At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. M.V. VISWANATHAN JUDICIAL MEMBER & THE HONOURABLE MR. M.K. ABDULLA SONA MEMBER
For the Appellants : Sri. R. Jagadish Kumar, Advocate. For the Respondent : ------
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Thiruvananthapuram in C.C. No. 116/06 (complaint filed on 6.4.2006) dated 30.4.2010. The appellants are the opposite parties and the respondent is the complainant respectively. This appeal prefers by the appellant under the order directed to pay an amount of Rs. 2,88,291/- with 9% interest from 23.5.89 till date of realization and cost of Rs. 3,000/- within one month from the date of receipt of the order.
The brief of the case is that a pontoon for mounting sand pump works brought from Neendakara to Vizhinjam for dredging purposes and that the same was returning to Neendakara back. The same was caught in heavy winds and the same which belongs to the respondent was abandon in the sea. The pontoon was insured with the appellant and as such they were liable to indemnify for the loss. The contention of the insurance company was that the first of all MMD clearance was necessary to bring the pontoons to Vizhinjam and that the same was not obtained by the respondent. Secondly this dispute was already agitated before the Insurance Ombudsman and since respondent could not get any relief. The lower Forum was moved in a second admit and here the same is not legally tenable. Thirdly, dispute involved in the litigation was barred by limitation since the matter was happened in 1989 and moved before the lower Forum only in 2006. Finally the Advocate General himself had asked the complainant to move this matter in Civil court through the report and that is flouted by the complainant and the Consumer Forum is moved and lastly the Government by itself can not be a complainant. However the lower Forum without appreciating both question of law and facts involved in the litigation as directed the Insurance Company to pay an amount of Rs. 2,88,291/- with 9% interest from 23.5.1989 till date of realization and cost of Rs. 3,000/- within one month from the date of order.
The Forum below had given opportunities both sides to adduce the oral and documentary testimonials. The complainant who examined as witness, Pw1, George Thomas and marked Exts. P1 to P19. There is no oral or documentary evidence from the part of the opposite parties. The Forum below found that obviously the opposite parties have not performed the service promptly and within the stipulated period. The Forum below relied the documents and evidence on record. The main contention taken by the opposite party is that the complainant is not maintainable as per the provisions of the Consumer Protection Act. Their main contention is that the complaint is barred by limitation. The Ext. P5(A) which reads that 'We regret to note that so far or case is not be attended by the concerned dealing office. We were noted impression that the matter has already settled by our Trivandrum Office level. This connection is seen send after a period of 3 years from the date of claim. Moreover the Insurance company had offered Rs. 2,88,291/- on 30.3.2005 and the opposite parties took nearly 16 years to make an offer to that effect. On the light of this delay of the opposite party is treated as deficiency in service and the Forum directed to pay this amount from the date 23.5.1986. The Forum had taken a view that there was offer from the date of 23.5.1989. But it effected by the opposite parties only 0n 30.3.2005.
On this day this appeal came before this commission for final hearing the counsel for the appellant is present and there is no representation for the respondent/complainant. It is an interesting fact that the complainant is a government department did not appear before this Commission for hearing this appeal. In other words there is no representation from their side.
The counsel for the appellant vehemently argued the appeal on the grounds of appeal memorandum. His main argument is that the report of the Advocate General has opined that the matter has to be admitted before the Civil court. However the complainant is approaching the Consumer Forum. The same is against the legal opinion of the Advocate General. The matter was taken by the opposite party/appellant before the lower Forum and Forum has passed preliminary order on the same. However during the trial the above said document is deliberately not marked and held back by the respondent, the same is abuse of process of court. The Advocate General has given an opinion only in 2005. Interest is awarded by the Forum below from 1989 and the same is not legally teenable. The incident happened in 1989 and litigation is filed only in 2006 and the same is hopelessly barred by limitation. The Government itself can not be a consumer and disputed if any can be agitated only before a Civil Court which also is barred by limitation. Hence the counsel submitted for the allow of the appeal with cost and to set aside the impugned order passed by the Forum below.
The argument of the learned counsel appeared on behalf of the appellant is not any way legally sustainable. The complainant took legal opinion from the Advocate General. But they are not bound to follow such advice. The legal advice is not a direction from the part of the learned Advocate General of the state. This report did not be marked as Ext. It is an advice given by the counsel to a client as per the Indian Evidence Act. It is privileged communication. In the report, the learned Advocate General of Kerala did not give any opinion that this case shall be filed only in a Civil Court and did not file before the Consumer Forum. According to the Section 3 of the Consumer Protection Act, the consumer Forum is having the additional jurisdiction to entertained this complaint. Suppose filed this case in a Civil court, a huge amount of court fee necessary to be paid by the government same time filing this complaint before this consumer Forum, this complainant can save such a payment of huge amount from the public exchequer. That means the public shall not be loosed a huge amount. The decision of the respondent/complainant is uphold. It avoided waste of public money. This argument cannot be acceptable. Another contention taken by the counsel for the appellant is that the incident happened in 1989. But the complaint filed only in 2006 and same is barred by limitation. But the same appellant/opposite party had offered Rs. 2,88,291/- on 30.3.2005 and the opposite parties(appellants) took nearly 16 years to make an offer to that effect. There is no explanation from the part of the appellant for this delay. In these circumstances the appellant was estopped by their contention of the question of limitation. The matter once reached before the Insurance Ombudsman. The Insurance Ombudsman is a machinery established as per the Insurance Act. We are seeing that the Forum below rightly answered all the questions arised before the Forum below. We are not in a position to accept any of the arguments raised by the Counsel for the appellant in the stage of the hearing of this appeal. We are seeing that there is no representation from the part by the respondent/complainant. The non representation from the part of the respondent/complainant is very serious, even though they succeeded in their case in the Forum below. Due to their these type of activities loosing the government fund. The government fund is the money of the people. The officers of the complainant department is liable and responsible for this type of irresponsible attitude. Lastly the counsel for the appellant prays that the amount of the compensation awarded by the Forum below from the date of the incident and he prays to this Commission that it shall be modified only from the date of the complainant. The complainant/respondent deliberately failed to file the complaint in a right time. There is no explanation also given bythe complainant. We are seeing that this argument is acceptable. The delay of filing the complaint is a serious fatal from the part of the complainant department. It is serious latches also from their part. In these circumstances, we are inclined to allow this prayer of the counsel for the appellant. As per the Consumer Protection Act. 2002, Government, State and Central are competent consumers. They can also file complaints for the benefit of consumers. The government can file complaints in Thekkady Boat tragedy, Mangalore Air craft accident etc. for getting the compensation for victims and their heirs. In the prosecut
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ion imposing fines and it will be paid in to the government treasury. But the compensation, it will be paid to the consumer’s directly. This is the difference between penalty and compensation in the eye of law. Such verification is necessary to the government officials. In the result, this appeal is allowed in part. We directed the opposite party to pay Rs. 2,88,291/- with 9% interest from the date of the complaint(6.4.2006) till realization along with a cost of Rs. 3,000/- to the complainant within a period of one month from the date of receipt of the order. We modified the order of the Forum below accordingly and set aside the earlier order. We directed the Registrar of the Commission to forward the copy of the judgment to the Chief Secretary of the state of Kerala for information. Both parties are directed to suffer their respective expenses. The points of the appeal discussed and answered one by one accordingly.