ADV. RAVI SUSHA, MEMBER.

            This complaint is giving  for direction to the opp.party to pay the amount of Rs.18,281/- , with interest at the rate of 12% and other reliefs.

The complainant is the registered owner of the Vehicle KL.2T8220/-, Maruthi Wagoner Car, that the said vehicle was insured with the National Insurance company for the period 28..10..2008 to 27..10..2009 based on the Insurance Policy No.4751280 that the complainant is a consumer of the opp.party., that on 12..7..2009 at about 1.30 p.m. the above mentioned vehicle was driven by the complainant’s father in law Sasidharan through Pathanapuram-Punalur public road and when the vehicle reached at Nedumparam Junction, a motor cycle  on a sudden crossed the main road,, that in order to avoid a hit the said  Sasidharan turned the car towards right side and thus the car hit on the electric post stood at the road margin, that the electric post as well as the front portion of the car was damaged., that in connection with the damage of the electric post the Kerala State Electricity Board has realized an amount of Rs.18,281/- from the complainant, that the opp.party is legally bound to pay the damage occurred to 3^rd opp.paries based on the above mentioned comprehensive insurance policy, that even though the opp.party has settled the bill in connection with the vehicle damage, the request for payment of 3^rd opp.party damage was not allowed, that the opp.party has repudiated the claim of the complainant for payment of above mentioned Rs.18,281/- remitted by the complainant with the KSEB., that the demand of the opp.party that the complainant is to file separate claim petition before the motor accident claims tribunal for obtaining the third party damage paid by the complainant is illegal, and it amounts to deficiency of service and unfair trade practice on the part of the opp.party.  Hence the complaint.

Opp.party filed version contending that, the complaint is not maintainable either in law or on facts  As per the statutory provision under section 165 and 166 of the MVAct, 1998, a claim in respect of a 3^rd party property damage is a subject matter squarely falls within the above provisions of the Act.   Here the claim advanced by the complainant is in relation to the damage sustained to the 3^rd opp.party property damage and the adjudication of the same is within the jurisdiction of the Motor Accident Claims Tribunal.   The Kerala State Electricity Board is a 3^rd party as far as this opp.party is concerned and any claim sustained to the Electricity Board that arose out of the use of the insured vehicle is matter to be adjudicated by the statutory provision of Motor Vehicles Act by the Motor Accident Claim Tribunal.   Section165 and 166 of the MV Act 1988 isa special Act envisaged to adjudicate claims in respect of 3^rd parties arising out of the use of the vehicle.   The complaint is not relating to any servicehired or availed by the complainant, why because the damage sustained by the Electricity Board has nothing to do with the service availed by the complainant by virtue of the insurance policy obtained from this  opp.party.  It is matter squarely falls within the ambit of section 165 of the MV Act and the Motor Accident Claim Tribunal alone has jurisdiction to adjudicate the said subject matter.  .  The liability to pay compensation towards 3^rd party property damage, and the extent of compensation payable upon any such claim and the contractual liability of this opp.party are matters to be adjudicated by the Motor Accident Claims Tribunal under the provisions of the MV Act.  case.   The complainant in this case has not obtained written consent or permission from this opp.party regarding the admission of liability and the settlement of claim she had with the Electricity Board for the so called damages sustained to the KSEB.  It is submitted that as per condition No.2 of the policy no admission, offer, promise, payment or indemnify shall be made or given by or on behalf of the insured without the written consent of the company.  In the instant case the complainant has not obtained a written consent from the  company before the settlement arrived by her with the Electricity Board..   The complainant has not intimated the extent of damages alleged to have sustained to KSEB in writing and no attempt was made for obtaining the written consent from the Insurance company granting permission to settle the claim of KSEB.  It is therefore humbly prayed that this Hon’ble Forum may be pleased to dismiss the complaint with cost of this opp.party.

Points that would arise for consideration are:

1.     Whether there is deficiency in service  on the part of the opp.party?

2.     Relief and costs?

For the complainant PW.1 is examined.   Ext. P1 to P7 are marked.

For the opp.party Ext. D1 is marked

THE POINTS

There is no dispute that the vehicle bearing Reg.No.KL-02T/8220 at the time of accident had a valid insurance policy.  The grievance of the complainant is that  though he submitted claim, the opp.party did not allow his claim.

According to the opp.parties the claim was settled by the complainant with KSEB without giving prior intimation or prior written consent from the opp.party for settling the claim with KSEB.   Complainant’[s case is that she wants to get back Rs.18,281/- along with interest from the opp.party which she has paid to KSEB as a damage caused to the electric post in an accident ie. Her car hit on the electric post stood at the road margin.  Opp.parties main contention is that the complainant’s claim  is in respect of the 3^rd  property charge and also as per the policy condition, the  complainant is not entitled to claim.   According to  them as per condition No.2 in Ext. D1, No admission, offer promise, payment or indemnify shall be made or given by or on behalf of the insured without the written consent of the opp.party.  In this claim the complainant has produced Ext.P1 to P7 document and her case is that she has given information to the opp.party about the accident.  Opp.parties main contention is that as per Ext. D1’s condition No.2,the complainant should lhave obtained written consent from the opp.party prior to the settlement  with the KSEB.  Complainant did not produce any material to show that she got written consent from the opp.party.  Here the complainant had violated the policy, condition No.2 of Ext. D1 policy condition ie either without giving any written intimation to the opp.party or without obtaining a written consent from the opp.party before entering into a settlement with KSEB.  Moreover KSEB is a third party with respect to the insurance company is concerned.   As per provisions of the MV Act, damages sustained to the third party property is a matter to be adjudicated by the MV Act under Sec. 165 of  MV Act 1988.  Hence it is a claim which has to be adjudicated by the  MVACT under the provisions of Sec.165 [V] of MV Act.

During the argument time, the learned counsel for the complainant vehemently argued that, the opp.party has not issued the policy condition to the complainant at the time of issuance of the policy and hence she was unaware of policy condition. No.2.  But the complainant has no such case upto the argument time.  The complainant ought to have state that contention in the complaint or in the chief affidavit.  But not a single word is mentioned in the complaint or in chief affidavit that the complainant has not been served the policy condition.  More over during the evidence time PW.1 deposed that› ›õ®m œñ¢÷¡ñ« ›‎ýˆ¡›¤øø—¡š¬Ä policy ó¬óÌ‏þ ±œˆ¡ñ« »¡±Ä»¡Ã©¿¡? [a] Lsf •¹¨› ›õ®m œñ¢÷¡ñ« ˆ¢¶Ã¨»Æ¢‎ýpolicy ó¬ó̈‏þ œ¡ò¢´Ã¨»¼® •ú¢ð¡«

From these the complainant’s argument regarding to the said contention will not stand.

In these circumstances we are of the view that opp.party is not liable to indemnify the complainant for the settlement she had made with KSEB.

        In the result the complaint fails and the same is hereby dismissed.

          Dated this the   28^th day of March, 2012.

                                                                   I N D E X

List of witnesses for the complainant

PW.1.  K. Sasidharan

List of documents for the complainant

P1.  Insurance policy certificate

P2.  Copy of Receipt

P3.  Extract of GD

P4.  Intimation letter

P5. Letter dated 20..7..2009

P6.  Letter dated 3..12..2009

P7.   Repudiation letter 6.11..2009