IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 10th day of January, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
C C No. 190/2019 (filed on 16-11-2019)
Petitioners : Salamma Jacob,
W/o. Thomson,
Nillappana House,
Kurumannu P.O.
Kurumannu kara,
Kadanadu Villge,
Kottayam.
(Adv. Shajimon P. Lukose and
Adv. P.M. Kurian)
Vs.
Opposite Parties : (1) The National Insurance Co. Ltd.
Branch Office, Pala.
Rep. By its Branch Manager,
Pala.
(2) Maruthi Insurance Booking Pvt. Ltd.
Nelson Mandela Road, Vasant King,
New Delhi – 110070.
(3) Popular Vehicles and Services Pvt. Ltd.
Arunapuram P,.O.
Pala - 686 575.
(Adv. Shiji Joseph)
(4) The National Insurance Co. Ltd.
Branch Office, Thodupuzha.
Rep. by its Branch Manager,
Thodupuzha.
(For Op 1 and 4, Adv. Antony J. Marattil,
Adv. Jolly James and Adv. P.C. Chacko)
O R D E R
Sri. Manulal V.S. President
The nutshell of the case of the complainant is that his Maruthi Cellerio Car bearing Reg.No.KL35C- 9328 is insured with the first opposite party for the period of 31-8-17 to 30-8-2018. The said insurance policy was a package policy. The first opposite party issued the policy to the complainant through the second, third and fourth opposite party. On 15-4-2018, at about 12 PM the car hit on an electric post which belongs to the K.S.E.B and the vehicle and the post were damaged due to accident. The Police authorities of Melukavu police station made a G.D entry regarding the accident. The police authorities and the KSEB officials took a stand that the vehicle cannot be released unless and until the compensation of Rs.16,069 is paid to the KSEB by the complainant. The complainant intimated the nature of accident to the third opposite party and as per the advice of the manager of the third opposite party the complainant paid Rs.16,096/- to the KSEB as compensation for the damage of electric post. Later the complainant informed the matter to the first opposite party and claimed for the refund of Rs.16,096/- which is paid to the KSEB. But the opposite party denied the claim stating that the claim for the Third Party Property Damage (TPPD) shall be made by the owner of the property. It is averred in the complaint that the complainant is entitled to get the reimbursement of the amount paid to the KSEB towards damages . Hence the complaint is filed for a direction to the opposite party to pay the sum of Rs.16,096/- with interest, compensation and costs.
Upon notice opposite parties appeared before the forum and filed separate version.
Version of the first and fourth opposite parties are as follows:
The complainant is a permanent resident of Kottayam District and the Consumer Disputes Redressal Forum of Idukki have no jurisdiction to entertain the complaint. It is further contended that as per the policy conditions the insurance company is not liable to pay the amount to the insured if the party had paid any amount to the owner of the damaged property without the consent of the insurer. The complainant has not approached the insured company with a claim to get reimbursement of the amount paid by her towards the damages. The first opposite party has not rendered any deficient service to the complainant.
Thereafter the first and fourth opposite parties filed an additional version contending as follows:
Opposite party contended that complaint is not maintainable. The complaint is barred by resjudicata. The petitioner has filed another complaint before the Idukki CDRF as CC 157 of 2019 for the alleged same cause of action. After dismissing the said petition , the present petition is filed. The complainant is not a third party for claiming any third party property damages against the first and fourth opposite parties. If any property damage is caused to a third party arising out of the use of any vehicle , it is for the third party to approach the Motor accident claims tribunal for such damages. If such a claim is lodged before the motor accident claims tribunal , an enquiry being made by the tribunal and an award is passed on the basis of the evidence tendered in the case. Therefore this commission has no jurisdiction to entertain this complaint.
It is submitted in the version that during the pendency of the policy, the vehicle met with an accident on 5-4-2018 and thereby damages caused to the said vehicle for which the complainant lodged own damage claim with the first opposite party and the same was allowed and disbursed to the complainant to her satisfaction. The first and fourth opposite parties are not aware of having any third party property damages caused arising out of and in the use of the vehicle.
Second opposite party filed version as follows:
The complaint is bad for misjoinder of parties. The second opposite party is not an insurer to indemnify the complainant for the alleged loss or damages. The second opposite party is an insurance broking entity licensed with IRDA. The role of the second opposite party is being a facilitator to apprise customers about the features and benefits on motor insurance products offered by various insurance companies. After this facilitation the customers buy insurance as per their own will and pays insurance premium which goes to the concerned insurance company only. In lieu of the premium received, insurance company insured the vehicle and issues the policy to the consumers subject to their own terms and conditions. The policy issuance, cancellation, appointment of surveyors for claim investigation and assessment and acceptance or repudiation of claim is sole prerogative of the concerned insurance company only. As a facilitator of issuance, the second opposite party assists the insured in raising their claims with concerned insurance company whereas final settlement of claim is done by the insurer. The complainant is not a consumer of the second opposite party. The contract of insurance has been executed by the first opposite party with the complainant. The first opposite party is the sole carrier of risk and the insurer of the vehicle in question. There was no insured –insurer relationship between the complainant and the second opposite party.
The version of the third opposite party is as follows:
The complaint is not maintainable before this Commission. This Commission has no jurisdiction to entertain the complaint. The third opposite party is in no way connected to the averments in the complaint. The alleged accident and consequential damages to the electric post is a dispute between the complainant and the first opposite party. The complainant’s vehicle had been entrusted with the third opposite party for accidental repair and the same was done to the satisfaction of the complainant. The vehicle has valid own damage insurance, the benefit of the such insurance is available to the complainant and the same was done. The complainant has no complaint regarding the same.
On the side of the complainant she herself examined as Pw1 and Exhibits A1 to A3 were marked and Assistant Manager of the first opposite party filed proof affidavit for and on behalf of the first and fourth opposite parties and Ext.B1 and B1(a) were marked on the side of opposite parties.
On going through the complaint version and evidence on record we would like to consider the following points.
- Whether the complaint is maintainable or not ?
- Whether there is any deficiency in service from the part of opposite parties 1 to 4 ?
- What are the reliefs?
Point number 1
The first and second opposite parties contended that the complaint is not maintainable. It is averred that petitioner has filed another complaint before the Idukki CDRF as CC 157 of 2019 for the same cause of action and the complaint is barred by resjudicata. On verification it can be seen that this complaint is originally filed by complainant before the CDRC Idukki .Opposite parties appeared before the CDRF Idukki and raised a contention that CDRC Idukki has no territorial jurisdiction to entertain this complaint. Thereafter the complainant filed petition before the said forum and the CDRC Idukki vide its order dated 27-10-2019 returned the complaint to the complainant to file the complaint before the proper forum. No order was pronounced by the earlier form after evaluating the evidence of the case. Thus we are of the opinion that the contention of the first and fourth opposite party that the complaint is barred by resjidicata is not sustainable.
`The contentions that the jurisdiction of the Forum is ousted and only the M.A.C.T is competent to deal with this case is not sustainable since this complaint is preferred not by any third party but by the insured herself. Ext.A1 is the copy of the Insurance Policy and Exhibit B1 is none other than the copy of A1. Exhibits A1 and B1 proves that the insurance policy was issued in the name of the complainant. Hence the complaint is maintainable before the Commission
Point number 2 and 3
Exhibits A1 and B1 proves that the vehicle of the complainant bearing Reg.No.KL35C- 9328 is insured with the first opposite party for the period of 31-8-17 to 30-8-2018 under a package policy cover. According to the complainant on 15-4-2018 at about 12 PM the vehicle hit on electric post standing on the side of Kurumannu-Inchakkavu road and the vehicle and the post were damaged due to the accident. Exhibit A2 is the extract of general diary entry of Melukavu police station on 17-4-2018. It is proved by exhibit A2 that the vehicle of the complainant had hit on the electric post which was standing on the side of the roadside and thereby caused damages to the vehicle and the electric post owned by the KSEB. It is averred in the complaint that though the complainant paid Rs.16,096/- to the KSEB as compensation for the damages caused to the electric post the first and fourth opposite parties rejected the claim . Exhibit A2 and A3 receipts which were issued by the KSEB authorities proves that an amount of Rs.15,226has been paid by the complainant to the KSEB towards the compensation for the damages sustained by the KSEB.
It is pertinent to note that the accident was admitted by the first and fourth opposite parties in their version. It is further submitted by the fist and fourth opposite parties that they have indemnified the complainant for the damages sustained by the vehicle as per the terms and conditions of the policy.
The only contention of the opposite parties that for the TPPD claim (Third Party Property Damage) a case has to be filed at the court, and only after receiving summons the matter will be considered. Except this no other specific reason is stated not to honor the claim. The complainant also had the case he had settled the payment made to K.S.E.B towards the damages caused to the electric posts after due consultation and intimation to opposite parties.
The Ext.A3 is the official receipt issued by K.S.E.B for receipt of Rs.15,226/- towards the expenses for the replacement the electric posts as stated in Ext.A2 G.D. Entry. We do not find any reason to disbelieve those documents. The Hon’ble Kerala State Consumer Disputes Redressal Commission had an occasion to consider similar issue in (Appeal No.409/2002). New India Assurance Co. Ltd V. P.B. Raghunath decided on 8-4-08 .In the said appeal the Hon’ble State Commission directed the insurer to pay the amount paid by the insured to K.S.E.B for the electric post damaged in the accident.
The Hon’ble supreme court on June 18, 2020 {Surendra Kumar Bhilawe vs The New India Assurance Company Limited} held that “the policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. It was held that the Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident.”
In view of the above discussion we allow the complaint and direct the opposite parties 1 and 4 to pay Rs.15,226/-to the complainant along with a compensation of Rs.10,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the above Rs.15,226/- will carry interest @ 9% per annum from the date of complaint till payment.
Pronounced in the Open Commission on this the 10th day of January, 2022.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Salamma Jacob
Exhibits marked from the side of complainant
A1 – Copy of insurance policy 35101031176140556625 dtd.25-08-17
A2 – Copy of GD Extract of Melukavu Police station on 17-04-18
A3- Copy of cash receipts from K.S.E.B. (Subject to objection)
Exhibits marked from the side of opposite party
B1 - Insurance policy 35101031176140556625 dtd.25-08-17
B1 (a) – Private car package policy issued by National Insurance Co. Ltd.
By Order
Senior Superintendent
