By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows:
1. The petitioners are three legal heirs of deceased Muhammed Aslam S/o Moideen Haji, Thazhathveettil , House, Velloor P.o, Pookkottur , Malappuram. The first petitioner is wife, the second and third petitioners are the daughters and the fourth and fifth petitioners are father and mother of the deceased .
2. The minors are represented by the first petitioner ,the mother of the minors. The deceased Muhamme Asalam was the registered owner of lorry No.KL-57-2713. He purchased the lorry for the livelihood of his family the vehicle was insured with the opposite party vide policy No.1010003117P112897317/1 for the period 13/07/2018 to 14/12/2018. The opposite party had informed that all the risk were covered by the policy, including third party property damage .
3. On 09/12/2018 at about 11.55 pm the vehicle was coming from Cherplasseri to Palakkad in slow speed and careful manner but it met with an accident at Ezhakkad Near Kongad , Palakakad Dist. At the time of accident the vehicle was driven by Mr. Mohammed Rasheed S/o Moideen Haji Thazhathe Veetil House, Pookkottur , Malappuram., who was having valid driving lice at the time of accident. The lorry KL-57-2713 hit against and electric post and caused damages to electric post but no injuries were caused to any person and damages were sustained the vehicle only . The incident was informed to the Kongadu police and also K S E B officials . The Kongadu police registered FIR vide crime No.790/2018.
4. The KSEB officials prepared the estimate and directed the RC owner to pay Rs.61,221/- towards the cost of damages sustained to the Kerala State Electricity Board . Thereafter the registered owner contacted the officials of the opposite party and vehicle record were shown to the office of the opposite party. The officer of the opposite party directed the R.C owner to pay the amount directly by the K.S.EB and submit the bill on 10/12/2018. The R.C owner paid Rs.61221 before the K S E B and they issued receipt numbers 0925457 and 1925158 to the R.C owner . The R.C owner there after contacted the opposite party and submitted that bill .
5. The electricity is an essential service and so the police offices and electricity board officials said that if the estimate amount is not paid then they will file a case against the R.C owner and also they stated that the R.C owner can easily collect the amount from the insurance company . The damages to the electric post affected the local public and the R.C owner was forced to pay the estimate amount the K S E B official. The vehicle also sustained damages the same also was repaired by the R.C owner. The R.C owner contacted the insurance company officials and they directed to submit all the records. When the R.C owner submitted the documents in respect of the accident the opposite party did not accept documents and said that the claim cannot be allowed because the remittance of the amount was without the consent of the opposite party .
6. The case of the complainant is that the opposite party is the insurer of the vehicle and the policy indemnifying the risk of the registered owner against third party property damage and the accident occurred during the validity period of insurance. The registered owner of the vehicle was forced to pay the bill of the K S E B and they issued receipt for the remittance of 61,221/- rupees . But the opposite party refused to pay the amount and stated that they are prepared to pay money only to K S E B and so the submission of the complainants is that the act of opposite party is gross deficiency in service and the complainant thereby put in to irreparable loss and hardship. The prayer is to direct opposite party to pay Rs.61,221/- to the petitioner and to pay Rs.50,000/- as compensation for the deficiency in service of the opposite party along with cost of Rs.25,000/-.
7. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed detailed version. The opposite party denied the entire averments and allegations in the complaint. The complaint is not maintainable either under law or on merits and so liable to be dismissed with cost.
8. The opposite party submitted that one Mr. Vilson S/o Imbichikuttan had approached the opposite party and requested to issue :”GCV public carrier other than three wheeler liability only policy” for the vehicle bearing registration No. KL 57 2713 and the opposite party had issued policy conditions to Mr. Vilson S/o Imbichikuttan and he had accepted the policy and had remitted the premium and the opposite party issued policy No.101003117P112897317 infavour of Mr. Vilson for the period commencing from 15/12/2017 to 14/12/2018 subject to the terms, conditions and exceptions of the policy of insurance. The opposite party further submitted that on 13/07/2018 one Mr. Muhammed Aslam S/ Moideen Haji approached the opposite e party and requested to transfer the above policy of the above vehicle in his favour and the opposite party issued the policy conditions of the above policy and he accept the policy conditions and transferred the said policy in his favour subject to the terms , conditions and exceptions of policy of insurance .
9. The opposite party denied the averments in the complaint that the vehicle KL 57-2703 met with an accident on 09/12/2018 at about 11.55 pm at place called Ezhakkad near Kongadu and caused damages to the electric post , subsequently Kongadu police registered a case against the driver, K S E B officials prepared and estimate and directed the owner to pay Rs.61,221/- towards the cost of damages sustained to the K S E B , registered owner of the vehicle contacted the officials of the opposite party , the vehicle records were shown to the office of the opposite party , the officer of the opposite party directed the R.C owner to pay the amount directly to the K S E B , submitted the bill on 10/12/2018 , the R.C owner paid Rs.61,221/- before the K S E B , after the payment the R.C owner contacted the opposite party and submitted bill etc. The opposite party submitted that the registered downer had not intimated the alleged accident to the opposite party and the opposite party is unaware of the alleged accident , and the registered owner had not obtained any permission / consent for the alleged payment before the K S E B from the opposite party and the opposite party had not given any permission to the R.C owner for the alleged payment before K S E B and the opposite party had not given any permission to the owner or the alleged payment before the K S E B and the registered owner had not submitted any bill before the opposite party .
10. The opposite party submit that the conditions of the policy stipulate that notice shall be given in writing to the company immediately upon the occurrence of any accident and in the event of any claim and also specifically says that “No admission after , promise , payment or indemnify 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 that insured the defense or settlement of any claim or to prosecute in the name of the insured or its own benefit any claim or indemnify or other wise and shall have full description in the conduct of any proceedings or the in settlement of any payment in settlement of any claims and the insured shall give all such information and assistance as the company may require. If the company shall make any payment in settlement of any claim and such payment includes any amount not covered by this policy the insured shall repay to the company the amount not so covered “ and so the registered owner / insurer of the above vehicle had not intimated the alleged accident to his opposite party and the insurer had not obtained any consent / permission from the opposite party for settlement and payment before the K S E B for the alleged cost of damages and the registered owner had violated the policy conditions and the opposite party is not liable to indemnify the owner of the vehicle against any claim and this opposite party is liable to pay an amount of Rs.61,221/- claimed in the complaint .
11. The opposite party also submitted that they had issued the policy conditions and the registered owner had verified and accepted the policy conditions and subsequently the opposite party had issued the policy certificate. The complaint filed only for experimental basis and the complaint is not eligible for the compensation as claimed. The opposite party also dispute the claim of the complainants that they are the legal heirs of late Mr. Mohamed Aslam and the submission of the opposite party is that there is no cause of action for the complaint and the complainant is not entitled to any relief or any amount as claimed in the complaint and the complaint is to be dismissed with cost of opposite party.
12. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ex.t A1 to A4. Ext. A1 is cash receipt for Rs.61,221/- issued by K S E B. Ext. A2 is copy of F I R 790/2018 dated 11/12/2018 of Kongadu Police station . Ext. A3 is copy of certificate of insurance two pages with policy No. 1010003117P112897317/1 infavoru of Mr. Mohamed Aslam. Ext. A4 is copy of legal hireship certificate KDS /4553/2019 E2. The documents on the side of opposite party marked as Ext. B1 and Ext. B1 is copy of certificate of insurance 5 pages .
13. Heard complainant and opposite party perused affidavit and documents. The following points arise for consideration
- Whether there is deficiency in service on the part of opposite party
- Relief and cost
14. Point No.1 &2
The case is that the vehicle No.KL-57- 2713 met with an accident on 09/12/2018 at about 11.55 pm and as result and electric post as well as the vehicle got damaged . The police registered an FIR as per Ext. A2. The K S E B officials prepared and estimate and directed the RC owner to pay Rs.61,221/- towards the cost of the damages sustained to K S E B and thereafter the R.C owner contacted the officials of the opposite party along with records but the opposite party directed the R.C owner to pay the amount directly to the K S E B and submit the bill the R.C owner paid Rs.61,221/- to the K S E B on 10/12/2018 ie. on the next day of the incident to the K S E B and the KSEB issued Ext. A1 receipt accordingly . The RC owner thereafter contacted the opposite party and submitted the bill Ext. A1 before the opposite party. The submission of the complainant is that the electricity service is an essential service and so the police officials as well as K S E B official stated to the R C owner that if the estimate amount is not paid they will file a case against the R C owner and also said that the RC owner can collect the amount from the insurance company, the opposite party. The damages caused to the electric post affected the local public and the R.C owner was forced to pay the estimate amount to the K S E B officials. But the R.C owner submitted the documents before the opposite party the opposite party did not accept the documents and said that the claim cannot be allowed since the remittance of the amount was without consent of the opposite party , hence this complaint .
15. On examination of the affidavit and documents it can be seen that the vehicle met with accident was covered by insurance policy issued by the opposite party. Ex.t A2 document clearly establish that there was an accident as stated by the complainant. It is also evident that the complainant paid an amount of Rs. 61,221/- to the K S E B as per Ext. A1. So it is established that due to the accident as sated by the complainant the electric post was damage and the R.C owner was remitted and amount of Rs.61221/- towards the damages caused to the K S E B .
16. The definite case of the opposite party is that the R.C owner of the vehicle that is the policy holder is not authorized to settle the claim as done in this complaint as per the terms and conditions of the policy . The opposite party produced Ext. B1 certificate of insurance to establish the same. As per the Ext B1 document second condition is that no admission of , 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 defense or settlement of any claim or to prosecute in the name of the insured or its own benefit any claim for indemnity or otherwise and shall have full description in the conduct of any proceedings or in the settlement of any claim and insured shall give all such information and assistance as the company may require. If the company shall make any payment in settlement of any claim and such payment includes any amount not covered by this policy the insured shell re pay to the company the amount not so covered. From the perusal of the condition it can be seen that without written consent the policy holder is not entitled to settle the claim but in this complaint it can be seen that the policy covers the damages in this complaint . But the only question is absence of prior written consent of the insurer . It can be seen that the damages was sustained to an electricity post and so the police officials and the electricity board compel the R.C owner that is the policy holder to pay the duly prepared estimate amount and if not done it a case will be registered against the R.C owner . It is well settled matter that supply of electricity is and essential service and any interruption result social annoyance. So whatever the mode of settlement of damages the uninterrupted supply of energy is a social requirement. So it can be seen that the R.C owner duly settled the dispute regarding damages on preparation of estimate by the officials of the K S E B. We cannot find that the estimate prepared by the K S E B as an exorbitant estimate. Though the contention of the opposite party regarding the prior written consent for settlement of the issue is required the situation in this complaint warranted otherwise. As per the condition the R.C owner/ policy holder is required to approach the opposite party and the opposite party has to depute their own authorized surveyor and he has to assess the damages and thereafter the official of the opposite party as to verify the same and thereafter to take a decision considering the entire aspects of the incidents . So it is not advisable to practice in an emergent situation of this like. Hence it will be proper to accept the documents from the policy holder and verifying the documents are in order and dispose the claim accordingly. But in this complaint the opposite party has raised on the basis of terms in the policy certificate in a hyper technical way to deny true and genuine claim of the policy holder. Hence we find there is deficiency in service on the part of opposite party. The commission finds that the policy holder is entitled to get the amount paid by him to the electricity board.
17. The opposite party as contended that the complaints are not eh legal hires of the policy holder but the complainants submitted that the policy holder died after the incident and they are the sole legal hires of the deceased policy holder and they produced Ext. A4 to establish the same . Hence we find that complainant is the legal hires of deceased policy holder and they are entitled to claim the amount from the opposite party. It can be seen that petitioners two, three and four are minors and they are represented through the first petitioner the mother of complainants three and four and the first complaintn is entitled to receive the share of the claim since nth petitioners are being minors and the amount involved in the complaint is being small amount .
18. The above fact and circumstances we allow the complaint as follows:-
- The opposite party is directed to pay Rs.61,221/- to the complainants as the amount paid by the policy holder to the K S EB
- The opposite parties directed to pay Rs.25,000/- as compensation on account of deficiency service and thereby caused inconvenience and hardship to the complainants.
- The opposite parties also directed to pay Rs.5,000/- as cost of the proceedings.
The complainants are entitled equally of the compensation amount and first complainant is authorized to receive the compensation amount of complainants two three and four.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 9% per annum from the date of this order till realization.
Dated this 1st day of August, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1to A4
Ext.A1: cash receipt for Rs.61,221/- issued by K S E B.
Ext.A2: copy of F I R 790/2018 dated 11/12/2018 of Kongadu Police station .
Ext A3: copy of certificate of insurance two pages with policy No. 1010003117P112897317/1 infavoru of Mr. Mohamed Aslam.
Ext A4: copy of legal hireship certificate KDS /4553/2019 E2.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: copy of certificate of insurance
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
