BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of September 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.13/2010
(Admitted on 08.01.2010)
Mr.Valerian Lobo,
Aged about 60 years,
So. Peter Lobo,
Ro. Lobo House, Balkunje Post,
Mangalore Taluk. …….. COMPLAINANT
(Advocate for the Complainant: Sri.M.R.Ballal)
VERSUS
The Oriental Insurance Company Ltd.,
Divisional Office, Beauty Plaza,
Balmatta Road, Mangalore 1,
Rep. by its Divisional Manager. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Mrs.Hemalatha Mallya)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is a registered owner of the Tata Truck bearing registration number KA-19/3249. The Complainant obtained package insurance policy in respect of the said vehicle bearing Policy No.422200/31/2009/4354 for the period from 19.1.2009 to 18.1.2010.
On 24.9.2009, when the said vehicle which was loaded with Paragon Chapples to be transported from Kumaranalloor to Mumbai, at about 20.00 hrs., while the said vehicle after crossing the 2nd height gauge of road under Bridge No.330 at Km.49/800-900 between Ettumanoor-Kottayam, the upper portion of the load came into contact to one side of the Height Gauge and caused damage. Regarding the above accident, the complaint was lodged by the Sub-Inspector of Railway Police Force, Kottayam had claimed and recovered Rs.35,000/- being the damages. The vehicle was released by the officials of Southern Railway only after payment of the damages.
It is stated that, as the said damages had to be paid on account of the use of the insured vehicle which is to be indemnified as per the terms of the Insurance Contract, the Complainant had lodged a claim with the Opposite Party relating to the same and produced all the documents for verification. The Opposite Party verified all the documents and was satisfied as to the liability of the Insurance Company regarding the reimbursement, returned the Claim Form without assigning any reason. It is stated that, the Opposite Party not honoured claim of the Complainant nor rejected the claim. The Complainant issued a lawyer’s notice dated 2.11.2009 to the Opposite Party calling upon to indemnify the loss. But the Opposite Party Company not complied the demand made therein which amounts to deficiency and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.35,000/- along with interest at 12% per annum from 4.11.2009 till payment along with compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version and stated that, the above said vehicle insured with the Opposite Party subject to various conditions, exclusions and limitations. It is stated that, the alleged accident is not within the knowledge of this Opposite Party. That the policy does not cover the risk of the third party damages as the Complainant has not paid the additional premium towards the same. On 12.10.2009, the Complainant has informed to the Opposite Party regarding the accident and as per his request company issued a claim form. The Complainant has failed to furnish the necessary particulars to the Opposite Party.
It is stated that, if there was any accident and there was a damage to the third party property as alleged by him, then it falls under third party claim and this FORA has got no jurisdiction. If the Complainant pays some dues to third party, the Opposite Party is not liable to indemnify the same as per the policy conditions. Hence, the complaint is not maintainable and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complaint is maintainable before this Forum?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Valerian Lobo (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C7 were marked for the Complainant as listed in the annexure. One Mr.Sudhakara (RW1), Senior Divisional Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iv): As per the final order.
REASONS
5. POINTS NO. (i) to (iv):
From the outset of the records available on the file of this Forum, we find that, the vehicle bearing No.KA-19-B-3249 is goods Carriage Commercial Vehicle covered with a package policy bearing No.422200/31/2009/4354 valid for the period from 19.1.2009 to 16.1.2010 as per Ex.C2.
Now the point in dispute between the parties before this Forum is that, the Complainant came up with a Complaint stating that, on 20.4.2009 his vehicle which was loaded with Paragon chapels to be transported from Kumaranalloor to Mumbai at about 20.00 hrs., after crossing the 2nd height gauge of the road under bridge No.330 at Km.49/800-900 between Ettumanoor-Kottayam, the upper portion of the load came to contact to one side of the Height Gauge damaged the Height Gauge. The Sub-Inspector of Railway Police Force, Kottayam registered a case as per Crime No.1050/09 against the driver of the above said vehicle as per Ex.C3. And on account of the damage caused to the Height Gauge, the Southern Railway, Kottayam had claimed and recovered Rs.35,000/- being the damages and issued a receipt to the Complainant dated 25.9.2009 as per Ex.C4. Now it is contended that, the said damages had to be paid on account of the use of the insured vehicle which is to be indemnified as per the terms of the Insurance Contract. The Complainant lodged a claim with the Opposite Party, officials of the Opposite Party verified all the documents and was satisfied as to the liability of the Insurance Company regarding the reimbursement of that amount, returned the Claim Form without assigning any reason. Thereafter, the Complainant issued a legal notice dated 2.11.2009 as per Ex.C6 to the Opposite Party but the Opposite Parties not honoured the claim. Hence cameup with this Complaint.
On the contrary, the Opposite Party denied the entire allegation alleged in the Complaint and contended that, the accident is not within the knowledge of this Opposite Party. The policy does not cover the risk of the third party damages as the Complainant has not paid the additional premium towards the same. If there was any accident and any damage to the third party property as alleged by the Complainant, then it falls under third party claim and this FORA has got no jurisdiction.
On perusal of the oral as well as documentary evidence available on record, we find that, Ex.C1 to C7 were produced before this Forum clearly reveals that, the above said vehicle is goods carriage commercial vehicle covered with a package policy as stated supra and the same is valid for the period from 19.1.2009 to 18.1.2010. The contention of the Opposite Party that there is no coverage under the policy is not acceptable as the policy is a package policy. Further, we observed that, as per General Regulation No.39 of the Indian Motor Tariff which is relating to Third Party Property Damage (herein after referred to as ‘T.P.P.D.') cover, the TPPD cover is Rs.7.50 lakhs unless the cover is reduced with the statutory limit of Rs.6,000/- by giving reduction in premium. It could be seen from the policy pertaining to the vehicle i.e. Ex.C2 and the premium computation table produced by the Opposite Party relating to the policy, no reduction in the premium payable as per IMT-20 could be seen. Therefore, the TPPD is cover under policy is Rs.7.50 lakhs. The version of the Opposite Party to that effect is not acceptable.
As far as the claim of the Complainant is concerned, admittedly, the Complainant vehicle came into contact to one side of the height gauge and damaged the height gauge of the Southern Railways. The Southern Railways, Kottayam claimed and recovered Rs.35,000/- being the damages i.e. the damage to the Height Gauge as per Ex.C4. The above accident is caused on account of the negligence on the part of the driver of the vehicle. When insured vehicle causing damage to the third party property then the insured is liable to pay the damages and the same shall be indemnified by the insurer. In the instant case, admittedly the damage was caused to the third party and subsequently the damage was assessed by the Railway Department which is a Government undertaking body recovered the damages from the insured. Under that circumstances, if the claim of the Complainant/insured is/was not indemnified or paid by the insurer, the option left open to the Complainant to approach the appropriate Court of law for recovery of the amount from the insurer. Similarly, in the instant case, the vehicle was insured with the Opposite Party and the Opposite Party is liable to indemnify the vehicle under the policy. The failure on the part of the Opposite Party Company cannot be adjudicated before this Forum, because this FORA has no jurisdiction to entertain such complaints.
In view of the above discussions, we hold that, the Complainant may approach the appropriate court of law for proper remedy. Hence, the complaint is closed. No order as to cost.
6. In the result, we pass the following:
ORDER
The complaint is closed. The Complainant may approach the appropriate court of law for the proper remedy. No order as to cost.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of September 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Valerian Lobo – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 18.02.1998: Copy of the Registration Certificate.
Ex C2 – : Copy of the Insurance Certificate.
Ex C3 – 25.09.2009: Copy of the complaint in respect of the incident.
Ex C4 – : Copy of the receipt for having paid Rs.35,000/-.
Ex C5 – 20.10.2009: Claim form regarding the claim made.
Ex C6 – 02.11.2009: Copy of the Lawyer’s notice issued to the Opposite Party.
Ex C7 - : Postal acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW1 – Mr.Sudhakara, Senior Divisional Manager of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – 09.10.2009: Letter of the Complainant to the Opposite Party.
Ex R2 – 12.10.2009: Reply of the Opposite Party to the above said letter.
Ex R3 - : Policy along with endorsement (6 pages).
Dated:30.09.2010 PRESIDENT
