Karnataka

Kolar

CC/40/2016

Sri.Mohan Kumar - Complainant(s)

Versus

Mr.D.Surendra Reddy - Opp.Party(s)

Sri.M.P.Narayanaswamy

21 Mar 2017

ORDER

Date of Filing: 18/06/2016

Date of Order: 21/03/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 21^st DAY OF MARCH 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

 

CONSUMER COMPLAINT NO :: 40 OF 2016

Sri. Mohan Kumar,

S/o. S.V. Muniyappa,

R/at: Doddavalabbi,

Kolar Taluk.                                            ….  COMPLAINANT.

(Rep. by Sriyuth. M.P. Narayanaswamy, Advocate)

 

- V/s -

(1) Mr. D. Surendra Reddy,

S/o. D.Marrireddy,

# 1-145, Ramakuppam P.O. & Man,

517424, Chittor District,

Andhra Pradesh.

(Ex-parte)

 

(2) The Branch Manager,

United India Insurance Company

Limited, #12/123/1, Javilli Street,

Palamaner-517408,

Chittoor District, Andhra Pradesh.

(Rep. by Sriyuth. J.Simon & Associates, Advocate)      …. OPPOSITE PARTIES.

 

-: ORDER:-

 

BY SMT. PRATHIBHA.R.K., PRESIDENT

01.   The complainant having submitted this complaint Under Section 12 of the Consumer Protection Act, 1986 against the Ops and has sought, relief of issuance of directions to the Ops to pay Rs.1,55,000/- towards damages, Rs.2,00,000/- towards compensation for loss of income, Rs.50,000/- towards litigation costs, Rs.30,000/- towards deficiency charges along with interest at the rate of 18% per annum and such other relief deems fit.

 

02.   The facts in brief:-

(a)    The contention of the complainant is that, the OP No.1 is the owner of the vehicle Ashoka Leyland Tipper bearing registration No.AP-03-Y-3943, OP No.2 is an insurance company.  The OP No.1 had insured his vehicle with OP No.2.  The complainant further submitted that, on 24.02.2013 at about 01.00 PM the complainant and his friend Harsha, S/o. Venkateshappa were coming in their vehicle Tata Indica DLS bearing registration No.KA-02-A-6293 towards NH-4 road to Kolar, near Bethani Gate, met with an accident with the OP No.1 vehicle and as a result of which, the complainant’s vehicle got damaged.  And in the said accident complainant and his friend Harsha have injured.  Thereafter the complainant gave a complaint before the Kolar Rural Police Station and the case was registered in CR. No.79/2013.  The complainant submitted that, the complainant’s vehicle is not in a position to be used and hence he gave the vehicle for repair.  The complainant further submitted that, after billing of the amount the complainant requested both the Ops to pay back the amount.  The complainant further submitted that, the insurance company has given an assurance to settle the matter, but till today they have not settled the matter.  Hence the complainant issued legal notice to both Ops on 12.09.2015 calling upon them to settle the matter.  But the Ops have not replied to the legal notice.  Hence complainant has filed this complaint.

 

03.   In spite of issuance of notice from this Forum OP NO.1 remained absent and did not choose to contest the proceedings.  Hence OP NO.1 is placed exparte.  However in response to the notice issued from this Forum, counsel for OP NO.2 appeared and filed its version resisting the claim of the complainant in toto:-

 

(a)    The OP NO.2 denied all the allegations made by the complainant in his complaint.  Further OP NO.2 submitted that, the complaint is not maintainable and there is no jurisdiction to entertain the complaint.  The OP NO.2 further submitted that, the complainant is not a Consumer as per Section 2(1)(d) of the Consumer Protection Act and hence complaint is not maintainable either in law or on facts and is liable to be dismissed and rejected.  The OP NO.2 further submitted that, OP NO.1 has insured his vehicle and the contract of insurance policy has agreed to indemnify the OP NO.1’s risk subject to the terms and conditions of the policy.  The complainant’s vehicle was damaged in the alleged accident caused by the driver of the OP NO.1.  And thus the damage was caused to the 3^rd party property that is to the vehicle of the complainant.  Thus the complainant is a 3^rd party and he is entitled to file a case Under Section 166 of the MV Act claiming the alleged damage caused to his vehicle.  Hence complainant has no right to file the case under the Consumer Protection Act, 1986.  Hence the complaint is liable to be dismissed.

 

04.   On 19.01.2017 counsel for complainant has filed affidavit evidence of complainant by way of examination-in-chief.  On 02.02.2017 counsel for OP NO.2 has filed its affidavit evidence by way of examination-in-chief.  On 20.02.2017 counsel for OP NO.2 filed written arguments but however counsel for complainant remained absent and hence we have heard the oral arguments of the OP NO.2.

 

05.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether the complainant is a Consumer?

(B) Whether the complainant has proved deficiency in service on the part of the Ops and entitled for the relief sought for in the complaint?

(C)  What order?

06.   Findings of this District Forum on the above stated points are:-

POINT (A):-          In the Negative

POINT (B):-          Does not survive for

consideration.

 

POINT (C):-          As per the final order

for the following:-

 

REASONS

POINT (A) & (B):-

07.   On perusal of the pleadings along with affidavit evidence and documents submitted by both complainant and OP NO.2  it is an admitted fact that, on 24.02.2013 at about 01.00 pm the complainant with his friend Sri.Harsha, S/o. Venkateshappa while coming from their village in his own vehicle TATA Indica DLS No.KA-02-Z-6293 towards NH-4 road to Kolar, near Bethani gate, met with an accident with the OP No.1’s vehicle Ashoka Leyland Tipper bearing registration No.AP-03-Y-3943.  It is also an admitted fact that, OP NO.1 had insured his vehicle with the OP No.2. 

 

08.   The contention of the complainant is that, the complainant got repaired his vehicle by paying Rs.1,55,000/-.  The complainant alleged that after approaching the Ops several times the Ops have not settled his claim.  However Section 2(1)(d) of the Consumer Protection Act, 1986 reads thus:-

“Consumer” means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person [but does not include a person who avails of such services for any commercial purpose]”

[Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;]”

In the instance case the complainant nowhere in the complaint or in the affidavit evidence has stated that, the complainant is a Consumer to OP Nos.1 & 2.  The complainant neither obtained the policy from OP No.2 nor insured his vehicle with OP No.2.  Hence there is no contractual obligation between the OP No.2 and the complainant.  The complainant also failed to show that he has availed any service from the OPs.  Further the OPs have not assured any service to the complainant.  Hence the complainant is not a Consumer to the OPs. 

09.   Admittedly the complainant’s vehicle met with accident with the OP No.1 vehicle and the OP No.1 insured his vehicle with OP No.2 and the contract of insurance policy is agreed to indemnify his risk subject to the terms and conditions of the policy.  As per the complainant’s case the vehicle was damaged and the OP No.2 has to indemnify the loss suffered by the complainant’s vehicle, thus the complainant is a third party.  This Forum does not have any jurisdiction to entertain 3^rd party rights.

 

10.   In view of the above facts and circumstances of the case, we hold that, the complaint is not maintainable before this Forum.  Hence the complainant is at liberty to approach the appropriate authority and accordingly we answered issue (A) in the negative.  When issue (A) is negative we hold that, issue (B) does not survive for our consideration.

 

POINT (C):

11.   We proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is hereby disposed-off.  Complainant is at liberty to approach appropriate authority.  No order as to costs.

 

02.   Send a copy of this order to both parties free of cost

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 21^st DAY OF MARCH 2017)

 

 

 

LADY MEMBER                                            PRESIDENT