CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member
CC No. 160/2011
Monday, the 30th day of January, 2012
Petitioner : P.M. Luka,
Advocate ,
Palathumkal House,
Thellakom P.O
Karithas, Kottayam.
Vs.
Opposite party : The Manager,
National Insurance Co. Ltd.
Sasthri Road, Kottayam.
(By Adv. C.J. Jomi)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed 27..6..2011 is as follows:
Petitioner insured his vehicle, bearing No. KL 5- A.B 6888 with the opposite party National Insurance Company. On 3..3..2011 while the petitioner was driven the vehicle through Ettumanoor-Athirampuzha road it hit on an Vehicle hitting on a electric post owned by KSEB. Due to the accident vehicle was damaged and petitioner preferred a claim to the opposite party for the damages sustained to the vehicle. Opposite party processed the claim for own damage. Petitioner for the loss sustained to the electricity board had paid Rs. 5887/-. Petitioner preferred 3rd party claim to the opposite party. But opposite party has not so far processed the claim of the petitioner and paid the claim amount. So petitioner prays for refund of the amount which is given by the petitioner to the KSEB with 12 % interest from 8..3..2011 till realization.
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Opposite party filed version contenting that petition is not maintainable. According to the opposite party proper authority for filing the petition for insurance amount for personal injury or property damage of 3rd party is the Motor Accident Claims Tribunal. Petition is barred by section 175 of Motor Vehicle Act. Petitioner cannot step in to the shoe of 3rd party and file petition against the insurer. Petitioner already received eligible insurance amount under own damage and he issued voucher for full and final settlement. Opposite party has no knowledge about the payment if any made to the KSEB by the petitioner. Opposite party never made any assurance to
the petitioner regarding the reimbursement of amount . As per policy condition notice shall be given in writing upon the occurrence of the accident and the loss has to be assessed by an independent surveyor. Further more as per the policy condition no admission offer promise payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the company. According to the opposite party there is no deficiency in service on their part and 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 deficiency in service on the part of the opposite party?
iii) Relief and costs?
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Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A8 documents on the side of the petitioner and Ext. B1 document on the side of opposite party.
Point No. 1
According to the petitioner petition is not maintainable on two grounds. The proper authority constituted for the 3rd party claim is the Motor Accident Claim Tribunal and petitioner cannot step in to the shoe of the 3rd party and file petition against the insurer.
In our view above two grounds raised by the opposite party is not maintainable because as per Section 3 of the Consumer Protection Act. Provisions of the Consumer Protection Act is not in derogation of any other law but in addition so, the petitioner can either file a petition before the Consumer Fora or MACT constituted under MV Act. Further more here this petition is not filed by the petitioner by crepting into the shoe of a 3rd party. Claim of the petitioner is for refund of the insured amount which is given by the petitioner to a 3rd party. In our view petition is maintainable before this Fora.
Point No. 2
According to the petitioner act of the opposite party in non refund of the amount which is given by the petitioner to the KSEB amounts to deficiency in service. Petitioner produced the policy certificate cum schedule said document is marked as Ext. A6 (a). As per the policy there is 3rd party property coverage to the vehicle which is owned by the petitioner. Ext. A3 is the GD extract of the Ettumanoor police station. From Ext. A3 it can be seen
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that vehicle of the petitioner underwent an accident by hitting the vehicle to an electric post owned by the KSEB. From Ext.A2 and A2(a) it can be seen that petitioner paid an amount of Rs. 5887/- to the KSEB. From Ext. A4 notice it can be seen that petitioner had intimated the opposite party about the accident.
According to the opposite party since petitioner had not intimated the opposite party in writing about the accident petitioner is not entitled for the loss of damage. Further more, no payment shall be made by the opposite party in which any act done by the insurer, without written consent of the company. In our view both the above grounds for non refund of the amount is not sustainable because, KSEB is a public utility service. Preferring a claim by the petitioner and taking a long time for processing the claim in case of damage caused to public utility service is not practically possible. From Ext. A2 and A2(a) it can be seen that petitioner paid an amount of Rs. 5,887/- to the KSEB. Opposite party has not adduced any evidence to show that so much amount is not given by the petitioner to the KSEB or else the petition is filed by the petitioner in collusion with the KSEB. In our view non refund of the amount which is remitted by the petitioner amounts to clear deficiency in service. Point No. 2 is found accordingly.
Point No. 3
In view of the finding in point No. 1 & 2 Petition is allowed. In the result opposite party is directed to pay the petitioner an amount of Rs. 5887/- Opposite party is ordered to pay an amount of Rs. 1,000/- as litigation cost to the petitioner. Order shall be complied with within one month of receipt of a copy of this order. If the order is not complied as directed petitioner is
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entitled for 9% interest for the award amount from the date of petition till realization. Considering the facts and circumstances of the case no compensation is ordered.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 30th day of January, 2012.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner
Ext. A1: Letter Dtd: 8..3..2011 issued by the A.E to the petitioner.
Ext.A2series: Receipts
Ext. A3: GD extract of Ettumanoor Police Station Dtd: 16..3..2011
Ext. A4: Notice Issued by the petitioner to the opposite party Dtd:
5..4..2011
Ext. A5: Copy of the driving licence
Ext. A6: Copy of the certificate registration
Ext. A7; Postal AD Card
Ext. A8: Copy of Job card.
Document for the Opposite party:
Ext. B1: Policy Certificate.
By Order,
Senior Superintendent
