Sri. P. Satheesh Chandran Nair (President):
The complainant filed this complaint u/s.12 of the C.P. Act 1986.
- The case of the complainant is as follows. The complainant is the Power of Attorney Holder of the registered owner of a vehicle bearing registration No. KL-33/B 2116. The name of the registered owner is Saji Varghese, son of Kurian Kurian residing at Kanjiratha, Padijarethil, Koipram PO, Thiruvalla. The vehicle is in the possession and the enjoyment of the P/A holder. On 15/04/2016 the vehicle met with an accident by hitting on a KSEB electric post and it resulted damage to the post and a co-passenger of the vehicle had also caused insurance. It is contended that the complainant who paid Rs. 27,234/- to KSEB Aranmula Section for compensating the loss as demanded by the KSEB concerned. It is further contended that there was a valid insurance with opposite party at the time of this incident and as per the terms and conditions of the insurance the opposite party has to compensate the loss. It is stated that though the complainant filed a claim for reimbursing the above said amounts the opposite party neither given a reply not paid any amount as demanded. It is contended that the Aranmula Police registration a case as crime
774/16 with regard to the incident and complainant also issued a legal notice against the opposite parties on 17/08/2016 demanding the above said re-imbursement. It is further contended that the act of the opposite parties clearly comes under the deficiency in service defined in the Consumer Protection Act 1986 and the opposite parties are liable to the complainant. Hence the complaint filed this case for the reimbursement of the amount paid Rs. 27,234/- compensation, cost etc.etc.
- This Forum entertained the complaint and issued notice to the opposite party for their appearance. The opposite party entered appearance and filed a version as follows. According to the opposite party the complainant is not maintainable either in law or on fact. It is contended that it is the duty of the complainant to prove that he is the Power of Attorney Holder of the complainant and the complainant’s P/A holder is having possession and enjoyment of the vehicle as alleged by the complainant. The allegation of the damage of the electric post on 15/04/2016 with a result of the motor accident and the damage of the post are not known to the opposite parties. All these facts have to be proved by the complainant. According to the opposite party the complainant did not claim the re-imbursement of the above said amount when submitting the claim form. If a claim is made for the damage the opposite party can either admit or repudiate the claim. Therefore there is no deficiency in service on the part of the opposite party with regard to this issue. It is the right or duty of the opposite party to assess the actual damage sustained if any to 3rd party property for the re-imbursement of a claim. It is admitted that a valid insurance policy was prevailed in favour of the registered owner Saji Varghese with effect from 25/04/2015 to 24/04/2016. It is contented that the terms and conditions of the re-imbursement and valuation etc are clearly mentioned in the policy certificate. It is also contended that there is no cause of action against this opposite party to prefer a complaint with regard to this subject matter. Therefore, the opposite party prayed to dismiss this complaint with cost.
- On the basis of the complaint, version and the records before us and we framed the following issues for consideration.
- Whether the complaint is maintainable before this Forum?
- Whether the opposite parties committed any deficiency in service against the complainant?
- Regarding the relief and costs?
- In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of her chief examination and examined him as PW1. Through PW1 Ext. A1 to A9 were also marked. Ext.A1 is the Power of Attorney dated: 03/10/2016. Ext. A2 is the FIR dated: 19/04/2016. Ext. A3 is the copy of Policy dated: 24/04/2015. Ext. A4 is the copy of the RC Book. Ext. A5 is the copy of driving license. Ext. A6 is the Legal Notice dated:17/08/2016. Ext. A7 is the Acknowledgment card. Ext. A8 is the estimate report dated: 30/04/2016. Ext. A9 is the Receipt dated: 02/05/2016. The opposite party’s learned counsel cross-examined PW1 and at the time of opposite party’s evidence he produced and marked Ext. B1. Ext. B1 the policy certificate along with terms and conditions. After the closure of evidence we heard both sides.
- Point No.1: The opposite parties seriously contended that the case is not maintainable either in law or on fact. Since no cause of action arised against them and no deficiency in service committed from their side as alleged the case has to dismissal in their favour. When we evaluate the evidence of this case it is revealed that the executor of Power of Attorney Holder Saji Varghese is the registered owner of the vehicle and the vehicle has a valid insurance with opposite party. On the basis of the above fact it is to be attributed that the registered owner is a consumer of the opposite party and the opposite party is the service providers of the registered owner. Ext. A1 is the special Power of Attorney Holder executed by the registered owner of the vehicle Saji Varghese in favour of the complainant. The opposite party has failed to adduce any evidence to disprove the sanctity of Ext. A1. Therefore we can clearly come to a conclusion that the case is maintainable before this Forum and Point No. 1 found in favour of the complainant.
- Point Nos. 2 and 3:- For the sake of convenience, we would like to consider Point Nos.2 and 3 together. When we evaluate the proof affidavit filed by the complainant Power of Attorney Holder as PW1 we can see that the contents of the proof affidavit are more or less as per the tune of the complaint. It is deposed that PW1 was the driver of the vehicle at the time of the incident and he has got possession and enjoyment of the vehicle. The vehicle has a valid insurance with opposite party at the time of the said incident and also deposed that though the complainant filed a claim before the opposite party for re-imbursement of the amount paid to the K.S.E.B the opposite party failed to reimburse the said amount. It is true that the opposite parties learned counsel strongly contended that once the amount is paid by the complainant to KSEB the opposite party is not bound to reimburse the claim as alleged by the complainant. We do admit that the complainant has not adduced any evidence to show that he preferred a claim form for the re-imbursement of the amount paid for the damage of the electric post. It is to see that as per the terms and conditions of the policy the opposite party is bound to pay the cost of the electric post as a 3rd party claim. Therefore it is pertinent to see that the only objection of the opposite party with regard to the non payment of the 3rd party properly claim is the non furnishing of the proper claim at the time of incident. We are also of the view that the complainant failed to submit a claim including the electric post loss at the time of filing the 1st claim. If so we are not in a position to attribute any deficiency in service on the part of the opposite party because there is no repudiation of claim from their side or no evidence to show that they received the 3rd party electric post claim as alleged by the complainant. More over if we peruse Ext. A2 FIR in crime No. 774 of Aranmula Police Station it is proved that while the complainant was driving the vehicle it with an electric post and the co-passenger of the vehicle also sustained certain injury. We can assume that the KSEB would not demand for any compensation for an electric post without any damage. Therefore the complainant’s payment Rs. 27,234/- for the damage of electric post can be seen as reliable. Ext. A3, A4 are the records to show that the vehicle is in the name of the original complainant Saji Vargheze and a valid insurance is also in favour of the complainant. All these facts are admitted by the opposite party. Ext. A5 shows that the complainant is also having a valid driving license at the time of the incident and Ext. A6 and A7 are evidence to show that complainant sent a legal notice to the opposite party demanding the re-imbursement. Ext. A8 is a clear and substantial evidence to prove that the KSEB Assistant Engineer Aranmula clearly assessed the damage of the electric post and demanded to pay an amount of Rs. 27,234/- to KSEB as its compensation. Ext. A8 dated: 02/05/2016 shows that the Power of Attorney Holder the complainant he who paid the damage of electric post Rs. 27,234/- to KSEB electric section Aranmula. The opposite party filed and marked the Ext. B1 the policy certificate along with terms and conditions to substantiate their contention. Anyway the said insurance is covering the 3rd party property claim as per its terms and conditions. Therefore the complainant has got right to claim the re-imbursement of the amount from the insurer since he is an insured of the opposite party. When we evaluate the evidence of the case it is reveal that the complainant is not eligible for any compensation or cost as requested because there is no evidence to show that the complainant filed a claim before the opposite party demanding for the re-imbursement of the said claim. Therefore the complainant is only eligible to get the re-imbursement amount which he paid to the electric post as per Ext.A9. Therefore we find that the complaint is allowable only in part. Hence Point No.2 and 3 found accordingly.
- In the result we pass the following orders.
- The opposite party is here by directed to reimburse the amount Rs. 27,234/- (Rupees Twenty Seven Thousand Two Hundred and Thirty Four only) as per Ext. A9 to the complainant or his Power of Attorney Holder with 10% interest from the date of filing of this case onwards i.e., 28/02/2017.
- No order for compensation and cost.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 23rd day of November, 2017.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. Sheela Jacob (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Ajikumar
Exhibits marked on the side of the complainant:
A1 : Power of Attorney dated: 03/10/2016.
A2 : FIR dated: 19/04/2016.
A3 : Copy of Policy dated: 24/04/2015.
A4 : Copy of the RC Book.
A5 : The copy of driving license.
A6 : Legal Notice dated:17/08/2016.
A7 : Acknowledgment card.
A8 : Estimate report dated: 30/04/2016.
A9 : Receipt dated: 02/05/2016.
Witness examined on the side of the opposite parties: Nil
Exhibits marked on the side of the opposite parties:
B1 : Policy certificate along with terms and conditions.
(By order)
Copy to:- (1) Ajikumar.P.P,
Perudolil, Koipram,
Thiruvalla.
(2) The Oriental Insurance Co. Ltd.,
Marthoma Building,
T.K. Road, Thiruvalla.
(3) The Stock File.
