DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 13th day of September 2021
Present : Sri.Vinay Menon.V President
: Smt.Vidya.A, Member Date of Filing: 17/05/2018
CC/68/2018
Dr.Akshay
S/o.Jayaprakash
“Ashtapadhi”
Puthur Post
Palakkad – 678 001
(By Adv.K.Dhananjayan) - Complainant
Vs
- M/s.Bajaj Allianz General Insurance Co.Ltd.
Registered Office 1st Floor
GE Plaza, Airport Road
Yerwada, Pune
Maharashtra – 411 006
- M/s.Bajaj Allianz General Insurance Co.Ltd.
Registered Office 1st Floor
GE Plaza, Airport Road
Yerwada, Pune
Maharashtra – 411 006
(Rep.by its Manager / Managing Director /
Authorised signatory)
- M/s.Bajaj Allianz General Insurance Co.Ltd.
Palakkad
C/o.The Manager,
Grand Hyundai, 2nd Mile
Kallekkad, Palakkad - Opposite parties
(Adv.P.Prasad)
O R D E R
By Sri.Vinay Menon. V, President
1. Facts, uncontroverted and accepted by both the parties to the proceedings, quintessentially is that the car driven by the complainant (insured under private car package policy covering 03.09.2016 to 02.09.2017) crashed against a KSEB transformer DP structure. The complainant effected payments as demanded by KSEB. When the complainant sought for policy amount payable under the covenants of the insurance agreement, the O.P. paid the amounts accrued on account of the damage to the car, but repudiated the claim of the amount paid to KSEB. Aggrieved thereby, this complaint is filed.
2. Opposite party claimed that they repudiated the claim based on Clause 2 of Section II of the insurance agreement dealing with liability to third parties. The opposite party contented that in accordance with the aforesaid clause they were bound to pay all cost and expenses incurred with its written consent. As the complainant effected payment without its written consent, the claim was repudiated. The opposite party also raised a contention regarding the exclusion of the jurisdiction of this Commission vis a vis the Motor Accident Claims Tribunal in the facts and circumstances of the case and sought for dismissal of the complaint.
3. The following issues arise for consideration on a careful perusal of the pleadings:
1. Whether the jurisdiction of the Commission is barred in view of the jurisdiction of the MACT to try and adjudicate this lis ?
2. Whether resort to Clause 2 of Section II of the Private Car Package Policy is justified?
3. Whether there is deficiency in service on the part of the opposite party?
4. Reliefs and cost, if any?
4. Evidence on the part of the complainant comprised of Exhibits A1 to A5 and A10. Marking of Exhibits A6 to A9 through the proof affidavit of the complainant was objected. Evidence on the part of opposite parties comprised of Exhibit B1 and B2 (series).
Issue no. 1
5. The counsel for the opposite party vehemently argued that this Commission is shorn off its authority to adjudicate this case and the jurisdiction is vested with the MACT. The Opposite parties produced Exhibit B2(series), two petitions filed before the MACT by BSNL seeking compensation for damages to their apparatus occurred in vehicle accidents.
6. The Consumer Protection Act empowers this Commission to look into and assay the conduct of a service provider, once it is found that the complainant is a consumer as contemplated under the Act, subject to inbuilt provisos. There is no dispute that the complainant is not a consumer or that the adjudicating of the complaint is barred by any of the statutory impediments in the Act. The sole duty bared before us is to consider whether the conduct of the opposite parties constitute a deficiency in service. To that end, there is no statutory bar.
7. In view of the stated observation we hold that we have jurisdiction to try this dispute, over and above any other authority that might be clocked with jurisdiction to try this dispute. Issue no. 1 is therefore found in affirmative.
Issue no. 2
8. Facts are not in dispute. The liability to indemnify Rs. 44,536/- paid to KSEB alone is in dispute. The Policy conditions and schedule are produced and marked as Exhibit B1.
The opposite party bank on Section II (Liability to third parties), Clause 2 of the policy conditions to defend their case. Clause 2 reads as “The Company will pay all costs and expenses incurred with its written consent”. Admittedly, the complainant has not obtained written sanction from the opposite party. But the question is whether this clause alone is the provision that deals with the facts and circumstances of this case.
Section II, Clause 1 of the policy conditions reads as “ Subject to the Limits of Liability as laid down in the Schedule hereto, the Company, will indemnify the Insured in the event of an accident caused by or arising out of the vehicle, against all sums which the Insured shall become legally liable to pay in respect of:
i. x x x x x x x x x x (not applicable in this case)
ii. damage to property other than property belonging to the insured or held in the custody or control of the insured.”
On a further look at clause (1) and (2) and a joint reading thereof we find that they are not related in such a way that the payments of amounts incurred under clause (1)(i) or 1(ii) would require consent as required in clause (2). We find that clause (1) has an independent existence. Clause (2) is a residuary clause.
We are therefore of the opinion that the case of the complainant and the payment effected by him to the KSEB would fall squarely into the ambit of Section II, clause 1(ii) also.
The limits of liability clause in policy schedule is also relevant at this juncture. It forms part of Ext.B1. Said clause can be found in page 2 of the schedule. The limits of liability under Section (2) – 1 (ii) of the policy i.e. damage to 3rd party property is limited to Rs.7,50,000/- . Hence it is clear that damage to 3rd party property is contemplated under section (II) clause 1(ii) of B1 agreement irrespective and independent of any other clauses.
9. When the above said two clauses apply squarely to the case to the complainant and one tend to take away the benefits of the contract from the complainant and the other one endow the complainant with the benefits arising there-from, we have no hesitation to hold that resort should be had to the beneficial clause, especially when the entire terms, conditions and covenants of Exhibit B1 are prepared, introduced and resorted to by the opposite party as the cornerstone of the contract of insurance.
10. Therefore, we hold issue no. 2 against the opposite party. Resort to Clause 2, Section II of Exhibit B1, ignoring clause 1(ii) of Section II by the opposite party is not justified and is an unfair trade practice tantamounting to deficiency in service.
Issue no. 3
11. Clause 1, Section II of the policy conditions in Exhibit B1 does not come with any provisos or addendum. The language is clear, unequivocal and unambiguous. The only hitch is that the company would not bear the expenses over and above what is limited in the Schedule forming part of Exhibit B1. That subjection is not in dispute nor reverted to by the opposite party. That being so, taking recourse to the adamant stand that they would not honour the claim of the complainant unless the KSEB themselves files a claim in an Original Petition before the MACT and disparaging the conduct of the complainant is a gross deficiency in service and an attempt to abdicate the legal and contractual liabilities and duties cast upon the opposite party. We hold that there is deficiency in service on the part of opposite parties. Issue no. 3 is found accordingly against the opposite party.
Issue no. 4
12. In view of the findings in issues 1 to 3, issue no. 4 is answered as follows.
a. The 3rd O.P. is directed to pay and indemnify the complainant an amount of Rs. 44,536/-.
(Rupees Forty four thousand five hundred and thirty six only)
b. This amount shall carry an interest @ 10% from 29.11.2016 till date of payment.
c. The complainant is entitled to a compensation of Rs. 25,000/-. (Rupees Twenty five
thousand only)
d. The complaint is entitled to a cost of Rs. 10,000/- (Rupees Ten thousand only) being the
cost of this proceeding.
This order shall be complied within a period of 45 days from receipt of this order.
Pronounced in the open court on this the 13th day of September, 2021.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of Petition dt.27/11/16 filed before the SI of Police Kalladikode
Ext.A2 – Copy of Enquiry Report dated 28/11/16 issued by SI of Police Kalladikkode
Ext.A3 – Copy of driving license of the complainant
Ext.A4 – Copy of communication alongwith Private Car package policy certificate cum
policy schedule issued by Hyundai Assurance
Ext.A5 – Copy of registration details printed out from the website of MVD
Ext.A6 –Copy of communication dtd.28/11/16 from KSEB
Ext.A7 – Copy of calculation sheet regarding estimate of renewing transformer DP structure
Ext.A8 – Copy of 3 receipts dtd.29/11/2016 issued by the KSEB
Ext.A9 – Copy of certificate dated 29/11/2016 issued by KSEB
Ext.A10 – Copy of lawyers notice dated 22/12/2017
Exhibits marked on the side of the opposite party
Ext.B1 – Copy of Private Car package policy schedule bearing No.OG-17-1513-1801-00001178 dtd.06/09/2016
Ext.B2 series – Copies of Memorandum of original petition in OP(MV) 30/215 on the file of the MACT Palakkad and MV(OP)492/17 on the file of the MACT Ottapalam.
Witness examined on the side of the complainant
NIL
Witness examined on the side of the opposite party
NIL
Cost : Rs.10,000/0 allowed as cost.
NB : Parties are directed to take back all extra set of documents submitted in the
proceedings in accordance with Consumer Protection (Consumer Commission
procedure) Regulations, 2020.
