SMT.MOLYKUTTY MATHEW : MEMBER

     This is a  complaint filed by the complainant  U/S 35 of the Consumer Protection Act 2019 for an order directing the OP to refund  Rs.37,971/- the amount paid by the complainant to the Railway authorities towards  damages with interest@6% per annum from 15/5/2024 till realization along with  Rs.1,00,000/- as compensation for mental agony caused to the complainant and cost of  proceedings for the  deficiency of service and unfair trade practice  on the part of OP.

  The brief of the complaint :

       The complainant  is a driver by profession and he owns a goods carrier pickup vehicle bearing No. KL-13-AP-1796.  He used to ply the vehicle for hiring the goods from one place to another.  The whole family depends income derived from the vehicle for their livelihood. The vehicle is validly insured with OP including   that of injury and damage to 3^rd parties. The insurance policy No.is VGC1115562000100 and  the period of policy covered is from 4/3/2024 to 3/3/2025.  On 11//5/2024 at about 4.15 P M while the complainant was transporting GI Pipe on his above said goods vehicle from Varam to Thottada, when he reached near and crossing the Thazhe Chovva railway crossing the GI Pipe loaded over the  vehicle hit the railway gate since the gate keeper is about to close the railway gate.   Late the complainant received an information from the railway police stating that the above said hit caused damages to the railway gate and he  was called up on to pay the value of the damages caused to the railway gate.  Immediately the complainant informed the matter to OP and the vehicle is validly insured with OP against 3^rd party damages. The officer of OP informed that it will take much time to get the claim of 3^rd party property damage and request the complainant to pay the damages caused and assured that OP will refund the amount paid to the railway authorities.  Accordingly the complainant had paid an amount  of Rs.37,971/- towards the damages caused to the railway gate  as assessed by  the railway authorities on 15/5/2024.  Later on 17/5/2024 the complainant approached the OP for refund of the amount.  At that time the officer of the OP informed that they had to obtain the approval from the head office and requested the complainant to approach the office after one week.  On 24.5.2024 the  complainant again approached the OP but the OP is turned down towards their earlier assurance and not ready to refund the amount.  The act of  OP the complainant caused much mental agony and financial loss.  So there is deficiency of service and unfair trade practice on the part of OPs  Hence the complaint.

           After filing this complaint, notice  issued to OP .  OP received the notice and not appeared before the commission and no version filed.  Hence the   commission had to hold that the OP is  absent and  set  exparte.

    Even though the OP remained absent  in this case  it is for the complainant to establish the allegations made by them against the OP.  Hence the complainant  was called upon to produce evidence in the form of affidavit and documents. The complainant has chosen  to  produce his affidavit along with 4 documents marking them as Exts.A1 to 4.  Ext.A1 is the RC of the vehicle  bearing No.KL 13-AP-1796.  It clearly shows that the  complainant is the  RC owner  of the  vehicle.  Ext.A2 is the certificate of insurance and policy schedule.  The period of policy coverage is from 4/3/2024 to 3/3/2025.  The damages caused on 11/5/2024 within the period of policy coverage .  Ext.A3 is the occurrence  report in crime No.1270/2024 U/S 154 of Railway Act.  Ext.A4 is the cash receipt paid by the complainant to Railway department dtd.15/5/2024 for an amount of Rs.37,971/-.

   On perusal of the proceeding sheet on 19/9/2024 it seen that  the OP has filed a petition to set aside the exparte with version.  Since petitioner is called absent and no representation.  Then the commission  dismissed the petition and posted for exparte evidence. 

   Even though the OP is exparte the complainant has to prove his case and establish the  deficiency in service of OP.  It seen that the complainant has not obtained prior consent from insurance company for depositing the amount of Rs.37,971/- to railway department.  In such cases the complainant should have approached MACT, Thalassery for getting damages if any claim from this OP.  Motor Accident Claims Tribunal has got only jurisdiction to try the cases arises from using the motor vehicle.  The MACT having jurisdiction which alone has the power and authority to determine the consequences of a motor accident and being a special welfare enactment would  over ride and exclude the jurisdiction of this Hon’ble Commission.  As per Sec.175 of Motor Vehicles Act no court shall have any power to entertain such cases except MACT.   So there is no deficiency in service on the part of OP.

     In the result, the complaint is dismissed.  No order as to cost.

Exts:

A1- RC

A2- Insurance policy

A3-Occurrence  report

A4-Cash receipt issued by the Ralway department

PW1-Muraleedharan.T.P- complainant.

Sd/                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR