Thana P.O., Kannur.

(Rep. by Adv. K. Gopakumar)

The Divisional Manager,

Oriental Insurance Co. Ltd.,                                 :         Opposite Party

S.N. Park Road, Kannur

(Rep. by Adv. V.V. Gopinathan)

O R D E R

Sri. K. Gopalan, President

This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 7,376  with interest at the rate of 12% and to pay `10,000 as compensation for the mental agony and hardship. 

The brief facts of the case of the complainant is as follows :  The complainant is the owner of the vehicle No.KL13J6939.  The vehicle was insured with the opposite party from 13.10.2010 to 12.10.2011.  On 31.03.2011 the vehicle met with an accident.  It was dashed to an electric post and caused substantial damages to the vehicle. Matter was intimated to opposite party on 01.04.2011 and requested for claim form to prefer claim.  But his request was turned down on the ground that the course open to the complainant is to lodge a complaint before competent court.  Meanwhile KSEB claimed the amount from the complainant and complainant had paid ` 7,376 on 01.04.11 to KSEB to avoid further consequences in the event of non-payment of amount.  The denial of claim is a violation of condition of policy. Complainant is entitled to get the amount he paid to the KSEB in connection with the damages caused to the electrical posts.  Hence this complaint.

Pursuant to the notice opposite party entered appearance and filed version denying the main allegation of complainant. The brief of the contentions raised by the opposite party are as follows:  The damage was caused to the electric post of KSEB.  KSEB is a third party and the complainant settle the claim directly.  As per the provisions of MV Act, the insurer and insured can not settle the claim without the third party being made a party to the dispute and for this also the claim has to be made before the M.A.C.T. having jurisdiction.   If complainant had made any settlement with the third party directly, this opposite party is not liable for the same.  As per the provisions of the Act KSEB as a third party should approach M.A.C.T. for compensation against the owner, driver and insurer. Complainant should have advised KSEB accordingly instead of settling the claim directly. Opposite party is not liable for any relief claimed.  Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency on the side of the complainant?

2.     Whether the complainant is entitled for the relief as prayed for?

3.     Relief and cost?

The evidence consists of oral testimony of complainant and documentary evidence Ext.A1 to A4 on his side and Ext.B1 on the side of opposite party.  Opposite party has no oral evidence.

Issue No.1 to 3 :

          Admittedly the insured vehicle met with the accident on 31.03.2011 whereby damage was caused to the electric post of KSEB.  Complainant approached opposite party to request for claim form to prefer claim.  But opposite party responded negatively on the ground that KSEB is a third party and to settle the claim, KSEB has to approach M.A.C.T. Opposite party contended that they are not liable to reimburse the amount that the complainant paid to KSEB since he is not entitled to settle the matter with the party.

          Ext.B1 makes it clear that the company will indemnify the insured in the event of accident caused by or arising out of the use of motor vehicle anywhere in India against all sums including claimant’s costs and expenses which the insured shall become legally liable to pay in respect of damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured upto the limit specified in the schedule.  Complainant adduced evidence by way of chief affidavit in tune with his pleadings.  He has stated that the vehicle met with the accident was insured with the opposite party but they denied the claim on the ground that the KSEB has to approach M.A.C.T. for the damage suffered by them and the complainant is not entitled to settle the claim.  Complainant has paid `7,376 as per the demand notice of KSEB.

          Ext.A1 is the demand notice issued by KSEB to pay an amount of `7376.  It also contain the details of the amount.  Ext.A4 certificate issued by Sub Inspector of Police, Kannur for the purpose of producing before Insurance Company, reveals that complainant has paid `7376 as per the demand notice issued from KSEB. It is also reveals that an enquiry has been conducted by police with respect to the accident and found this incident true.  The above examined documents prove that the insured vehicle was hit to electric post on 31.03.11 and 2 electric posts were damaged.   Ext.A2 receipts five in numbers undoubtedly proves that complainant has made the payment Ext.A3 sent by opposite party stated the reason for non-consideration of the claim that as per Act third party property damage claim will be entertained through court only.  The evidence adduced by the complainant and also Ext.A1 to A4 very well establish that the incident and payment are true and correct.

          Complainant did not explain that he had no otherway except paying the amount to KSEB.  It was also not made clear whether he has made enquiry with KSEB in respect of approaching MACT to realize their amount. The main contention of opposite party is that as per Section 165 and 166 of M.V. Act 1988 MACT is only having jurisdiction for the purpose of adjudicating upon claims for compensation in respect of accidents involving damages or any property of a third party.  This is a provision clearly intended to prevent the party from taking advantage from settling the matter between the holder and the third party.  Two basic question covered by principles behind this provision.  The first one is to prevent the insured from deciding the quantum.  The second one is to prevent the bargaining or profit motive and taking advantage out of fixing the quantum.  The very creation of the provision is to achieve these goals to be free from these possible evils and not to take away any legal right of the policy holder. Herein the amount of payment is decided by KSEB and not by the complainant.  He has no role in determining the amount.  KSEB is a public utility service under the Government of Kerala.  Individual interest or profit motive is totally absent in determining the quantum.  No question of taking advantage in determining the quantum does arise in this case for making payment to KSEB.  People are readily coming forward to make payment only because it is a Government institution.  That is also a reflection of reputation towards the state and disrespect to this trend will certainly effect negatively to a law obeying citizens which the provision or law makers never intended so.  Hence the insured/complainant can not be punished on interpreting the provision technically on payment of a due amount assessed by a Government institution.  An ordinary citizen is not able to ask the Government to go to MACT to recover the amount. Since it is a matter of worry of action supposed to be initiated by KSEB, which is empowered to do so.  It is pertinent to note that U/s 139 Electricity Act, 2003…… whoever damages any material connected with the supply of electricity  shall be punishable with fine which may extend to 10,000.  Ext.A1 shows that Electricity Board is asked complainant to remit an amount of Seven Thousand Three Hundred and Seventy Six Rupees towards the damage to Board property.  Complainant has no other way except paying the amount.  If that is the situation there is no justification for the repudiation of the claim.  Hence we are of opinion that opposite party is liable to reimburse the amount.  Complainant is entitled for the amount paid by him as well as the cost of this litigation, since he has paid only an amount legally liable to pay to KSEB.  Thus issues No.1 to 3 are found in favour of complainant.  Order passed accordingly.

          In the result, complaint is allowed directing the opposite party to pay ` 7,376 (Rupees Seven thousand three hundred and seventy six only) together with ` 1000 (Rupees One thousand only) as litigation cost to complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.

                          Sd/-                            Sd/-                     Sd/-

            President                     Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Estimate given by KSEB to the complainant dated 31.03.2011.

A2.  Receipts issued by KSEB to complainant dated 01.04.11 (5 Nos).

A3.  Letter issued by opposite party to the complainant dated 05.04.11.

A4.  Certificate issued by SI of Police, Kannapuram Police Station dated    

       07.04.11.

Exhibits for the opposite party

B1.  Copy of the Liability only Policy.

Witness examined for the complainant

PW1.  Complainant

Witness examined for the opposite party

Nil

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT