Karnataka

Bijapur

CC/24/2015

Sri Mahadev S/o Fakirappa Hirolli - Complainant(s)

Versus

CHOLAMANDALAM MS GENERAL INSURANCE CO,LTD, - Opp.Party(s)

Sri G.M.Badiger

19 Aug 2016

ORDER

                

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VIJAYAPUR

 

DATE OF FILING 19^th  DAY OF February, 2015

CONSUMER COMPLAINT NO. 24/2015

 

DATED THIS THE 19^TH DAY OF AUGUST, 2016

 

01) Sri S.H. Hosalli                            -          President.     

                  B.Com.LLB. (Spl),

 

02) Smt.V.B. Chiniwal                       -        Lady Member.

                   B.Com.LLB. (Spl),                  

 

03) Smt.G.S. Kalyani                         -        Lady Member.

                 B.Com.LLB. (Spl),

 

 

COMPLAINANT   -

Sri. Mahadev S/o Fakirappa Hirolli, Age: 47 Years, Occ: Business, R/o: Gachinkatti Colony, Vijayapur.                         (Rep. by Sri. G.M. Badiger, Adv.)

- V/S -

 

OPPOSITE PARTIES  -

1.           2.                 3.

Cholamandalam M.S. General Insurance Co. Ltd., Unit No.4, Ninth Floor (level-06), “Golden Heights” Complex, 59th ‘C’ Cross, Industrial Suburb, Rajajinagar, 4th M.Block, Bangalore-10.   The Claim Manager, Cholamandalam M.S. General Insurance Co. Ltd., 1st Floor Kalburgi Square , Desai Crass, Deshpande Nagar, Hubli – 29.                      (Rep. by Sri. A.S. Misale, Adv.                                       for Op.No.1 & 2.)   The Branch Manager, Indusland Bank, Near Subhashri Hotel, Solapur Road, Vijayapur.                                    (Ex-parte.)

 

 

 

 

O R D E R

 

Speaking through Smt. V.B. Chiniwal, Lady Member.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directing the Opposite parties to pay Rs.3,37,723/- along with interest @ 18% p.a. to the complainant and Rs.50,000/- towards compensation for non providing the proper service further Rs.1,00,000/- towards mental and physical pain and suffering Rs.10,000/- towards litigation expenses  etc.,

 

2.      The facts of the case in brief are that;

 

          It is contended that, the complainant is the owner of Truck bearing its Reg. No: KA-28/ B-2899, the respondents are dealing with General Insurance and the respondent No.3 is local agent of the Op1 and 2.  The complainant was insured with Ops for periods from 21/03/2014 to 20/03/2015 for that period policy have issued No.3379/010/2319/0000/00.

 

          On 15/09/2014 the said Truck was met with an accident near Kapoli N.H. No.4 Mumbai and caused damages. As per information given by the complainant, the Ops have authorized their surveyor by name N.S. Patil, of Vijayapur to conduct the Survey and estimated the total loss of vehicle.  So, as per the authorization given by the Op, the above named surveyor visited the spot and conducted the survey of the accidental vehicle and total loss of vehicle was estimated to the tune of Rs.9,72,420/-.  Thereafter, the complainant got referred the accidental vehicle in Vijayapur workshop and all together he had spent Rs.6,54,570/- for the repair.  After completion of repair work, the complainant had submitted the claim form along with necessary documents to Ops through their surveyor.  Further, it is to state that the surveyor had taken some signatures of complainant on blank vouchers along with claim form.  So, believing the words of the surveyor the complainant had signed on blank vouchers.

 

          The surveyor of the Ops had estimated the total loss to the vehicle that was Rs.9,72,420/- and this complainant had submitted the claim form along with the total bill worth Rs.6,54,570/- which are covered under the policy issued by the Ops.  So these facts, the Ops have credited a meager amount of
Rs.3,16,847/- to complainant account without his  consent.

 

          On 13/12/2014 the complainant himself issued a request letter to the Ops by RPAD and same are served on the Ops. But, inspite of the letter the Ops did not respond for that.  Thereafter the complainant got issued the legal notice to the Ops through his advocate dtd:05/01/2015 calling them to settle the full and final claim that notice was also served on the Ops.  But, inspite of receipt of the legal notice issued by the complainant counsel, the Ops neither reply to the notice nor settle the claim fully.  Due to the non settlement of the claim by the Ops.  The complainant has sustained claim of Rs.3,37,723/- along with interest @ 18% p.a. and directing the Ops to pay an amount of Rs.50,000/- to the complainant as a compensation for non providing the proper service to the complainant.  Further, award of litigation expenses of Rs.10,000/- etc., Hence, complainant prayed for allow the complaint.  

         

3.      After receipt of said notice, the OPs have appeared through their counsel and notice duly served. But, the Op.No.3 has not appeared. Hence, placed exparte. On behalf of Op.No.1 & 2 have filed their common objection as under;

 

          The Ops have contending that Para No:4 of the complaint are all false and are hereby denied the alleged damages caused to the said Truck amount of Rs.9,72.420/-. It is further denied that the surveyor appointed by the Op Company estimated the loss to the said Truck to the tune of Rs.9,72,420/-. It is also denied that the complainant got his Truck repaired at Vijayapur Workshop and spent Rs.6,54,570/-.  The complainant may be called upon to substantiate these averments by documentary evidence; it is further denied that, the surveyor had taken signatures of the complainant on blank vouchers along with claim form.

 

          Further Op.No.1 & 2 denied that, all the allegation made by the complainant further additional claim of Rs.3,37,723/- and further  an amount of Rs.50,000/- for not providing proper service without any basis. The Ops have contended that, the company appointed a Surveyor and said Surveyor submitted his survey report on 05.12.2014 in which estimated loss caused to said truck at Rs.3,16,847/-, the complainant agreed to the estimation of loss made by the Surveyor and on the basis of his consent respondent company has credited the said amount. Hence, there is no cause of action arose to file this complaint and prayed for dismissal of the complaint.

 

4.      Both the parties have filed their affidavits in support of their case and also the complainant has filed witness affidavit of CW-2 to CW-7 in support of his case, the complainant has produced 29 documents same are marked as Ex.Co.No.1 to Ex.Co.No.29. On behalf of Opponents produced only two documents as marked Ex.OP.No.1 & 2. Both side Advocates have filed their written arguments. Heard the arguments on the both side. Now, the points that arise for our consideration in deciding the case are;

 

1. Whether the Ops have rendered the deficiency

    in service to the complainant?

    

2. Whether the complainant is entitled for the

    relief as is sought for?

    

3. What order?

    

   5.      Answer to the above Points:-

    

4. Negative.

5. Negative.

6. As per final Order.

   R E A S O N S :-

    

   6.      Point No.1 :  There is no dispute on the point that the Policy was issued by the Ops company for a period of insurance from 21/03/2014 to 20/03/2015 midnight Policy No:379/0101219/ 000/00 produced by Ops marked as Ex. Op-1. 

    

             There is no dispute on point that the Op company credited an amount of Rs.3,16,847/- to the account of the complainant at Bank of Baroda, at Vijayapur.

    

             The complainant stated that, the Ops have regularly contacted the complainant and continuously the negotiation was going on between the parties to the complainant and further contended that, on 13.12.2014 the Ops have credited an amount of Rs.3,16,847/- to the complainant’s bank A/c as per Surveyor report . it is clearly shows that, the complainant agreed and to receive the said credited amount towards full and final settlement of his case. Moreover, the Op.No.1 & 2 produced final surveyor report i.e. Ex.Op.No.1 it clearly evidenced that, as per surveyor report, the Ops have deposited/credited the amount to the complainant A/c this fact is also not disputed. Once insured had received amount in full and final settlement of his insurance claim and signed discharge voucher insured cannot be permitted to reagitate his claim, this fact also reported in 2013 (2)  C.P.R. 235 (NC) M/s. Shree Balaji Woolen Mills V/s The Oriental Insurance Co. Ltd., 

    

        Consumer Protection Act, 1986 – Section 15, 17, 19 and 21 – Insurance – Payment under protest – Once insured had received amount in full and final settlement of his insurance claim and signed discharge voucher, insured claimant cannot be permitted to reagitate his claim unless claimant is able to establish that discharge voucher was obtained by undue influence, fraud, misrepresentation or coercion – Whether or not discharge voucher/receipt signed by party should amount to valid discharge of liability of other party is a question of fact – If signatory to discharge voucher/receipt is able to establish that he was compelled to sign discharge voucher because of fraud, misrepresentation, pressure tactics or coercion etc., by opposite party, he would still be entitled to raise the issue in judicial forum dehors having sign discharge voucher.

    

    

    

             Here in present case also complainant received amount as per the final surveyor report as per Ex.Op.No.1 and signed discharge voucher. But, the complainant not mentioned anywhere in his complaint or affidavit in lieu of evidence and also in the written argument to the effect that, the signature was obtained by Ops by under influence fraud, misrepresentation or coercion.

    

             Looking to the facts and circumstances of the case, we are of the openion that, the Ops have not rendered deficiency of service towards the complainant. Hence, we answer to the
   Point No.1 is Negative.

    

    

   7.      Point No.2 : There is no doubt that, once the deficiency is not proved, the next point is how much compensation complainant is entitled for? does not arise. The Ops had already deposited a sum of Rs.3,16,847/-. Hence, we answer to the Point No. 2 is Negative.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

    

    

8.      Point No: 3:- In the result, the complaint of the complainant is dismissed. We proceed to pass the following;

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

O R D E R

 

1. The complaint of the complainant is dismissed.

    

    

2. No order as to costs.

    

    

    

    

    

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 19^th day of August, 2016).

 

 

Sri. S. H. Hosalli,     President.

Smt. G. S. Kalyani,    Lady Member.