Rabindranath Bairagya, Burdwan Vs. Divisional Manager, the New India Assurance Co. Limited, Hooghly and Another - Court Judgment

The complaint, in brief, was as follows:

The Complainant, being the owner of the Tractor bearing the registration No. WB-41-A-5911 and the Trailer bearing the registration No. WB/41-A-5912, obtained an insurance policy from the OP No.1 .The insurance was valid from 31.08.2005 to the midnight of 30.08.2006. On 01.04.06 at about 3.30 P.M when the Tractor and the Trailer were coming after unloading cowdung in the agricultural field, the Tractor met with an accident and got damaged. The driver  of the Tractor died. The accident was reported to the local Police Station under Section 279, 338 and 304 A /427 of IPC. The incident was reported to the OP Insurance Company on 01.04.06 and claim was lodged. Shri Ashoke Kumar Mukhopadhyay, Surveyor and Loss Assessor, surveyed the damaged Tractor lying at Keshabganj Police Phanri and assessed the loss before repairing. The claim of the Complainant was repudiated by the OP Insurance Company by their letter dated 16.04.07 on the ground that the vehicle which was meant for use for agricultural purpose was being otherwise used at the material time of accident and the claim did not come under the purview of the policy. The repudiation of the claim of the Complainant being considered arbitrary and not sustainable, the Complainant preferred to file a complaint on the ground of deficiency in service on the part of the OPs, asserting, inter alia , that he had suffered great mental pain and agony. He prayed for direction for orders to pay Rs.1,16,986.04/- as repairing cost of the vehicle, Rs.50,000/- as compensation towards mental pain and agony and Rs.10,000/- as litigation cost.

The complaint in DF Case No. 76/2007 was dismissed by the Ld. Forum below by their judgment and order dated 24.02.09 on the ground that the OP Insurance Company had no deficiency in service in repudiating the claim of the Complainant, the vehicle in question being proved to be used for such purpose as was not covered by the insurance policy. The said judgment and order was challenged by the Complainant in an appeal filed before this Commission. This Commission by its order dated 02.07.2009 set aside the order of the Ld. Forum below and sent back the case on remand with certain directions. Accordingly, the Ld. Forum below registered another case vide No. 201/2009(Order No.21 dt.09.12.2009-LCR). After fresh hearing of both the Complainant and the OPs, the complaint has been dismissed.

We have gone through the appeal together with the evidence on affidavit filed by the Complainant, the petition of complaint, written version filed by OPs before the Ld. Forum below, survey report on the damage and assessment of loss in respect of the Tractor in question and other documents including the judgment dated 13.07.2010 passed by the Ld. Forum below. BNA has been filed by the Appellant.

Ld. Advocates appearing for the Appellant and the Respondent have been heard.

Ld. Advocate appearing for the Appellant submitted that the OP/ Respondents could not prove with any cogent document that the vehicle in question was being used otherwise than for agricultural purpose. The Surveyors report also did not mention that the vehicle was being used by the Complainant for any hire or reward purpose. On the contrary the vehicle sustained a damage amounting to Rs.1,16,986.04/- only. The photographs of the damaged vehicle taken by the Surveyor also corroborate the fact that the vehicle was actually damaged and such damage was caused by the accident which was covered by the insurance policy. Again, the sticker / board with the writing On Duty Burdwan Municipality as alleged to have been put up in the front part of the Tractor was never put up by the Complainant and no document in support of such writing could be produced by the OP insurance company. The photograph of the said sticker / board was never taken by the Surveyor in the presence of the Complainant or his representative. Hence, such photograph carries no evidentiary value. The order of the Ld. Forum below mainly on the basis of that photograph deserves to be ignored and the order of the Ld. Forum below may be set aide on that score.

Ld. Advocate appearing for the OP Respondent submitted that the vehicle was being used for commercial purpose at the time of the alleged accident. Surveyor engaged by the OP Respondent was never examined though by order of this Commission dated 02.07.2009 in case No. FA 2009/142, the Commission directed the Forum below to give an opportunity to the Appellant/Complainant to cross-examine the Surveyors report. The vehicle was being used on hire by the Burdwan Municipality in clear violation of policy condition and the Ld. Forum below rightly dismissed the complaint. The sticker/board with the writing On Duty Burdwan Municipality was put up on the vehicle which was self-explanatory but not challenged by the Complainant. In such case the Complainant failed to prove the contention of the OP that the vehicle was being used for hire and reward. The appeal against the impugned order does not stand.Decision with Reasons

From perusal of the submissions of the Ld. Advocates appearing for the Appellant and the Respondent, it reveals that the main question in regard to the repudiation of the claim preferred by the Complainant is whether the vehicle covered by insurance policy was being used by the Complainant at the time of accident for such purpose as was barred by policy condition.

The OP/ Respondents plea is that there was a board - On Duty of Burdwan Municipality hanging in the front of the vehicle. The Complainant/Appellant  on the other hand alleged that the photograph purported to have been produced was not taken in his presence or in the presence of his representative. Ld. Forum below observed in their order as follows:

There is no denying the fact that the photographs were not properly proved in evidence and the OPs in repudiating the claim had relied on photograph. It is not case of the Complainant that the photographs were subsequently implanted on the front side of the vehicle i.e. existence of the photographs has been admitted in other way. As the thing stands, the OPs have discharged their initial burden to prove their contention. Then, the burden definitely shifted to the Complainant to dislodge the contention by adducing better evidence. The moot point as to whether the alleged vehicle was used for the purpose other than agricultural stares on the face and the fact as per OPs case that a board in the style On Duty Burdwan Municipality was hanging on the front side of the Tractor remains the same as it was, no matter whether the bare photographs would automatically go into the evidence.

From the observation of the Ld. Forum below, it appears that the photograph showing a writing on a board attached to the front area of the Tractor has been accepted to be such evidence as not countered by the Complainant to disprove the contention of the OP Respondent that the vehicle was being used at the time of accident for such purpose as was barred by policy condition .

The fact goes that the vehicle was plying on the road when the accident took place. The OP Insurance Company, relying upon the photograph of the sticker / board depicting the use of the Tractor as on hire and reward did not, however,  go for verification of the fact as to whether the Burdwan Municipality  actually hired the Tractor on payment of hiring charges . It was very much necessary on the part of the OP to substantiate their contention with a report in writing from the Burdwan Municipality on the basis of the clue purported to have been lying with the photograph in question. Had they tried to get confirmation from the Burdwan Municipality about the hiring of the Tractor that got damaged in a head-on collision with a Truck on the road, the evidence would have been convincing. Here the photograph was no-doubt a clue that would have led to an evidence in support of the contention of the OP Insurance Company to prove that the vehicle was being used by the Burdwan Municipality on hire basis, but no attempt was taken to get the said clue verified. We are not inclined to hold that the OP insurance company has proved with any cogent evidence the purported hiring of the vehicle in question by the Burdwan Municipality. Ld. Forum below, appears  to have ignored that aspect of the fact and we are of the considered view that the impugned order suffers from material irregularity and legal infirmity. In the result, the impugned order deserves to be set aside and the appeal succeeds.

Hence,

Ordered that the Appeal be and the same is allowed. The impugned order is set aside .The Respondent Insurance Company is directed to pay a sum of Rs.65,898/- to the Appellant / Complainant as repairing cost as assessed by the Surveyor / Assessor within a period of 45 days from the date of this order , failing which, interest @ 9% p.a. shall be payable by the Respondent till full realization. There shall be no order as to costs.

LCR be returned to the Ld. Forum below with a copy of this order forthwith.