IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE  17^th    DAY OF APRIL   2021

Present: -Sri. E.M.Muhammed Ibrahim, B.A, LLM. President   

                 Sri.Stanly Harold, B.A.LLB, Member

                                                CC.No.93/2015

Bindu P.R                                         :         Complainant

W/o Sajeev Kumar

Muriyam Veettil,Aadinadu North

Kulasekharapuram,Karunagappally.

[By Adv.T.Saproo]

V/s

1. Manager                                   :         Opposite parties

National Insurance Ltd.

Agency Code No.93290101.

Powercity Motors

Makkiyil building

North of M.S.M.College

Kayamkulam.

[By Adv.S.Dileepkumar]

2. Sajeev Kumar

         C/o Suresh

          Muhammed Abdulla Hussain for Trading Establishment

         For Toys,Alhussain

        Thaiba Market,Olaya

         Riyad, P.B-11513.

       [By Adv.S.Chandrasenan]

FINAL  ORDER

Sri.E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

1. This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
2. The averments in the complaint in short are as follows:-

          The Hero Honda Pleasure Scooter bearing No. KL-23A/3484 belongs to the husband of the complainant who is none other than the 2^nd respondent herein who has been working abroad.  The husband of the complainant has taken a comprehensive insurance policy with respect to the above said vehicle.  The validity of the policy was from 06.04.2013 to 05.04.2014.  The complainant is having a valid driving license and its validity period is from 22.10.2011 to 22.01.2024.    The complainant sustained a road accident on 01.03.2014 at about 1.30 PM while she was driving the said  vehicle through Puthentheruvu-Thurayilkadavu Road when the vehicle approached near the cashew factory, a stray dog abruptly crossed the road and the vehicle hit against the stray dog and the complainant fell down on the road.  She was admitted at Oachira Parabrahma Specialty Hospital treated as inpatient from 01.03.2014 to 05.03.2014.  The complainant has sustained severe injuries and there was a fracture to her left arm.  The complainant had undergone an operation at the said hospital and she has spent around Rs.33960/- at the hospital.  The accident happened on 01.03.2014 and at that time the above said vehicle is having valid comprehensive insurance policy including the risk covering the driver of the vehicle.  The complainant driven the vehicle with the consent of the owner of the vehicle who is none other than her husband.  He has impleaded as the 2^nd respondent in this complaint.  The complainant is the wife of the registered owner of vehicle and has driven the vehicle with his consent.  So the complainant and 2^nd respondent are the consumers of the 1^st respondent.  However the 1^st respondent insurance has not issued application form for applying for getting compensation, in spite of the request of the complainant through her relative Narayana Das.  Hence the complainant caused to send a registered notice.  In spite of the oral and written request the 1^st opposite party has deliberately not issued application form.  Hence there is deficiency in service on the part of the 1^st opposite party. 

3.  The 1^st opposite party has resisted the complaint by filing version and additional version.  It is contented that the complaint as framed is not maintainable either in law or on facts.  The complainant has approached this  Forum with unclean hands by suppressing the material facts regarding the case.  The complaint is filed,  only to vex and harass the 1^st  opposite party by misusing the authority of this  Forum.  The complainant is not a consumer as defined U/s 2(1) (d) of the Consumer Protection Act 1986 in order to raise a consumer dispute against this opposite party.   The complainant is totally a stranger to this opposite party, who had not hired any service from this opposite party on payment of any consideration of her own, in order to attribute any deficiency in service against the 1^st  opposite party. Hence the complainant is not a consumer of this opposite party within the meaning of section 2(d) of the Consumer Protection Act and the complainant has no manner of locus standi to file the present complaint attributing a consumer dispute against this opposite party, as she being totally a stranger to this opposite party.  The definition complaint, complainant, consumer dispute, service as defined under the Consumer Protection Act do not cover of the claim made out in the complaint.  The complaint is therefore liable to be dismissed as against the 1^st opposite party and the issue regarding the maintainability of the complaint is to be decided as a primary issue in this case before entering into the merits of the case.  No insurance policy has been issued in respect of the vehicle in favor of the complainant. 

4. The 1^st opposite party would admit that it had issued a comprehensive insurance policy for the vehicle bearing Reg.No.KL-23A/3484 in favor of one Mr.Sajeev Kumar for a period from 06.04.2013 to 05.04.2014.  The subject matter of this complaint is a claim in respect of the injury alleged to have sustained to the complainant, who is a 3^rd party to the contract of insurance issued by this opposite party, which is outside the scope of the jurisdiction of this Forum.  As per the statutory provision under section 165 and 166 of the M.V.Act, 1988, a claim in respect of a 3^rd party injury is a subject matter squarely falls within the provisions of the Motor Vehicles Act subject to the terms and conditions of the policy and the insurance coverage under the policy.  Here the claim advanced by the complainant is in respect of  the 3^rd party injury sustained to her, which has to be adjudicated by the Motor Accident Claims Tribunal, subject to the terms and conditions of the policy.  The complainant who is a 3^rd party to the contract of insurance between this opposite party and the assured has opted a wrong Forum, claiming compensation for the injury sustained to her.  The liability to pay compensation towards 3^rd party injury and the extent of compensation payable upon such a claim and the contractual liability of this opposite party to indemnify the actual insured of the offending vehicle are subject matters to be adjudicated by the Motor Accident Claims Tribunal under the provisions of the M.V.Act.  The complaint is therefore liable to be dismissed for want of jurisdiction for this  Forum to adjudicate the complaint.  The compensation claimed by the complainant in the complaint is not allowable and is liable to be dismissed.

5. The 1^st  opposite party has also filed additional version raising the following contentions.  The complainant is not a consumer with whom no contract of insurance was subsisting at the time of accident.  However the 1^st opposite party would admit that he was issued a policy by name of Sajeev Kumar in respect of vehicle bearing No.KL 23 A 3484 for a period commencing from 06.04.2013 to 05.04.2013 subject to the specific terms and conditions of the policy. The complainant in this case is the rider of the above said vehicle at the time of accident whose risk is not covered under policy issued by the opposite party in the name of the insured.  The actual insured has not paid in optional premium seeking personal accident coverage for the unnamed driver of the insured vehicle other than for the personal accident coverage or towards the owner cum driver of the insured vehicle.  The complainant being a rider other than the insured mentioned in the policy the risk of such rider fall within the personal accident coverage of unnamed driver.  The opposite party has no contractual obligation to indemnify the actual insured or to pay compensation to the complainant in this case.  The complainant is having no manner to seek any relief against the 1^st opposite party and the present complaint is liable to be dismissed with compensatory costs.  The 1^st opposite party would further admit that as per the policy issued in favor of Mr.Sajeev Kumar there is personal accident coverage to a maximum of Rs.1,00,000/- on payment of  Rs.50/- additional premium of Rs.50/-.  As per the personal accident coverage the owner-driver is entitled to get insurance coverage as per the scale of compensation specified in Section III of the policy condition.  The scale of bodily injury and the corresponding compensation entitled to the owner-driver under  personal accident claim compensation is payable strictly in accordance with the nature of injury/scale of bodily injury specified in the policy.  If an injury sustained by owner-driver would not come under the purview scale of bodily injury specified in Section III of the policy condition he is not entitled to get the benefit for the injury sustained to him.  The complainant herein has not sustain any bodily injury as specified in the scale of bodily injury mentioned in  Section 3 of the policy.  It is further contented that the contract of insurance is depending upon the terms and conditions of the concluded contract entered into between the insured and insurer and the rights and liabilities under the policy is strictly based on the concluded terms of insurance contract only.

          6. The 2^nd  opposite party has filed separate objection supporting the claim of the complainant. According to the 2^nd opposite party he is the husband of the complainant and as he has been working abroad he has been impleaded as 2^nd opposite party.  Hero Honda Pleasure Scooter bearing No.KL23A 3484 belongs to the 2^nd opposite party and the same has been in his possession and registered ownership.  That he obtained comprehensive insurance policy from the 1^st opposite party and the policy was live from 06.04.13 till 05.04.14.  As the 2^nd opposite party has been working abroad the complainant has to travel for the daily house hold necessitates and therefore the complainant has been using the said scooter with the consent and approval of the 2^nd opposite party.  On 01.03.14 while the complainant was riding the scooter one stray dog abruptly cross the road near the cashew factory situated at Puthantheruvu,  Thurayilkadav road and the scooter happened to hit on the dog and thereby an accident occurred and the complainant sustained injuries.  As on the date of accident the scooter was having comprehensive insurance policy for covering the person who are riding the scooter and therefore the 1^st opposite party is liable to pay compensation to the complainant.

7. In view of the above pleadings the points that arise for consideration are:-

1. Whether the complaint is maintainable or not?
2. Whether the policy issued by the opposite party in the name of  the insured would cover the risk of the injury sustained by the complainant?
3. Whether the complainant has sustained any bodily injury as specified in the scale as bodily injury mentioned in Section III of the policy?
4.  Whether the 1st opposite party has committed deficiency in service in not issuing claim form to the complainant?
5. Whether the complainant is entitled to get compensation from the 1^st opposite party as claimed?
6. Relief and costs.

8.Evidence on the side of the complainant consists of the oral evidence of PW1&2 and Ext.P1 to P10, P11 series, P12 to P15, P16 series , P17 series, P18, P19 series and P20.  No oral evidence has been adduced  on the side of the 1^st  and 2^nd opposite party.  However the 1^st opposite party got marked Ext.B1 series policy documents.  Both sides have filed notes of argument.   Heard both sides.

Point No.1

          9.  For avoiding repetition of discussion of materials these two points are considered together.  According to the 1^st and 2^nd opposite party the complaint is not maintainable.  The 1^st opposite party has also filed IA.183/16 praying to here the maintainability of the complaint as preliminary issue.  The respondent who is the complainant in this case has vehemently opposed that prayer and filed a detailed objection.  After hearing both sides we find no merit in the IA and hold that the complainant is a consumer as defined under the Consumer Protection Act and the complaint is perfectly maintainable in law and the complainant is having locas standi to file the complaint under the Consumer Protection Act.

10.     The 1^st opposite party challenged the said order by filing review petition No.28/18 and the Hon’ble State Commission wide order dated 27.09.18 has set aside the above order with a direction reconsider the question of maintainability after taking evidence.  In the said order the Hon’ble State Commission has observed that this Forum has to consider whether the 3^rd party to a contract of insurance is entitled to claim compensation from the insurance company.  In view of the above order passed in the review petition this Forum is constrained to consider the question of maintainability on the basis of evidence available on record.

          11.   The 1^st opposite party would content that the complainant is a total stranger to the contract of insurance taken for the scooter involved in the case and if at all the complainant has sustained any injuries in the accident she has to file a complaint before the Motor Accident Claim Tribunal and the Forum has no jurisdiction to adjudicate the matter.  But the evidence available on record would indicate that the complainant is the wife of the original RC owner of the scooter bearing No. KL 23 A 3484 and she has been riding the scooter with the approval of the RC owner and therefore she is  a user of the scooter with the consent and approval of its owner as contemplated under Section 2(d) of the Consumer  Protection Act 1986.  Hence she is not a total stranger.

12.   Now the question to be considered is whether  Motor Accident Claim Tribunal alone is having jurisdiction to entertain the matter.  The main prayer in the complaint is to award compensation to the tune of Rs.90,000/- for the injuries sustained by the complainant due to the accident.  In the light of the decision United India Insurance Company Ltd. Vs Bhupinder Singh and other (1996 KHC 2186) it is clear that a person is entitled to approach the Motor Accident Tribunal only if such a person accuses another person of doing a civil wrong to him, which resulted loss to the applicant.  In other words the person causing accident cannot initiate action against himself for getting compensation.  Therefore it is clear that the claimant cannot  file a case before MACT on the basis of his or her own fault or negligence.  In National Insurance Company Vs Asha Latha Bhoumik and Others (Civil Appeal 9100/2018) the Hon’ble Supreme Court held that no claim petition under the Motor Vehicles Act is maintainable when the driver-cum-owner caused the accident himself and no other vehicle is involved.  The claimant who sustained injuries in the accident while riding the scooter is not a third party within the meaning of the Motor Vehicle Act.  The claimant herself was responsible for the accident.  It is clear that the complainant cannot approach the Motor Claims Tribunal, to file a claim petition under the Motor Vehicles Act, since the accident occurred due to her own negligence.  As the complainant cannot approach Motor Accident Claim Tribunal seeking compensation for the injuries sustained to her while riding the insured vehicle and her only remedy is to file complaint u/s 12(1) of the Consumer Protection Act as argued by the learned counsel for the complainant.

          13. It is further to be pointed out that Section 3 of the Consumer Protection Act 1986 stipulates that provisions of the said Act shall be in addition to and not  interrogation of the provisions of any other law for time being in force.  The above provision makes it clear that the remedy provided under the Consumer Protection Act is in addition to the provisions of any other law for the time being in force.  In other words Section 3 of the Consumer Protection Act gives the consumer an additional remedy besides those remedy that may be available under other existing laws as held in the Consumer and Citizen Forum Vs Karnataka Power Co-operation 1994(1) CPR 130.  It is further to be pointed out that the dictum laid down for General Manager  Telecom Vs M.Krishnan and another reported in 2009 3 CP 71 SC that special law over rides general law.  The Consumer Protection Act 1986 is a special law which over rides the provisions of the Motor Vehicles Act.

          14. The learned counsel for the opposite party has argued that the complainant is a 3^rd party to the contract of insurance.  The policy relating to the vehicle was taken by her husband who is abroad.  The complainant is not entitled to get claim benefit under the policy as she is a 3^rd party.  Admittedly the complainant is not the RC owner but the material available on record would indicate that the complainant has stepped into the shoes of the RC owner as she had driven the vehicle with the consent and permission of the RC owner.  Therefore she cannot be termed as a 3^rd party.  She being the wife and the vehicle was purchased for the use of the complainant she can be termed as beneficiary of the registered owner who will also come within the definition of consumer. 

15. It is further to be pointed out that insured/drivers risk is also covered as per Ext.B1 policy which is evident from the fact that Rs.50 has been charged for compulsory personal accident cover owner - driver.  As per B1 policy the said cover is compulsory also.  In view of the materials discussed above we hold that the complainant would come within the meaning of consumer as defined under Section2(d) of the Consumer Protection Act 1986.  It is also brought out in evidence that though the complainant has sustained severe injuries and undergone treatment at the hospital and thereafter she approached the 1^st opposite party insurance company they have not even given the claim form to hold a claim by alleging that the complainant has to seek her relief under the Motor Accidental Claim Tribunal.  But it is clear from the materials available on record that the accident occurred due to the fault of the complainant and therefore she is not entitled to approach the MACT seeking compensation for the injuries sustained to her while riding the insured vehicle and the only remedy is to file a complaint u/s 12 of the Consumer Protection Act 1986.  It is further to be pointed out that Section 3 of the Consumer Protection Act 1986 gave the consumer an additional remedy besides those remedy that may be available under any other existing law.  In view of the materials discussed above we are of the view that the complainant is entitled to file a consumer complaint and the complaint is maintainable in law u/s 12(1) of the Consumer Protection Act.    Points answered accordingly.

Point No.3 to 5

          16. For avoiding repetition of discussion of materials these 3 points are considered together.  PW1 is the injured herself.  The oral evidence of PW1 would indicate that on 01.03.2014 while she was riding scooter bearing No.KL 23 A 3484 and when as it reached at the public road near cashew factory at about 1.30 pm one stray dog abruptly crossed the road and the scooter ridden by the complainant hit on the said stray dog she fell down at the road and sustained injuries.  The person who assembled by seeking the incident took her to the Parabrahma Super  Specialty Hospital, Ochira  and she admitted at the hospital on that day and continued the treatment at the hospital till 05.04.2014,  that during the incident she sustained fracture to the left hand and also sustained other injuries and thereby caused severe pain and all other mental harassment.  That she spent about Rs.50,000/- for the treatment expenses and she is entitled to get Rs.40,000/- for the pain and sufferings sustained by her during the accident.  It is also clear from the available materials that on the very next day of the accident she intimated the fact of accident to the 1^st opposite party insurance company through one Narayanadas who is a relative of the complainant.  However the 1^st opposite party expressed reluctance to issue claim form.  However she sent Ext.A3 registered notice requesting to issue claim form.  Even after receipt of the registered notice the 1^st opposite party has not issued any claim form and therefore there is deficiency in service on the part of the opposite parties. 

          17. The main contention of the opposite party regarding the merit of the case is that even if the complainant is having lucus standi to file a complaint she is not entitled to get the claim allowed since no medical evidence to prove  that she sustained total permanent disability during the accident.  The learned counsel for the opposite party insurance company has argued that as per Section III of Ext.B1policy for the personal accident cover for owner-driver issued by the opposite party the owner of the vehicle is  entitled to claim 100% compensation only in the case of death, loss of 2 limb or loss of sight of 2 eyes or loss of 1 limb and sight of 1 eye and for permanent total disablement from injuries.  Further the owner-driver is entitled to get 50% of the sum insured only for the injury such as loss of  1limb or loss of sight of one eye.  So as per the policy conditions,  the owner-driver is entitled to get personal accident cover  benefits under the policy only if she proves that she suffered permanent total disability as specified in Section III of the policy due to an accident.  According to the learned counsel for the opposite party the complainant has not suffered any permanent total disability as specified in Section III of the policy  condition which governs personal accident cover for the owner-driver under the policy the term driver is defined in the policy itself.  Accordingly driver is any person including the insured.  Here in the case the name of the insured is  Mr.Sajeev Kumar who  is none other than the registered owner of the vehicle.  Therefore the inclusive definition of driver would clearly indicate that driver is the person who is driving the vehicle at the time of accident including the insured.  Therefore the term owner-driver for which Rs.50/- has been paid as compulsory P.A Cover is for the driver and not for the owner.  It is further stated in that column that the person driving  the insured vehicle must have hold an effective driving license at the time of accident and is not disqualified from holding or obtaining such license.  Here in this case admittedly the complainant is having a valid driving license which is evident from Ext.P1.

          18. It is true that Section 3 of the policy details  with personal accident cover for owner-driver  is subject to the exceptions and conditions of the policy.  It is to be pointed out that  the company undertakes to pay compensation  as per the following scale for the bodily injury/death sustained by the owner-driver of the vehicle. 

          Nature of injury                                        Scale of compensation

1. Death                                                               100%
2. Loss of 2 limbs or sight of 2 eyes

or one limb or sight of one eye.100%

3. Loss of one limb or sight of one eye                   50%
4. Permanent total disablement from injuries

Other than the above named100%

19.   Now we shall discuss whether the nature of injury sustained would come within any of the 4 categories stated above.  Admittedly the death/injury stated under clause No.2&3 has not sustained during the accident.  Now we shall evaluate whether the complainant has sustained total permanent disablement from injuries other than named in Category No.i to iii.  Ext.P6 is the accident register cum wound certificate. Ext.P7 is the photocopy of OP record and Ext.P8 is the photocopy of medical record.  The complainant has no case in the complaint as well as in the proof affidavit that she has sustained any bodily injury which caused any disability.  On perusal of Ext.P6 accident cum wound certificate it is seen that the complainant has sustained tenderness and swelling left hand and X-ray left elbow would show suspected fracture shaft of  humor.  Ext.P7 OP record would indicate that the injuries are minor in nature except suspected fracture shaft humer.  Only abrasions over left hand and tenderness +all the injuries noted.  On detailed examination fracture was confirmed of the middle shaft.  The date of admission is 01.03.2014 and date of discharge is 05.03.2014.  Only 5 days treatment at the hospital.  There is no medical evidence either oral or documentary to show that the above injury is sufficient to cause any bodily disability as stated under condition No. iv  of Section III.  In other words injury sustained by the complainant is not liable to be compensated by the insurance policy even if the driver is also included in the term insured.  Therefore we are of the view that there is merit in the contention of the opposite parties that the insurance company has not issued claim form since there is no chance for getting insurance claim as per the terms and conditions of the insurance policy.

20. On evaluating the entire materials available on record we come to the conclusion that the complainant is not entitled to get compensation for the injury alleged to have been caused during the accident as it has not caused any permanent total disablement as stated in the policy terms and conditions.  There is no merit in the complaint and the same is only to be dismissed.  The point answered accordingly.

Point No.6

In the result complaint stands dismissed.

No costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  17^th    day of  April    2021.

E.M.Muhammed Ibrahim:Sd/-

              Stanly Harold:Sd/-

              Forwarded/by Order

                                                                                      Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1           : Bindu.P.R

PW2           :S.Narayana Das   

Documents marked for the  complainant

Ext.P1         : True copy of  Driving licence(Bindu Sajeev)

Ext.P2         :True copy of RC Book

Ext.P3                  : Copy of letter

Ext.P4                  : Postal Receipt

Ext.P5                  :  Postal acknowledgement card

Ext.P6                  : Photocopy of Accident Register cum wound certificate

Ext.P7                  : Photocopy of OP record

Ext.P8                  :Photocopy of medical record

Ext.P9                  :Hospital bill dated 01.03.2014

Ext.P10       :Lab testing bill

Ext.P11 series: Hospital bill(4 Nos)

Ext.P12       : Bill(Doctor’s fee, Anesthesia)

Ext.P13       :Discharge Bill dated 05.03.14

Ext.P14       :Hospital bill dated 08.03.2014

Ext.P15       :Pharmacy bill dated 04.03.14

Ext.P16 series:Pharmacy bill &X-ray bill(2 Nos)

Ext.P17 series:Hospital bill(2 Nos)

Ext.P18       :Pharmacy bill dated 24.03.14

Ext.P19 series:Cash bill dated 29.04.14

Ext.P20       :Bill  dated 03.03.14(Sulabh Orthotics)

Witnesses Examined for the opposite party:- Nil

Documents marked for opposite party:-

Ext.B1        : Certified copy of policy condition

E.M.Muhammed Ibrahim:Sd/-

           Stanly Harold:Sd/-

           Forwarded/by Order

                                                                                   Senior Superintendent