State Consumer Disputes Redressal Commission
Sobhanan, S/O.Karunakaran vs The Branch Manager on 12 April, 2011
Daily Order
First Appeal No. A/10/134 (Arisen out of Order Dated 30/11/2009 in Case No. CC 153/07 of District Kollam) Sobhanan Vs. Oriental Insurance Co. Ltd. BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: Dated : 12 Apr 2011 ORDER Disposed as Allowed
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 134/2010
JUDGMENT DATED: 12. 04. 2011.
PRESENT:
SMT. VALSALA SARANGADHARAN - MEMBER
SHRI.S. CHANDRAMOHAN NAIR - MEMBER
Sobhanan, S/O.Karunakaran, - APPELLANTS
Thiruvathira Nivas, Kariyam,
Edathara P.O., Kadakkal,
Kollam District.
(By Adv. Sri.K.Radhakrishnan)
Vs.
The Branch Manager - RESPONDENT
The Oriental Insurance Company Ltd.
Neduvelil Buildings, 1st Floor
Pazhavangadi P.O., Ranni,
Pathanamthitta
(By Adv.Sri. Varkala B.Ravi Kumar)
JUDGMENT
SHRI S CHANDRAMOHAN NAIR : MEMBER It is aggrieved by the order dated 30.11.2009 of CDRF, Kollam in CC.No.153/07, that the present appeal is filed by the complainant. By the impugned order, the forum has dismissed the complaint.
2. The case of the complainant before the forum was that he was the owner of a vehicle bearing Registration No. KL-3D-6723 which had a valid Insurance Policy with the opposite party for the period from 11.9.2004 to 10.9.2005 and that on 30.6.2005 at about 11 p. m, the vehicle met with an accident at Pattithanam Kavala. The vehicle skidded and hit on an Iron Electric post causing damage to the post. The accident was timely informed to the opposite party and that on the directions of the opposite party; the complainant filed the claim form. It is averred by the complainant that the opposite party directed him to pay the estimate amount to the KSEB and to produce the estimate, the receipt for the payment and other relevant records for getting the claim. The complainant has stated that he had submitted all the documents with a letter dated 25.10.2005 and the opposite party rejected the claim with the objection that the complainant made the payment to the KSEB without the consent of the opposite party. In spite of receiving notice from the complainant the opposite party refused the payment and hence the complaint was filed praying for directions to the opposite party to pay the claim with 12% interest and cost of Rs.2000/-.
3. The opposite party resisted the complaint by filing version where in it was contended that the complainant is not a consumer and that under section 165 & 166 of the Motor Vehicle Act 1988, the complainant ought to have raised the claim before the appropriate authority as Electricity Board is a 3rd party as far as the opposite party is concerned. It was also submitted that the complainant had violated the terms and conditions of the policy by not intimating the accident to the insurer and paying the amount to the KSEB without the written consent from the opposite party. It was further submitted that there was no deficiency in service on their part in refusing the claim.
4. The evidence consisted of the oral testimony of the complainant as PW1 and Exhibit P1 to P3 on his side. The opposite party examined an office assistant working in their office as DW1 and marked documents as Exts. D1 and D2.
5. Heard both sides
6. The learned counsel for the appellant vehemently argued the case based on the averments in the complaint and submitted before us that the form below had gone wrong in dismissing the complaint. It is his very case that the complainant had intimated the accident to the opposite party and it was as per the directions of the opposite party that the amount was paid to the KSEB for avoiding complications as the damage to the electrical post had caused interruption to the power supply in that locality. He has also submitted that the complainant is a layman and he was carried away by the directions of the opposite party and that was the reason why a written intimation was not given. It is also argued by him that the opposite party had no case there was no such accident and the opposite party had repudiated the claim only because of the fact that no prior written intimation was given to the opposite party before paying the amount to the KSEB. Thus he argued for the position that the appeal is to be allowed thereby directing the opposite party/respondent to pay the claim amount of Rs. 27041/- with 12% interest and costs.
7. On the other hand the learned counsel for the respondent/opposite party supported the findings and conclusions of the forum below. He has submitted before us that the forum below had dismissed the complaint fully convinced of the fact that the complainant had violated the terms and conditions in Exhibit DI. He has also invited out attention to section 175 of the Motor Vehicle Act 1988 where it is stated that when the Motor Vehicles Tribunal is functioning as per a separate statue, other courts including consumer forum has no jurisdiction to entertain any claim for compensation. The counsel has also argued for the position that the appeal is only to be dismissed with costs.
8. On hearing the learned counsel for the appellant, respondent and also on perusing records, we find that nobody has a case that the complainant did not have a valid Insurance Policy for his vehicle with the opposite party at the time of accident. The opposite party has repudiated the claim as per Exhibit D2/P2. A perusal of the said repudiation letter it is found that the same is due to violation of condition No.1 & 2 of the policy. The opposite party/respondent has intimated the complainant that since the complaint has not intimated the matter regarding the accident and also that the payment of Rs. 27041/- to the KSEB was done without the written consent, they are unable to entertain the claim. It is found that the learned counsel for the appellant has placed much reliance in section 175 of M V Act 1988 which reads as:
9. 175. "Bar on jurisdiction of Civil Courts:- Where any Claims Tribunal has been constituted for any area, 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, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court." It is to be found that as per section 3 of the Consumer Act the provisions of the C. P. Act are not in derogation of any other provisions of any other law and it is in addition to any other law for the time being in force. More over the opposite party/respondent has not taken a specific ground before the forum regarding the maintainability of the complaint. Hence it is our considered view that the opposite party cannot take a stand that the complaint is barred before the jurisdiction of the Consumer Fora. On a consideration of the entire facts of the case we find that the opposite/respondent has no case that there was no such accident and that the complainant had not paid any amount to the K S E B towards the expenses for rectification in connection with the accident. In this context it is to be noted that the opposite party, while returning the claim to the complainant has only stated that no prior intimation was given and no prior written consent was obtained for the payment by the complainant. The Honorable National Commission in M/s Abhilash Jewellery Vs. The New India Assurance Co. (2003 ICPR 85 NC) has held that consumer forum should not allow Insurance Companies to take up a plea of violation of policy conditions which had not been a ground for repudiation. In "Amalendu Sahoo" Vs. Oriental Insurance Co. Ltd." (C D J 2010 SC 293), the Honorable Supreme Court has held that the Insurance Companies should take a pragmatic view in considering accident claims and they cannot totally deny the claim of a policy holder on violation of minor policy conditions. In this case it is seen that the complainant has intimated the fact of accident to the opposite party orally, though he did not given a written intimation. It is also found that the complainant had produced the estimate prepared by the KSEB and the receipt for the payment as Exhibit P1 & P1A. We also find that apart from the objection that no prior intimation was given, the opposite party has no case that there was no such accident and the complainant had not paid the amount. In such a situation imbibing the ratio in Amalendu Sahoo's case, we direct the opposite party to consider the claim of the complainant on nonstandard basis. It is also found that the Complainant/Appellant is entitled to costs of Rs.2000/- for the proceedings throughout.
10. In the result the order of the forum below is set aside. The appeal is allowed in Part thereby the opposite party is directed to consider the claim of the complainant on non standard basis and pay the amount within a period of two months from today with cost of Rs.2000/- failing which the amounts shall carry interest at 12% per annum from the date of default till the date of payment.
S. CHANDRAMOHAN NAIR - MEMBER
VALSALA SARANGADHARAN - MEMBER
AV.
[ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER