orders
THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 374/2009
Tuesday, the 16th day of August, 2011
Petitioner : Bobby Joseph,
Vallikkattu Earth Movers,
Kanakkary, Kottayam.
(By Adv. Ajithan Namboothiri)
Vs.
Opposite parties : 1) The Divisional Railway Manager,
(Works), Southern Railway,
Thiruvananthapuram – 14.
(By Adv.A.J. Dominic)
2) The Divisional Manager,
National Insurance Company Ltd.,
CSI Square, Baker Hill,
Kottayam – 1.
(By Adv. C.J. Jomi)
O R D E R
Sri. Santhosh Kesavanath, President.
Case of the petitioner filed on 15..12..2009 is as follows:
Petitioner is doing contract business including earth filling and allied works in connection with construction works of first opposite party. As per agreement No. 66/TVC/2005 of 10..6..2005, petitioner is entrusted by 1st opposite party to conduct earth filling works in Kottayam – Ernakulam Railway line. On 9..1..2008 during the course of work, the tipper lorry of the petitioner hit against the OHE/Mast at KM-555/1 between Kottayam-Ernakulam Section, at 16.30 hours, and caused damage to it. The damaged material and cost of labour involved is calculated by 1st opposite party as Rs. 1,06,000/- compensation amount was realized from the petitioner by the first opposite party. On 9..1..2008 RPF filed a complaint against the driver of the vehicle before CJM, Kottayam. Offence alleged is U/s 154 of Railway Act.
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Petitioner’s vehicle was validly insured with second opposite party at the time of accident. Petitioner approached second opposite party for indemnifying the damages sustained to the petitioner. But second opposite party has not so far indemnified damage sustained to the petitioner. According to the petitioner act of the opposite party amounts to deficiency in service. So, he prays for refund of the amount with 12% interest , compensation and cost.
First opposite party entered appearance and filed version contending that petition is not maintainable. First opposite party has been necessarily made party to the proceedings. Petitioner is not a consumer and the dispute is not a consumer dispute. Petitioner is a work contractor he has been doing work under the name and style M/s. Vallikkatt Earth Movers, Ettumanoor, Kottayam. First opposite party admitted the accident sustained to the petitioner’s vehicle during the course of work. Amounts as damages in the tune of Rs. 1,06,000/- was with held from the part bill of the petitioner, as the claim for damage of the railway against the contract was satisfied. First opposite party did not take any legal action for recovery. According to the first opposite party there is no deficiency in service and they pray for dismissal of the petition with their costs.
Second opposite party entered appearance and filed version contenting that the petition is not maintainable. Proper authority for filing petition for insurance amount for personal injury or property damage of 3rd party is motor accident claim tribunal constituted under Motor Vehicle Act. Complaint is barred by limitation as per Section 165 of the said act. Petitioner is engaged in large scale contracting business and therefore he is not a consumer within the meaning of the Consumer Protection Act. Second opposite party denied the contract of the petitioner with the first
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opposite party if at all any accident occurred to the vehicle on 9..1..2008 same has to be proved by the petitioner based on cogent and reliable evidence. Since the insurer violated the conditions of the policy, the insured, or the 3rd party is not entitled to get the insurance amount from the insurer. Damage is not assessed by an independent surveyor. According to the opposite party due to the violation of the policy condition. Petitioner is not entitled for any amount. So, they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether the petition is maintainable or not?
ii) Whether there is any deficiency in service on the part of the opposite party?
iii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A10 documents on the side of the petitioner and Ext. B1 document on the side of the opposite party.
Point No. 1
According to the opposite party petition is not maintainable on following reasons.
a) As per section 165 and 175 of the Motor Vehicle Act a claim with respect to damages caused to property of 3rd party comes within the jurisdiction of the tribunal constituted under the M.V act. As per S-175 when there is a jurisdiction confirmed on the tribunal Civil Court have no jurisdiction.
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b) Petitioner is engaged in large scale contract business and therefore he is not a consumer within the meaning of Consumer Protection Act. With regard to the first argument of maintainability.
Section 165 and 175 of the motor vehicle act 1988 is to be analyzed . Section 165 states with regard to the constitution of MACT for such area for the purpose of adjudicating upon claim for compensation, in respect of accident involving death, bodily injury, arising out of the use of motor vehicle or damage to any property of a 3rd party so, arising.
Section 175 states that no civil courts shall have jurisdiction to entertain any question relating to any compensation and is to be adjudicated upon by the claims tribunal for the area. In our view the said section 165 or 175 will not take away the jurisdiction of the CDRF. Further more section 3 of the Consumer Protection Act states that the provisions of the Consumer Protection Act shall be in addition to and not in derogation of provisions of any other law for time being in force. So, in our view the provisions of the Consumer Protection Act is an additional remedy for the consumer and it is the open to the consumer either to approach the claims tribunal or the consumer Fora. Hon’ble National Consumer Dispute Redressal Commission in Union of India & Another Vs. Savitaben Sumanbhai Patel & others (Reported in 2011 (111) CPJ 34 NC Page- 34) stated that section 3 of Consumer Protection Act 1986 provides additional remedy to the consumer and as such consumer fora are competent to entertain claims covered under relevant section of Railways Act 1989 and Railway claim Tribunal Act 1987. In case of claim for compensation due to death of a passenger.
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Further more here the petition is for indemnifying the amounts which is given by the petitioner to the first opposite party. Here there is no need for fixing upon the claim for compensation. Section 165 of the MV Act states that the MACT shall adjudicate upon claim for compensation in respect of bodily injury and damages to property of 3rd party. So, in our view like wise in the case of railway Act 1989 section 175 of Motor Vehicle Act does not take away Jurisdiction of Fora.
Second contention with regard to the maintainability is that since the petitioner is engaged in large scale contracting business. So much so he is not a ‘consumer’. In our view dispute is with regard to the hiring of service, in respect of the insurance contract between the petitioner and second opposite party, insurance company. So, the large scale contracting business or petitioner’s commercial activity has no nexus in the present dispute. So, in our view petitioner is a consumer and the petition is maintainable before this Fora. Point No. 1 is found accordingly.
Point No. 2
Petitioner alleges deficiency on the part of the second opposite party in non refund of the amount which is given by the petitioner to the first opposite party. According to the second opposite party as per the policy condition the accident should
be reported to the insurance company. Insurance company lost opportunity to appoint independent surveyor come loss assessor to ascertain the actual damages. Opposite party contented that the vehicle is driven by a person having no valid driving licence . No notice in writing is given to the company with regard to the accident so, claim of petitioner is not allowable. In our view the stand taken by the insurance company is not acceptable. Admittedly the mast of the railway was damaged due to the hit of tipper lorry. Railway filed complaint to the CJM under
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Section 179 and 180 of the railway act. Copy of the complaint filed by the railway is produced and same is marked as Ext. A2. From Ext. A2 it can be seen that tipper lorry bearing register No. KL 5 – G –7711 hit on the mast of the railway. As a result of the accident delay to the journey of 2 express trains were caused. Railway protection force assessed the damage as 1,06,000/-. From Ext. A1 letter it can be seen that opposite party admitted recovery of the Rs. 1,60,000/- from the petitioner and same was credited to the account of railway. In our view a mast, belongs to southern railway is an essential public utility and repair to the damages to the public property is to be done immediately. Issuing notice to the insurance company , waiting for a long time for appointing a surveyor and getting 3rd party damages from the insurer to repair a mast belongs to southern railway will not be possible in a public utility service. So, the non reimbursement of the amount which is given by the insured to the 3rd party amounts to deficiency in service. Second opposite party has a definite case that driver of the lorry has no driving licence. Ext. A10 is the attested copy of the driving licence produced by the petitioner. From Ext. A2 complaint it can be seen that the RPF has no case that driver of the vehicle, involved in the accident, is not having a valid driving licence. From Ext. A2 the possible inference that can be drawn is that the driver of the vehicle is having a valid driving licence. So, point No. 2 is found accordingly.
Point No. 3
In view of the finding in point No. 1 and 2. Petition is allowed. In the result 2nd opposite party National Insurance Company is ordered to pay the petitioner an amount of Rs. 1,06,600/-, the amount recovered from the petitioner towards cost of the damage to the railway. Without saying what had happened caused loss and
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sufferings to the petitioner so 2nd opposite party Insurance Company is ordered to pay the petitioner an amount of Rs. 5,000/- as compensation . Petitioner is entitled for an amount of Rs. 3,000/- as litigation cost from 2nd opposite party. Order shall be complied with within one month of receipt of a copy of this order. If not complied as directed award amount will carrying 9% interest from the date of order till realization.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 16th day of August, 2011.
Fora sumoto recalled the order dtd: 16..8..2011, on the ground that their is error apparent on the face of the pronounced order, so corrected order issued accordingly on 12..9..2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner.
Ext. A1: Policy certificate
Ext. A2: Complaint filed before the CJM, Kottayam
Ext. A3: Letter Dtd: 10..1..2008 given by the section Engineer to the RPF Inspector
Ext. A4: Lawyers notice.
Ext. A5: Postal receipt
Ext. A6: Postal AD card
Ext. A7: Postal receipts
Ext. A8: AD card
Ext. A9: Letter Dtd: 23..10..2009
Ext. A10: Copy of driving licence of Radhakrishnan Nair.
Documents for the opposite party:
Ext. B1: Policy conditions.
By Order,
Senior Superintendent
