BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 453/2002 Filed on 28.10.2002

Dated : 28.02.2009

Complainant:

D. Devaraj, S/o Samuel, Ponguvila Veedu, Kannaravila, Nellimoodu P.O, Thiruvananthapuram.

(By adv. R.Vidyadharan)

Opposite party:

The Divisional Manager, New India Assurance Co. Ltd.,Branch II, 26/1436, Government Press Road, Thiruvananthapuram – 1.

(By adv. Sreevaraham G. Satheesh)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 16.08.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 23.01.2009, the Forum on 28.02.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: Complainant is the registered owner of mini lorry bearing Reg. No. KCE 7749. The said lorry met with an accident on 30.12.2001. Due to that accident the complainant had to pay Rs. 11,665/- to the KSEB. This complaint is to receive the said amount from the opposite party because the damages was caused out of the use of the vehicle which was insured with the opposite party.

Opposite party, the New India Assurance Co. Ltd., filed version contending that the complaint is not maintainable. The alleged claim in the complaint is a third party liability and owner of the property damaged has to file an application for compensation under Sec. 166 of Motor Vehicles Act before the Motor Accident Claim Tribunal, if an award is passed under Sec. 168 of Motor Vehicles Act, this opposite party is bound to satisfy that award only. This opposite party is not legally bound to pay any amount to the complainant in violation of the specific provision of the Motor Vehicles Act. Hence the opposite party prayed for the dismissal of the claim.

In this case the complainant and opposite party filed proof affidavit. From the side of the complainant 10 documents were produced which were marked as Exts. P1 to P10. From the opposite party's side 2 documents were marked as Exts. D1 and D2.

Points that would arise for consideration are:-

1. Whether the complaint is maintainable or not?

2. Whether there is deficiency in service or unfair trade practice from the side of opposite party?

3. Reliefs and costs.

Point (i):- In this case there is no dispute regarding the validity of policy or occurrance of accident. The complainant has produced sufficient documents to prove the accident and the payment made by him to the KSEB. The opposite party contended that “The third party who is entitled for compensation out of death, injury or damage to property has to approach the Motor Accident Claims Tribunal under Sec. 166 of Motor Vehicles Act against the owner and insurance company. The Tribunal will pass an award under Sec. 168 of Motor Vehicles Act and the insurance company is liable to pay that amount. This is the clear provision of law. Without the proper adjudication by a Motor Accident Claims Tribunal, the insurance company should not make any payment in a third party claim.” To prove their argument the opposite party produced copy of Chapter XII of Motor Vehicles Act. As per this Act, the Motor Accident Claims Tribunal is constituted for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death 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. In this case the opposite party also produced a decision reported in 2004(1) CPJ. In this decision, it is specifically stated that the consumer courts are not a substitute for Motor Accident Claim Tribunal. This claim arises out of third party liability. Hence this Forum has no jurisdiction to entertain this complaint. Complainant's counsel had argued that even though the matter stands as such inorder to discharge the obligation under the policy of insurance an award or judgement is not mandatory. In this case the payment so made was one which it would have been prudent for the promise to make in the absence of any contract of indemnity. We find that the said argument of the complainant as reasonable and the opposite party ought to have reimbursed the amount paid by the complainant. For the lack of jurisdiction this Forum cannot allow the complaint. Hence the complaint is dismissed. No need for considering other issues. No costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 28^th February 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 453/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of policy schedule.

P2 - Copy of receipt issued by KSEB for Rs. 11675/-.

P3 - Copy of certificate of Registration of Vehicle No. KCE-7749

dated 09.01.1989.

P4 - Copy of goods carriage permit dated 29.11.2001 issued by

RTA, Neyyattinkara.

P5 - Copy of FIR No. 2418 of 30.12.2001 issued by HCT, City

Traffic Police Station, Tvpm.

P6 - Copy of driving licence.

P7 - Copy of badge with paper badge No. 102/NTA/99 dated

17.06.1999 issued by Sub RT Office, Neyyattinkara.

P8 - Copy of complaint.

P9 - Receipt issued by the Post Office for having received the

complaint under certificate of posting.

P10 - Copy of letter dated 31.12.2001 issued by the Assistant

Executive Engineer.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of letter issued by the complainant to the opposite party.

D2 - Copy of letter dated 31.07.2002 issued by the opposite party to the complainant.

PRESIDENT