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2017 DIGILAW 261 (CAL)

Chanchal Basu v. State of West Bengal

2017-03-07

ARINDAM SINHA

body2017
JUDGMENT : Arindam Sinha, J. The petitioner is the elder brother of a victim in a road accident. The accident took place on 8th March, 2008 which involved the said victim, his wife and son while travelling in their car bearing registration no. WB02Y8537. All the three persons lost their lives and the vehicle was said to be damaged beyond repair. 2. The petitioner by letter dated 12th October, 2014 applied to the Director, Public Vehicles Department, Government of West Bengal (PVD) for surrender of the registration certificate. In that letter the following information was furnished :- (i) The car was released from Chandannagar Court vide Singur P. S. case no. 35 dated 8th March, 2008 under sections 279/304(A) IPC under order dated 25th June, 2008. (ii) The car was towed upto Kolkata and was placed at Maruti Authorized Service Centre for open survey. (iii) The National Consumer Disputes Redressal Commission, New Delhi passed order dated 22nd April, 2014 in Revision Petition (R.P.) 1680 of 2014. The direction was that the salvage of the vehicle shall be delivered to the Insurance Company. (iv) The Insurance Company had directed the petitioner to surrender the "Owner Book" of the car to the concerned Regional Transport Officer and furnish the original "Surrender Certificate" to the Insurance Company for final settlement. 3. The petitioner by subsequent letter dated 20th February, 2015 informed the Director, PVD that what he was seeking, for the purpose of obtaining settlement from the Insurance Company, was cancellation of registration and not surrender. The mistake had been made by the petitioner on the basis of letter written to him by the Senior Divisional Manager of National Insurance Company Limited. 4. The Public Vehicles Department by their letter dated 28th April, 2015 informed the petitioner that cancellation of registration number of an accident involved vehicle totally depends on the affirmation report of O/C/C/S (Officer-in-Charge, Case Section). But in this case the O/C/C/S had provided non-verified report due to non-availability of some requisite data while inspection is made by sub-Inspector. Moreover, the Insurance Company had also given a statement that the case is unsettled as reported by O/C/C/S. The report attached to the said letter is reproduced in its entirety:- "In connection with the above matter, an enquiry was carried out as per the instruction. Moreover, the Insurance Company had also given a statement that the case is unsettled as reported by O/C/C/S. The report attached to the said letter is reproduced in its entirety:- "In connection with the above matter, an enquiry was carried out as per the instruction. During the enquiry, the undersigned went to Dial Automobiles at 87A, Peary Mohan Roy Road, Chetla, Kolkata-27 which was a garage and contacted Sri Tapan Das, stated to be the supervisor of said garage and on being asked about the above mentioned car, he pointed out some wreckage of a car kept inside the garage. It may be mentioned that the undersigned could not find out the registration number, engine no. and chassis no. of the said vehicle from said wreckage. Subsequently, contacted Sri Ashok Palit, the owner of the garage and he was requested to produce the relevant record showing the receipt of the wreckage of said car and he stated that neither he had no record about such receipt nor recollect the fact from whom said wreckage was received about seven years back. However, contacted Sri Nabin Ch. Jalan, the Relationship Manager of National Insurance Co. Ltd. at 9, Shakespeare Sarani, kol-17 and on being asked about the present status of the instant case, he stated that the case was still pending and they already issued a letter in that regard (P-32). Hence, the scrapping of the wreckage/salvage of the said accident involved car could not be verified and confirmed." 5. It appears an appeal was preferred by the petitioner to the First Appellate Authority as evident from letter dated 12th August, 2015 of the Director, PVD. The petitioner was thereby given another chance to submit legal heir certificate and thereafter the O/C/C/S and AD (Tech) to depute competent persons to verify the condition of the car as per Section 55(3) of Motor Vehicles Act, 1988 for taking decision on application for cancellation of registration as per section 55(2) of the said Act. It also appears that an inspection was sought to be conducted, of the wreckage, which was ultimately possible after this Court intervened to compel all concerned persons to be present at the date and time of inspection. 6. Mr. It also appears that an inspection was sought to be conducted, of the wreckage, which was ultimately possible after this Court intervened to compel all concerned persons to be present at the date and time of inspection. 6. Mr. Jha, learned advocate appeared on behalf of the petitioner and submitted his client's claim for cancellation of registration of the vehicle, damaged beyond repair, is to be dealt with under the provisions of sub-sections (1) and (2) of section 55 of the said Act. Sub-section (3) of section 55 has no application to the facts and circumstances of this case. According to him, the conditions necessary for applying the provisions of sub-section (2) of section 55 had been complied by his client. 7. Mr. Sen, learned advocate appearing on behalf of the State relied on the affidavit-in-opposition filed by his client. Page 13 of that affidavit is the said inspection report dated 13th May, 2016, the entirety of which is reproduced below:- "In compliance with the direction of the Hon'ble High Court in W.P. No. 5456 (W), I am directed by the Asst. Director (Technical), Public Vehicles Department, Kolkata to conduct the inspection of the car, bearing Regn. No. WB02Y-8537 at the godown of the Dial Automobiles Pvt. Ltd. 162A, Peary Mohan Roy Road, Kolkata-700027 and accordingly, I visited therein at about 12.00 noon on 11/05/2016 and conducted the inspection. The inspection was made in presence of the following persons:- (i) Ram Prasad Majumder, S.I., PVD, Beltala, Kolkata (ii) Prahalled Ghosh, A.S.I., PVD, Beltala, Kolkata (iii) H.B. Thapa, S.I., Chetla P.S., Kolkata (iv) Ashok Kr. Palit, Director of "Dial Automobiles Pvt. Ltd", 162A, Peary Mohan Roy Road, Kolkata-700027 (v) Ramendra Lal Nandi, Director of "Dial Automobiles Pvt. Ltd", 162A, Peary Mohan Roy Road, Kolkata-700027. During inspection I found :- (i) Both the above mentioned directors of the farm showed me a damaged body shell/chassis of a Wagon R vehicle, which was not fitted with any engine. (ii) I found the said body shell in complete damaged condition. One engine was kept on the floor in front of the said body shell. (iii) An aluminium nomenclature plate consisting of Model, Chassis and Engine no. which was supposed to be riveted in the engine compartment of the vehicle was not found. (iv) The engraved pattern chassis no. on the body shell was not found and appear to have been removed. (iii) An aluminium nomenclature plate consisting of Model, Chassis and Engine no. which was supposed to be riveted in the engine compartment of the vehicle was not found. (iv) The engraved pattern chassis no. on the body shell was not found and appear to have been removed. (v) Number of the said engine lying on the floor presented for inspection was found as F10DN4412347, but the engraved pattern of the engine no., as seen therein, apparently appears to be other than original. However, in my view, to come to a definite conclusion regarding genuineness of the engraved pattern of the said engine no. on that particular engine presented for inspection, opinion of an expert of the manufacturer, i.e., "Maruti Suzuki India Ltd." may be sought for. In view of the above, I can not come to a final conclusion that the body shell/chassis and the engine, which were presented before me for inspection, are the original body shell/chassis & engine of the vehicle bearing Regn. No. WB02Y-8537. With this I conclude my report and submitting before the Hon'ble High Court for consideration." 8. Mr. Sen submitted further, the provisions of sub-section (3) of section 55 stood attracted as soon as the petitioner had made the application for cancellation of registration under sub-section (1) thereof. Mr. Singh, learned advocate appeared on behalf of the Insurance Company and confirmed that the National Consumer Disputes Redressal Commission, New Delhi, by its order dated 22nd April, 2014 had directed that on payment of the sum of Rs. 3,39,323/- by his client to the petitioner, as full and final settlement of the claim towards total loss of the vehicle, the salvage of the vehicle shall be delivered to the Insurance Company. 9. For the purpose of adjudication of the claim for relief made by the petitioner it is necessary to set out the said three sub-sections of section 55 of the said Act as relied upon by the parties. The said provisions read as follows:- "S. 55. 9. For the purpose of adjudication of the claim for relief made by the petitioner it is necessary to set out the said three sub-sections of section 55 of the said Act as relied upon by the parties. The said provisions read as follows:- "S. 55. Cancellation of registration.-(1) if a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall, within fourteen days or as soon as may be, report the fact to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward to that authority the certificate of registration of the vehicle. (2) The registering authority shall, if it is the original registering authority, cancel the registration and the certificate of registration, or, if it is not, shall forward the report and the certificate of registration to the original registering authority and that authority shall cancel the registration. (3) Any registering authority may order the examination of a motor vehicle within its jurisdiction by such authority as the State Government may by order appoint and, if, upon such examination and after giving the owner an opportunity to make any representation he may wish to make (by sending to the owner a notice by registered post acknowledgement due at his address entered in the certificate of registration), it is satisfied that the vehicle is in such a condition that it is incapable of being used or its use in a public place would constitute a danger to the public and that it is beyond reasonable repair, may cancel the registration. (4)... ... ... (5)........... (6)........... (7)........... (8)........... (9)..........." 10. Under sub-section (1) if a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall, as soon as may be, report the fact to the registering authority and forward to that authority the certificate of registration of that vehicle for cancellation of registration. Sub-section (2) provides that the registering authority shall cancel the registration. Sub-Section (3) empowers any registering authority to cancel a registration if it is satisfied that the vehicle in question is in such a condition that it is incapable of being used or its use in a public place would constitute a danger to the public and that it is beyond reasonable repair. 11. Sub-Section (3) empowers any registering authority to cancel a registration if it is satisfied that the vehicle in question is in such a condition that it is incapable of being used or its use in a public place would constitute a danger to the public and that it is beyond reasonable repair. 11. It is clear from the order dated 22nd April, 2014 that thereby the Insurance Company accepted its liability to pay the claim on total loss of the vehicle. There cannot be any dispute on the part of the Insurance Company regarding the identity of the vehicle with regard to the direction made upon it to pay the sum of Rs. 3,39,323/- in full and final settlement of the claim of the petitioner. The said order records that the Insurance Company accepted such claim as assessed by the surveyor on total loss of the subject vehicle and the salvage value of the vehicle was estimated at Rs. 75,000/- by that surveyor. As aforesaid, the Insurance Company imposed a condition upon the petitioner to produce firstly a surrender of registration certificate and thereafter rectified to be the cancellation of it. Such conditions do not form part of the directions given by the National Consumer Disputes Redressal Forum. Time had elapsed between the date of accident and the order dated 22nd April, 2014 being made. It was submitted by Mr. Jha, the PVD obtained road tax and penalty on the vehicle that was damaged beyond repair as assessed by the Insurance Company. The tax was for the period the Insurance Company resisted and continued to resist the claim of the petitioner. 12. The petitioner being required to comply with the said imposed condition of obtaining cancellation of registration, came up against the Public Vehicles Department who gave their own interpretation of the aforesaid provisions of law. A plain reading of the said provisions will reveal that the Legislature intended cancellation of registration of a vehicle destroyed or rendered permanently incapable of use, as soon as may be reported to the registering authority. The cancellation is mandated. It is necessarily so because in the event a vehicle is damaged beyond repair, its registration must be cancelled forthwith to avoid illegal use thereof. Sub-section (3) of section 55 also empowers any registering authority to cancel registration of a vehicle. The cancellation is mandated. It is necessarily so because in the event a vehicle is damaged beyond repair, its registration must be cancelled forthwith to avoid illegal use thereof. Sub-section (3) of section 55 also empowers any registering authority to cancel registration of a vehicle. In this case the registering authority is relying on that sub-section to resist cancellation of the certificate. 13. Since the prayers in the writ petition are for the relief of obtaining cancellation of registration, the respondent no. 2 is directed to dispose of the claim of the petitioner for cancellation of registration of the subject vehicle bearing registration no. WB02Y8537 strictly in accordance with the law provided under sub-section (2) of Section 55 of the Motor Vehicles Act, 1988. This must be done within a period of three weeks from the date of receipt of a copy of this order. The document showing cancellation of registration should be handed over to the petitioner within that time. 14. In the facts and circumstances of this case this court in exercise of its extraordinary power directs the PVD to refund the amount of road tax and penalty, collected from the petitioner for the period after the date of accident i.e. 8th March, 2008 upon the receipt therefor and tax token being surrendered to the said authority by the petitioner. This must also be done within the time directed, on the petitioner submitting such receipt and token along with communication of this order. The Insurance Company must pay costs to the petitioner assessed at the rate of 6% simple interest per annum on the settlement amount from the date of claim till payment. The petitioner is entitled to these restitutionary and compensatory reliefs. 15. The writ petition is disposed of. Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties on usual undertakings. Writ petition disposed of.