Order No. 10  dt. 13/03/2020

          The complainant filed this case against the o.p. Insurance Company claiming the direction upon the o.p. Insurance Company for payment of the sum of Rs.1,21,535/- for the accident involving the car of the complainant which was insured with the insurance company at the relevant point of time.

           The o.p. contested the case by filing by filing written version and denied all the material allegations of the complainant.

           The o.p. during the pendency of this case filed a petition praying for non-maintainability of the case. It was stated that the insurance company had issued insurance policy in favour of the complainant against his vehicle in lieu of premium upon some terms and conditions. As per the terms and conditions of the policy vide condition no.2 it has been clearly stated that the insurance company does not admit any offer or promise to payment or indemnify should be given without written consent of the insurance company for the purpose of settlement of claim. In Section-II of the policy clearly stated the liability to the 3^rd parties:

1. Subject to the limits of liability as laid down in schedule hereto the company will indemnify the insured in the event of an accident caused by or  arising out of the use of the vehicle against all sums which the insured shall become legally liable to pay in respect of:-

1. death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.
2. damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.

2. The Company will pay all costs and expenses incurred with its written consent…….”

          Here in this case insurance company stated that a 3^rd party claim is lodged by the 3^rd party not the insured owner and that too under the provisions of Motor Vehicle Act,1988, the Motor Accident Claims Tribunal U/S 165 Motor Vehicle Act and not before this Forum the claim cannot be made.

          On the basis of the said fact o.p. insurance company prayed for dismissal of the instant case with cost by holding that the same is not maintainable.

          The complainant filed a written objection stated that soon after occurrence of accident on 6^th November,2018 duly intimated the fact to the o.p. on 6^th November,2018 thtough its customer care and also through email dated 6^th December,2018 in respect of this communication no positive response was received by the complainant. A copy of the said letter also forwarded to the o.p. to its address which was duly served at the address of the o.p. The o.p. cannot take the plea of ignorance of occurrence of the accident. So far as the maintainability of the case is concerned the complainant has categorically stated that the complainant was driving his car is very much entitled to claim reimbursement of the claim and damages for the occurrence of damages to the 3^rd party although no expressed provision has been made in the aforesaid policy regarding the reimbursement of claim and expenses incurred by the insured, therefore, not requiring the written consent of the o.p. So far as the applicability of the Section 165 of the M.V Act,1988 is concerned. It has been emphasized by the complainant that the Consumer Protection Act is a beneficial legislation and in order to protect the interest of the consumers and in the instant case the complainant definitely a consumer for service to be provided by the o.p. and the act of deficiency rendering service by the o.p. has given rise to the initiation of the proceeding against the o.p. It was further stated that as per Section-3 of the Consumer Protection Act the complainant will be entitled to get the claim against the o.p. In support of the said contention the Ld. Lawyer of the o.p. relied on some decisions of Hon’ble Supreme Court.

          On the basis of the facts and circumstances stated above the o.p. prayed for dismissal of the non-maintainability petition filed by the o.p.

          Considering the submission of respective parties it is an admitted fact that the vehicle was not damaged in the said accident which was insured with the o.p. insurance company. The accident took place due to injury sustained by a 3^rd party. The complainant on humanitarian ground accompanied the injured person to hospital  and thereby he was treated there and after his recovery the complainant claimed the amount from the insurance company. It is an admitted fact that the accident took place in respect of 3^rd party and so far as the provision U/S 165 of M.V. Act claim tribunals as the authority to resolve such dispute for the claim of a 3rd party. The complainant has not made said insured person as a party to this case. The 3rd party claim has been categorically mentioned in the policy document itself which the complainant is fully aware regarding the terms and conditions of the policy. The complainant has not filed any general diary entry (GD) or first information report (FIR) to show to the insurance company that he had met with an accident and caused injury to one Bapi Das near Haltu at around 3.10 P.M. in the morning. The complainant for the purpose of claiming the amount could have asked Bapi Das for claiming the amount which he could have paid to the complainant after settlement of claiming by the Motor Accident Claims Tribunal. In view of the facts and circumstances of the case we hold that the Bapi Das is a necessary party and in absence of him the case is not maintainable and by invoking Section-3 of C.P. Act this case cannot be adjudicated whenever M.V. Act itself has categorically stated as to how the claim is to be made, where and what will be the amount decided by the tribunal after considering the evidence that will be adduced by both the parties before Motor Accident Claims Tribunal.

          Having regard to the facts and circumstances stated above we hold that the case filed by the complainant is not maintainable and accordingly same is to be dismissed.

          Hence, it is ordered.

          That the petition filed by the o.p. for non-maintainability of the case is allowed on contest without cost resulting in dismissal of the case filed by the complainant being CC No.185/2019.