Date of filing : 12-11-2010
Date of order : 19 -08-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 235/2010
Dated this, the 19th day of August 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
U.K. Yousuf, } Complainant
S/o. Abdul Rahiman,
Proprietor of UK Traders, Hosangadi,
Manjeshwar, Kasaragod Taluk and District.
(Adv. C.N. Ibrahim, Kasaragod)
The Oriental Insurance Co.Ltd, } Opposite party
Kasaragod Branch, Kasaragod
Represented by its Branch Manager
(Adv. S.Mahalinga, Kasaragod)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
The complainant Yousuf filed this complaint alleging deficiency in service on opposite party mainly on 2 ground.
1) The claim amount offered very much less than the actual loss suffered
2) There is inordinate delay in settlement of the claim.
The facts in brief which leading the filing of this complaint are as follows:
2. Complainant who is the RC owner of the vehicle bearing KA 19 B 5156. It is duly insured with opposite party. It met with an accident in December 2009 and caused extensive damages. Complainant spent `84,909/- to repair the vehicle, though a claim is preferred with opposite party they offered `29,625/- only and the claim is settled only on 29-10-2010 i.e. after 10 months delay. Hence the complaint.
3. According to opposite party the policy of insurance is subject to conditions, clauses warranties exclusion IMT’s and Oriental Insurance Company endorsements mentioned in the policy of insurance. As per warranty of the policy 25% from out of the final assessment of damages will be deducted from the claim amount in the absence of spot survey. In this case complainant has not co-operated with the opposite party in conducting spot survey. Hence claim is settled on non-standard basis by deducting 25% settlement amount. Complainant accepted the said amount and issued discharge voucher in full and final settlement. Hence the complainant is estopped from claiming any more amount as damages.
4. After filing the version complainant filed proof affidavit as PW1. Ext.A1 is marked through PW1. Ext.X-1 the claim file pertaining to the claim of the complainant is produced and marked. On the side of opposite party Ext.B1 marked. Both sides heard. Documents perused.
5. According to opposite party they are entitled to deduct 25% of the claim amount in the absence of spot survey. The learned counsel for opposite party pointed out the relevant clause contained in the policy allows the opposite party to deduct the same.
6. In cross-examination PW1 deposed that he has intimated the accident from the spot of accident and he has personally met the branch Manager of the opposite party and they did not demand any written intimation at that time and he submitted the claim form on 20-12-2009 and the delay occurred since the opposite party told him that they will sent a surveyor to the spot and only after that he need to file the claim form. But till 20-12-2009 nobody came to the spot and therefore he approached the opposite party and filed the claim form on 20-12-2009 and he garaged the vehicle for repair after 4 days of accident and the accident occurred in National High Way near Panamboor Bridge and he approached the opposite party after 2 & 3 hours of accident and he has not lodged any complaint before the police. PW1 further deposed that he signed the discharge voucher while accepting `29,625/- towards the claim amount and he has not preferred any protest against the discharge voucher but he orally protested.
7. But we are unable to accept the version of the complainant in the absence of any documentary evidence to prove that he intimated the accident on the day of accident i.e. 15-12-2009 itself and because of their laches he himself taken the vehicle to a garage for repair without a spot survey.
8. The further case of the complainant is that there is inordinate delay in settling the claim. As against this the learned counsel for opposite party submitted that the delay is occurred only because of the laches on the part of the complainant in producing the necessary documents. He relying on a certificate dated 25-08-2010 issued by the Universal Automobiles and submitted that it is the final bill issued by the repairer to the complainant and it proves that the complainant has submitted the final bill only on 25-08-2010 which is an essential document to settle the claim.
9. The further contention of the opposite party is that the complainant is estopped from raising a contention that the claim offered is not satisfactory since he had already executed a discharge voucher towards the full and final settlement of claim. It is also not sustainable. The Hon’ble Apex Court as well as the Hon’ble National Commission in a catena of decisions held that the mere execution of discharge voucher and acceptance of insurance claim would not estop insured making further claim. One of the recent decisions of Hon’ble National Commission is reported in II (2011)CPJ 241 (NC) in the case of NIHARIKA MAURYA v. NEW INDIA ASSURANCE CO. LTD & ORS
10. If that be the case it cannot be considered that there is any deficiency in service on the part of opposite party in settling the claim and deducting the 25% of the claim amount.
11. However, it is seen that the surveyor has assessed `44,816/- towards the liability of the insurer as approximately. So even if 25% of the amount is deducted from the same due to the absence of spot survey even then the complainant should have been paid `33,612/-. But only `29,265/- is seen paid to him. So there is a shortage of `33,612/-, `29,625/-, `3987/-. There is absolutely no explanation for deducting the amount. Hence we are of the opinion that the complainant is entitled for the said amount also.
Therefore the complaint is partly allowed and the opposite party is directed to pay `4,000/- (rounded) to the complainant with a cost of `2,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1.True Copy of the cheque issued to the complainant by the OP.
B1.Commercial Vehicles Package Policy.
X1. Discharge vouchers
PW1. U.K. Yoosuf.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
