SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint for getting an order directing opposite party to pay Rs.60,000/- to the complainant together with Rs.10,000/- towards the cost of this litigation.
Brief facts of the case is that the complainant is the R C owner of JCB bearing No. KL 86-9262 insured with OP No.1 and Policy No. is 443400/31/2023/10766. On 25/01/2023 when the JCB was operating by its driver ie. OP2 , happened to destroy the smoke pipe and other accessories which is eructed in the crematorium meant for public. Consequently, public crematorium committee filed a petition before the Payyannur police station and same was concluded directing this complainant to restore the crematorium in its former situation by doing necessary repairs. The case of the complainant is that OP has to reimburse the amount spent by the complainant for the restoration of the damaged smoke pipe and accessories in the crematorium as the vehicle JCB was duly insured with OP No.1. Complainant averred that as per the interference of police, in the complaint filed by crematorium committee, he had to spent Rs.60,000/- for the restoration of the damaged smoke pipe and accessories in the crematorium. Under the above circumstances, on 14/02/2023, this complainant had caused to issue a lawyer notice to OP. After receiving the lawyer notice, the OP to issued replay notice on 22/01/2023 rejecting the claim made by this complainant. The OP being the insurer, is liable to indemnify this complainant for the loss. Hence this complaint.
After receiving notice, OP filed version admitting the insurance of the JCB bearing registration No. KL 86/9262 with 1st OP as per the policy referred in the complaint for the period from 01/10/2022 to 30/09/2023. The liability under this policy is governed as per the terms and conditions, exclusions, exceptions and other clauses contained in the policy as well as the provisions of Motor vehicle Act and other relevant laws relating insurance. OP 1 denied the allegations raised by the complainant. As per the terms and conditions of policy, the insured, the complainant herein, is not entitled to get hi reimbursed by the 1st OP for any amount allegedly paid by him to any third party. For damage to the properties of third parties as may be caused into the course of use of the insured vehicle, the affected/aggrieved party has to adjudicate his entitlement to get any compensation before a court of law, now Motor Accidents Claims Tribunal, and secure an award in his favour. It will be according to such awards or orders, the insured or insurer becomes liable to pay such compensation amount to the entitled persons. It is only in the event of such an award, the 1st OP will be liable to pay any compensation to anyone for damages to any 3rd parties. This was duly communicated to the complainant as per the reply sent by the 1st OP to the complainant’s advocate. There was no deficiency in service form the side of the 1st OP. Hence, prayed for the dismissal of complaint.
Opposite party No.2 was declared as ex-parte.
Complainant filed his proof affidavit and documents. Examined as Pw1. Marked Ext.A1 to A4. Pw1 was subject to cross-examination by OP No.1. Two more witnesses were examined on the side of complainant as Pw2 and Pw3. On the side of OP No.1, the insurance policy with conditions is marked as Ext.B1. After that the learned counsel of OP made argument.
The case of the complainant is that OP has to reimburse the amount spent by the complainant for the restoration of the damaged smoke pipe and accessories in the crematorium as the vehicle JCB was duly insured with OP No.1. Complainant averred that as per the interference of police, in the complaint filed by crematorium committee, he had to spent Rs.60,000/- for the restoration of the damaged smoke pipe and accessories in the crematorium.
On the other hand OP No.1 contended that as per the terms and conditions of policy, the complainant is not entitled to get him reimbursed by the OP No.1 for any amount allegedly paid by him to a third party. The learned counsel submits during argument that the said condition is mentioned in condition No.2. Further submits that clause 165 of Motor Vehicle Act, empowers the state Government to constitute claims Tribunals to adjudicate upon claims for compensation arising out of Motor vehicle accidents, resulting in death or bodily injury to persons or damages to any property of third parties. The learned counsel submitted judgment of Hon’ble Supreme Court of India.
The learned counsel of complainant submits that through Pws 2 and 3 and through himself, he proved his case, that he had spent Rs.70,000/- for restoration of the damaged smoke pipe in the crematorium.
Here, through complainant had spent Rs.70,000/- for restoration of the damaged smoke pipe as per clause 165 of Motor Vehicle Act, clearly envisages that “for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both only through claims Tribunal.
Further submits that as the complainant had already spent the amount to the third party without the written consent of the insurance company, OP company is not liable to indemnify the loss happened by using the insured vehicle.
So from the aforesaid facts and circumstances of this case there is no deficiency in service on the part of OP No.1 insurance company in rejecting the claim made by the complainant.
In the result complaint is dismissed. No order as cost.
Exts.
A1-Estimate prepared by J P Engineering (subject to proof)
A2- Copy of lawyer notice
A3- Reply notice
A4- Insurance certificate
B1- Insurance policy with conditions
Pw1- Complainant
Pw2-Hemaraj C- Witness of complainant
Pw3-K Jayaprakash- Witness of complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
