Kerala

Idukki

CC/35/2019

Jimson C Vadakara - Complainant(s)

Versus

Royal sundharan General Insurance - Opp.Party(s)

Pradeep kumar

26 Apr 2023

ORDER

 

DATE OF FILING : 08/02/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 26^th day of April 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.35/2019

Between

Complainant                            :   Jimson C.Vadakara,

                                                     Vadakara House,

                                                      Mannamkala Kara, Adimaly P.O.,

                                                      Mannamkandam Village,

                                                       Devikulam Taluk,

                                                      Idukki District, Pin – 685 561.

                                                          (By Adv.Babichen V.George)

                                                           And

Opposite Party                  :   1 . The Manager,

                                                    M/s Royal Sundaram General

                                                                                        Insurance Co.Ltd.,

                                                    Vishranti Melaram Towers, No.2/319,

                                                     Rajeev Gandhi Salai (OMR),

                                                     Karapakkam, Chennai – 600 097.

                                               2 . The Manager,

                                                     M/s Royal Sundaram General

                                                                                Insurance Co.Ltd.,

                                                     40 105 H2, 2^nd  Floor, Amritha Towers,

                                                     Opp. Maharajas College Ground,

                                                     M.G.Road, Cochin – 682 011.

                                                     (Both by Adv.K.Pradeepkumar)

                                                3 . The Manager,

                                                     T.V.S and Sons Ltd., Idukki Road,

                                                     Thodupuzha P.O., Thodupuzha.

                                                     (By Adv.Shiji Joseph)

 

(Cont.....2)

 

-2-

                                                             

O R D E R

SMT.ASAMOL P., MEMBER

 

Complainant filed this complaint under S.12 of Consumer Protection Act, 1986.  Statement of facts are briefly discussed hereunder:-

 

1 . Complainant is the owner of Mahindra Bolero Pickup bearing the Reg. No.KL 68A 750.  Complainant and his family is earning livelihood by plying the above vehicle as a transporting vehicle.  Complainant purchased the above vehicle from M/s TVS & Sons, Thodupuzha, 3^rd opposite party on 26/03/2018.  1^st and 2^nd opposite party companies and 3^rd opposite party are of same management and group.  3^rd opposite party is the authorised dealer of Mahindra Vehicles and 3^rd opposite party from their office arranged Bumper to Bumper insurance policy from 1^st and 2^nd opposite parties who are  sister companies of 3^rd opposite party.  Complainant paid Rs.31430/- as  premium for the period 26/03/2018 to 25/03/2019 and policy is bearing No.VGC 0505809000100.

2 . The said insured vehicle was involved in an accident at Kavalangadu on 07/06/2018 and as a result in this accident 3^rd party damage and some damage to the vehicle have been sustained.  The intimation with regard to accident was given to the 2^nd opposite party’s office forthwith after the incident and on the advice of the insurance surveyor one Sabu of the 2^nd opposite party the vehicle was shifted to a workshop which is an authorised service centre of the 3^rd opposite party at Alangadu.  Since the vehicle happened to hit an electric post, an amount of Rs.16322/- has been claimed by the KSEB from the complainant.  Though damage is squarely covered under the above policy, 1^st and 2^nd opposite parties have refused to effect the payment.  Even though the complainant had submitted claim form along with the copy of G.D. entry of the Oonnukal police station

(Cont.....3)

 

-3-

and receipts of the amount remitted to the KSEB, Electrical section, Kothamangalam, the 1^st and 2^nd opposite parties has expressed an unfair reluctance to the payment of the 3^rd party damage.  Hence the complainant has incurred a loss of Rs.16322/- covered by the above insurance policy.  1^st and 2^nd opposite parties who are bound by bonafide duty to reimburse for the loss incurred by complainant through the said accident and covered by the above said policy most irresponsibly denied him without any reasons.  This is a clear instance of deficiency in service by the 1^st and 2^nd opposite parties.  3^rd opposite party engaged 1^st and 2^nd opposite parties to issue insurance policies for the vehicle sold by them and complainant availed the above insurance policy from and through the 3^rd opposite party in their office at Thodupuzha and premium was paid to them.  Complainant does not have any direct dealings with 1^st and 2^nd opposite parties at the time of availing the insurance policy.  3^rd opposite party is also liable as the premium amount was entrusted to them and they arranged insurance policy with 1^st and 2^nd opposite parties.  All the opposite parties are jointly and severally liable to comply all reliefs as prayed below.

3 . Opposite parties are making unlawful gain by collecting huge insurance premium and denying to complainant the  actual loss incurred by him which amounts to unfair trade practice.

4 . Aggrieved by the act of 1^st and 2^nd opposite parties, complainant caused to send lawyer’s notice to them on 24/07/2018 and they haven’t responded so far.  The above explained irresponsible acts of the opposite parties amount to severe deficiency in service and unfair trade practice which they are liable to compensate the complainant.  At the very same time complainant is entitled to recover the loss incurred by him though the accident.

 

(Cont.....4)

 

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Hence it is humbly prayed that the following reliefs may be allowed and thereby redress the grievance of the complainant.

1 . Opposite parties may be directed to pay Rs.16322/- with 12% interest from 08/06/2018 till realization.

2 . Rs.10,000/- may be allowed to be realized from the opposite parties for the deficiency in service caused by them.

3 . Rs.10,000/- may be allowed to realized from opposite parties for the mental agony and sufferings caused by them.

4 . Rs.5000/- may be allowed to be realized as the cost of the above case.

5 .  Such other reliefs that the Hon’ble Forum deems fit and proper in the interest of justice also be allowed.

Upon notice served from this Forum, all opposite parties have appeared before the Forum and filed detailed written version.  The contentions of 1^st and 2^nd opposite parties are discussed hereunder:-

1 . At the outset, all allegation and averments levelled against the opposite party are denied save to those that are expressly and specifically admitted hereunder.  The complainant is put to strict proof of the contentions therein.

2 . It is humbly submitted that the Hon’ble Forum does not have the jurisdiction to entertain the present complaint as the relief claimed is for a third party property damage and the complainant is seeking indemnification for a liability already incurred  by him.  All matters pertaining to 3^rd party motor losses are to be filed by the affected party before the concerned Motor Accident Tribunals within whose jurisdiction the loss occurred or the party

(Cont.....5)

 

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resides.  If there is  no Motor Accident Tribunal then the petition or plaint is to be filed before the Civil Court of appropriate jurisdiction.  Further, the policy was not issued in Trivandrum nor is the respondent residing within the jurisdiction of the Forum.

3 . That the present complaint is non-tenable, unwarranted and bad in law.  The present complaint has been filed for a 3^rd party property damage for which the respondent is not liable as per the policy terms and conditions since the said 3^rd party  damage was not intimated to his respondent and this respondent was not given due opportunity to contest the liability before appropriate Tribunal, as per the policy terms and conditions. 

4 . Without prejudice, it is submitted that a goods carrying vehicle package policy was issued for a Mahindra Bolero Pick up bearing registration No.KL-68-A-0750 Engine No.TBJIA29284 and Chassis No. MAIZC4TBKJIA18614.  The policy certificate bearing No.VGC0505809000100 was issued in favour of the complainant and was valid from 26^th  March 2018 till 25^th  March 2019 for an IDV of Rs.6,27,651/-

5 . That the present complaint has been filed by the complainant claiming the amount paid by him towards 3^rd party property damages.  As per the contract of insurance the own damage coverage is provided to the complainant for damages caused to the insured vehicle if the same meets with any accident  subject to policy terms and conditions.  The complainant is claiming for 3^rd party damages for which no coverage is provided under the own damage coverage.  Further the complainant is not a 3^rd party as per the contract of insurance.  Any claim for such loss has to be made by the concerned affected party before the appropriate tribunal.

 

(Cont.....6)

 

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6 . These opposite parties are not liable to pay the amount claimed by the complainant as the payment made by the complainant towards 3^rd party damages is in gross violation of the policy terms and conditions, conditions No.2, reproduced hereunder for the kind reference of the Hon’ble Forum.

“No admission offer promise payment or indemnity 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 or to prosecute in the name of the insured for its own benefit any claim for indemnity or other wise 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”.

However, the complainant without the consent of the respondent has admitted liability and made payment without giving due opportunity to the respondent to defend or contest the liability before appropriate Tribunal.  Hence, the respondent is not liable to reimburse the same as it was made without the consent of the respondent and therefore was in violation of Condition No.2.

7 . That from the above stated facts submission made it is evident that there is no deficiency in the services provided nor has the opposite party adopted any unfair trade practice.  There arises no liability on part of the respondent and further the present complaint is barred by jurisdiction and lack of cause of action as per the Consumer Protection Act.

3^rd opposite party’s contentions are briefly discussed hereunder:-

1 . The complaint is not maintainable either in law or on facts of the case.  By filing this complaint, the complainant has misused the provisions of

 

(Cont.....7)

 

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the Consumer Protection Act and unnecessarily dragged the 3^rd opposite party into the litigation.

2 . The motor vehicle insurance for the 3^rd party damage is specifically dealt with the Motor Vehicles Act and the Insurance Act.  Under the Motor Vehicle Act, there is special court is provided for redressal of the grievances.  Hence the Motor Vehicle Claim Tribunal is the competent Forum for agitating the matter.  Hence this Forum has no jurisdiction to entertain the complaint.

3 . It is the statutory obligation of the 3^rd opposite party to deliver the vehicle with insurance.

4 .  There is no negligence or unfair trade practices on the part of the 3^rd opposite party hence the complainant is not entitled to get any reliefs against the 3^rd opposite party.

5 . Since the 3^rd opposite party is unnecessarily dragged into the litigation, the complaint may be dismissed with compensatory cost of Rs.10,000/- and the cost may be awarded to the 3^rd opposite party.

Complainant has filed proof affidavit.  Also, he has produced 8 documents.  Complainant was examined as PW1 and Exts.P1 to P8 were marked even though written version is filed by opposite parties, no evidence adduced by them.   Heard the counsel for complainant opposite parties were absent and not represented.  Thereafter, this case was taken for orders.  Now the points which arise for consideration are:-

 

 

(Cont.....8)

 

-8-

 

1 . Whether the Forum has jurisdiction to entertain this complaint?

2 . Whether there is any deficiency in service or unfair trade practice o the part of opposite parties?

3. If so, what reliefs the complainant is entitled to?

Point No.1 is considered

Complaint is filed for getting indemnification of a loss already incurred by complainant and the reliefs claimed is through technically for 3^rd party property damage is in effect own damage.    According to opposite parties, since the reliefs claimed for 3^rd party property damage and complainant is seeking indemnification for a liability already incurred by him, the Consumer Disputes Redressal Forum has no jurisdiction to entertain this complaint.  Because, all the matters pertaining to 3^rd party motor losses are to be filed by the affected party before the concerned Motor Accident Claims Tribunal.  We have discussed this matter, Hon’ble Supreme Court, in the case of National Insurance Co.Ltd., V/s Laxmi Narain Dhut held that the claims tribunal constituted under Section 165 read with Section 168 of Motor Vehicle Act is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of 3^rd party arising in use of motor vehicle.  The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side insured, insurer and driver on the other.  In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured.  The decision rendered on the claims and

(Cont.....9)

 

 

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disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.  Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company.  But it has to be decided by an other Forum ie., Forum created under the Consumer Protection Act, 1985 (in short the CP Act).  Before the Tribunal, there were essentially three parties ie., the insurer, insured and the claimants.  On the contrary, before the consumer Forums there were two parties ie., owner of the vehicle and the insurer.  The claimant does not come in to the picture.  Therefore, these are cases where there is no third party involved.

In this case, K.S.E.B has not approached the concerned Motor Accident Claims Tribunal for getting claim of loss happened due to the accident.   This is for the reason that, it has its own mechanism under statute for recovering damages/losses caused to its property by any person.  Board does not have to approach MACT for the said purpose and it never does so.  Due to this the insured is left with  no remedy for his claim to which he is entitled to.    As per the contract of insurance, own damage cover is provided to insured person ie, complainant.  Under these circumstances loss caused by individual act of complainant are to be taken as covered by policy and should be indemnified by insurer.  We are of the considered view that this Forum has jurisdiction to entertain this complaint in view of Hon’ble Supreme Court judgement cited supra .  Point No.1 is answered accordingly.

 

 

(Cont....10)

 

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Point Nos.2 and 3 are considered together.

 Complainant has filed proof affidavit. 8 documents were also produced by him and these were marked as Exts.P1 to P8.  Complainant was examined as PW1.  No other witness was present.  Even though opposite parties have filed written version, neither documentary nor oral evidence were adduced by them.  We have perused proof affidavit of complainant and marked documents.

The insured vehicle of complainant was involved in an accident on 07/06/2018 and it was informed to “Oonnukal Police Station”.  This is proved by general diary abstract.

This vehicle was hit at an electric post which is owned by KSEB, Kothamangalam electrical section No.2 and the post was damaged.  Since the vehicle was damaged  KSEB has claimed an amount of Rs.16,322/- from complainant. Therefore, these amount was remitted to KSEB, Kothamangalam electrical section.  As per Ext.P5, it is seen that from the office of the Assistant Engineer KSEB, Kothamangalam Section has issued a demand notice to complainant for remitting an amount of Rs.16,332/- towards renovation work of damaged PCC type pole due to dashing of complainant’s vehicle on 08/06/2018.  Accordingly, complainant has remitted an amount of Rs.16,322/- to KSEB.  This is proved under Ext.P4.  Hence, 1^st and 2^nd opposite parties are liable to reimburse the amount which has paid by complainant to KSEB.  Non-reimbursement of the claim amount to complainant is deficiency in service on the part of 1^st and 2^nd opposite parties.  Complainant has purchased the vehicle from 3^rd opposite party and he is only the authorized dealer of Mahindra vehicles.  He has delivered the vehicle with insurance.  Hence we are of the opinion that 3^rd opposite party has no other connection with this matter.  Hence, 1^st and 2^nd opposite parties

 

(Cont....11)

 

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are bound to reimburse the claim amount.

 Opposite parties have not adduced any evidence.  Deficiency in service on the part of 1^st and 2^nd opposite parties are proved.  In the result, complaint is allowed in part as hereunder:-

1 . 1^st and 2^nd opposite parties are directed to pay Rs.16,322/- to complainant.

2 . 1^st and 2^nd opposite parties are also directed to pay Rs.10,000/- as compensation and Rs.5000/- as litigation cost to complainant within 45 days from the date of receipt of this order.  Amounts except cost of litigation shall carry interest @ 12% per annum from the date of order till its realization.

Extra copies to be taken back by parties without delay.

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

 

                                                                                        Sd/-

                                                                                SMT.ASAMOL P., MEMBER                                                                                                           

                                                                                                  Sd/-                                                                    

                                                                        SRI.C.SURESHKUMAR, PRESIDENT                                                                                               

                                                                                                   Sd/-                                                                         

                                                                                 SRI.AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

(Cont....12)

 

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 – Jimson C.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1  -  Copy of Certificate of Registration

Ext.P2  -  Letter from 3^rd opposite party to Joint RTO, Devikulam dated 27/03/2018

Ext.P3  -  Copy of certificate of insurance & Policy schedule.

Ext.P4  -  KSEB Bill  dated 08/06/2018

Ext.P5  - Demand note for the renovation work due to dashing of vehicle No.KL-68A

               750 on 08/06/2018 under electric Section No.2, Kothamangalam – reg.

Ext.P6  - Utility certificate dated 08/06/2018

Ext.P7  - General Diary Abstract dated 09/06/2018

Ext.P8  - Notice from Advocate dated 24/07/2018

On the side of the Opposite Party :

Nil

 

                                                                                               Forwarded by Order  

 

 

                                                                                          ASSISTANT REGISTRAR