ORDER

(Passed on  23/10/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

            The complainant has filed this complaint under section 12 of the consumer protection act 1986 for non reimbursement of insured amount of Rs.4,33,820/- deposited by the complainant in the labour Court under workmen's compensation act and thereby claiming compensation and cost against the opposite party.

2.     The story in short is that the complainant is a resident of chandrapur and is a proprietor of a transport business having his truck bearing number MH 34, M- 6057. This truck was insured with the opposite party under the policy bearing number 281301/31/10/6300004407 for the period from 30/12/2010 to 29/12/2011. The truck driver who was employed by the complainant to ply that truck, died in an accident when the tire of the truck burst on 20.12. 2011 at 2.15 p.m. The legal heir of the driver filed a claim under Workmens Compensation Act before the Labour Commissioner, Chandrapur bearing number 3/2012 and the Honorable Labour Commissioner was pleased to pass an order holding the complainant and the insurance company jointly and severally liable to pay Rs. 8,67,640/- with simple interest @ 12% per annum from the date of application till actual realisation within a period of one month from the date of judgement. As per clause B of the order, the Non applicant number 2/ the complainant herein is further directed to pay penalty of 50% of the above amount i.e. Rs.4,33,820/- to the applicant within one month from the date of judgement and as per clause C, the non applicant numbers 1 and 2 are further directed to pay cost of Rs.3,000/- to the legal heirs of the deceased driver. The comp informed the opposite party Insurance Company on 30/12/2011 to deposit the full decretal amount with the Labour Commissioner, however the opposite party Insurance Company failed to deposit the amount of penalty within the prescribed period of one month. Therefore to avoid further interest, the complainant on his own deposited Rs. 4,33,820/- as 50% penalty amount and  further deposited Rs.3,000/- towards cost of litigation with the office of Labour Commissioner, Chandrapur on 10/5/2016 vide cheque number 467330 dated 10/5/2016. When the vehicle is insured with the opposite party, it is the duty of the insurance company to pay the whole decreetal amount as per the judgement and order of the labour Commissioner. It is the duty of the opposite party to indemnify the complainant for the loss as per the Contract of insurance. Therefore the complainant issued legal notice to the opposite party dated 27/4/2016 calling upon the opposite party to indemnify the complainant but the opposite party failed to comply the notice. Therefore the petition has been filed.

3.         The complaint was accepted and the notice came to be served on the opposite party. The Opposite Party filed its reply and admitted that the complainant is its consumer. However the opposite party denied rest of the allegations and submitted that the opposite party has deposited Rs.13,19,626/- with the Labour Commissioner Office vide cheque number 0123095 dated 13/6/2016 and complied the judgement and order of the Labour Commissioner, Chandrapur under the Workmen's Compensation case. The said deposited amount has been disbursed to the legal heirs of the deceased driver. Therefore the opposite party has complied the clause “A” of the judgement and order of Labour Commissioner. The clause “B” of the judgement is not binding on the opposite party. The complainant has intimated about the death of the driver in an accident but he did not submit any insurance claim along with requisite documents such as salary certificate, attendance sheet, FIR, inquest panchnama, postmortem report, driving licence of the disease driver within one month from the accrual of accident with the opposite party. The forum has no jurisdiction to entertain the petition for non compliance of clause B of the judgement and order of labour Commissioner, Chandrapur. The appropriate authority is the High Court. Therefore for want of jurisdiction, the case be dismissed.

4.         Counsel for the complainant Mr. Khati argued that the complainant has deposited the amount of  penalty of Rs.4,33,820/- and the cost of Rs.3000/- with the office of labour Commissioner, Chandrapur with an intention to avoid contempt of court and to save further interest on the amount of penalty. The complainant has intimated about the accident to the opposite party and this fact is admitted in the reply submitted by the opposite party.  Hence it is the duty of the insurance company to indemnify the complainant as per the insurance act but in spite of service of notice for payment of penalty amount, the opposite party has intentionally avoided to deposit the same. Therefore this act amounts to negligence and deficiency in service on the part of opposite party. Hence the petition may be allowed.

5.       The Counsel for the opposite party Advocate Puglia argued that the complainant has no locus standi to file a consumer complaint against the judgement and order of labour Commissioner, Chandrapur directing the complainant to pay 50% of the compensation amount i.e. Rs.4,33,320/- as penalty. This amount has been imposed on the complainant and therefore the opposite party Insurance Company has no liability to indemnify the complainant for the same. So there is no negligence of service on the part of opposite party. The opposite party has complied its part of the judgement and order of the Labour Commissioner, Chandrapur and has deposited compensation amount of Rs.13,19,626/- on 15/6/2016. The complainant has a transport business and therefore the purpose is a commercial purpose. Hence the forum has no jurisdiction to entertain the petition. Hence the petition deserves to be dismissed with cost.

6.  We have gone through the complaint, written version,  documents,  affidavit and written notes of argument file by the parties and also heard the oral argument advance by their respective Advocates. Following issues emerged for our consideration.

ISSUES                                                                                        FINDING

1.  Whether the complainant is a consumer and whether

      this Forum has jurisdiction to entertain the complaint ?              Yes          

2.  Whether there is a deficiency in service on the

     part of opposite parties ?                                                                Yes

3.  What order ?                                                                   As per final order

REASONING
As to issue number 1

The complainant has insured his truck bearing number MH 34, M- 6057 with the opposite party and has paid the requisite premium. Therefore, the complainant is a “Consumer” within the meaning of Section 2(1)(d) of C.P.Act,1986. The complainant is using this truck for earning his livelihood and therefore, the purpose is not a “Commercial Purpose” and as such, the Forum has jurisdiction to entertain the complaint. Hence the issue No.1 is answered accordingly.

 
As to issue number 2

            As per the judgment and order of Hon’ble Labour Commissioner, Chandrapur, the Insurance Company has deposited Rs.13,19,626/- alongwith interest @12% p.a. on 15/6/2016. The complainant has deposited 50% of the compensation amount i.e. Rs.4,33,820/- alongwith cost of litigation Rs.3000/- total amounting to Rs.4,36,820/- vide cheque No.467330 dated 10/6/2016 in WCA No.3/2012 which was filed on 31/3/2012 and  decided on 30/3/2016 before the Labour Commissioner, Chandrapur. The complainant deposited the amount as per clause “B” of the judgment to avoid further interest as a precautionary measure. The complainant is a Consumer and is insured under the insurance policy with the OP. As per section 3 of Insurance Act,1938, the Contract of insurance is a contract which, one party, in consideration of price paid to him adequate to risk, becomes security for the other that he shall not suffer loss or damage or prejudice on happening of an uncertain event and thereby suffer loss. Therefore, it is a contract between the insurar and the insured to make the loss good. Therefore the complainant issued legal notice for reimbursement of deposit amount of Rs.4,36,820/- dated 27/4/2016. The OP has admitted that there is an immediate intimation of the accident. The complainant is not aggrieved with the quantum of payment of compensation or interest and has not challenged the verdict of Labour Commissioner before the Consumer Forum. The complainant has filed the complaint case being a Consumer for reimbursement of deposited amount under insurance policy. The contention of the OPs that the complainant ought to have filed Writ Petition before the Hon’ble High Court can not be accepted because the complainant has not challenged the judgment and order of Labour Commissioner, Chandrapur. As per Insurance Act, there is quasi contract between the parties that in cas of loss, the insured would be compensated to the extent of loss actually suffered. Therefore, the insurance company is liable under the insurance policy, to reimburse the amount deposited by the complainant under Workman Compensation Act as per Clause B of the judgment and order of WCA No.3/2012. As such, the issue is answered accordingly.

As to issue number 3

        In view of our observations as above, we pass the following order.

FINAL ORDER

1. The Petition is partly allowed.
2. The opposite party is directed to pay Rs.4,36,820/- to the complainant within 45    

    days  from the date of Communication of this order, failing which, the

    complainant is entitled to get interest thereon @9% p.a. from the date of      

    judgment till realization.
3.The opposite party is further directed to pay cost of proceeding of Rs.10,000/- to

     the complainant.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President