DATE OF FILING : 17.3.2017

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  29th  day of  June,  2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.216/2017

Between

Complainant       :    Jaison George,

Maliyekkal House,   

Kattappana South P.O., Idukki.

Sole Proprietor of 

K.J. Granites and Tiles,

Puliyanmala Road,

Kattappana, Idukki. 

(By Adv: Vikraman Nair N.G.)

And

Opposite Parties                                          :  1. R. Pachiammal, W/o. Rajamanickam,

    1/1, 162, Theeranaur,

    Thammanaickam Patty, Salem P.O.,

    Salem District, Tamil Nadu – 636 010.

2. Murugesan, S/o. Padakathudayar,

    Veppilapatty Pudur,

    Veppilapatty, Salem P.O.,

    Salem District, Tamil Nadu.

    (Both by Adv:  C.K. Babu)

3. The New India Assurance Co. Ltd., 

    Divisional Office, Kottayam,

    Kottayam.

   (By Adv:  Sunny Jacob)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant in brief is that,

 

The complainant had engaged 2nd opposite party to transport the granites which the complainant had purchased from Bangalore.  On  2.4.2014 at 2.30 pm, on the way to Kattappana, when the lorry reached near Parakkadavu, which is carrying the granite stone, met with an accident and loaded granite slabs were broken.  This is happened due to     (cont.....2)

-  2  -

 

the rash and negligent driving of the 2nd opposite party, the driver of the lorry bearing Reg. No.TN-30-BA-3871.  Due to that, the complainant had suffered a loss of Rs.4,53,751/-.

 

Thereafter the complainant contacted 1st opposite party, the owner of the vehicle and demanded compensation.  But she denied his demand.  Thereupon the complainant issued a lawyer notice on 16.9.2014, against the 1st and 2nd opposite parties demanding the compensation for the damages sustained.  Thereafter also 1st and 2nd opposite parties not turned up to compensate.

 

Complainant further averred that the vehicle was insured with 3rd opposite party and so the complainant is entitled to realise compensation jointly and severally from all the opposite parties.

 

Complainant further stated that, on 4.4.2014, he filed a petition before MAC Tribunal, Thodupuzha.  Since the MACT has no jurisdiction to entertain the matter, the same was withdrawn on 18.11.2016 with liberty to file proper application before appropriate Forum.  Since the complainant had filed OP before MACT and subsequently it was withdrawn, this caused a delay of 318 days in filing the complaint before the Forum.  The delay caused due to the above said reason and no latches or malafides from the part of complainant.

 

Along with complaint, the complainant filed a petition for condonation of delay.   This Interim Application is numbered as 27/2017.  Thereafter the complainant withdrawn the IA for condonation of dealy.  

 

Upon notice, opposite parties entered appearance and filed detailed reply version.  In their version, opposite parties 1 and 2 contended that OP 164/14 is seen to have filed on 4.4.2014.  A written statement is seen to have filed during 2015.  A lawyer notice seen to have issued by the complainant to this opposite parties on 16.9.2014.  Still then the petitioner withdrawn the petition filed before the MACT, Thodupuzha, was only on 18.11.2016.  

 

  (cont.....3)

-  3  -  

Opposite parties further contended that, the petitioner has no manner of right to claim any benefit under the order of withdrawal of O.P.164/14.  The order in the above OP does not confer any right for the petitioner to file a different petition before the Forum.  Opposite parties further 

  

contended that, the petitioner cannot take a plea that he was contesting at some other Forum and therefore he lost time for filing this petition.  Hence the complaint is liable to be dismissed.

 

In their reply version, 3rd opposite party contended that, the petition is barred by non-joinder of necessary parties.  The carrier to whom with the consignment agreed to be transported shall be a party in this complaint.

 

3rd opposite party further contended that, the petition is time barred by limitation and it is the duty of the petitioner to explain each and every days delay in filing the petition which is not explained properly.  In the written statement filed by the 3rd opposite party, in O.P.164/14, it is specifically stated that, the option for the petitioner is to file Civil Suit before the Court of proper jurisdiction against the carrier of goods, since the damages and compensation to the damaged goods are ruled by the provisions of 'Carrier Act 1865'.  As per the act, the owner of the carrier is liable to indemnify the owner of goods.  Hence 3rd opposite party is not liable to indemnify the carrier who was the owner of the vehicle for the damages of the goods since there is no specific contract between the insurer and the insured of the said lorry to indemnify the goods carrying by the vehicle.  The said contention was well known to the petitioner since 7.5.2015 onwards.  But the petition for withdrawing the OP original petition was filed only on 14.11.2016 as IA No.1668/16 and was allowed.  The petition would have withdrawn the O.P.164/2014, immediately after receiving the written statement, that is, on 7.5.2015 and filed the complaint before the Forum.

 

Opposite party further contended that, the policy taken by the opposite party is a package policy only for the vehicle 'lorry', not for the goods carrying or consignment carried are not covered by the policy taken by the insured for the vehicle.  Hence there is no consumer relationship with the 1st opposite party and 3rd opposite party.  3rd opposite party is not at all vicariously liable to be exonerated.   (cont.....4)

-  4  -

We have heard the issue of maintainability of the complaint as pointed out by the 1st to 3rd opposite parties as the primary issue due to the unexplained delay of more than 318 days in filing the complaint.

 

On going through the complaint, it is seen that date of alleged accident as stated in the complaint was 2.4.2014 and he approached the MACT Thodupuzha and filed petition on 4.4.2014.  As per the averments in the complaint, he issued legal notices to the opposite parties on 16.9.2014, i.e., after the institution of petition before the MACT.  In this petition opposite parties / respondent filed written statement on 7.5.2015, challenging the maintainability of the petition before the MACT.  By convincing this matter, complainant herein, petitioner of the OP filed a petition for withdrawing the OP was only on 14.11.2016 and the Tribunal passed order on 18.11.2016.

 

thereafter the complainant approached the Forum on 7.2.2017 and filed the previous petition along with a petition for condonation of delay of 318 days.  Subsequently he withdrawn the petition for condonation of delay and hence the main petition numbered as CC 216/17.  In this petition, opposite party raised the same issue of delay.  On going through the contention of written version and points of arguments the Forum is of a considered view that, the complainant approached the Forum after a lapse of 2 years as specifically stated in the Consumer Protection Act and has no specific  averment about cause of delay with sufficient and genuine reasons.  The reason for causing delay is not specifically explained.

 

Hence the complainant dismissed on the reason that complaint filed beyond the statutory period as per the Consumer Protection Act, 1986.

 

     Pronounced in the Open Forum on this the 29th  day of June, 2018

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SRI. BENNY. K., MEMBER

 

          Forwarded by Order,

 

 

             SENIOR SUPERINTENDENT