IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 6th day of January, 2012.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C. No. 28/2007 (Remanded)
Between:
Geevarghese Pappy,
Adeneth House,
Vettipuram, Pathanamthitta.
(By Adv. Mathew Samuel) .... Complainant.
And:
1. Bajaj Allianz General Insurance Co. Ltd.,
Anugraha, T.C. No.28/2222,
2nd Floor, M.G. Road, Pazhavangadi,
Trivandrum – 695 023.
2. Bajaj Allianz General Insurance Co. Ltd.,
Branch Office, Opp. Mini Civil Station,
Pathanamthitta.
(By Adv. Sam Koshy) .... Opposite parties.
ORDER
Shri. Jacob Stephen (President):
The complainant’s case is that his Cheverolet Tavera car bearing registration No. KL-03N/747 insured with the opposite parties met with an accident on 28.03.2006 while the policy was in force and sustained heavy damages. The complainant repaired the vehicle after complying all formalities for getting the insurance claim. The total bill for the repairs including materials and labour charge is ` 3,34,113. The amount and the details of the bill were also informed to the opposite parties. After much delay, the opposite parties arbitrarily reduced the bill amount and sanctioned an amount of ` 2,44,112 and the said amount was accepted by the complainant under protest on 29.09.2006. As per the terms and conditions of the policy, the opposite parties are fully liable to indemnify the total loss of the complainant. Being dis-satisfied by the action of the opposite parties, the complainant issued a notice on 18.11.2006 calling upon for the balance amount of ` 75,748. But opposite parties denied the balance payment. Hence this complaint for the realization of the balance amount of ` 75,148 with interest and cost of this proceedings from the opposite parties.
2. Opposite parties entered appearance and filed their version with the following main contentions. Opposite parties admitted the validity of the policy, the accident, the damages of the vehicle and the repairs of the vehicle. On the basis of the complainant’s claim, opposite parties sanctioned an amount of ` 2,44,112 after considering the surveyor’s report. The said amount was also accepted by the complainant by executing full and final settlement voucher without any protest. The amount paid is in accordance with the report of the surveyor and the deduction made in the bill submitted by the complainant is also in accordance with the terms and conditions of the policy. According to the opposite parties, as per the terms and conditions of the policy, certain items in the bill submitted by the complainant is not allowable and certain duplications are also seen in the bill in respect of certain items. So the complainant is not entitled to get any further amount as claimed by him and hence they have not committed any violation of the conditions of the policy and they have not committed any deficiency of service. With the above contentions, opposite parties pray for the dismissal of the complaint.
3. Both sides adduced oral and documentary evidence in their favour and it consists of the oral testimony of PW1 and DW1 and Exts. A1 to A3 and B1 to B4.
4. On the basis of the evidence, this Forum allowed the complaint in favour of the complainant.
5. Being aggrieved by the order of this Forum, opposite parties preferred an Appeal before the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram as Appeal No. 180/2010. After hearing the Appeal, the Hon’ble CDRC allowed the Appeal and set aside the order of this Forum and remanded the matter for fresh disposal with a direction for giving opportunity for the parties for adducing further evidence in respect of the contentions raised before the Appellate Forum.
6. Accordingly, as per the order of the Hon’ble CDRC, both parties appeared before this Forum. On appearance, the complainant’s counsel submitted that they have no further evidence. Therefore, the complainant’s evidence was closed. Thereafter, the opposite parties submitted a proof affidavit of an authorized officer of the opposite parties along with 4 documents and also filed a witness schedule. On the basis of proof affidavit, the authorized officer of the opposite parties was examined as DW2 and the witness was examined as DW3 and Exts. B5 to B8 were marked. Ext. B5 is the certified copy of the claim discharge voucher dated 29.09.2006 for ` 2,44,112 executed by the complainant. Ext. B6 is the copy of the policy certificate in question. Ext. B7 is the copy of the terms and conditions of the policy in question and Ext. B8 is the preliminary survey report dated 18.04.2006 prepared by the insurance surveyor.
7. After closure of evidence, both sides were heard on the basis of their argument notes.
8. In the light of the observations and the directions of the Hon’ble CDRC, the question to be decided at this stage is whether Ext. B8 Surveyor’s Report can be accepted or not and whether Ext. B6 full and final settle voucher is final or not?
9. The point: The parties have no dispute regarding the validity of the policy, the accident and the damages of the vehicle. According to the complainant, they have spent an amount of ` 3,34,113 for the repairs of the vehicle. But they have received only ` 2,44,112 and they are entitled to get the balance amount as per the policy conditions. At the same time, the opposite parties’ contention is that an amount of ` 2,44,112 was given to the complainant as full and final settlement and the complainant had accepted the said amount and executed the full and final settlement voucher without any protest. The amount so arrived is on the basis of the surveyor’s report and on the basis of the terms and conditions of the policy and hence the complainant’s claim for the balance amount is not allowable. The opposite parties also argued that the full and final settlement voucher is not obtained by fraud, coercion or undue influence and the complainant accepted the said amount without any protest also. Though the complainant claims that he had accepted the full and final settlement amount under protest, but he failed to adduce any evidence to substantiate his contention. On a perusal of Ext. B5 discharge voucher, there is no endorsement to the effect that he had accepted the amount under protest. Further, the complainant had no case that the opposite parties obtained Ext. B5 full and final settlement voucher by fraud, coercion or undue influence. Though the complainant had claimed that he had sent a notice on 18.11.2006 to the opposite parties calling upon them to pay the balance amount of ` 75,148. But the complainant had failed to produce that document in evidence as an exhibit for showing that he had accepted the said amount under protest and he is not satisfied with the sanctioned amount. Even if the complainant was compelled to accept the amount offered by the opposite parties under any compelling circumstances, he can very well sent the notice to the opposite parties immediately after the receipt of the amount stating his dis-satisfaction to the offered amount. In the absence of such a notice and in the absence of any other cogent evidence for fraud, coercion and undue influence, we cannot find Ext. B5 discharge voucher as invalid. The said finding is also in the light of the decision of the Hon’ble NCDRC, New Delhi in its latest decision in O.P. 131/2001 (Swan Energy Ltd. Vs. New India Assurance Company Ltd.) reported in 2011 CPJ (page 52(NC), Vol.IV.)
10. At the same time, as per Ext. B7 policy conditions, the rate of depreciation fixed for rubber, nylon, plastic parts, tyre and battery is 50%, and for fibre glass components 30% and for all parts made of glass is ‘0%’ and if the age of the vehicle is less than 6 months, the rate of depreciation for all other parts including wooden parts is ‘0%’. On the basis of the above said conditions, we have examined Ext. B8 surveyor’s report. As per Ext. B8 surveyor’s report, some parts like radiator assembly, fan condenser assembly, mirror assembly etc. are included in the rubber and plastic items and 50% depreciation is calculated for the parts. But we could not understand the logic behind the inclusion of the said items in the plastic and rubber category and the reduction 50% as depreciation. The name of the said parts itself shows that such parts are not made of plastic or rubber. For Example, rear view mirror, radiator assembly etc. are included under plastic items. Mirror is made of glass and radiator is made of aluminium or other like metals. If the mirror or the radiator has a ‘plastic touch’, it doesn’t mean that it is made of plastic. So we are not inclined to accept the surveyor’s report in that respect and it has no justification. So the opposite parties are liable to rectify the said defects in Ext. A8 report. So we find that the complainant is entitled to get the above said depreciated amount though he had executed Ext. B5 full and final settlement voucher and hence this complaint can be allowed with modifications:
11. In the result, this complaint is allowed, thereby the opposite parties are directed to revise Ext. B8 surveyor’s report by excluding the spare parts made of materials other than rubber and plastic from the list of plastic and rubber items and to pay the actual price of the said parts without deducting any depreciation within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize 30% of the balance amount claimed by the complainant and in that event the complainant is also entitled to realize 9% interest for the said amount from today till the realization of the whole amount. In the nature and circumstances of this case, no orders for compensation and cost.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 6th day of January, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Geevarghese Pappy.
Exhibits marked on the side of the complainant:
A1 : Repairing charge bills (10 Nos.) for Rs. 3,34,113/- issued by Anjaneya Motors
to the complainant
A2 : Letter dated 4.10.2006 sanctioning an amount of Rs.2,44,112/- issued by
opposite parties to the complainant.
A3 : Satisfactory voucher dated 14.8.2006 issued by Anjaneya Motors to the
complainant.
Witness examined on the side of the opposite parties:
DW1 : Sreeraj Simon.
DW2 : Alice John (After remand)
DW3 : Naushad Bin Lathiff (After remand)
Exhibits marked on the side of the opposite parties:
B1 : Photocopy of the surveyor’s report.
B2 : Work order dated 8.7.2006 issued by the opposite parties to Anjaneya Motors.
B3 : Photocopy of the Certificate-cum-policy schedule issued by the opposite parties
to the complainant.
B4 : Agreed quotation for Rs.65,000/- for the repairs of the vehicle.
B5 : Certified copy of the claim discharge voucher dated 29.09.2006 for ` 2,44,112
executed by the complainant. (After remand)
B6 : Copy of the policy certificate. (After remand)
B7 : Copy of the terms and conditions of the policy. (After remand)
B8 : Preliminary survey report dated 18.04.2006 prepared by the insurance surveyor.
(After remand).
(By Order)
Sd/-
Senior Superintendent.
Copy to: (1) Geevarghese Pappy, Adeneth House, Vettipuram, Pathanamthitta.
(2) Bajaj Allianz General Insurance Co. Ltd., Anugraha, T.C. No.28/2222,
2nd Floor, M.G. Road, Pazhavangadi, Trivandrum – 695 023.
(3) Bajaj Allianz General Insurance Co. Ltd., Branch Office, Opp. Mini Civil
Station, Pathanamthitta.
(4) Stock file.
