IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 17th day of July, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.56/12 & C.C.No.57/12 (Filed on 17.03.2012)
1. C.C.No.56/12
Between:
Balakrishnan Unnithan,
Nirmala Bhavan,
Koodal muri,
Koodal Village,
Rep. by the Power of Attorney
Holder Sreekumar,
of -do. –do.
(By Adv. S. Lathika) ….. Complainant
And
The Oriental Insurance Co.,
P.B.No.17, Post Office Jn.,
Punalur, Rep. by its-
Branch Manager.
(By Adv. P.D. Varghese) ….. Opposite party.
2. C.C.No.57/12
Between:
Balakrishnan Unnithan,
Nirmala Bhavan,
Koodal muri,
Koodal Village,
Rep. by the Power of Attorney
Holder Sreekumar
of -do. –do.
(By Adv. S. Lathika) ….. Complainant
And
The Oriental Insurance Co.,
P.B.No.17, Post Office Jn.,
Punalur, Rep. by its-
Branch Manager.
(By Adv. P.D. Varghese) ….. Opposite party.
COMMON ORDER
Sri. N. Premkumar (Member):
The complainant has filed these complaints against the opposite party for getting a relief from the Forum.
2. The disputes involved in these petitions are one and the same. Hence these two petitions were jointly heard and disposed of by way of common order.
C.C.No.56/12
3. Fact of the above case in brief is as follows: The complainant is the owner and possessor of a stage carriage. The said bus had insured with the opposite party by remitting requisite premium. On 19.03.2011 complainant’s bus dashed an electric post under Electric Section, Ezhamkulam. The matter was informed to opposite party within time. But opposite party did not allow compensation. Therefore complainant forced to pay ` 3,000 as compensation to the Electric Section and then only they released the vehicle. Moreover, he has paid ` 2,178 and ` 10 and the total amount he remitted is ` 5,188. As per policy, opposite party assured that they would indemnify the loss of the complainant in the event of any accident. Therefore, opposite party is liable to indemnify the said amount.
4. Opposite parties inaction to pay compensation delayed the releasing of vehicle which caused the break in the operation one trip in stage carriage and there by complainant has a loss of ` 2,500. The above loss of ` 7,688 (` 5,188 + ` 2,500) is the deficiency in service of service on the part of opposite party. Complainant sent a legal notice demanding the said amount. But opposite party has not responded so far. Hence this complaint for getting ` 7,688 with interest, compensation and cost.
5. Opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts. But they admit the policy and its validity. The case of the complainant is that on 19.03.2011 the insured vehicle hit on an electric post and thus caused damages to the electric post. The opposite party is not aware of the said incident. The statement that the complainant has informed the opposite party about the incident is absolutely false. The insured is duty bound to inform the insurer regarding the occurrence forthwith. But complainant did not do so. Complainant would not lodge a claim before this opposite party. It is stated that the complainant had remitted payment at the KSEB office. Complainant has made the payment to KSEB without the consent and concurrence of the opposite party.
6. In this case, the complainant claims that certain payments were made by him for the damage to the electric post. The insurer is not liable to compensate the insured for payment, if any, made by him, without informing the insurer. Condition No.2 of the commercial vehicle package policy states that “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 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 and the insured shall give all such information and assistance as the company may require”.
7. According to opposite party, complainant without properly approaching the opposite party has directly filed this case, which is not maintainable. The complaint is premature. The opposite party did not so far denied or repudiated the claim of the complainant. This complainant has filed another case as C.C.No.57/12 for causing damages to electric post on 19.04.2012 due to the hit by the same insured vehicle. If the incidents were informed to the opposite party, in time they ought to have arranged for an investigation for unearthing the truth. Complainant is not entitled to get any relief as claimed. There is no deficiency of service on their part. Hence they canvassed for the dismissal of the complaint with cost.
8. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
9. Evidence of the complaint consists of the oral deposition of PW1, DW1 and marked Ext.A1 to A7 and B1 to B1(b). After closure of evidence, both parties were heard.
C.C.No. 57/12
10. The facts of the above complaint in brief is as follows: The complainant is the owner and possessor of a stage carriage. The said bus had insured with the opposite party by remitting requisite premium. On 19.04.2011 complainant’s bus dashed on an electric post at Athirunkal under Kalanjoor Electricity office. The matter was informed to opposite party within time. But opposite party did not allow compensation. Therefore complainant forced to pay ` 5,188 to KSEB and release the vehicle. Opposite parties inaction to pay compensation delayed the releasing of vehicle which break one trip in the operation of stage carriage and thereby complainant has a loss of ` 2,500. The above loss of ` 7,688 is the deficiency of service on the part of opposite party. Complainant sent a legal notice demanding the said amount. But opposite party has not responded so far. Hence this complaint for getting ` 7,688 with interest, compensation and cost.
11. The opposite party filed version and took the same contentions as raised in the connected C.C.No.56/12. The opposite party is not liable to pay any amount to the complainant. Hence it is prayed for the dismissal of the above complaint.
12. The point raised in C.C.No.56/12 is settled in this case also.
13. The complainant’s power of attorney holder was examined as PW1 and marked Ext.A1 to A7. On opposite party’s side opposite party was examined as DW1 and marked Exts.B1 to B1(a). These two complaints were jointly heard.
14. Point Nos. 1 to 3 in C.C.No.56/12:- In order to prove the complainant’s case, complainant’s power of attorney holder filed a proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A7. Ext.A1 is the power of attorney executed by the complainant. Ext.A2 is the policy certificate issued by the opposite party. Ext.A3 is the receipt of ` 3,000 issued from the Ezhamkulam Electrical Section. Ext.A4 is the copy of receipt of ` 2,178 issued from Ezhamkulam Electric Section. Ext.A5 is the copy of advocate notice sent to opposite party dated 17.01.2012. Ext.A6 is the postal receipt of Ext.A5. Ext.A7 is the acknowledgment card of Ext.A5.
15. In order to prove the opposite party’s contention, opposite party’s Manager filed a proof affidavit along with documents. He was examined as DW1 and the documents produced were marked as Ext.B1,B1(a) and B1(b). Ext.B1 is the terms and conditions of the policy. The relevant portion of conditions were marked as Exts.B1(a) and B1(b).
16. On the basis of the contention and arguments of the parties, we have perused the entire material on record. Complainant’s case is that his insured bus dashed an electric post and he had paid damages of ` 5,178 to KSEB. As per policy, opposite party is bound to indemnify the loss in the event of an accident. But opposite party has not reimbursed the said amount. Hence this complaint.
17. Opposite party admitted the issuance of policy, but has the contention that complainant has not informed the occurrence of the accident. Moreover, complainant has settled the claim without the consent and concurrence of the opposite party, thereby violated the condition No.2 of the policy. Complainant directly filed this case, without approaching the opposite party and therefore it is not maintainable.
18. On a perusal of Ext.A3 and A4 it is evident that there is no reason to disbelieve the accident. Opposite party admitted the coverage of the policy, issued by them. As per Ext.A2 policy, opposite party assured to indemnify the loss in the event of an accident. Exts.A3 and A4 shows that complainant remitted ` 5,178 to KSEB as damages. Opposite party has not disputed the issuance of Ext.A3 and A4. But their contention is that complainant settled the claim without the concurrent and consent of them. Facts and circumstances shows that complainant has forced to pay Ext.A3 and A4 to KSEB, a public authority. Moreover, opposite party has not raised the amount of damages paid to KSEB. Therefore, we cannot find any illegality or collusiveness in the payment of Ext.A3 and A4. Hence the payment cannot be considered as unjust and unacceptable.
19. The insurance is a contract between the parties and the parties are governed by the terms of the contract. For that citing the apex court’s decision in Oriental Insurance Co. Ltd. V Sony Cheriyan, 1999 CTJ 556 (SC) CP = (1999)6 SCC 451 (P.455). It was observed as under:
“The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer”.
20. Considering the overall facts and circumstances and the available evidence on record, we are of the view that non-payment of the complainant’s claim is a clear deficiency of service. Therefore, complaint is maintainable and allowable, thereby the opposite party is liable to pay Ext.A3 and A4 amount with interest. Since interest is allowed, no separate compensation is allowable. Considering the facts and circumstances of this case, no amount is allowable for cost.
21. Point Nos. 1 to 3 in C.C.No.57/12:- In order to prove the complainant’s case, the complainant’s power of attorney holder filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A7. Ext.A1 is the copy of the power of attorney executed by the complainant. Ext.A2 is the copy of policy certificate issued by the opposite party. Ext.A3 is the receipt of ` 3,403 issued by K.S.E.B. Ext.A3(a) is the receipt of ` 10 issued by KSEB. Ext.A4 is the receipt of ` 3,500 issued by KSEB. Ext.A5 is the copy of advocate notice sent to opposite party dated 17.01.2012. Ext.A6 is the postal receipt of Ext.A5. Ext.A7 is the acknowledgment card of Ext.A5.
22. In order to prove the opposite party’s contention, opposite party’s Manager filed proof affidavit along with documents. He was examined as DW1 and the documents produced were marked as Ext.B1, B1(a) and B1(b). Ext.B1 is the terms and conditions of the policy. The relevant portion of conditions were marked as Exts.B1(a) and B1(b).
23. On the basis of the contention and arguments of the parties, we have perused the entire material on record. Complainant’s case is that his insured bus dashed an electric post and he has paid damages of ` 6,913 to KSEB. As per policy, opposite party is bound to indemnify the loss in the event of an accident. But opposite party has not reimbursed the said amount. Hence this complaint.
24. Opposite party admitted the issuance of insurance policy, but has the contention that complainant has not informed the occurrence of the accident. Moreover, complainant has settled the claim without the consent and concurrence of the opposite party, thereby violated the condition No.2 of the policy. Complainant directly filed this case, without approaching the opposite party and therefore it is not maintainable.
25. On a perusal of Ext.A3 and A4 it is evident that there is no reason to disbelieve the accident. Opposite party admitted the coverage of the policy, issued by them. As per Ext.A2 policy, opposite party assured to indemnify the loss in the event of an accident. Ext.A3, A3(a) and A4 shows that complainant remitted ` 6,913 to KSEB as damages. Opposite party has not disputed the issuance of Ext.A3 to A4. But their contention is that complainant settled the claim without the concurrence and consent of them. Fact and circumstances shows that complainant has forced to pay Ext.A3 and A4 amounts to KSEB a public authority. Moreover, opposite party has not raised objection for the amount of damages paid to KSEB. Therefore, we cannot find any illegality or collusions in the payment of Ext.A3, A3(a) and A4. Hence the payments cannot be considered as unjust and unacceptable.
26. The insurance is a contract between the parties and the parties are governed by the terms of the contract. For that we are citing the apex court’s decision in Oriental Insurance Co. Ltd. V Sony Cheriyan 1999 CTJ 556 (SC) CP = (1999) 6 SCC 451 (P.455) it was observed as:
“The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer”.
27. Considering the overall facts and circumstances and the available evidence on record, we are of the view that non-payment of the complainant’s claim is a clear deficiency of service. Therefore, complaint is maintainable and allowable, thereby opposite party is liable to pay the Ext.A3, A4 amounts with interest. Since interest is allowed, no separate compensation is allowable. Considering the facts and circumstances, no amount is allowable for cost.
28. In the result, the above 2 complaints are disposed of in the following terms:
(A) C.C.No. 56/2012
The opposite party in the above case is directed to pay ` 5,178 (Rupees Five thousand one hundred and seventy eight only) with 8% interest from the date of filing of this complaint till this date to the complainant within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest from this date, till the realization of the whole amount.
(B) C.C.No.57/2012
The opposite party in the above case is directed to pay ` 6,913 (Rupees Six thousand nine hundred and thirteen only) with 8% interest from the date of filing of this complaint till this date to the complainant within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest from this date, till the realization of the whole amount.
Declared in the Open Forum on this the 17th day of July, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
CC No.56/2012
Witness examined on the side of the complainant:
PW1 : B. Sreekumar.
Exhibits marked on the side of the complainant:
A1 : Power of attorney dated 13.05.2008 executed by the
complainant in favour of Sreekumar.
A2 : Photocopy of the policy certificate issued by the
opposite party.
A3 : receipt of ` 3,000 issued from the Ezhamkulam
Electrical Section.
A4 : Copy of receipt of ` 2,178 dated 19.03.2011 issued
from Ezhamkulam Electric Section.
A5 : Copy of advocate notice dated 17.01.2012 sent to
opposite party.
A6 : Postal receipt of Ext.A5.
A7 : Acknowledgment card of Ext.A5.
Witness examined on the side of the opposite party:
DW1 : S. Krishnamoorthy.
Exhibits marked on the side of the opposite party:
B1 : Policy with terms and conditions of the policy
B1(a) & B1(b): Relevant portions of Ext. B1.
CC No.57/2012
Witness examined on the side of the complainant:
PW1 : B. Sreekumar.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the Power of Attorney dated 13.05.2008
executed by the complainant in favour of Sreekumar.
A2 : Photocopy of the policy certificate issued by the
opposite party.
A3 : Receipt of ` 3,403 issued from the Electrical Section,
Kalanjoor.
A3(a): Receipt of ` 10 issued from Electrical Section, Kalanjoor
A4 : Copy of receipt of ` 3,500 dated 19.04.2011 issued
from Electric Section, Kalanjoor.
A5 : Copy of advocate notice dated 17.01.2012 sent to
opposite party.
A6 : Postal receipt of Ext.A5.
A7 : Acknowledgment card of Ext.A5.
Witness examined on the side of the opposite party:
DW1 : S. Krishnamoorthy.
Exhibits marked on the side of the opposite party:
B1 : Policy with terms and conditions of the policy
B1(a) & B1(b): Relevant portions of Ext. B1.
(By Order)
(Sd/-)
Senior Superintendent
Copy to: (1) Balakrishnan Unnithan, Nirmala Bhavan, Koodal muri,
Koodal Village,
(2) The Oriental Insurance Co. Ltd., P.B.No.17, Post Office
Junction, Punalur.
(3) Stock file.
