NATIONAL INSURANCE CO. LTD. vs Bobby Joseph

SHRI Bobby Joseph, the complainant, is a contractor. He entered into a contract with the Southern Railway vide agreement dated 10.6.2005. The contractor/complainant had to execute earth filling and allied works in connection with the construction of Kottayam -Ernakulam Railway Line. On 9.1.2008 during the course of work the tipper lorry that belonged to the complainant hit OHE/Mast at Kottayam, 555/1 between Kottayam and Ernakulam Section at 16.30 hours and damaged it. The Divisional Railway Manager (works), Southern Railway calculated the loss including materials and cost of labour at Rs. 1,06,000 and realized the same from the complainant. The Respondent No. 2 also filed a complaint against the driver of the vehicle before the CJM, Kottayam alleging the offence under Section 154 of Railways Act. It is contended that the vehicle of the complainant was insured with the National Insurance Co. Ltd. at the time of accident and he approached the Insurance Company for indemnifying the loss recovered from the complainant. As the needful was not done, therefore, the complainant filed a complaint before the District Forum. The District Forum allowed the complaint and directed the Insurance Company to pay the complainant an amount of Rs. 1,06,000, the amount recovered from the complainant towards cost of the damage to the Railway, compensation in the sum of Rs. 5,000 along with litigation charges of Rs. 3,000.

AGGRIEVED by that, the Insurance Company filed an appeal before the State Commission. The State Commission also dismissed the appeal. We have heard the learned Counsel for the parties.

LEARNED Counsel for the petitioner/Insurance Company vehemently argued that the complainant is not a consumer in this case. She has invited our attention towards Section 175 of the Motor Vehicles Act, which puts a bar on jurisdiction of civil Court. She contended that any claim raised by the complainant should go to the Railway Claims Tribunal. She also contended that this Commission cannot arrogate to itself the powers which are not vested with it. The second point raised by her was that it was the bounden duty of the complainant to inform about the accident immediately to the Insurance Company. However, no information was given to the Insurance Company. There is huge delay, which is fatal to the claim of the complainant. She explains that the case comes under the Motor Accidents Claims and the complainant can get redressal of his claim before the MACT.

ALL these arguments are devoid of merits. We have thoroughly perused the insurance policy, which clearly mentions about the liability to third person, which runs as follows: "(i) Liability to Third Parties - -

Subject to the Limit of liability as laid down in the schedule hereto, the Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Vehicle anywhere in India against all sums including claimant''s costs and expenses which the insured shall become legally liable to pay in respect of - -

(i) Death of or bodily injury to any person so far as it is necessary to meet the requirements of the Motor Vehicles Act.

(ii) Damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured up to the limit specified in the schedule."

This provision of law answers all the questions put on behalf of the Insurance Company. It is thus clear that the petitioner is a consumer and his claim lies with the consumer Fora. Both the Fora have given concurrent findings in favour of the complainant. It must be borne in mind that there is a delay. The complainant should have informed the Insurance Company immediately. However, delay in this case is not fatal though the complainant has committed a mistake. In this case, the amount of loss was assessed by the Railway Department. The Railway Department is a Government department. The chances of collusion between the Railway authorities and the complainant are almost nil. Moreover, no such allegation was made against the Railway authorities that the Railway Authorities were working in cahoots with the complainant and that is why they have raised an increased amount. There is no possibility of any ulterior motive. The revision petition is without merits, therefore, the same is hereby dismissed with costs of Rs. 10,000 under Section 26 of the Consumer Protection Act, 1986, which be deposited with the Consumer Legal Aid Account of this Commission within a period of thirty days from the date of receipt of this order otherwise it will carry interest @ 10% per annum till its realization.