Exh. 41
BEFORE THE DISTRICT CONSUMER DISPUTES REDFESSAL FORUM, SANGLI
Hon’ble President – Mr.A.V. Deshpande
Hon’ble Member - Mr. K.D. Kubal
CONSUMER COMPLAINT NO. 2148/09
Date of Filing : 01/10/2009
Date of Admission : 16/10/2010
Date of Judgment : 14/03/2013
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Dr. Sachin Prabhakar Kothavale
Age 32 years, Occup.- Medical
R/o Kavathe Mahankal, Dist. Sangli ……. COMPLAINANT
Versus
1. I.C.I.C.I. Lombard Motor Insurance,
Zenith House, Keshavrao Khade Road,
Opp. Racecourse Mahalaxmi Ground,
Mumbai – 400 034
(Notice to be served on Vishrambag,
Sangli Branch)
2. The Executive Engineer,
Maharashtra State Electricity Distribution Co.Ltd.
Branch Jat ……. OPPPONENTS
Advocate on behalf of complainant – Mr. D.B. Kothavale
Advocate on behalf of Opponent - Mr. S.H. Phatak
J U D G M E N T
Delivered by Hon’ble Mr. A.V. Deshpande, President
1. Instant complaint has been filed by the complainant claiming deficiency in service on the part of Opponent No.1 Insurance Company and for claiming compensation of Rs. 21,105/- + Rs.5,000/- being compensation for physical and mental torture and Rs. 2,000/- by way of cost of this litigation.
2. Shortly stated, the case of the complainant is that he had purchased one car bearing registration No. MH 10/AG 3526 and had insured the same with Opponent No.1 insurance company by a policy No. 3001/54976229/00/000, cover note No. PG6779809. The said policy was for the period from 10/9/08 to 9/9/09. The said policy was for own damages and the third party damages. On 3/5/09, the said car met with an accident and dashed against the electric pole erected by opponent No.2 M.S.E.D.C.L. In that accident, the vehicle of complainant sustained the damages as well as the electric pole also sustained damages. The opponent No.2 M.S.E.D.C.L. has recovered the amount of Rs.21,105/- being the damages to the electric installations; from the complainant; on 3/5/09 vide bill No. 3933842 and 3933843. The complainant submitted a claim for the amount of Rs. 21,105/- being the damages paid by him to the opponent No.2 M.S.E.D.C.L. from the opponent No.1 Insurance Company. The said claim was repudiated by Opponent No.1 on 21/8/09. The complainant claims that for repudiating the said claim, no valid or justified reason was assigned by the opponent No.1 Insurance Company and thus, insurance company has committed deficiency in service. That he being a consumer, is entitled to recover the said amount. On such contentions, the complainant has prayed for the damages and the cost of proceeding as stated above.
By carrying out an amendment to the complaint, the complainant has contended that due to the dash with the electric pole, his car was entangled in the electric pole and the electric cables. Unless the said electric pole was removed, his car could not be extricated from the electric pole. The officers of the opponent No.2 M.S.E.D.C.L. and the police personnel from the police stations Jat started saying that unless the car is got freed from the electric police, no further action can be taken. Therefore, the complainant requested the officers of the opponent No.2 M.S.E.D.C.L. to remove the said electric pole and the cables but the officers of the opponent No.2 M.S.E.D.C.L. insisted that unless the complainant deposits the damages to the electric installations, his car would not be removed from the electric pole. Under these circumstances, the complainant was forced to deposit the amount of Rs. 21,105/- with opponent No.2 M.S.E.D.C.L. on 3/5/2009. That the said car was insured with Opponent No.1. The opponent No.2 M.S.E.D.C.L. could have recovered the damages of Rs. 21,105/- from the Opponent No.1 insurance company; but it did not do so and since the situation was urgent and since the officers of the opponent No.2 M.S.E.D.C.L. had insisted that unless the damages to the electric installations are deposited by the complainant, further action will not be taken, the complainant had to deposit the said amount and thus, opponent No.1 & 2 are jointly and severally liable to pay the amounts claimed. On such contentions, the complainant prays for the recovery of the said amount.
3. The Opponent No.1 insurance company has filed its written statement at Exh.12 and denied the entire claim of the complainant. While the factum of the insurance policy, the factum of the ownership of the car in question by the complainant, the factum of the accident and the accidental damages to the car as well as electrical installations of the opponent No.2 M.S.E.D.C.L. are admitted, the insurance company has denied that it is liable to indemnify and consequently pay the amount of Rs.21,105/- to the complainant as claimed. According to it, as per the policy terms and conditions and as per the provisions of the Motor Vehicles Act, it is not liable to pay any compensation to the complainant. Neither opponent No.2 M.S.E.D.C.L. nor anybody else has claimed any compensation from the opponent No.1 and hence, it is not liable to pay any compensation. That whenever there is a loss caused to a third party by insured vehicle, the Motor Accident Claims Tribunal only has the jurisdiction to try and entertain the claim. It is alleged that the complainant has made this complaint with false and mischievous motive to grab money from the opponent. The complainant has not come with clean hands and he has suppressed material facts. On such contentions, the opponent No.1 insurance company has prayed for dismissing this complainant with cost of Rs.10,000/-.
4. It appears that the opponent No.2 M.S.E.D.C.L. was later on impleaded in this complainant as Opponent No.2. It has filed written statement at Exh.24. It has admitted the entire factual position as stated by the complainant in his complaint including the factum of accident and damages to its electrical installations and recovery of the amount of Rs.21,105/- from the complainant and it has simply contended that in these circumstances the just orders may be passed.
5. The complainant has filed affidavit at Exh.3 and in all 4 documents alongwith list at Exh.5 which includes the copy of the F.I.R. lodged with the police, copy of the spot panchanama, the driving license of the driver of the car of the complainant who was driving the said car at that time and a copy of the notice dated 8/6/09 issued by him to the opponent No.1 insurance company whereby he has claimed the amount of Rs.21,105/- being the amount of damages paid by him to the opponent No.2 M.S.E.D.C.L. and the said amount is claimed by way of third party damages.
The opponent No.1 insurance company has filed an affidavit at Exh.13 and also filed a copy of the claim form submitted by the complainant claiming the third party damages. It has also filed the claim intimation sheet. The opponent No.2 M.S.E.D.C.L. has filed copies of the receipt No. 3933843 and 3933842 vide which the complainant has deposited amount of damages of Rs. 21,105/- being the damages to the electrical installations. In the course of the arguments, the learned counsel for the Opponent No.1 has filed the copy of the insurance policy covering the risk of the said vehicle at Exh.40 which bears the terms and conditions.
6. Heard the submissions of the Learned Counsels appearing for the complainant and the Opponent No.1 insurance company at length. The following points arise for our determination.
Points Findings
1) Whether the complainant has proved deficiency
in service on the part of Opponent No.1 ? No.
2) What order ? As per final order.
The reasons for our findings above are as follows.
REASONS
Point No.1
7. There is no dispute with the fact that the complainant is a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986. The entire facts in this case are admitted. Therefore, the evidence, documents etc. need not detain us any more. The fact remains that in a motor accident caused by the vehicle owned by the complainant, a damage to the third party property was caused and it was assessed at Rs.21,105/-. The complainant had paid the said amount to opponent No.2 M.S.E.D.C.L. It is an admitted position that the complainant had claimed the said amount from the Opponent No.1 insurance company being the damages to the third party and the said claim was repudiated by the opponent No.1 insurance company. The question is whether that repudiation of claim was just and proper ? and whether by repudiating the said claim, the insurance company had committed any deficiency in service ? For the reasons to be recorded hereinafter, we are of the view that there was no deficiency in service committed by the Opponent No.1 insurance company in repudiating the claim of the complainant.
At the outset, it must be mentioned here that a contract of insurance is a contract of indemnity. It is a bilateral agreement and admittedly, it contains the mutual obligations. The terms and conditions of that contract are to be followed and performed by both the parties to the said contract. The insurance policy at Exh.40 bears certain conditions and those conditions are incorporated on page No.5 of the said policy. The material terms and conditions of the said policy read as follows :-
1. “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. Every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge or any impending prosecution, inquest or fatal enquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft, or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.
2. No admission, offer, promise, payment or indemnity shall be made or given by, or on behalf of the insured without the written consent of the company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or otherwise and shall have full discretion to the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and the assistance as the company may require.
The perusal of the condition No.2 as reproduced above, would show that the condition imposes an obligation on the insured not to admit or to offer or to promise payment, or to indemnify by or on behalf of the insured without the written consent of the insurance company who shall be entitled if it so desires to take over and conduct in the name of the insured the defense or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or otherwise and shall have full discretion to the conduct of any proceedings or in the settlement of any claim and the insured is obliged to give all such information and the assistance as the company may require. It is, thus, clear that whenever any third party property damages occurs in the course of accident, there is an obligation on the part of the insured not to enter into any settlement or to give any promise with regard to the payment of the damages to the third party. The complainant has tried to give an explanation; either in his complaint or in his affidavit, for agreeing to pay the amount of Rs.21,105/- being the damages to the property of the Opponent No.2 M.S.E.D.C.L. at the compulsion of the officers of the Opponent No.2 or of the situation. The terms and conditions as incorporated in the insurance policy do not appear to make any concession for such a composition entered into by the insured in case of third party damages without involving the insurance company. It is open for the insurance company to assess the damages to the third party and then to accept the said claim and pay the damages to the third party. But this was not so in the facts in the present case. For whatever the reasons, the complainant had entered into certain compensation for payment of damages to the third party and much after the same, had raised the claim with the opponent No.1 insurance company. The terms and conditions of the insurance policy also require that such claims should be immediately lodged with the insurance company. In the facts of this case, there was quite delay in submitting such a claim to the insurance company. Therefore, in our opinion the opponent No.1 insurance company was quite justified in repudiating the claim of the complainant.
The learned counsel for the complainant has relied on Section 65 and 69 of the Contract Act.
Section 65 reads as follows :
“When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.”
The said section speaks about the frustration of the contract. None of the situations contemplated which would render the contract of the indemnity between the complainant and the Opponent No.1 insurance, is made out either in the complaint or in the evidence. In fact, the learned counsel for the complainant could not explain as to how the section is attracted in this case and it would render either the contract of indemnity to be void or would entitle the complainant to recover the amount paid by him to the Opponent No.2 M.S.E.D.C.L. The reference to the Section 65 of the Contract Act is absolutely without any basis and it does not entitle the complainant in any manner.
Section 69 reads as follows :-
“Reimbursement of person paying money due by another in payment of which is interested could, a person who is interested in the payment of money which another is bound by law to pay, and who therefore, pays out, is entitled to be reimbursed by the other.”
The bare perusal of the section 69 of the Contract Act speaks about the liability to pay the money fixed by law. If a person is in arrears of land revenue payable by him to the Govt. and if his land is advertised for sale by the Govt., any person who is interested in the said land can pay the said arrears of land revenue to the Govt. and in that case, the builder of the land is liable to or is bound to make good the amount so paid to the person who has paid the said arrears of land revenue to the Govt. Now causing loss to the third party by motor accident is a tortuous liability. There is no fixed measure of the damages caused to the property. The damages are not ascertained. They have to be determined and assessed and then they are liable to be paid under the decree to be passed by the Court of competent jurisdiction. Then it becomes the liability of the insured. Now in the facts of the present case, the officials of the Opponent No.2 M.S.E.D.C.L. put forth certain amount by way of damages caused to the electrical installations and the complainant accepted the said amount and deposited the same with the Opponent No.2 M.S.E.D.C.L.. It was not the amount which the complainant was bound by law to pay to the Opponent No.2 M.S.E.D.C.L being ascertained damage. Therefore, the complainant cannot take recourse of Section 69 of the Contract Act and that the opponent No.1 is liable to reimburse him for the payment made by him to the Opponent No.2 M.S.E.D.C.L on account of the damages to the electrical installations. The complainant himself had not performed the obligation on his part under the said terms and conditions of the insurance policy and therefore, he cannot fall back upon the Section 69 of the Contract Act.
Thus, in law and of fact, we find that the opponent No.1 insurance company had not committed any deficiency in service while repudiating the claim of the complainant and therefore, the complaint of the complainant is not sustainable. Hence, we have answered the point No.1 in the negative and we find that complaint deserves to be dismissed. Hence we proceed to pass the following order.
O R D E R
1) The Complaint stands dismissed.
2) In the facts and circumstances of the case, the complainant shall pay an amount of Rs. 1,000/- to the Opponent No.1 being cost of this litigation.
SANGLI
Dated : 14/03/2013
( K.D. Kubal ) ( A.V. Deshpande )
Member President
