West Tripura (Exhibit-A) to show that there was no valid fitness certificate of the vehicle on the date of accident i.e. 22.01.2017. In that letter the District Transport Officer, Bishramganj, Sepahijala had written that “As per available record of our Bhavan – 4.0 data base the fitness certificate of vehicle bearing Registration No.TR 07 1201 (Bus) is valid up to 28.05.2018. As per Rule 62 of Central Motor Vehicle Rules 1989 the validity of fitness certificate is one year. But in our existing system there is no provision to emphasize whether fitness certificate of any particular vehicle valid for a particular date.” Going through the aforesaid question of the letter Mr. Das has contended that the fitness certificate was issued on or after 27.05.2017 and the same was valid up to 25.01.2018 i.e. for one year. Thus, on the date of accident i.e. on 22.01.2017 there was no valid fitness certificate for the said vehicle. His further contention is that without a valid fitness certificate the owner of the vehicle is not entitle to ply his vehicle on the road.  
12. We have gone through the evidence of P.W.1 i.e. the complainant wherein he has admitted that the fitness certificate of the vehicle was valid up to 28.05.2018 and he has also admitted that in the fitness certificate there is no mention about the date of issue of the said certificate. We have considered the aforesaid submission of the complainant so far the validity of fitness certificate is concerned. According to us, if we read the letter of the District Transport Officer, Bishramganj, Sepahijala dated 27.11.2017 (Exhibit-A series) along with the submission of the complainant then it is clear that on the date of accident there was no valid fitness certificate of the vehicle concerned with the appellant-complainant and the aforesaid fact was also considered by the learned District Commission in its impugned judgment. The learned District Commission passed the impugned judgment relying on the decision of the Hon’ble Apex Court in Narinder Singh Vs New India Assurance Company Ltd. (Civil Appeal No.8463 of 2014). In the case of Narinder Singh (supra), the learned District Forum, Shimla allowed the complaint petition granting the claim on non-standard basis and the said order of the learned District Forum, Shimla was challenged before the State Consumer Disputes Redressal Commission (in short State Commission), Himachal Pradesh, wherein the State Commission, Himachal Pradesh set aside the order of the learned District Forum, Shimla and dismissed the complaint petition as the vehicle had not been registered after the expiry of temporary registration. The judgment of the State Commission, Himachal Pradesh was challenged by the complainant, Narinder Singh before the Hon’ble National Consumer Disputes Redressal Commission (in short National Commission) and the Hon’ble National Commission also upheld the judgment of the State Commission, Himachal Pradesh. As aggrieved by the decision of the Hon’ble National Commission, the complainant again went to the Hon’ble Supreme Court and the Hon’ble Supreme Court held that “……………we do not find any infirmity in the order passed by the State Commission and the National Commission”. We have also considered the judgment of the Hon’ble Apex Court in Lakhmi Chand (supra), as relied upon by Mr. Debnath as well as the judgment of the Hon’ble National Commission in                    G. Kothainachiar Vs The Branch Manager, United India Insurance Co. Ltd. and Ors. (Revision Petition No.1503 of 2004). In G. Kothainachiar (supra), the Hon’ble National Commission considered the fact that the vehicle involved that case was having fitness certificate for more than 10 years and it expired only on 30.05.1995 i.e. before 20 days of the accident. As the certificate could not be obtained because of physical ill-health of the insured as contended and further, as per the RTO Inspectors report, the vehicle was in good condition for plying at the time of accident. The Hon’ble National Commission allowed the Revision Petition and the Insurance Company was directed to pay compensation as ordered by the District Forum, but the fact of that case is totally different than the case in hand. As in the instant case, the complainant did not produce any fitness certificate before the learned District Commission or before us, but only relied upon on one document [Form - 24 (Motor Vehicle Register)] to show that the vehicle had a valid fitness certificate up to 28^th May 2018. There is no quarrel with the date of validity of the fitness certificate of the aforesaid vehicle. The question is as to whether the fitness certificate was issued? According to the Transport Authority, fitness certificate was valid for one year. Therefore, it can be presumed that the fitness certificate was issued on or after 27.05.2017. Thus, admittedly, on the date of accident there was no valid fitness certificate with the appellant-complainant so far his vehicle is concerned. So, we are of the considered opinion that the case laws as relied upon by the complainant have no application.

We have also gone through the impugned judgment. According to us, the learned District Commission did not commit any error while passing the impugned judgment. Hence, no interference is called for.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the learned District Commission, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura