<br /> By ADV. RAVI SUSHA, MEMBER<br /> <br /> Complainant filed this complaint for a direction to opp.party to give Rs.5090/- along with 12% interest and other reliefs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the owner of a Reg.No.KL-3C.4338. On 10.10.2004 at about 2.30 p.m. when the vehicle was driven by its driver it met with an accident near Kalayapuram at the Thiruvananthapura Madathara public Road. Since the electric post was damaged in the accident, the Asst. Engineer, Electrical Section, Kadakkal has issued a notice dt. 11.10.2004 to the complainant demanding him to remit an amount of Rs.5090/- as compensation to the loss sustained to the Kerala State Electricity Board. The complainant has remitted the amount on 13.10.2004. The said vehicle was insured with the opp.party vide policy NO.444371 which was in effect during the period of accident. The opp.party being the insurer of the vehicle is liable to indemnify the complainant. But they did not act as per the demand. The opp.party’s above acts amount to deficiency in service and hence this complaint. The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts. The definition complaint, complainant, Consumer dispute service as defined in section 2[1] of the Consumer Protection Act do not cover the claim made out in the complaint. The complaint filed by the complainant is beyond the scope of the jurisdiction of this Hon’ble Forum and the complainant in this case has no manner of cause of action to approach this Hon’ble Forum for the relief sought by him under this complaint. The subject matter of this complaint is a claim in respect of the 3rd part property damage which is outside the scope of the jurisdiction of this Hon’ble Forum. Hence the claim advanced by the complainant is in relation to the damage sustained to the 3rd party property damage and the adjudication of the same is within the jurisdiction of the Motor Accident Claims Tribunal. It is further submitted that the complainant in this case have not obtained written consent or permission from this opp.party regarding the admission of liability and the settlement of claim he had with the Electricity Board. As per condition No. of the policy no admission, offer, promise, payment or indemnify shall be made or given by or on behalf of the insured without the written consent of the company. In the instant case the complainant has not obtained a written consent from the company before the settlement arrived by him with the Electricity Board. The complainant though intimated a claim in respect of the damage sustained to his vehicle in the very same accident, he has not made any attempt to comply with the policy condition before arriving a settlement with KSEB The complainant has violated the mandatory condition of the policy and the opp.party is not liable to indemnify the complainant due to the above breach of policy condition committed hy him. The complainant in this case is not entitled to get reimbursement of the amount. Hence opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether there is deficiency in service on the part of the opp.party<br /> 2. Relief and costs.<br /> <br /> <br /> For the complainant PW.1 is examined. Ext. P1 to P5 are marked.<br /> <br /> For the opp.party DW.1 is examined Ext. D1 and D2 are marked.<br /> <br /> Points 1 and 2<br /> <br /> Complainant’s case is that he wants to get lback Rs.5090/- along with interest from the opp.party which he has paid as the damage caused to the electric post in an accident. Opp.parties main contention is that the complainant’s claim is in respect of the 3rd party properly damage and also as per the policy condition, complainant is not entitled to claim. According to opp.party as per condition No.2 in Ext.D1 . No admission offer, promise, payment or indemnify shall be made or given by or on behalf of the insured without the written consent of the company. In this case the complainant has produced Ext.P1 to P5 documents and his case is that he has got oral consent from the opp.party for settling the claim with the KSEB. But no material worth believable lhas lbeen produced from the complainant’s side for proving his pleadings. In Ext. D2 claim form, the complainant has not even mentioned the settlement arrived by him with KSEB. Here the complainant had violated the policy condition No. 1 and 2 of the policy by entering into a settlement with KSEB either without giving any written intimation to the opp.party or without obtaining a written consent from the opp.party before entering into a settlement with KSEB. Moreover KSEB is a third party with respect to the insurance company is concerned. As per the provisions of the MV Act, damages sustained to the third party properly is a matter to be adjudicated by the MACT under Se. 165 of MV Act 1988. Hence it is a claim which has to be adjudicated by the MACT under the provisions of sec. 165 [V] of MV Act.<br /> <br /> <br /> In these circumstances we are of the view that opp.party is not liable to indemnify the complainant for the settlement he had made with KSEB.<br /> <br /> <br /> <br /> In the result the complaint fails and the same is hereby dismissed.<br /> <br /> <br /> <br /> Dated this the 29th day of August, 2008.<br /> <br /> <br /> I n d e x<br /> <br /> List of witnesses for the complainant<br /> PW.1. - Hussain<br /> <br /> List of documents for the complainant<br /> P1. – Complaint<br /> P2. – Receipt<br /> P3. – Legal notice<br /> P4. – Postal receipt<br /> P5. – Acknowledgement card.<br /> <br /> List of witnesses for the opp.party<br /> DW.1. - Jayaraman<br /> <br /> List of documents for the opp.party<br /> D1. – True copy of policy and conditions.<br /> D2. – Motor claim form<br />