IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 08th day of April, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 175/2018 (filed on 30-08-2018)
Petitioner : Aby Thomas,
Arangathu House,
Arumanoor P.O.,
Kottayam.
(Adv.Anil Jose )
Vs.
Opposite party : Shriram General Insurance Co.Ltd.,
Payyil Kohinoor Arcade,
Room No.6, 4th floor,
Sankranthi Junction,
Kottayam, Kerala – 686028.
(Adv. Agi Joseph)
O R D E R
Sri. Manulal V.S. President
The complaint is filed under Section -12 of the Consumer Protection Act 1986.
The nutshell the case of the complainant is that he is the owner of Bharath Benz lorry bearing Reg.No.KL-67A-8071 which is insured with the opposite party. The said insurance policy was a package policy. On 24-3-2018 at about 5AM the lorry hit on divider constructed on the middle of the road at Thiruvalla junction. As a result of the accident traffic signal post constructed on the divider was collapsed and serious damage was caused to the vehicle. The Police authorities made a G.D entry regarding the accident. The Thiruvalla municipality assessed the cost of replacing the traffic signal system at Rs.40,238/- and the same was paid by the complainant. The complainant intimated the nature of accident to the opposite party.
Thereafter the lorry was entrusted with the Autobahn Trucking Corporation Nedumbassery which is an authorized dealer and workshop of the manufacturer of the lorry. The authorized dealer assessed the damage for an amount of Rs. 4,49,456/-. The vehicle was repaired on 10-5-2018 and the dealer issued a final bill for an amount of Rs. 4,89,438/-. Though the complainant informed to the opposite party about the payment to the municipality and final bill the opposite party did not pay the amount till 10-6-2018. Lastly on 11-06-2018 opposite party remitted Rs. 3,97,300 to the account of the complainant. According to the complainant due to the delayed payment by the opposite party he was unable to release the vehicle and thereby suffered a loss of Rs. 1500/- per day for 31 days. It is further alleged in the complaint that as a result of the accident the complainant had spent Rs. 19500/- towards the cost of the front Rt. tyre and Rs.8,500/- as towing charge. According to the complainant he is entitled for a sum of Rs.6,04,176/- for repair the vehicle, but the opposite party paid only Rs. 3,97,300/-. The complainant has filed a statement of accounts for Rs.2,06,876/- which includes Rs.25,238/- and Rs.15,000/- towards municipality charges. Hence this complaint is filed for the balance amount of Rs.2,06,876/-.
Upon notice opposite party appeared before the forum and filed version as follows:
The complainant is not a consumer as defined in the consumer protection act. Consumer dispute redressal forum has no jurisdiction to adjudicate the damages caused to the property of a third party. Hence the complaint is not maintainable. It is further contended that as per the policy conditions the insurance company is not liable to pay the amount to the insured if the party had paid any amount to the owner of the damaged property without the consent of the insurer. It is submitted in the version that the opposite party appointed a surveyor for assessing the loss of vehicle and he had assessed the loss only as Rs. 3,07,300/- as the amount actually incurred for repairing the vehicle as per the terms and conditions of the policy. The opposite party has right to deduct depreciation , policy excess etc. the complainant received Rs. 3,97,300/- as full and final settlement . The opposite party is not liable to pay any amount consequential damage or the cost for the replacement of tyre and towing charges etc. there is no deficiency in service on the part of the opposite party.
Complainant filed proof affidavit in lieu of chief examination and Exhibits A1 to A13 marked. Surveyor of the opposite party examined as Dw1 and Ext.B1 to B4 marked on the side of opposite party.
On going through the complaint version and evidence on record we would like to consider the following points.
- Whether the complaint is maintainable or not ?
- Whether there is any deficiency in service from the part of opposite party 1 to 4 ?
Point No. 1
The opposite party contended that complaint is not maintainable. It is averred that the complainant is using the vehicle for commercial purpose and the complainant is not a consumer as defined in the Consumer Protection Act. It is admitted by the opposite party that the complainant availed the service of the opposite party by insuring his vehicle. Though, the opposite party contended that the complainant used the vehicle for commercial purpose they did not have a case that he has another source of income for his livelihood. The employment of a few persons for the purpose of assistance in the activity carried out by the purchaser would not automatically render the commercial activity as not being for self-employment and for earning his livelihood; rather, this would have to be determined from the facts and circumstances of a given case. In M/s Harsoli motors vs National insurance company Ltd. it was held that, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit.
The contentions that the jurisdiction of the Forum is ousted to deal with this case is not sustainable since this complaint is preferred not by any third party but by the insured himself. Ext.A1 is the copy of the Insurance Policy and Exhibit B1 is none other than the copy of A1. Exhibits A1 and B1 proves that the insurance policy was issued in the name of the complainant. Hence the complaint is maintainable before this Forum.
Point No. 2 and 3
Exhibits A1 and B1 proves that the vehicle of the complainant bearing Reg.No.KL No.-67A-8071 is insured with the opposite party for the period of 24-11-17 to 23-11-2018 under a package policy cover. According to the complainant on 24-3- 2018 at about 5AM the lorry hit on divider constructed on the middle of the road at Thiruvalla junction and caused damages to traffic signal post and to the vehicle. Exhibit A2 is the extract of general diary entry of Thiruvalla police station dated 6-4-2018. It is proved by exhibit A2 that the vehicle of the complainant had hit on the traffic signal post which was standing on the side of the road side and thereby caused damages to the vehicle and the traffic post owned by the Thiruvalla municipality. It is averred in the complaint that though the complainant paid at Rs. 40,238/- to the Thiruvalla municipality as cost for the damages caused to the traffic signal post. Exhibit A8 certificate which was issued by the Secretary of Thiruvalla municipality proves that an amount of Rs.40,238/- has been paid by the complainant to the municipality towards the compensation for the damages sustained by the municipality.
According to the complainant though he had spent Rs. 4,89,438/- in the workshop to repair the vehicle but the opposite party allowed the claim only for Rs.3,97,300/-. It is admitted that the opposite party had appointed a surveyor for assessing the loss of vehicle. The surveyor vide exhibit B2 report assessed the loss only as Rs.3,97,300/- as the amount actually incurred for repairing the vehicle as per the terms and conditions of the policy.
As per Section 1 of exhibit B1 terms and conditions of the policy the opposite party is entitled to deduct 50% of the prize, for all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags which are to be replaced during the repair works. On perusal of B1we can see that the opposite party had made a deduction as per the terms and conditions of the policy.
Next question is to be answered is whether the opposite party had committed deficiency in service by not allowing the damages caused to the third party property.
Only contention of the opposite party that for the TPPD claim (Third Party Property Damage) claim a case has to be filed at the court, and only after receiving summons the matter will be considered. Except this no other specific reason is stated not to honor the claim. The complainant also had the case that he settled the payment made to Muncipality towards the damages caused to the traffic signal post after due intimation to opposite party.
The Ext.A4, A5 are the official receipt issued by municipality and A8 is the certificate for receipt of Rs.40,238/- towards the expenses for the replacement of the traffic signal posts as stated in Ext.A2 G.D. Entry. We do not find any reason to disbelieve those documents. The Hon’ble Kerala State Consumer Disputes Redressal Commission had an occasion to consider similar issue in (Appeal No.409/2002). New India Assurance Co. Ltd V. P.B. Raghunath decided on 8-4-08. In the said appeal the Hon’ble State Commission directed the insurer to pay the amount paid by the insured to K.S.E.B for the electric post damaged in the accident.
The Hon’ble supreme court on June 18, 2020 {Surendra Kumar Bhilawe vs The New India Assurance Company Limited} held that “the policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. It was held that the Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident.”
On the basis of above discussion we are of the opinion that the opposite party had committed deficiency in service by not indemnifying the amount which was spent by the complainant to third party property damage caused due to the accident. Due to the deficient act of the opposite party the complainant had suffered much hardship and loss for which the opposite party is liable to compensate him.
In these circumstance we allow the complaint in part and pass the flowing order.
We hereby direct the opposite party to pay Rs.40,238/- to the complainant with 9% from 30-8-2018 ie the date on which the complaint is filed till realization.
We hereby direct the opposite party to pay Rs.5,000/- to the complainant as the cost of this complaint.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 08th day of April, 2022.
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of the Complainant
Nil
Witness from the side of the Opposite party
DW1- Ankit Vettickal Satyan
Exhibits marked from the side of complainant
A1- Copy of RC book of Lorry bearing No.KL-67-A-8071
A2- Copy of G.D. entry dated 06.04.2018 of Thiruvalla Police Station.
A3- Copy of Driving Licence
A4- Copy of the receipt bearing no.01/11701109499 of Thiruvalla Municipality
dated 24.03.2018 for Rs.15,000/-
A5- Copy of the receipt bearing No.01/118010100151
A6- Copy of the e-mail letter showing delayed payment 31 days by the opposite
party
A7- Original of the insurance policy No.419012/31/18/002152
dated 24/11/2017
A8- The original certificate stating the receipt of Rs.40,238/-
A9- Original of the statement HDFC Bank
A10- Original bill of the tyre Rs.19,500/-
A11- Original estimate issued by Autobahn trucking corporation
Pvt. Ltd for Rs.4,49,456/-
A12- Original receipt service voucher issue by Autobahn Trucking Corporation
for Rs.4,39,438/-
A13- Original receipt service voucher issued by Autobahn Trucking Corporation for Rs.50,000/-
Exhibits marked from the side of opposite party
B1- Copy of the policy with its conditions
B2- Copy of the survey report
B3- Certificate cum policy schedule
B4- Survey Report issued dated 24.05.2018
By Order
Assistant Registrar
