THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM Present: Sri. Santhosh Kesavanath P., President Smt. Bindhu M. Thomas, Member Sri. K.N. Radhakrishnan, Member CC. No. 241/2006 Saturday, the 24th day of October, 2009. Petitioner : Shajan Kurian Mulappurathu House, Nagampadom P.O Kottayam. (By Adv. P.A Mathew) Vs.
Opposite party : The New India Assurance Co. Ltd. Office No. II, Kottayam. Reptd. by its Divisional Manager.
O R D E R
Sri. Santhosh Kesavanath P., President
Case of the petitioner is as follows: Petitioner is the owner and is in possession of buildings bearing Door Nos. V/354 and XVI/276 A and B of Kottayam Municipality. Petitioner is a dealer of wooden furniture. Petitioner has two show rooms for sale of furniture one in a building on the western side of the M.C Road and the other in building at Nagampadam. According to the petitioner he is running the business concern on self employment basis and income earned from the business is the source of his livelihood. Petitioner insured his residential house including the furniture and other articles for a period from 9..4..2005 to 8..4..2006 with the opposite party as per vide policy No. 761500/48/2005. He insured his showroom and stock of furniture in them with the opposite party as per policy No. 761500/11/05/00153 and the period of insurance was from 3..8..2005 to 2..8..2006. Petitioners residential house was insured for Rs. 20 lakhs and the furniture items for -2- Rs. 60,000/-. Door No. 16/276 was insured for 10 lakhs and the stock of furniture in the rooms was insured for Rs. 6 lakhs. According to the petitioner flood occurred on 3..8..2005 and 7..9..2005 and on both occasions flood caused damage to the residential building and the show rooms. Petitioner duly claimed for the damages caused to his residential house and the furniture items , due to the flood occurred on 3..8..2005 and 7..9..2005, to the opposite party. Petitioner claimed damage caused to his house and furniture for Rs. 1,32,375/- for the flood on 3..8..2005. He claimed damage caused to the house and furniture for the second flood on 7..9..2005 for Rs. 98640/-. Opposite party deputed its Surveyor to assess the damage caused to the petitioner and give report to the opposite party. Opposite party assessed the loss suffered by the petitioner and awarded compensation of Rs. 21,.462/- for the loss caused by the flood on 3..8..2005 and Rs. 9596/- for the loss caused by the flood on 7..9..2005. According to the petitioner the flood caused extensive damages to the petitioner and he filed claim statement giving full details of the damages caused to the show room and the stock of furniture kept in it. But the opposite party as per 3 Cheques had given Rs. 44735/- petitioner accepted the compensation. Petitioner states that there is no legally sustainable or rational basis for assessing and limiting the compensation for Rs. 44735/-. Petitioner submitted an appeal petition on 3..3..2006 against not granting compensation claim by the petitioner. Opposite party dismissed the appeal without stating valid reason. Petitioner states that act of the opposite party is a clear deficiency in service. So, he prays for an order directing the opposite party to pay an amount of Rs. 314646/- and Rs. 10,000/- as cost inquired to the petitioner. -3- Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party petitioners furniture shop is a commercial establishment and is not means of his livelihood so, the petition is to be dismissed. According to the opposite party actual loss was assessed by the licensed surveyor. Allegations contrary to the facts stated in the survey report Dtd: 14..11..2005 are false and hence denied. As per the survey report insurance company is liable for only Rs. 13,627/- and Rs. 9956/- for the damage caused to the stock of furniture and damage to the residential building. Opposite party issued the details of the assessment to the petitioner. After accepting that petitioner signed receipt stating the amount received by him as full and final settlement of their claims. There is no protest or any objection given by the petitioner to the opposite party till date. So, petitioner is estopped from making a claim as stated in the petition. So the petition is only to be dismissed. So, the opposite party contented that there is no deficiency in service on the part of the opposite party. So, they pray for dismissal of the petition with their costs. Points for determinations are: Whether the petition is maintainable or not? Whether there is deficiency in service on the part of the opposite party? Relief and costs.
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A11 documents on the side of the petitioner and Ext. B1 to B5 documents on the side of the opposite party.
-4- Point No. 1 Opposite party raised a contention that the petitioners furniture shop is a commercial establishment and is not a means of his livelihood and he has other establishments for his livelihood. So, petition is not maintainable . In our view the contract of insurance between the petitioner and the opposite party is not subject for the commercial transaction or in other words the service availed had not been used in any activity directly intended to generate profit. So, we have not hesitation to hold that the petition is maintainable before the Forum. Point No. 2 Opposite party produced the voucher signed by the petitioner for an amount of Rs. 13,667/- said document is marked as Ext. B4. Opposite party produced another voucher signed by the petitioner for an amount of Rs. 9,596/- said document is marked as Ext. B5. From Ext. B4 and B5 it can be seen that petitioner accepted the amount in full satisfaction. Opposite party has a contention that since the amount was received by the petitioner, and had given sign and accepting the amount in full and final settlement of the claim, without any protest or any objection. So, the petitioner is estopped from making a claim as stated in the petition. Hon’ble National Commission in Sidra Rama Thombare Vs. United India Insurance Company Ltd. (reported in 2009 III CPJ page 158) stated that in case of full and final settlement of claim discharge voucher executed by the insured voluntarily and in case protest not attached and no objection raised the petitioner cannot claim any further amount. Otherwise the petitioner shall prove that the discharge vouchers were executed under fraud, undue influence . The petitioner in his petition alleged that the amount was accepted under protest but he has not produce any piece of evidence to prove the same. So, in our view since the amount was accepted by the petitioner as full and final settlement. We cannot fasten any liability against the insurance company over and above the liabilities accepted by the petitioner. So, in our
-5- view no deficiency in service can be attributed against the insurance company. Point No. 2 is found accordingly. Point No. 3 In view of finding in point No. 1 and 2 petition is dismissed. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 24th day of October, 2009. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N. Radhakrishnan, Member Sd/- APPENDIX Documents for the petitioner Ext. A1: Copy of Policy No. 761500/46/00005 Ext. A2: Copy of Policy No. 761500/1100000153 Ext. A3: Copy of the claim petition filed on 3..8..2005 Ext. A4: Office copy of claim petition filed on 7..9..2005 Ext. A5: Office copy of claim petition filed on 7..9..2005 Ext. A6: Office copy of the appeal petition Ext. A7: Copy of the letter Ext. A8: Copy of the Cheque Dtd: 20..6..2006 for Rs. 21462/- Ext. A9: Copy of the Cheque dtd 20..6..2006 for Rs. 9596/- Ext. A10: Letter Dtd: 7..6..2006 . Ext. A11: Copy of the Cheque Dtd: 26..1..2004 for payment of Rs. 86075/-. Documents for the Opposite party: Ext. B1: Survey report Dtd: 14..11..2005 of Super Wood House with photograph Ext. B2: Survey report Dtd: 14..11..2005 of Mulappurathu House with photograph Ext. B3: Terms and conditions of the policy Ext. B4: Full satisfaction voucher signed by the complainant for an amount of Rs. 13,667/- Ext. B5: Full satisfaction voucher signed by the complainant for an amount of Rs. 9,596/-
By Order,
Senior Superintendent.
Despatched on / Received on
amp/ 4 cs.
......................Bindhu M Thomas
......................K.N Radhakrishnan
......................Santhosh Kesava Nath P | | 
