Sri. P. Satheesh Chandran Nair (President):

The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows.  The first complainant is the registered owner of the Maruti Wagon R LXI car vide. Reg. No. KL-03-U-6400, the additional 2^nd complainant is the son of the 1^st complainant and he was authorized to drive this vehicle.  The 1^st complainant availed a package insurance policy for the vehicle from the 2^nd opposite party vides package policy No. 35101031146135019382 for a period of 14/06/2014 to 13/06/2015.  On 26/05/2015 at about 11.00am the vehicle hit with an electric post while plying through Adoor Tattayil Road.  As a result of this hitting one electric post was damaged and the vehicle also caused certain damages.    It is contended that on the basis of the report of the Assistant Engineer of K.S.E.B the complainant paid an amount of Rs. 19,790/- as the cost of the material and labour to K.S.E.B.  It is again contended that though the complainant informed the incident to Adoor Police Station they did not registered any crime in connection with this incident and the police entered the incident only in the G.D (general diary) of the station.  According to the 1^st complainant even though he approached the 2^nd opposite party several time for the re-imbursement of the amount Rs. 19,790/- they did not consider the request of the 1^st complainant.  On 19/09/2015 the 1^st complainant issued a lawyer’s notice for re-Imbursement of the above said amount, the 2^nd opposite party did not consider the lawyer’s notice or settle the amount paid to KSEB.  It is admitted that an amount of Rs. 19699/- was granted to the complainant for the repairment of the vehicle.  It is further contended that as the policy is a package policy and the vehicle had caused damage to the property of a 3^rd party the opposite parties are liable to re-imburse the loss sustained to 3^rd party.  All these act of the opposite parties are comes under the deficiency in service defined in Consumer Protection Act 1986.  Hence, this complaint for re-imbursement of the amount Rs. 19,790/- being paid to KSEB, compensation cost etc.etc.

3. This Forum entertained the complaint, and issued notice to opposite parties for their appearance.  The opposite parties entered appearance and filed a joint version as follows.  According to this opposite parties the case is not maintainable either in law or on fact. The opposite parties admitted the contents in paragraph 1 to 3 of the complainant. It is contended that the opposite parties have issued a Private Car Package Policy to the above said car for a period from 14/06/2014 to 13/06/2015 as stated by the complainants.  It is further contended that the opposite parties have received a claim intimation form dated: 30/05/2015  in connection with this incident stating that the vehicle was accidentally skidded and hit an electric post situated on the right side of the road.  The opposite parties surveyor assessed the damages and settle the claim for an amount of Rs. 19,790/-. It is further contended the claim of the amount paid as the damage to the electric post was not claimed by the complainant through their claim intimation dated: 30/05/2015.  It is also stated that the column for showing details of 3^rd party injury property damage if any happened in the accident the complainant answered ‘not applicable’.  According to the opposite parties until and unless the complainant demanded or made a claim for the damages, no cause of action can be seen in this case and the opposite parties did not commit any deficiency in service as alleged.  It is contended that the opposite parties had not get any opportunity to assess the alleged damage of the electric post.  It is further stated that the complainant had paid the amount to the KSEB in violation of the terms and conditions of the said policy, for which the insurer is not liable to compensate the complainant.  Therefore, the opposite parties prayed to dismiss the complaint with cost.

         4.  The Forum perused the complaint, version and records before us and framed the following issues:

     1. Whether this case is maintainable before this Forum?

      2. Whether the opposite parties are committed any deficiency

          in service against the complainant?

                         3. Regarding relief and costs?

5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit and examined him as PW1 Ext. A1 to A8 and Ext. B1 to B2 are also marked through PW1.  Ext. A1is the Policy Certificate issued by the National Insurance Co. Ltd., Pathanamthitta.  Ext. A2 is the receipt issued by KSEB, Adoor.  Ext. A3 is the certificate issued by Assistant Engineer Electric Section, Adoo dated: 26/05/2015.  Ext. A4 (subject proof) is the G.D entry dated:27/05/2015 of Adoor Police Station.  Ext.A5 is the advocate notice dated:19/09/2015 sent to the 2^nd opposite party.  Ext. A6 is the Acknowledgement card.  Ext. A7 is the postal receipt.  Ext.  A8 is the reply notice of the 2^nd opposite party.  On the other side 2^nd opposite party the Branch Manager, he who filed a proof affidavit in lieu of chief examination and examined him as PW1. Ext. B1 to B2 documents are shown to him at the time of his examination and he is also admitted all these documents.  Ext. B1 is the claim intimation form dated: 30/05/2015.  Ext. B2 is the satisfaction certificate dated: 18/06/2015. Ext. B3 is the policy certificate along with terms and conditions.  Ext. B3(a) is the portion of section II in Ext. B3.  Ext. B3(b) is the portion of clause 2 in Ext.B3.   When we examine the proof affidavit of PW1 we can see that the PW1 deposed more or less as per the tune of his complaint. The 2^nd opposite party, DW1’s deposition is also as per the tune of his version before this Forum.  After the closure of evidence we heard both sides.

6. Point No.1:  The opposite parties herein has taken a stand to the effect that this case is not maintainable either in law or on fact and also pleaded this Forum has no jurisdiction to try this case.  When we appreciate the evidence adduced by both the parties in this case it reveals that the 1^st complainant has availed a valid Private Car Package Policy from 2^nd opposite party and the said policy was valid at the time of the accident of the vehicle.  Therefore, we can easily conclude that the complainant is a consumer of the opposite parties, and the opposite parties are service providers of the complainants.  Hence, point No.1 found in favour of the complainant. 

7.  Point No.2 to 3: For the sake or convenience we would like to consider point 2 to 3 together.  In order to substantiate the case of the complainant, the complainant relyed Ext.A1 to A8.  Ext. A1 shows that the complainant availed a valid package policy from 2^nd opposite party and the same is valid at the time of this motor accident.  This fact is even admitted by the opposite parties in their version and even at the time of trial .  Ext. A2 and A3 are the KSEB receipt for an amount of Rs. 19,790/- and another certificate issued by the concerned Assistant Engineer of electric section, Adoor to conform Ext. A2 receipt.  Ext. A3 the copy of the G.D entry of the Adoor Policy Station shows that the said vehicle bearing registration Reg. No. KL-03-U-6400 met with an accident and hit with an electric post.  When we verify the details of the G.D the damage cost to vehicle was clearly mentioned in it.  It is true that the detail of the damage caused to the electric post has not been described in the G.D.  At the same time the hitting of the vehicle with an electric post is mentioned in this report.  Ext. A5 to A7 are the documents to show that the complainant issued a legal notice to the 2^nd opposite party for the re-imbursement of the claim as alleged by the complainant.  In reply to the said notice 2^nd opposite party issued a reply notice to the complainant’s counsel stating that the complainant is not eligible to get any re-imbursement of the amount paid to KSEB as per the terms and conditions of the said policy.
8. On the other side the opposite party has taken a clear stand in this case to the effect that they have not committed any deficiency in service against the complainant since the complainant had not filed any claim seeking re-imbursement of the amount paid to KSEB as alleged by the complainant.  In order to substantiate the contention of the opposite party they mainly relying Ext. B1 claim form.  In Ext. B1 the description column shows that “ASq-cn \n¶pw ]¯-\w-Xn-«-bn-tebv¡v hcth B\-µ-¸Ån Pwj\v kao]w sh¨v hml\w bmZr-Ýn-I-ambn sX¶n-amdn he-Xp-h-i-¯p-­m-bn-cp¶ t]mÌn CSn-bv¡p-I-bm-bn-cp¶p”.  We can also see another description in page 3 column 7 “full details of the property damage the answer given is seen as “NA” We do admitted that this was the duty of the complainant to state the details of the property damage at this portion.  Even if we find that the omission of entering the property loss on the relevant column of Ext. A1 we cannot refuse the claim of the complainant with regard to the payment to KSEB for the damage caused to the electric post.  In Ext. B1 itself we can see that the reason for the damage cost to the car is as a result of a hit with an electric post.  When we are appreciating the truth of the damage caused to the electric post Ext.A2 cash bill and Ext. A3 certificate are cogent and conclusive evidence in favour of the complainant PW1.  On the other hand it is to see that 1^st and 2^nd opposite party has not raised any objection with regard to the damage of the electric post or the credibility of the Ext. A2 &A3.  It is true that the opposite parties has a clear case to show that the complainant PW1 failed to claim any re-imbursement for the re-imbursement of the amount paid to KSEB through Ext. B1 claim form.  No doubt the contention of the 1^st & 2^nd opposite party is true to an extend but even in Ext. B1 as stated earlier the hitting of the vehicle with an electric post is clearly mentioned.  It is also evident to show that as per Ext.B1 claim opposite parties issued an amount of Rs. 19,699/- for the repairment of the vehicle at AGT Motors, Puthenpedika with the satisfaction of the complainant PW1.  1^st and 2^nd opposite party seriously contended that as per section II (1) of the said policy there is a condition “Subject to the limits of liability as laid down in the schedule hereto the company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums which the insured shall become legally liable to pay in respect of”. This portion is marked as B3(a) in this case.

9.   When we refer the above condition it is revealed that the insured is legally liable to pay in respect of damage to property other than the property belonging to the insured or held in trust or in the custody or control of the insured.  The complainants herein claim for compensation for the damage of an electric post belonged to KSEB.  Therefore, we can easily inferred that the said electric post is a property owned by a 3^rd party.  When DW1, is examined through him Ext. B3(b) a portion of terms and conditions of the policy is marked it reveals “ 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”  When we refer Ext. B3(b) we can see that the insured shall give all information and assistance to the company when it required.  The said clause also has given importance of the insurance company for deciding the benefit of the insured.  Anyhow in this case it is come out in evidence to show that the complainant PW1 has not been filed any claim to 1^st & 2^nd opposite party for the re-imbursement of the amount paid to KSEB.  Therefore, we cannot see any kind of deficiency in service against 1^st and 2^nd opposite party with regard to the claim repudiation.  It is to see that through the counsel the complainants sent Ext. A5 notice, for re-imbursement of the amount paid to KSEB on 19/09/2015.  As per Ext. A8 it is proved that 1^st & 2^nd opposite party disagree to act as per Ext. A5 legal notice.  The reason for the non consideration of the genuine request for a further consideration of re-imbursement of the amount paid to KSEB has not been seen justifiable on the part of the opposite parties.  Therefore, we can attribute a deficiency in service on the part of opposite parties with regard to re-consideration of the above said re-imbursement.  Considering the nature and circumstances of the case we cannot see any deficiency in service in respect of delay is considering the claim.  Therefore, the opposite parties are also not liable to pay any compensate to the complainant as pleaded by them.
10.  Therefore, we find that the complaints are succeeded to prove their case to a limited extend and also find that if the complainant file a fresh claim seeking the re-imbursement of the amount paid to the KSEB Rs. 19,790/- the 1^st & 2^nd opposite parties are liable to consider that aspect and also re-imburse the said amount to the complainatNo.1.  In this case 2^nd opposite party is the Branch Manager of 1^st opposite party the National Insurance Company. Therefore 1^st & 2^nd opposite party are equally and severely liable to the complainant. Point No. 2 and 3 are found accordingly.              

In the result, we passed the following orders.

1. 1^st and 2^nd opposite parties are directed to re-imburse an amount of Rs.19,790/- (Rupees Nineteen Thousand Seven Hundred and Ninety only) to the complainant subject to the filing of an additional claim within one month of the receipt of this order.
2. 1^st and 2^nd opposite parties are also directed to pay a cost of                       Rs. 2,500/- (Rupees Two Thousand and Five Hundred only) to the complainant within one month of the receipt of this order.  If fails the 1^st and 2^nd opposite parties are liable to pay an interest of 10% to the complainant from the date of filing of this case i.e.,29/02/2016. 
3. No order for compensation. 

         Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28^th day of July, 2017.

                                                                                    (Sd/-)

                                                          P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                 (President)

Smt. Sheela Jacob (Member)               :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  K.C. George

Exhibits marked on the side of the complainant:

A1 :  Policy Certificate issued by the National Insurance Co. Ltd., Pathanamthitta 

A2 :  Receipt issued by KSEB, Adoor. 

A3 :  Certificate issued by Assistant Engineer Electric Section, Adoor dated: 

        26/05/2015

A4  : (subject proof) is the G.D entry dated:27/05/2015 of Adoor Police Station

A5 :  Advocate notice dated:19/09/2015 sent to the 2^nd opposite party

A6 :  Acknowledgement card

A7 :  The postal receipt

A8 :  Reply notice of the 2^nd opposite party

Witness examined on the side of the opposite parties:

DW1 :  Aneesh. G

Exhibits marked on the side of the opposite parties:  

B1 : Claim intimation form dated: 30/05/2015.

B2 : Satisfaction certificate dated: 18/06/2015.

B3 : Policy Certificate along with terms and conditions. 

B3(a) : Portion of section II in Ext. B3.

B3(b) : Portion of clause 2 in Ext.B3

                                                                                                   (By Order)

Copy to:- (1). K.C. George,

                     Kanjiramnilkunnathil,

                     Oonnukal.P.O, Omalloor,

                     Pathanamthitta.

                              Addl. Complainant

2.  Jithesh C. George, S/o K.C. George

                                 Do – do                                                              

3. The National Insurance Company Ltd.,

                    Pathanamthitta Branch, Pathanamthitta.

4. The Branch Manager,

                    The National Insurance Company Ltd.,

                    Pathanamthitta Branch, Pathanamthitta.

5. The Stock File.