NEW INDIA ASSURANCE COMPANY LIMITED Vs. UTPAL BANERJEE

JUDGEMENT

(1.) Being aggrieved by and dissatisfied with the judgment and order dated 26.5.2011 in case No. 109/2008 as passed by the learned District Forum, Burdwan, the OPs thereof have preferred this appeal.

(2.) The case of the Respondent/Complainant is that he is owner of the vehicle bearing No. WB-41-8897 which is used for the purpose of carrying goods and the said vehicle was insured by OP No. 1 vide Policy No. 512502/31/02/37531 for the period 7.1.2003 at 12.00 to 6.1.2004 midnight. The said vehicle met with an accident on 17.7.2003 at Chandur Siristala on Burdwan-Arambag Road and an FIR was lodged with Arambag P.S. being P.S. Case No.143/03 dated 17.7.2003, under Sections 279/338/337/304A/427, I.P.C. The Complainant immediately informed such accident to the OP No. 1 on 22.7.2003 praying for enquiry through Surveyor for assessment of loss/damage and the claim form was issued on that date. At the direction of OP No.l, the Complainant deposited the said damaged vehicle for repairing at Biswakarma Motor Welding Works and the Surveyor appointed by the OP No. 1 surveyed the vehicle and submitted a report on assessment of loss dated 7.10.2003 which was not perfect. The Complainant submitted all the receipts of cost for repairing the damaged vehicle before the OP No. 1 on 19.12.2003 praying for disbursement of claim to which the OP No.l asked the Complainant on 20.12.2003 to submit some documents being Claim No. 512502/31/03/00053, which was complied. Lastly, the Complainant gave a legal notice to the OP No.1 dated 20.4.2007 requesting to settle the matter immediately, to which a reply was made on 24.5.2007 informing that the claim has already been disposed of as "No claim". Accordingly, the case for negligence and deficiency in service.

(3.) On the other hand, the case of the Appellants/OPs in their W.V. is that the insured vehicle (Tata truck) was covered under Goods Carrying Public Carriers Policy, On scrutiny of the FIR, it was found that at the material time of alleged accident, the said vehicle was carrying bridegroom parties/passengers, though it was a goods carrying vehicle, violating the terms and conditions of the policy as well as provisions of Section 66 of the M.V, Act, which is apparent from the policy as well as condition regarding limitation as to use, which tantamounts to violation of policy condition and as such the OPs being the insurer of the said truck in question have no liability to pay any compensation for the loss sustained due to the alleged accident in question and for that the OPs have duly repudiated the claim of the Complainant and closed the claim file and duly informed its decisions to the insured/complainant vide letter dated 28.2.2005, and that there has not been any deficiency in service or negligence on the part of the OPs within the scope of the C.P. Act and that the complaint is liable to be summarily dismissed.