DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of November 2020

Present: Sri.V.P.Anantha Narayanan, Member(President I/c)  

              : Smt.Vidya.A, Member                                                        Date of Filing:25/09/2018

CC /120/2018

Ummer.M,

S/o.Muhammed Musliyar,                                                      -           Complainant

Mundekkattthodi House,

Nellaya Post, Palakkad District.

Pin - 679 335.

(By Party in Person only)                                           

V/s

1. The Manager,

National Insurance Company Ltd.,

Divisional Office-1,

P.B.No.207, Parco Tower,

Pm Taj Road, Calicut, Pin – 673 001.

2. The Manager,

National Insurance Company Ltd.,

M.G.Road, Thrissur,Pin – 680 001.

3. The Manager,- Opposite parties

National Insurance Company Ltd.,

Fort Maithan, Palakkad,Pin – 678 001.

(By Adv.A.R.V.Sankar for Opp. parties 1, 2 & 3)

4. The Manager,

Eram Motors Private Ltd.,

NH 47, Bypass Road,

Kuttanallur.P.O, Thrissur,

Pin – 680 014.

5. The Manager,

Eram Motors Private Ltd.,

Ami Building, Mepparambu,

Pirayiri, Palakkad – 678 004.

(By Adv.V.K.Ramachandran for Opp. parties 4&5)

O R D E R

By Smt.Vidya.A, Member

Brief facts of the complaint  

            The complainant along with his family was travelling in his vehicle Mahindra XUV 500 with Reg:KL-52H-7700 from Thrissur to Cherpulassery, Palakkad on 09/10/2015.  When they reached near Cheruthuruthy Town, the vehicle skid and due to slipping movement it hit on the electric post and both the vehicle and the electric post got damaged.  Then the complainant informed about this accident to Cheruthuruthy Police Station and as per the direction of the Sub Inspector, he paid Rs.18,048/- including labour charges in Cheruthuruthy KSEB for reinstating the electric post.

            The vehicle was entrusted for repair in Mahindra Eram Motors Pvt. Ltd. Service Centre in Thrissur.  The complainant submitted the original insurance policy, together with original bill and original estimate for Rs.18,048/- paid in Cheruthuruthy Electricity Office before the Eram Motors Pvt. Ltd. Service Centre.  They informed the National Insurance Company and as per their surveyor’s report and estimate the vehicle got repaired and they paid the repair charges.  But the complainant did not receive the amount of Rs.18,048/- till now.  The complainant contacted the Service Centre, Eram Motors and they informed him that they have sent the original policy and original receipt and estimate to National Insurance Company.  Eventhough the complainant contacted the insurance company several times, they did not reimburse the amount paid to Kerala State Electricity Board.  He took Bumper to Bumper insurance policy from National Insurance Co. Ltd., Calicut Division for the period from 16/03/2015 to 15/03/2016 and paid an amount of Rs.37,905/- as premium.  The complainant is entitled to get the insurance claim as per the Bumper-to-Bumper policy.  So this complaint was filed in order to pay Rs.18,048/-, the amount paid by him for reinstating the electric post together with interest for 3 years and an amount of Rs.15,000/- as compensation for mental agony and cost of litigation from the insurance company.

            Complaint admitted and notice issued to the opposite parties. The opposite parties appeared and filed their version.

The main contention raised by the opposite parties 1 to 3 in their version:

The complaint is not legally maintainable.  It is vexatious and frivolous.  The own damage claim of the petitioner was paid within 20 days.  The present claim is for 3^rd party property damage of Kerala State Electricity Board.  This Forum has no jurisdiction to decide the cases which are coming under the Motor Vehicles Act.  The opposite parties have not received any claim from Kerala State Electricity Board.  The insured is not permitted to settle any third party claim without giving notice to the insurer.  The opposite parties have not received any such notice or information.  In order to settle third party claims, police case or report is necessary.  According to these opposite parties, this is a false claim made by the petitioner in the name of Kerala State Electricity Board.  The claim is not payable directly to the complainant.  No such damage is caused to the electric post of Kerala State Electricity Board in the accident.  No survey is concocted by anybody due to want of information.  The claim which is filed after   three years is also barred by limitation.

2.         The policy issuing office is at Calicut and the repairer is at Thrissur.  The branches of Eram Motors at Palakkad and the insurance companys Palakkad office have nothing to do with the claim.  This Forum has no jurisdiction to entertain the claim.  Mere giving of local address will not give jurisdiction to entertain the claim.

3.         The complaint is filed after 3 years and the limitation period mentioned in the Consumer Protection Act is two years.  It is filed after the prescribed period and hence the complainant has no locus standi and the petition has to be dismissed.

4.         The vehicle of the complainant met with an accident and no third party injuries or third party property damages were reported.  Hence on the basis of the claim form received by the company on 13/10/2015, the claim was processed and on verification it is found that no third party injuries or damages were caused.  Without FIR or police report, no claim will be entertained.  On the basis of the declaration given by the insured, survey was arranged.

            After verifying the condition of the vehicle which was repaired, the complainant produced the bill from Eram Motors and the company paid the amount to them after obtaining satisfaction voucher from the insured.  The settlement was for Rs.71,000/-.

5.         There was no whisper about the damage caused to the electric post.  The insured is not permitted to settle any amount with 3^rd party without written permission of the insurance company.  The company has not given permission to settle the claim of any 3^rd party.  After getting his vehicle repaired from Eram Motors, the insured produced electricity cash bill from Kerala State Electricity Board on 12/10/2015 and that is against the declaration given by him in his claim form.  In the claim form, as answer to question No.7, no 3^rd party damage is reported.  But after getting the insurance claim, he submitted a cash receipt for Rs.8,352/-.  It was an electricity bill for the consumer No.6304.  What is produced by him before the court is an estimate, but he produced electricity bill before the company. 

6.         The 3^rd party has to go to Motor Accident Claims Tribunals for their claims and the insurance company is not a platform to consider 3^rd party claims.  The company returned the original bill produced by the complainant on the same day itself and a copy of the same is produced before the Forum.  This claim is not payable along with own damage claim and the payment if any made by the complainant is against the terms and conditions of the policy.  He had not issued any demand notice till now.

7.         The accident is also not reported to any police station.  If any 3^rd party property is involved, it is compulsory to report it to the police station and register the crime.  As per Section II of the policy, the insurer is not liable to pay any amount, if the insured paid any amount to 3^rd party without the written permission of the insurer.  The insured has not produced any demand notice from Kerala State Electricity Board and it is a false claim lodged by the complainant and he has not mentioned the receipt of his OD claim amount in the application form.

8.         The allegation in the complaint is that he paid some amount to Kerala State Electricity Board as per the request of the Sub Inspector, Cheruthuruthy, but no FIR or GD entry is produced to substantiate the claim of the petitioner.  The incident occurred in 2015, there is a limitation period of 3 years in money matters as per the civil law and as per the Consumer Protection Act, the period of limitation to file a complaint is two years.  The petitioner has not produced original bill before this Forum, but has produced some estimate.  The company has not received any estimate for Rs.18,048/- or original receipt or demand notice from anywhere.  The receipt produced is an electric bill for Rs.8,352/- and that too after paying the amount to Eram Motors.  Hence the claim was not payable and the receipt for the said amount was returned to the applicant.

9.         The allegation that the company delayed payment is incorrect.  For the accident which occurred in 09/10/2015, after getting the vehicle repaired, company paid the amount on 31/10/2015.  The petitioner was driving the vehicle at the age of 73 and he is mainly responsible for the accident and causing loss to the public limited companies.  The complainant has not remitted any amount with the Kerala State Electricity Board as contended in the claim petition.  The amount alleged to have been paid as electricity charge without the consent of the insurer against the terms of the contract is Rs.8,352/- and due to want of original bill and violation of policy conditions, the company denied the payment on the day in which it was presented.  No demand notice was received by the company either from the insured or from Kerala State Electricity Board.  So the claim is not maintainable and it has to be dismissed with costs.

Version of Opposite party 4 & 5:

            The petition is not maintainable under Consumer Protection Act.  There is no deficiency in service on the part of the 4^th and 5^th opposite parties.  It is admitted that the complainant had approached 4^th opposite party for repair of the vehicle and he had not raised any allegation regarding the services done by these opposite parties or any deficiency of service was pointed by the complainant during the course of services.  The complainant was using the service of these opposite parties even after the alleged accident repair in 2015.  These opposite parties had handed over all the documents submitted by the complainant before them to the National Insurance Company Ltd. without any delay and there was no negligence from the part of these opposite parties.  The 4^th and 5^th opposite parties are unnecessary parties in the above case and there is no claim against them.  The National Insurance Company Ltd. is answerable to any insurance related claim raised by the complainant.  The complainant had not suffered any hardship or loss from 4^th and 5^th opposite parties and they are not responsible for any mental agony or loss sustained by the complainant.  There is no deficiency in service on the part of these opposite parties and they are not liable to compensate the complainant.  Hence the opposite parties 4 and 5 are to be exonerated from liability with compensatory cost.

            From the side of the complainant, chief affidavit filed and Exhibits A1 to A3 marked(A2 marked with objection) complainant is examined as PW1 and witness(Sub Engineer of KSEB) is examined as PW2.  From the side of the opposite parties, chief affidavit filed and Exts.B1 to B6 marked(B6 marked through complainant).  No witness was examined.

Main issues arising for consideration are:

1. Whether the complaint is barred by limitation?
2. Whether this Forum has jurisdiction to entertain the matter?
3. Whether there is any deficiency in service on the part of the opposite parties?
4. If so, what is the relief as to cost/Compensation?

Issues 1,2,3 &4

Heard.  We have perused the affidavits, documents and depositions.

The accident occurred in 09/10/2015 and the complaint was filed on 24/09/2018 ie.       nearly three years after the occurrence of the cause of action and no delay condonation petition was seen filed along with the complaint and no permission was obtained from the Forum.  As per the Consumer Protection Act 1986, the period of limitation for a filing a complaint under the Act is two years and hence this complaint is barred by limitation.

Regarding jurisdiction of this Forum to entertain the matter, the opposite party 1 to 3’s contention is that the accident occurred at Trichur and the repairer of the vehicle is Eram Motors at Trichur.  The policy is issued by the National Insurance Company’s office at Calicut.  The branches of Eram Motors at Palakkad and the insurance company’s Palakkad offices have nothing to do with the claim.

As per Section 11(2) of the Consumer Protection Act 1986,

A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or the cause of action, wholly or in part, arises.

The opposite parties have branch office at Palakkad as admitted by them. Further opposite parties 4 & 5 Eram Motors, Thrissur and Palakkad together filed their version and they did not raise any objection regarding the jurisdiction.  So this Forum has got territorial jurisdiction to entertain the claim.

Here in this case, the insurance company had paid the own damage claim of the complainant for an amount of Rs.71,000/- within 20 days.  Ext.B4, the satisfaction certificate clearly shows that the complainant’s vehicle was repaired and replaced all parts as recommended by the surveyor and it is received by the complainant from the repairer Eram Motors, Thrissur and the insurance company had paid Rs.71,000/- to them in full settlement of all claims which arose out of the accident which occurred on 09/10/2015. 

In Ext.B2, the “Motor Claim Form” Question No.(7) & (8) are answered by the complainant in negative which means Question No.(7) relating to Third party claim is answered by the complainant as

1. Third party injury/death                     -           No
2. Any third party property damage       -           No

(8)POLICE CASE

1. Accident report to police                    -           No
2. If yes, which police station                 -           -
3. FIR/GD Number                                  -           -

So the complainant had not stated any damage to 3^rd party property in the claim form.  He had not mentioned about the damage caused to the electric post in the claim form and it was also not seen reported to any police station.  If any third party property is involved in an accident, it is compulsory to report it to the nearby police station and to register the crime.  No FIR is registered in this case and no GD entry is produced.  Eventhough the complainant produced the receipt of payment of Rs.8,352/- only from the deposition of PW2, Sub Engineer Kerala State Electricity Board, Cheruthuruthy section, it can be seen that the complainant had paid a total of Rs.18,048/- as labour charge, supervision charge and material charge in the Kerala State Electricity Board, Cheruthuruthy section.  But he made this payment voluntarily without obtaining the written consent of the insurance company. 

Further as per Ext.B1 policy conditions

“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 which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim or indemnity or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require”.

Hence the insured is not permitted to settle any third party claim without giving notice to the insurer.  As per Section II(2) - Liability to third parties, of the insurance policy, “The company will pay all costs and expenses incurred with its written consent”.   Here, according to the complainant/insurer he paid the amount to the third party(KSEB) as per the direction of the Sub Inspector, Cheruthuruthy without obtaining the consent of the insurance company.

Obtaining the consent of the insurer before making a settlement with a third party is of great significance and the relevance of the same cannot be ignored when the insured fails to comply with the provisions of the insurance policy.  The insured is bound by the terms and conditions of the policy.  The insurer’s duty is only limited to the obligations specified under the insurance policy.  The insured can assert his rights under an insurance policy only on compliance with the terms of the policy and fulfilling the liabilities imposed thereupon.  The insured gets his right under an insurance contract only after he has performed the obligations associated with the contract and complied with the requisite conditions for establishing the liability of an insurer as per the terms of the insurance policy.  Here the complainant has no case that he has got written consent from the company before he settled the third party claim. Therefore evidently there is violation of condition of the policy.  So he is not entitled to get the benefits under the insurance policy. 

In the result, the complaint is dismissed.  No order as to costs.

Pronounced in the open court on this the 30^th day of November 2020.      

                                                                                                                                Sd/-

                 V.P.Anantha Narayanan

                 Member(President I/c) 

                                                                                         Sd/-           

                                                                                                 Vidya.A

                           Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Original insurance policy issued by the 1^st opposite party.

Ext.A2 – Copy of estimate issued by Assistant Engineer, KSEB, Cheruthuruthy.(with objection)

Ext.A3(series)– Cash receipts issued by Assistant Engineer, KSEB, Cheruthuruthy dated 12/10/2015.

Exhibits marked on the side of Opposite parties

Ext.B1 – Copy of policy

Ext.B2 – Motor claim form(original)

Ext.B3 – Copy of Tax invoice

Ext.B4 - Satisfaction certificate(original)

Ext.B5 - Copy of receipt issued by Assistant Engineer, KSEB, Cheruthuruthy dated 12/10/2015.

Witness examined on the side of complainant

PW1 - Ummer.M

PW2 - Sebastian.P.T

Witness examined on the side of opposite parties

NIL

Cost :   NIL