BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 280/2004 Filed on 07.07.2004 Dated : 30.07.2010 Complainant: Varghese. K.M, Senior Manager, Federal Bank Ltd., Regional Office, Statue, Thiruvananthapuram-1.
(By adv. Ajid K. Nair) Opposite party:
New India Assurance Co. Ltd., represented by its Divisional Manager, Divisional Office No. 11, Gandhari Amman Coil Street, Thiruvananthapuram-1.
(By adv. M. Nizamudeen)
This O.P having been heard on 21.06.2010, the Forum on 30.07.2010 delivered the following: ORDER SMT. BEENAKUMARI.A: MEMBER Complainant is the holder of policy No. 761400/31/02/19415 in respect of the vehicle Maruti Omni Van bearing Reg. No. KL-01 D 2272 and as such he is a consumer of the opposite party. On 11.05.2003 early morning while the complainant was driving the said vehicle for his personal need from South to North through Kollam-Alappuzha NH road and when he reached near the ice plant at Purakadu Kalathil Parambil, the vehicle skidded and hit against two electric posts and the compound wall owned by Purakadu Maliyekal Hamsa causing damages to the vehicle, electric posts and the compound wall. Immediately the accident was reported to the Ambalapuzha police and to the opposite party's office at Alleppey. The officer-in-charge of the police station took a note of the accident in the General Diary. The opposite party deputed a surveyor Mr. Mohana Chandran to the accident spot. On 12.05.2003 he visited the spot, took photographs, conducted local enquiry, recorded statements of relevant persons and assessed the damages. On the same day i.e; on 12.05.2003 the owner of the compound wall and KSE Board demanded Rs. 10,000/- and Rs. 8,550/- respectively from the complainant. Immediately the complainant contacted the opposite party who in turn, after confirming the surveyor's visit to the accident spot gave consent to settle the claims. As such the complainant settled the claims of the third parties for Rs. 5,000/- and Rs. 8,550/- respectively against valid receipts. Complainant settled the claims on the assurance given by the opposite party that the said amounts will be reimbursed. In fact it was the usual practice prevailed in all the insurance companies coming under the G.I.C. To the knowledge of the complainant even now the other companies are following the same procedure. But to the utter dismay, the legitimate request of the complainant was turned down by the opposite party stating that as per guidelines the company is not authorized to settle such claims directly. Actually no such guideline was brought to the notice of the complainant either at the time of issuing the policy or prior to settling the claims. Further it is to be noted that the opposite party had settled the O.D claim with respect to the vehicle. Thereafter the complainant brought the matter before the Insurance Ombudsman, but the request was rejected by an order dated 28.07.2003 stating that the jurisdiction to deal with the claim vest with the Motor Accidents Claim Tribunal. Thereafter the complainant approached the opposite party at various occasions to settle the claim. But the opposite party was not ready to settle the same. Hence this complaint.
Opposite party filed version contending the claim of the complainant on various grounds. The opposite party stated that the allegation in the complaint is that the alleged accident took place on 11.05.2003 the vehicle owned by the complainant and insured with this opposite party, skidded and hit against two electric posts and compound wall owned by Purakkadu Maliyekkal Hamza causing damages to the vehicle, two electric posts and the compound wall at Purakkadu Kalathil Parambil, that on 12.05.2003 the owner of the compound wall and Kerala State Electricity Board demanded Rs. 10,000/- and Rs. 8,500/- respectively from the complainant, that the complainant settled the claim of the said third parties for Rs. 5,000/- and Rs. 8,500/- respectively against valid receipts and the complaint is filed claiming the aforesaid amounts with interest and compensation and costs. It is submitted that this Forum has no jurisdiction to adjudicate a claim for compensation arising out of a motor accident, since such a claim application would clearly fall with the ambit of Sec. 165 of the Motor Vehicles Act 1988. The Motor Vehicles Act 1988 is a special Act in relation to claims of compensation arising out of the use of the motor vehicle. The Consumer Protection Act, 1986, being a law dealing with a question of extending protection to consumers in general in a general law. The general law must yield to the special law. It is submitted that this opposite party is liable to satisfy the claim of third parties for the damages caused to their properties only in accordance with the judgements or awards of the Motor Accident Claims Tribunal having jurisdiction over the area where the accident took place. It is submitted that Purakkadu Maliyekkal Hamsa and K.S.E.B whose properties were allegedly damaged in the accident did not file any claim or any application for compensation before the concerned Motor Accident Claims Tribunal and that this opposite party is liable to satisfy the claims of third parties only in accordance with the provisions of Motor Vehicles Act, 1988. It is further submitted that as per the policy conditions of the policy issued to the complainant, the complainant/insured cannot settle the claims of third parties without the written consent of this opposite party/insurer. The complainant did not obtain the consent of the opposite party before settling the claim of Purakkadu Melierkkal Hamsa and K.S.E.B. Third party personal injury and property damage losses are to be claimed through Motor Accident Claims Tribunal. For the reasons afore mentioned this Forum has no jurisdiction to entertain the complaint and the complaint is only to be dismissed in limine. It is submitted that on receipt of the claim submitted by the complainant, the opposite party had deputed independent licenced surveyor and loss assessor, Sri. K. Mohanachandran, Lotus Villa, Punnapra P.O, Alappuzha to conduct preliminary survey and Mr. M. Manu, Gopalakrishna Mandiram, Olakettiyambalam P.O, Alappuzha to conduct final survey. After conducting survey, they submitted their reports. Considering their reports, this opposite party had sanctioned an amount of Rs. 14,401/- to the complainant which the complainant had accepted in full satisfaction and discharge of his claim in respect of the damages caused on 11.05.2003. As the complainant had accepted the aforesaid amount of Rs. 14,401/- in full satisfaction and discharge of his claim this Hon'ble Forum has no jurisdiction to entertain the complaint and the complaint is only to be dismissed. The complaint is put to strict proof of the averments in para (2) of the complaint. Regarding the averments in para (3) of the complaint, it is submitted that besides deputing the surveyor Mohanachandran to conduct spot survey, the opposite party had also deputed Mr. Manu to conduct final survey. The averment therein that this opposite party gave consent to settle the claim is absolutely false and hence denied. It is submitted that the complainant has no authority or right whatsoever to settle the claims of third parties, as per the conditions of the policy issued to him. As the complainant has violated the conditions of the policy issued to him the opposite party/insurer is not liable to indemnify the complainant and the complaint is only to be dismissed.
In this case the complainant and opposite party filed proof affidavits and examined them as PW1 and DW1. From both sides documents were marked. The points that would arise for consideration are:- Whether this Forum has jurisdiction to entertain this complaint? Whether there is deficiency in service from the side of opposite party? Whether the complainant is entitled to get the reliefs and costs?
Point (i):- The case of the complainant is that his vehicle Maruti Omni bearing Reg. No. KL 01 D 2272 insured with the opposite party met with an accident on 11.05.2003 at Purakkadu, Alleppey and caused damages to the vehicle and to the KSEB's two posts, wall and gate of Mr. Hamsa, third parties were damaged. As demanded by KSEB the complainant has paid Rs. 8,550/- to the Board and paid Rs. 10,000/- to Hamsa for the damages caused by the said vehicle due to the accident. The complainant approached the opposite party who issued the comprehensive motor insurance policy to the said vehicle to indemnify the loss caused to the complainant on account of the accident. But the opposite party settled only the own damage portion of the motor claim and refused to settle the 3rd party property damage due to the said accident. In this case complainant and opposite party filed proof affidavits and produced certain documents. The documents produced by the complainant were marked as Exts. P1 to P15. The documents produced by the opposite party were marked as Exts. D1 to D5. Opposite party issued the policy in accordance with the provisions of chapter X & XI of the Motor Vehicle Act, 1988. Complainant filed this complaint claiming the amount which he has paid to the third parties. Hence this Forum has no jurisdiction to adjudicate the claim for compensation arising out of a motor accident. As per Sec. 165 of Motor Vehicles Act 1988, Motor Accident Claims Tribunal has only having the jurisdiction to entertain a third party claim for compensation arising out of a motor accident. The complainant in this case has filed a petition before the Insurance Ombudsman earlier and in that case the Hon'ble Ombudsman has passed Ext. P10 order. In that order the findings of the Insurance Ombudsman was that the Motor Accident Claim Tribunal is the appropriate authority to adjudicate the claims of third parties for the damage caused to them. We are also of the same view. Hence the complaint is dismissed. In the result, the complaint is dismissed. This, however, would not prevent the complainant to approach any other authority for redressal of his grievances if any.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of July 2010.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT S.K. SREELA : MEMBER jb
O.P. No. 280/2004 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Varghese II COMPLAINANT'S DOCUMENTS : P1 - Copy of Certificate of Insurance of private car. P2 - Copy of letter addressed to opposite party. P3 - Copy of Motor Claim Form P4 - Copy of letter dated 12.05.2003 P5 - Copy of letter dated 12.05.2003 P6 - Copy of receipt dated 12.05.2003 P7 - Copy of receipt dated 12.05.2003 P8 - Copy of letter dated 16.07.2003. P9 - Copy of claim repudiation letter dated 21.07.2003. P10 - Copy of proceedings dated 28.07.2003 P11 - Copy of letter dated 20.10.2003. P12 - Copy of reply dated 31.10.2003 P13 - Copy of letter P14 - Copy of letter dated 21.01.2004 P15 - Copy of settlement intimation voucher. III OPPOSITE PARTY'S WITNESS : DW1 - Joy Joseph IV OPPOSITE PARTY'S DOCUMENTS : D1 - Copy of Certificate of Insurance of private car. D2 - Copy of settlement intimation voucher D3 - Copy of private car package policy clause. D4 - Copy of private and Confidential Motor Survey Report dated 24.05.2003. D5 - Private and Confidential Motor Survey Report dated 24.05.03.
PRESIDENT
jb
| | [ Smt. S.K.Sreela] Member[HONORABLE MR. Sri G. Sivaprasad] PRESIDENT[ Smt. Beena Kumari. A] Member | | 
