BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.360 of 2014

Date of Instt. 17.10.2014

Date of Decision :13.03.2015

The Azad Nakodar Bus Service Pvt.Ltd. Jalandhar through its MD Datar Singh through his General Attorney Surinder Pal R/o 44, Arjan Nagar, Ladowali Road, Jalandhar.

..........Complainant

Versus

1. Shri Ram General Insurance Company Limited, IInd Floor, SCO-2, PUDA Complex, Ladowali Road, Jalandhar (Insurer of Bus No.PB-08-AX-9761 of Azad Nakodar Bus Service Pvt. Ltd).

.........Opposite party

Complaint Under Section 12 of Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.RK Tandon Adv., counsel for complainant.

Sh.AK Arora Adv., counsel for opposite party.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that the complainant has insured his bus bearing No.PB-08-AX-9761 with the opposite party and the said vehicle met with motor vehicular accident on 14.4.2011. Complainant has paid a sum of Rs.90,000/- to the widow of deceased Gurnam Singh namely Iqbal Kaur resident of village Ghal Kalan, Tehsil & District Moga on account of death of Gurnam Singh in the above noted motor vehicular accident. A claim petition was instituted on 14.6.2011 in the court of Sh.Harpreet Singh, Motor Accident Claim Tribunal, Moga, which was decided on 2.11.2012 and the same is MACT No.27 dated 14.6.2011. The opposite party was duly represented in the above said claim petition under section 163-A of Motor Vehicles Act. The opposite party has filed written statement and produced the evidence and fact of Rs.90,000/- was proved on the file which was given by the complainant to the claimant Iqbal Kaur. The total amount of compensation was Rs.4,35,800/- and out of which Rs.90,000/- was deducted as averred above. Now the complainant has insured his vehicle with the opposite party and vicarious liability of the complainant was to make good by the opposite party and as such as per that verdict of the court/tribunal, the complainant is entitled to Rs.90,000/- from the opposite party alongwith interest @ 9% per annum. On such like averments, the complainant has prayed for directing the opposite party to pay Rs.90,000/- alongwith interest. He has also claimed damages and litigation expenses.

2. Upon notice opposite party appeared and filed a written reply raising preliminary objections to the effect that complainant is not consumer as per provision of Consumer Protection Act, that the complaint is time barred etc. It further pleaded that any payment made by the complainant to the person to avoid criminal action against the tort-feasor, is not recoverable from the opposite party. As per the averments made in the complaint itself, the complainant has made payment of Rs.90,000/- to the widow of deceased Gurnam Singh namely Iqbal Kaur on account of compromise between the complainant and said Iqbal Kaur to avoid the launching of criminal action against the driver of the bus, who has caused the death of the husband of Iqbal Kaur, while driving bus bearing registration No.PB-08-AX-9761. It further pleaded that complainant is not entitled to recover Rs.90,000/- from it as alleged. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C6 and closed the evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.O1 alongwith copies of documents Ex.O2 and and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. Even if the averments contained in the complaint are accepted to be correct, the complainant made payment of Rs.90,000/- to the widow of Gurnam Singh which tantamounts to payment towards third party claim. Any payment made by the insured to avoid third party claim is not a consumer dispute. The dispute regarding third party claim is not covered under the provisions of the Consumer Protection Act. Moreover, the payment was made by the complainant without consent of the opposite insurance company and it constitute violation of the condition No.2 of the policy. The terms and conditions of the policy Ex.O2 are attached with it. Condition No.2 of the policy at page No.8 provides as under:-

"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 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".

7. So as per this condition, no payment can be made by the insured without the written consent of the insurance company. In the present case, no written consent of the opposite party was taken by the complainant before making the payment of Rs.90,000/- to the widow of deceased who died in motor vehicular accident involving the insured vehicle. So even otherwise, the above payment is in violation of the above condition having not been made by the insured without written consent of the opposite party.

8. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

13.03.2015 Member Member President