BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 2/2003 Filed on 01..01..2003
Dated: 15..01..2009
Complainant:
A. Sheeba, Puthen Veedu, Manamboor – P.O., Kallambalam, Thiruvananthapuram. (By Adv. G. Ajaya Khosh)
Opposite parties:
1. The Divisional Manager, New India Assurance Co. Ltd., Thiruvananthapuram. 2. The Branch Manager, New India Assurance Co. Ltd., Attingal Branch. (By Adv. Sreevaraham G. Satheesh)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 25..07..2005 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..12..2008, the Forum on 15..01..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that the complainant purchased one Ashok Leyland Chetak Bus at a total cost of Rs.7,50,000/- on 28..10..1998 and the same was insured with the 2nd opposite party for Rs.5,00,000/-. On 16..08..2001, the said bus was burnt due to mechanical reasons and cost of repair was estimated by the authorised workshop TVS, Trivandrum. The Sub Inspector of Police, Paripally Police Station registered a crime No.194/2001 and the same was forwarded to Judicial 1st Class Magistrate Court, Paravoor. Opposite parties were informed about the incident and the concerned officers inspected the vehicle and report the same. Complainant claimed the value of the insured vehicle. But opposite parties declined to indemnify the complainant as per the premium. Due to financial crisis the complainant was forced to accept the demands of the opposite parties and was forced to accept a cheque for Rs.2,50,000/- as estimated unilaterally by the opposite parties as full and final settlement of the claim. The opposite parties by their bargaining capacity and inducing the disadvantageous position of the complainant induced the complainant to sign the voucher on 20..11..2001 as a token of accepting the claim and thereby opposite parties caused deficiency in service. The complainant is legally entitled to get Rs.5,00,000/- with interest from the opposite parties as per the insurance policy and opposite parties liable to compensate the complainant on account of the deficiency of service. Hence this complaint claiming the balance amount of Rs.2,50,000/- with interst and compensation of Rs.25,000/- and cost of the complaint.
2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable eiher in law or on facts. Complainant is not entitled to raise any further claim as she has accepted the amount in full and final settlement of the claim. She is legally estopped from raising any further claim in the present matter. This complaint is filed after more than one year from the date of settlement. There is no immediate protest or any allegation of undue influence, coercion, coercive bargaining etc. Complainant insured her vehicle with the 2nd opposite party. The vehicle sustained some damage by fire and complainant is entitled to be compensated for the actual loss admissible as per the terms and conditions of the policy. On getting the claim, 2nd opposite party arranged survey through Sri.P.S. Suresh Babu, Licenced Surveyor and survey report was filed on 20..10..2001. The Surveyor assessed the loss on salvage loss basis and the net amount payable was on 2,50,000/-. On the basis of the said survey it was decided to settle the claim for an amount of Rs.2,50,000/- on salvage loss basis and this was intimated to the complainant. Complainant agreed to the settlement on salvage loss basis for an amount of Rs.2,50,000/-. Complainant gave a consent letter for the same on 9..11..2001 and the claim was settled for Rs.2,50,000/- and the amount was given to the complainant by way of cheque dated 20..11..2001 and complainant gave the voucher dated 20..11..2001 accepting the same in full satisfaction and discharge of all claims. The complainant is not entitled for any further amount as claimed in the complaint. The allegation that there is deficiency of service on the part of opposite parties is not correct. There is no deficiency of service and unfair trade practice on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint with compensatory cost.
3. The points that would arise for consideration are: Whether complainant is entitled for the balance amount of Rs.2,50,000/- with interest from the opposite parties? Whether there has been deficiency in service on the part of opposite parties? Other Reliefs & costs?
4. In support of the complaint, complainant has filed proof affidavit and marked Exts.P1 to P10. In rebuttal, opposite party has filed affidavit and marked Exts.D1 to D4.
5. Points (i) to (iii): Admittedly, complainant had taken a vehicle insurance policy from the 2nd opposite party for the period from 31..07..2001 to 30..07..2002 in respect of vehicle bearing Registration No.KL-TL 2710 belonging to the complainant and on 16..08..2001 the said vehicle was burnt and complainant had made a claim for compensation. Ext.P1 is the FIR, in Crime No.104/2000 of Parippally Police Station. Ext.P2 is the copy of the estimated cost of repair of the said vehicle issued by TVS Sundaram Iyengar & Sons Ltd. It has been the case of the complainant that complainant claimed Rs. 5,00,000/- as the value of insured vehicle, but opposite parties by their bargaining capacity forced the complainant to accept the cheque for Rs. 2,50,000/- as estimated unilaterally by the opposite parties as full and final settlement of the claim, thereby the opposite parties committed deficiency in service. It has been rebutted by opposite parties by submitting that on getting the claim, opposite parties arranged survey and survey report was filed by the surveyor on 20..10..2001 by Ext.D1. As per Ext.D1, Surveyor made assessment on repair basis as well as salvage loss basis. Surveyor's recommendation is as follows: "Considering the extent of damages sustained to the insured vehicle, the repair charges required for the revival of the vehicle into pre-accident condition and merits and demerits in different mode of settlement, I am of the opinion that, a salvage loss basis settlement for an amount of Rs.2,50,000/- is beneficial to the insurers. Further several discussions and negotiations with the insured's representatives they are orally agreed to settle the claim on salvage loss basis, but so far the insured not given the consent letter to settle her claim, on salvage loss basis. Hence I have informed the insured by two registered letter stating that the survey work and mode of settlement is still pending due to the lack of consent letter. But she is not responded to my letters. The insurers may take appropriate immediate actions and settle the claim at the earliest". Submission by the opposite parties was that complainant agreed settlement on salvage loss basis and gave a consent letter dated 09..11..2001. Ext.D2 is the consent letter signed and issued by the complainant. As per Ext.D1 consent letter, complainant is not interested in repairing the vehicle and hence requested for settlement of the claim under salvage loss basis, that complainant agreed to accept a sum of Rs.2,50,000/- being the full and final settlement under the salvage loss basis and that there will be no further claim on the insurers in respect of damage to the vehicle. Opposite parties submitted that the said amount of Rs.2,50,000/- was received by the complainant in full satisfaction and gave voucher dated 20..11..2001. Ext. D3 is the copy of the said voucher dated 20..11..2001 complainant also admitted the receipt of Rs.2,50,000/- from the opposite parties. Main thrust of argument advanced by the complainant was to the effect that complainant was forced to accept the said amount due to financial crisis. Nowhere in Ext.D2 or D3 is it mentioned by the complainant that the said amount was received under protest. It is pertinent to note that the said amount was received by the complainant on 20..11..2001 by Ext.D3. There was no protest simultaneously or immediately after the acceptance, nor did complainant issue any notice of protest against the settlement of claim to the opposite parties prior to filing of the complaint nor did complainant allege fraud or undue influence being brought to bear upon her by the opposite parties. The only reason stated in the complaint was that due to financial crisis the complainant was forced to accept the demands of the opposite parties and was forced to accept Rs.2,50,000/- as full and final settlement of the claim. It should be mentioned further that the complaint is seen filed after a lapse of more than one year from the receipt of the said amount in full and final settlement of its claim. It is further to be pointed out that there was no delay in settling the claim by the opposite parties. Opposite parties settled the claim within the reasonable time (20..11..2001) from the date of the consent letter (9..11..2001) issued by the complainant. Opposite parties made reliance on the decisions of the Hon'ble Consumer Disputes Redressal Commission in the case of United India Insurance Co. Ltd Vs. Srinivasa Trading Company reported in II(2002) CPJ III (NC) and in the case of Sri Jayajyothi & Co. Ltd Vs. Oriental Insurance Co. Ltd reported III (2002) CPJ 179 (NC). In the former case it was held that consumer FORA could not go beyond the settlement in the absence of undue influence, coercion and fraud. While in the latter case it was held that there is no deficiency in service since the complaint is filed after seven months from the receipt of the compensation from the opposite parties without protest as full and final settlement. In the light of the aforesaid evidence and in the light of the law discussed in the above said cases we do not find that any case has been made out for this Forum to go behind such full and final settlement. We, therefore do not find any merit in this complaint for us to hold that there was any deficiency in service on the part of the Insurance Company. The complaint deserves to be dismissed.
In the result, complaint is dismissed. Both parties will bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of January, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No.2/2003
APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : FIR Submitted by SI of Police, Parippally dt. 16..08..2001 P2 : Copy of letter No.TVM/AL/SER/182 dt. 21.08.2001 issued to the complainant. P3 : Copy of letter No.TVM/AL/SER/181 dt. 21.08.01 issued to the complainant P4 : Copy of Motor Claim Form of policy No.3176050397976 P5 : Permit in respect of a stage carriage form with permit No.C6/6/T/2000 dt. 06.03.00 P6 : Photocopy of certificate of Insurance of Buses including Tourist buses dated 31.07.01 to 30.07.2002 P7 : Photocopy of certificate of Registration dated 16/10/1995 P8 Photocopy of consent letter of Registration No.KL.7/L/2710 P9 : Receipt No.003228 dated 22.08.2001 for Rs.2,000/- issued by TV Sundaram Iyengar & Sons Ltd P10 : Photocopy of Driving Licence
III. Opposite parties' witness: NIL
IV. Opposite parties' documents:
D1 : Photocopy of private and confidential Motor Final Survey with Ref No.SB/6340/2001 dated 30.10.2001 D2 : Photocopy of consent letter dated 09..11..2001 D3 : " receipt for Rs.2,50,000/- dated 20.11.2001 D4 : " certificate of Insurance of buses including tourist buses.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
