Kerala

Idukki

CC/208/2018

Philomina Sebastian - Complainant(s)

Versus

Oriental Insurance co: - Opp.Party(s)

26 May 2023

ORDER

DATE OF FILING : 27/11/2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   26^th day of May 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.208/2018

Between

Complainant                                :  Philomina Sebastian,

                                                        Aalanakudiyil House,

                                                        Kadavoor P.O., Njarakkadu.

                                                        (By Adv.K.M.Sanu)

                                                   And

Opposite Party :                      :  1 .  The Manager,

                                                         Oriental Insurance Co.Ltd.,

                                                         Kothamangalam Branch,

                                                         Kothamangalam P.O., Pin -686 691.

                                                   2 . The Manager,

                                                         Oriental Insurance Co.Ltd.,

                                                         Divisional Office, Jyothi Super Bassar,

                                                          Thoduuzha P.O., Thoduuzha.

                                                           (Both by Adv.K.Pradeepkumar)

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

This complaint is filed under S.12 of Consumer Protection Act, 1986 raising the following allegations against opposite parties.

 

1 . Private Bus named “BEUNA” with registration No.KL-44C-5499 is owned by her. Said vehicle was insured with opposite parties by paying Rs.63,456/- towards premium under package policy.  Period of insurance was 31/03/2018 to 30/03/2019.  Above bus met with an accident at 11.45 Am on 13/10/2018 at a turning near Mrala Post Office within the local limits of

(Cont.....2)

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Muttom Police Station.  Route of the bus was Vannappuram-Thodupuzha-Erattupetta.

2 . While trying to protect from accident a bike rider who was riding on the road side, major damage occurred to the front portion of her bus.  Besides, KSEB pole was cracked and the compound wall of Dr.Sudarsanan was damaged at a length of about 20 feets.  Above accident was immediately reported to Muttom Police  Station, KSEB and opposite parties.  Surveyor of opposite parties inspected the place also.  She  had to spent Rs.2.5 Lakhs for repair of bus, for change electric pole Rs.15,916/- and Rs.64,000/- for reconstructing the compound wall.  As the above doctor compelled her to reconstruct the destroyed wall urgently, she obtained estimate from PWD Buildings Engineer and engaged workers for the construction of the wall.  KSEB recovered the amount of electricity pole immediately from her.

3 . Opposite parties are liable to pay repair expense of bus and expense relating to change of electricity poles, and also construction of wall as those are 3^rd parties damage.  But they were not ready to pay above amounts except bus repair charges.  They are also liable to pay Rs.79,916/- paid by her to 3^rd parties.  As she had paid premium for 3^rd party claims, opposite parties are liable to pay the same.  Non-payment of insurance amount by opposite parties is deficiency in service.  She is entitled to get the amount with interest and also for compensation for the deficiency in service of opposite parties.

So, she prayed for the following reliefs.

1 . Direct opposite parties to pay Rs.79,916/- with interest to the complainant.

2 . Grant compensation of Rs.50,000/- for deficiency in service  of opposite parties.

(Cont.....3)

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3 . Allow Rs.10,000/- as litigation costs.

Opposite parties filed written version as follows.

1 . The complaint is not maintainable.  The complainant has no cause of action against this opposite party.  It is submitted that there is no deficiency of service of this opposite party to attract the jurisdiction of this Hon’ble  Forum.

2 . This opposite party admits that vehicle bearing No.KL-44-C-5499 is insured with this opposite party vide policy bearing No.441702/31/2018/19836 for the period 31/03/2018 to 30/03/2019.  To prove the terms and conditions of the contract of insurance, true copy of policy is produced herewith may be marked as Ext.R1.  Averment in the complaint that, complainant paid Rs.63,456/- as premium is not correct.  Net premium paid is only Rs.53,776/-.  As per condition No.2 in the policy, No admission, offer, promise, payment or indemnity shall be made 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 damages or otherwise and shall have full discretion in the conduct of any proceedings or in  the settlement of any claim and the insured shall give all such information and assistance as the company may require.  It is submitted that, in the claim form filed by the complainant, in answer to question, whether there is any third party injury or property damage, it is written that, Nil.  Complainant made claim for damage to her vehicle only.  As such we were not intimated of the 3^rd party property loss and hence, were deprived of our right for deputing an independent surveyor for assessing the loss/damage, which is mandatory to

 

(Cont.....4)

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arrive at liability if any.  Averment in the complaint that complainant sustained loss of Rs.2,50,000/-  as damages to her vehicle is not correct.  On receipt of the claim intimation, this opposite party deputed an independent surveyor Mr.Bijuraj to conduct the spot survey.  On 13/10/2018, itself spot survey was conducted and he filed report on 29/10/2018.  Copy of the spot survey produced herewith may be marked as Ext.R2.  For final survey, surveyor Mr.T.S.Biju was deputed.  Surveyor Mr.T.S.Biju inspected the vehicle on 15/10/2018 and filed his report on 27/12/2018.  Net liability of this opposite party as per terms and conditions of the contract of insurance is Rs.84,763/- only.  Final survey report of Mr.T.S.Biju, produced herewith may be marked as Ext.R3.  This opposite party’s enquiry also revealed that the survey report shows the correct loss.  This opposite party is ready to pay the net loss assessed by the surveyors.

3 . It is humbly submitted that, 3^rd party to the accident has no right to compel complainant to pay compensation according to his needs and desires.  When there is dispute, he can realise the same only through due process of law.  In this case, no 3^rd party invoked their right through the due process of law.  The complaint is filed in collusion with 3^rd parties.  Complainant has not made any payment to the 3^rd party as alleged in the complaint.  In fact, this opposite party has not intimated the complainant, that this opposite party will not settle the claims of 3^rd parties.  This opposite party would have settled the claim of 3^rd parties also, if we had received proper claim documents and opportunity for assessment of loss by an IRDAI approved surveyor.  So it is submitted that the complaint is premature and filed on false apprehensions.  So opposite parties prayed for dismissed of complaint with costs.  Attempt of complainant is to get illegal gain out of the accident.  So they pray for dismissal of complaint with costs.

Complainant has not appeared for tendering oral evidence though opportunities were given.  It was repeatedly reported that she is ill.  As no               (Cont.....5)

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oral evidence is adduced, 3 documents produced from the side of complainant were marked as Exts.P1 to P3 as follows.

1 . Ext.P1 – Copy of insurance policy No.441702/31/2018/19836 dated 29/03/2018.

2 . Ext.P2 – Copy of GD dated 21/10/2018 of Muttom Police Station.

3 . Ext.P3 – Copy of estimate dated 12/11/2018 prepared by Asst. Executive Engineer, PWD Buildings-sub division, Thodupuzha.

As no reason was stated by opposite parties for seeking adjournment for adducing evidence though two opportunities were granted, prayer declined and opposite parties’ evidence closed.  On 27/04/2023, counsel for opposite parties sought time for hearing and case was posted for hearing finally to 04/05/2023.  On that day both parties were not present.  No representation also.  Hence case is taken for orders.

We have examined the pleadings of both sides, and documents marked on the side of complainant.  On going through the same, following points arise for consideration.

1 . Whether there is any deficiency in service on the part of opposite parties?

2 . If so, for what reliefs complainant is entitled to?

3 . Reliefs and costs?

Point Nos.1 and 2 are considered together

Though opposite parties stated in written version that they have produced policy copy, spot survey report and final survey report, no such documents were seen filed.  Contention that premium amount paid was only

(Cont.....6)

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Rs.53,776/- is correct.  But complainant stated  the amount including GST also.  Hence the difference.  As per policy, premium collected by opposite parties towards 3^rd party risk is Rs.50,206/- excluding driver, conductor etc, for which separate premium was seen collected.  Without 3^rd party cover, insurance cannot be issued.  Though opposite parties contended that complainant have mentioned NIL claim in respect of 3^rd party loss/damage in the claim form, no such document was filed  by them.  Contention that 3^rd party has no right to compel  complainant to pay compensation is not correct.

In the case of consumer complaints, two parties are involved ie, complainant and opposite party/opposite parties.   This is distinct from MACT claim petition.  Another contention is that complainant has not paid any amount to 3^rd parties.  On going through the exhibits produced, it is found that contention is correct.  At the same time, when damage is caused to KSEB property, it has to be settled immediately to avoid further consequences.  Opposite parties stated that they would have settled claim of 3^rd parties also, if they received proper claim documents and opportunity for assessment of loss.  Damage/loss to 3^rd parties is evidenced by Ext.P2.  As per Ext.P3, estimate is seen prepared by PWD Engineer.  It is evident that damage to 3^rd party property occurred in accident.  But the crucial point is that complainant failed to produce documentary evidence with regard to expense of construction of wall and payment to KSEB.  It is the duty of complainant to prove her case.  But she failed to do so.  So the nature of settlement of 3^rd party loss is not ascertainable.  But insurance company cannot abstain from payment of genuine claims.  Complainant has no case that damage to vehicle is not compensated.  As opposite party averred that they would have settled 3^rd party claim also if proper claim was submitted, we find that it is just and proper to give  direction  to  opposite  parties  to

 

(Cont.....7)

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consider payment of 3^rd party loss if any, claimed by complainant  with documentary evidence thereof if proper claim was already raised  and to settle the same in accordance with law.

As  the complainant failed to establish deficiency in service on the part of opposite parties we are not inclined to grant any compensation on this behalf.  Point Nos.1 and 2 are answered as above.

Point No.3

In the light of above discussions and our findings on point Nos.1 and 2, we direct opposite parties to consider the claim if any raised in respect of 3^rd party loss/damage which was paid by complainant to them if proper claim was already raised with supporting documents and settle the same in accordance with law within 30 days of receipt of this order.  Considering the facts and circumstances of the case, there will be no order as to costs.

In the result, complaint is partly allowed as stated above.

Parties shall take back extra copies without delay.

Pronounced by this Commission on this the 26^th  day of May 2023.

 

                                                                           Sd/-

                                                                            SRI.AMPADY K.S., MEMBER

                                                                                            Sd/-

                                                                 SRI.C.SURESHKUMAR, PRESIDENT 

                                                                                            Sd/-

                                                                        SMT.ASAMOL P., MEMBER

 

 

 

 

(Cont.....8)

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APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 – Copy of insurance policy No.441702/31/2018/19836               

               dated 29/03/2018.

Ext.P2 – Copy of GD dated 21/10/2018 of Muttom Police Station.

Ext.P3 – Copy of estimate dated 12/11/2018 prepared by Asst. Executive

               Engineer, PWD Buildings-Sub Division, Thodupuzha.

On the side of the Opposite Party :

Nil

 

                                                                                                   Forwarded by Order  

 

 

                                                                                            ASSISTANT REGISTRAR