IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 6th day of December, 2024
Filed on: 28.10.2023
Present
- Smt. P.R.Sholy, B.A.L, LLB (President in Charge )
- Smt. C.K.Lekhamma . B.A. LLB (Member)
In
CC/No.329/2023
between
Complainant:- Gopinathan Nair, The Proprietor New Kairali Granite Anandapally, Adoor, Pathanamthitta, Kerala-691525 (Adv. Sajeevkumar M.G) | Opposite Parties:- 1. Sri. Nibin.V.C, Nibin Bhavanam, Lakoor, Mallissery.P.O, Pramadom, Pathanamthitta (Exparte) 2. Branch Manager, Branch Office United India Insurance Co. Ltd, Centre Point 2nd Floor, KP Road, Kayamkulam-690502 (Adv. Premalatha.S) 3. Assistant Engineer, Office of the Asst. Engineer KSEB Electrical Section, Vakayar, Pathanamthitta |
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O R D E R
SMT. SHOLY.P.R (PRESIDENT IN CHARGE)
Complaint filed u/s 35 of the Consumer Protection Act, 2019.
1. Complainants case briefly stated are as follows: -
Complainant’s vehicle, a goods carrier having Reg. No. KL.26-K-1043 met with an accident while driven by 1st opposite party on 17/7/2023 at about 10AM at Pathanapuram-Konni road near Murinjakal due to the sudden turning of the vehicle by giving side to the vehicle coming from the opposite side and hit on the Electric post owned by KSEB and the said post was damaged due to that incident.
2. Upon intimation given by the driver the incident registered in GD in Koodal Police Station as 7/2022 dtd. 22/7/2023. As the vehicle insured with 2nd opposite party a claim intimation was also informed to 2nd opposite party. Since the KSEB authorities insisted to clear the damages to their electric post an amount of Rs. 62,810/- was remitted to KSEB by the complainant on 20/7/2023. The said amount was paid to KSEB mainly on the anticipation that the amount will be returned by the insurance company, whom the vehicle was insured for 3rd party property damage. Thereafter, though the complainant submitted a claim to the insurance company for re-imbursement of the amount paid to the KSEB on 26/7/2023, it was rejected with a reference that the complainant may approach concerned forum for claiming the above damage. In the said circumstance the complainant filed this complaint for refund of the amount paid to the KSEB and compensation from 2nd opposite party.
3. In response to the complaint all the opposite parties appeared on the date of first appearance. Since the 1st opposite party did not filed any version, he remained as exparte.
4. Version of the 2nd opposite party is as follows:-
The complaint is not maintainable either on fact or on law. There is no deficiency in service on the part of 2nd opposite party warranting the jurisdiction of this Commission. As per Sec. 165 of Motor Vehicle Act, 1988 the complainant has to file the claim in Motor Accident Claims Tribunal for any claim for compensation in respect of accidents involving the death of bodily injury to, persons arising out of the use of motor vehicles or damaging to any property arising out of the use of motor vehicles or damage to any property of a third party so arising or both. Accordingly the 2nd opposite party advised the complainant to approach the necessary forum to claim compensation vide their letter dtd. 13/9/2023. Besides that as per Sec. 175 of Motor Vehicle Act no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. As the claim is not maintainable in this Commission, there is no deficiency in service on the part of 2nd opposite party.
5. The policy is a contract between the insurer and insured and the terms and conditions are applicable to both the parties. The 2nd opposite party had not get sufficient time to assess the actual loss incurred as the complainant himself had paid the claim amount to the 3rd party without informing or taking permission from the 2nd opposite party. The complainant is not entitled to get the relief sought for as there is no deficiency in service on the part of 2nd opposite party and the opposite party acted fairly, reasonably and justifiably and as per the law, policy conditions, instructions and rules. As there is no merit and bonafides in the complaint, the complaint may be dismissed.
6. Version of the 3rd opposite party is as follows:-
The 3rd opposite party office received an information over telephone on 17/7/2023 at 10.AM that a vehicle hit a post and broke it in the area of Murinjakal under its jurisdiction. Upon inspection by the officer of 3rd opposite party it was found that the electric post owned by the 3rd opposite party was bent towards the road and another post was broken in half. He took emergent remedial measures to ensure the safety of public. The estimated cost for the replacement of damaged items towards re-erection/ re-installation and the loss sustained in this connection assessed an amount of Rs. 62,810/-. Though the vehicle involved in the accident which caused the damage to the property of 3rd opposite party was left the place of occurrence without stopping, it was revealed from further investigation that the post was hit by a tipper lorry with Reg. No. KL.26-K- 1043 and owned by Mr. Gopinathan Nair. N, the complainant in this case.
7. On receiving a communication from 3rd opposite party the complainant settled the matter by paying the estimated amount of Rs. 62,810/- to 3rd opposite party for replacing the two broken posts and fixing all the related items on 20/7/2023 and all the liability outstanding against the complainant was closed as far as concerned the accident.
8. On the above pleadings the points raised for consideration are:-
1. Whether there is any deficiency in service on the side of opposite parties?
2. Whether the complainant is entitled to get the reliefs sought for in the complaint?
3. Reliefs and cost.?
9. Evidence in this case consists of oral evidence of PW1 and Ext.A1 to A3 on the side of complainant and oral evidence of RW1 and Ext.B1 on the side of opposite parties. Heard both sides.
10. Point No. 1 and 2:-
The complaint is filed for refund of amount from 3rd opposite party which paid to the 3rd opposite party in connection with the damages caused to the property of 3rd opposite party due to a motor accident occurred on 17/7/2023. Complainant filed evidence affidavit and examined as Pw1 and got marked as Ext.A1 to A3. PW1’s case is that while his Tipper Lorry running through Pathanapuram - Konni road and turned at Murinjakal by giving side to the vehicle coming from opposite side hit on the electric posts owned by 3rd opposite party and the said posts were damaged due to the said incident. Thereafter the said accident was intimated to the local police station and entered GD entry. As insisted by 3rd opposite party the estimate assessed by the 3rd opposite party had paid by the complainant and subsequently the complainant had submitted a claim form to 2nd opposite party for re-imbursement of the said amount. It was rejected by the 2nd opposite party as the complainant is not entitled to re-imbursment of the amount contenting as per provisions of Motor Accident Act and Rules the complainant is not entitled the claim for third party property damage and accordingly there was no deficiency in service on the side of 2nd opposite party. Hence this complaint filed before this Commission.
11. 1st opposite party is the driver who had driven the vehicle involved in the accident, remains exparte.
12. Both opposite parties 2 and 3 filed version separately.
13. Divisional Manager of 2nd opposite party filed chief affidavit in tune with the version and got marked Ext.B1.
14. 2nd opposite party contented that the complainant was advised to approach the appropriate forum to claim compensation since as per Sec. 165 of Motor Vehicles Act. 1988 the complainant has to file the claim in a Motor Accidents Claims Tribunal for any claim for compensation in respect of accidents involving the death of, bodily injury to, person arising out of the use of motor vehicles or damaging to any property of a third party so arising or both. 2nd opposite party further contented that as per Sec. 175 of Motor Vehicle Act no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal of that area. Accordingly there was no deficiency in service on the part of 2nd opposite party in rejecting the disputed claim application.
15. 3rd opposite party mainly contented that it is the liability of the complainant to compensate the damage caused to their property due to the alleged motor accident for which the complainant had remitted the assessed amount to 3rd opposite party and hence no liability outstanding against the complainant as far as concerned the said accident.
16. Admittedly the Tipper Lorry owned by PW1 bearing Reg. No. KL.26-K-1043 hit on electric posts on 17/7/2023 and caused damage to the said property owned by 3rd opposite party. It is contented that though the said vehicle was insured with 2nd opposite party the claim of re-imbursement of Rs. 62,810/- which the PW1 had settled with 3rd opposite party as assessed by them. The complainant alleged that he is entitled to re-imburse the said amount from 2nd opposite party as per the policy. However the 2nd opposite party categorically denied the said pleading since the provisions under Motor Vehicle Act and Rules says otherwise. Accordingly the 2nd opposite party did not settled the 3rd party property claim with the complainant.
17. In the said circumstance it is to be understood that as per Sec. 165 of Motor Vehicle Act, which reproduce as follows:-
Sec.165 Claims Tribunals:-
(1) A state Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.”
18. Accordingly the 3rd party property damage claim also would be settled by the Tribunals in the locality as per the petition filed by the party. Here it is to be noted that before made such an attempt the complainant had settled the claim with the owner of third party property to which damage caused. The accident happened on 17/7/2023 and the matter settled by the complainant with 3rd opposite party on 20/7/2023 without giving any intimation to the insurer, 2nd opposite party. As described in the above discussion the 2nd opposite party rejected the claim advising the complainant to submit the claim before proper forum which evidented from Ext.A3.
19. In this regard it is to be noted that the main issue arose is that whether there is any deficiency in service from the part of 2nd opposite party in the circumstance involved. The counsel appearing for the 2nd opposite party vehemently argued that according to the statute with regard to the motor accidents and its consequential matters especially all third party related claim are dealt with by the Motor Accident Claims Tribunal. Hence the claims need to be filed in the local Tribunal, where the compensation will be decided or rejected after taking into account the submitted documents as well as story from both sides. Third party is the claimant or person who raises a claim for damage caused by the first party, insured.
20. Accordingly it is undoubtedly say that in the 3rd party insurance the insurer offers protection against damage to the 3rd party vehicle, personal property and physical injury. And as per law Special Tribunals constituted for determining the questions involved. Accordingly 3rd opposite party has locus standi to file a 3rd party claim against the insurer and insured for compensation to the damage sustained to their property. In the said circumstances we are not found any deficiency in service on the side of opposite parties in determining the claim submitted by the complainant and hence we cannot order re-imbursement of the amount as sought for in the relief. These points are found against the complainant.
12. Point No.3:-
In the result complaint stands dismissed. No order as to cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 06th day of December, 2024.
Sd/-Smt. P.R. Sholy (President in Charge)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Gopakumar.G ( Manager, complainants shop)
Ext.A1 - Copy of General Diary Abstract
Ext.A2 - Letter dtd. 20/7/2023
Ext.A3 - Letter from Unitied India Insurance Co. Ltd dtd. 13/9/2023
Evidence of the opposite parties:-
RW1 - L.Ambili ( Divisional Manager )
Ext.B1 - Policy Copy filed by the 2nd OP
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
