MOBARAK GAZI Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) The complaint case is that he took on lease the permit from one B. Das for plying the Vehicle No. WBS 5008 and had been plying on the route from Howrah to Dihibhursut against valid permit. The said vehicle was duly insured under comprehensive policy with the Opposite Party Nos.1 and 2 and a certificate of insurance policy bearing No.3151010006431 issued in the name of the complainant/petitioner who is the owner of Vehicle No. WBS 5008. The said insurance policy was valid and legal.

(2.) The further case of the petitioner/complainant is that the said Vehicle No. WBS 5008 met with an accident near Manikpur on 3.5.1988 at about 8.15 a. m. The said accident was duly registered with Jagatbalavpur Police Station at Howrah. In the said accident some persons were dead and some were injured and also it caused total loss of the Vehicle No. WBS 5008.

(3.) The Opposite Party Nos.1 and 2 appointed a surveyor M/s. B. Ghosh and Co. who after carrying a survey without knowledge and notice of the complainant/petitioner submitted a report showing the damages caused to the captioned Vehicle No. WBS 5008 amounting to Rs.49,850/- including body materials after deduction of depreciation and including body mechanic, labour apart cost of the same as mentioned in the said report made Annexure 'f' to the petition of complaint. The petitioner also appointed surveyor who also reported the total loss of the vehicle and after deduction of depreciation etc. recommended the total loss worth of Rs.84,000/- but the petitioner for practical verification of the matter obtained quotation for the repair of captioned vehicle from M/s. Sarama Body Builders who quoted Rs.1,58,815/- for body building including labour charges and repairing of the vehicle apart from the value of the spare parts required for the repairing purpose of the vehicle and such quotation for spare parts worth Rs.24,255/- was received from Ram Sankar Gupta. Thus over all repairing cost required for the vehicle was aggregated to Rs.1,83,070/-. The petitioner/complainant lodged its claim on 9.5.1988 through its financer, Opposite Party No.3 but the Opposite Party Nos.1 and 2 did not consider the claim. On the other hand they repudiated the claim of the petitioner on 8.5.1992 inter alia on two grounds that the vehicle was being plied without any stage carriage permit issued in favour of the complainant for user for this captioned vehicle and secondly that the permit allows the permit holders to carry passenger as per registration certificate only to the extent of 39 heads including driver but the captioned vehicle was found to have carried out more than 100 passengers in violation of Rule 91 (8) of the Bengal Motor Vehicles Rules, 1948. It was also alleged in the said letter dated 8.5.1992 of repudiation that in answer to question No.10 (c) of the claim form, it was stated that there were only 38 passengers in the vehicle at the time of accident.