KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.FA 477/10
JUDGMENT DATED 20-7-2011
PRESENT:
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
The Cholamandalam M.S.
General Insurance Co. Ltd & Another
Represented by its Manager-Claims
(Rep. by Adv. Sri.V. Manikantan Nair)
Vs
RESPONDENT
Anu. T. George, MD
Vadakkemmuriyil Granites.
(Rep. by Adv. Sri.Rajmohan S.)
JUDGMENT
SHRI.M.K.ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF Pathanamthitta in CCNo. 183/08 dated 5-12-2008, order dated
23-06-2010. The appellants are the opposite parties and the respondent is the complainant in the above mentioned case. In short, the complainant who is the manager of the company who represented as the power of attorney agent of the managing director of the company; Vadakkemuriyil Granites. The appellants are the officers of the Cholamandalam M.S. General Insurance Company.
1. The complainant has a case that the company taken a workmen’s compensation policy from the appellant Insurance Company for the workers of the company with an effective from 15-2-08 to 14-2-09 wide policy No. CWC/0064365/0000/00. on 28-4-08 at about 11am one Viswanathan and on 6-5-08 and one Babu, both are employees in the company met with an accidents during the course of the employment. Both of them admitted in The Marthoma Medical Mission Hospital, Angady, Ranni immediately after the above accidents. The employee Viswanathan was discharged on 10-5-08 and Babu was discharged on 15-5-08 from the hospital after their treatment. Due to the accidents, the left and right feet of the said Babu has been terribly crushed and the amount of Rs.5,518/- was spent by the complainant for the treatment and other expenses of the above said Babu. The said Babu was working as a store keeper and his total emoluments was
Rs. 8,000/- per month. The employee Viswanathan included in the accident and sustained fracture on and his left leg. The complainant had spent Rs.36,187/- for the treatment and for other expenses. The company had filed work men compensation insurance claim for the both said workers to the opposite party. Though they have conducted an enquiry and took evidence. The appellant opposite party repudiated the claim as per the letter dated 11-07-08. The rejection of the complainant’s claim by the opposite parties are compensate deficiency of service done as per the terms and conditions of the policy. Hence the complainant filed this complaint for realization of Rs. 45,505/- the amount spent by the complainant in connection with the above said accidents with 12% interest along with cost of this proceedings.
2. The opposite parties admitted the Insurance policy and they contended in their version that they have no liability to settle the claim as per the terms and conditions of the insurance policy. The first contention of the appellant/opposite party. The forum below that they have no jurisdiction to entertain this complaint. Another contention is that the policy covers only the liabilities of only 15 employees which araised under the Workmen Compensation Act. The total persons covered by the complainant under the said policy, is not sufficient when compared to the actual pay roll of employees those who employed by the complainant during the accident. So there is a breech of conditions of the policy. Hence they are not liable to the complainant even if the liability comes with in the preview of The WC Act. The Opposite parties raised another contention that the alleged accident in the course of their employment in the complainant’s company is false and hence denied. The policy covers only disability or death caused to the workmen by accidents which incidented in the course of their employment and medical expenses are not covered under the policy. Emoluments of the employee stated in the complaint and the expenses claimed by the complainant are false and untrue. The repudiation of the claim is legal and the complainant’s claim does not come with in the purview of the compensation as per the provisions of the Workmen’s Compensation Act. The complaint which filed by the manager of the company by virtue of an alleged power of attorney of the complainant (M.D. of the Company). The appellant also disputed the legal right of the complainant, to file the complaint with this contentions, in their version. The opposite party prays for the dismissal of the complainant, they denied deficiency in service on their part.
3. The evidence consisted of oral testimony of PWI and DWI and documents Exts. A1to A2 and Exts. B1to B2. The forum below discussed the entire evidence which adduced by both sides and heard both sides hence found that there is an deficiency in service on the part of the opposite parties and allowed the complainant. The forum below directed the opposite parties to pay Rs. 40,205/- to the complaint with interest @ 7% per annum from the date of filing the complainant till the date of the order along with a cost of Rs. 2,500/- with in 30 days from the date of receipts of this order filing which the complainant is allowed to realise the whole amount ordered herein above from the opposite parties with interest @ of 10% from the date of the order till the whole realization.
4. This appeal prefers from the above impugned order passed by the forum below through this appeal. On this day this appeal came before this commission for final hearing; both counsels for the appellant and respondents are present and the counsel for the appellant argued on the basis of the grounds of appeal memorandum that the order passed by the forum below is not in accordance with the provisions of law and evidence. The order passed by the forum below is liable to be set-aside by allowing the appeal. The counsel for the respondents/complainant argued that the order passed by the forum below is strictly accordance with the provisions of the law and evidence It is legally sustainable.
5. The following points of the appeal raised by this commission of this dispute for the consideration on the strength of the available evidence in the case records.
1. Whether this complainant is maintainable by law in the absence of the production of the power of attorney by the agent of the complainant; before the forum below or not?
2. Whether the complainant is maintainable accordance with the provisions of the Consumer Protection Act? or accordance with the provisions of the Workmen Compensation Act?
3. Results. (Relief and cost)
6. The learned counsel for the appellants submitted that the
complainant is a company and the complainant was filed by the manager and he stated both in the complainant and in his deposition that he is a power of attorney holder of the Managing Director of the company. But the very same time there is no power of attorney is seeing anywhere in the case produced by the complainant throughout the proceedings of the case going on both in the forum below and even in this appeal stage. In the absence of either a power of attorney or an authorization, the manager is not having any legal capacity to represent the MD of the company and to file a complainant like this, before the forum below. He is absolutely a 3rd party or a stranger. In the eye of law; it is against the basic principles of the law. The acceptance of the complaint itself by the forum below is a defect. It is illegal also. As per the provisions of any law, this complaint could be returned due to the complainant due to defect. There is no power of attorney or authorization or legal resolution enclosed here with the complaint. The forums have no jurisdiction to entertain the complaint either by sue-moto or other than a complainant as defined in C.P. Act. In this circumstance this complaint is not at all maintainable. It was taken as a contention by the appellants in their versions. But the forum below did not discuss this important question of law. It is illegal and irregular. But the very same time the counsel for the respondent/complainant argued that the very same manager filed the petition before the opposite party insurance company for the settlement of the Insurance claim. It was repudiated by the opposite parties. But in the repudiation letter; the opposite parties never took this as a ground for repudiation. The very same manager who filed complaint before the forum below as a complainant. The claim petition was repudiated on the basis of some other reasons. In the circumstances the opposite party has no right to raise this contention as a question of law like this further in this complainant and this appeal is estopped by law of estoppel. He have no such right to raise this as a contention. He cited a decision of the Honorable High Court of Kerala. “1988 (1)KLT673 – Narayanan Nair Vs. John Kurian CMA No. 204/1987 dated 18-3-1988”. In this decision; The Honorable High Court taken a view that there is nothing in the said provision suggesting that a written authorization is indispensable for the proper compliance thereof:- Even oral authorization would be sufficient to constitute due authorization. Case law seems to be free image in the separate of the view that even oral authorization is good enough to constitute a valid authorization. In this question of law is answered by the Honorable High Court as that the oral authorization is good enough to constitute a valid authorization under order 6 Rule 14 of the Civil Procedure Code. The absence of a written authority was considered to be a defect in constituting due authorization, but in the decision, there is nothing in the said provision suggesting that a widely authorization is indispensable for the proper complaint – even oral authorization could be sufficient to consist a valid authorization.
7. This legal principle is applicable in the suit could be filed by the plaintiff or defended in the Civil Court. But in The Consumer Protection Act which insist an authorization for the appearance of an agent or a representative on behalf of a complainant. The forum below is par from a – civil court and it is a legal person. In other words the complainant is a company. They bound to obey the provisions of the Companies Act. The board of directions, shall be taken a resolution to authorise any person to appear before any legal court or legal bodies on behalf of the company; except the chief executive of the company. As per the article of memorandum of the company, The Managing Director of the company is the competent person to appear on behalf of the company. In this circumstances, the complainant is not seeing that to properly instituted either as per the provisions of the Companies Act or as per the provisions of the Consumer Protection Act.
8. The another point discussed that whether the complaint is maintainable accordance with the provisions of the Consumer Protection Act. The Company took the policy to cover the risk of the workmen compensation liabilities of the employees of the company as per the provisions of the workmen compensation Act. The question of the settlement of the claim is only arising if only of the employee will sustained injuries or death due to the accident during the course of employment and then after if would they would approach to the workmen compensation commissioner for the compensation, then also the Insurance company/opposite party come to the picture. In such cases, suppose the complainant company will be normally a necessary party. In such cases, the employer company may be insisted by the insurer as a necessary party. In such circumstance the Insurance Company is have the liability to pay the compensation amount to the employee petitioner or his legal heirs. It is the very same principal lied down in the Motor Accidents Claims Tribunal Act. In this case, the injured employees are not parties in this complainant or they didn’t claim from the part of the employees. Even the complainant did not put the aggrieved employees as witnesses. In this circumstance the company/ complaint did not have any legal capacity to approach the Insurance Company for the settlement of the claim for the employees.
I don’t know about the intention behind the appellant/Insurance company to take steps for the disbursement of the claim either without the consent and connivance of the injured employees. In other words; the complainant company is not legally entitle to receive any compensation or relief either through the Insurance Company or through the forum below on the behalf of the injured employees without put them as a party. All the procedure taken by the complainant/company is irregular and illegal. Taken initiative for the settlement of the claim on sue-moto is suspicious or experimental.
It can be understand that the, injured employees suppose they approach to them directly to the complainant company or even with a petition for compensation in WCC. Accordance with the provisions of the Workmen Compensation Act then only the complainant. Complainant can take initiative to settle their claim. In the very same time, it is seeing that the medical bills of the injured employees produced by the complainant/company aren’t properly proved either through the employees or through the treated concerned doctors. The complainant argued that the opposite party insurance company did not taken any defense such as the complainant company is not legally entitle to get any relief as per the policy conditions and other objections in their repudiation letter. They stated other technical reasons for the repudiation of the claim. The counsel for the appellants/opposite parties produced a decision of the Supreme Court. “The Chairman Thiruvalluvar Transport Corporation Vs. Consumer Protection Counsel (Civil Appeal No. 7142 of 1993 CPJ 113 (SC) and another decision of the High Court of Kerala in (Harrison’s Malayalam Limited Vs Nabeeza and others (KLJ1994 (1) page No. 792) and the counsel also cited one more decision of the Kerala High Court,” “Kerala soaps and oils limited Vs.
V.T. Valson and another” KLJ 284 to substantiate his argument in the appeal. As per the arguments and the evidence available in this case; it is clearly seeing that the workmen compensation commissioner is the competent statutory legal quasi judicial body to entertain this dispute. As per the sec 3 of the CP Act, the forum below is also having additional jurisdiction to entertain disputes even though other legal constituted forums are also having jurisdiction to entertain the same disputes. But this type of disputes will be exclusively entertained by the WCC as per the preview of the WCC Act and MACT Act. The forum is not having extra ordinary legal Jurisdiction to entertain this type of disputes. It is well settled by the Honorable National Commission and the Honorable Supreme Court in ever so many decisions. In the clear sense, the aggrieved employees or their heirs alone move any petition initially for get the relief. In a motor accident case, is it possible the owner of the vehicle move to the 3rd party insurance company for the settlement of claim. On behalf of the claim of the 3rd party in a road accident. It is not legally possible.
9. Heard in detail both parties; and examined the entire evidence available in the case bundle and it is seeing that the order passed by the forum below is that not accordance with the provisions of law and evidence. This order is not legally sustainable. I think there is a reasonable legal reason to interfere in the order passed by the
Forum below. It means I didn’t ready accept to the whole submissions of the both counsels in toto. But I think this order passed by the forum below is not legally sustainable and without Jurisdiction.
In the result this appeal is allowed and set-aside the order passed by the forum below. Both parties are directed to suffer there own respective dhast. The points of the appeal discussed one by one and answered accordingly.
M.K. ABDULLA SONA : MEMBER
DA
