BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 249/2000 Filed on 10.05.2000
Dated : 17.01.2011
Complainant:
Sreevaraham Vanitha Samithy represented by its Secretary, Sarada Nair, Vanitha Samithy Building, South Fort, Thiruvananthapuram-23.
(By adv. Pathiripally S. Krishnakumary)
Opposite party:
National Insurance Co. Ltd., represented by its Divisional Manager, St. Joseph's Press Building, Vazhuthacaud, Thiruvananthapuram.
(By adv. M. Nizamudeen)
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 23.02.2004, 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 15.12.2010, the Forum on 17.01.2011 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant insured her building for an amount of Rs. 1 crore with the opposite party vide policy No. 570201/11/983100643, that the policy was valid from 17.08.1998 to 16.08.1999, that the said policy was a fire policy 'A' which covered the loss sustained on account of fire, lightning, storm etc, that on the nights of 6th and 7th February 1999, there were heavy rain with lightning and thunder all over the region where the complainant's building is situated, that the said building was remained closed and was opened only on the 8th of February, that on 8th February, there was a big crack on the side of one of the halls of the building and a big hole on the ground underneath the crack, that the matter was reported to the opposite party in writing for issuance of a claim form and the officer of the opposite party concerned at once inspected the damage and made an evaluation of the same, that the claim form was also duly lodged along with the estimates, that thereafter with the full knowledge and consent of the opposite party, complainant initiated the remedial works necessitated by the said damage. Opposite party on banking lame and untenable reasons repudiated the claim, that after strenuous efforts opposite party issued a cheque dated 03.03.2000 for Rs. 1,05,926/- only, that as the complainant was in high financial constraints, they had no other option but to receive the amount under protest and the same was intimated to the opposite party by a letter dated 18.03.2000 that complainant claimed an amount of Rs. 4,18,681/-, that the amount received was only a partial payment. Hence this complaint to realize an amount of Rs. 3,12,242/- from the opposite party being the balance amount in the claim form and Rs. 25,000/- towards compensation and Rs. 1,000/- as costs.
Opposite party filed version contending that the building of the complainant was insured for an amount of Rs. 1 crore with the opposite party for the above said period, that on receipt of the claim opposite party deputed an independent licensed surveyor to conduct and assess the loss caused to the building of the complainant, that initial estimate dated 24.03.1999 was submitted by M/s Yamuna Constructions Pvt. Ltd. for rebuilding the affected building which included several improvements over the insured structure, that as per the policy conditions opposite party is liable only to pay such amount as would be requested to repair the such property to its former condition. Therefore opposite party requested the complainant to submit a revised estimate for restoring the affected portion of the building to its pre-accident state. Accordingly complainant submitted a revised estimate, that considering the revised estimate and after conducting survey assessed the loss as per the terms and conditions of the policy, that building was more than 30 years old, depreciation was applied on the cost of materials, that considering the report submitted by the surveyor and as per the terms and conditions of the policy the opposite party had sanctioned an amount of Rs. 1,05,926/- to the complainant in full and final settlement of all claims, that complainant accepted the same and signed the discharge voucher in favour of the opposite party. Therefore complainant not entitled to get any more amount. Hence opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:-
Whether the complainant accepted the amount as full and final settlement? If it is not so, whether the complainant is entitled to get the amount claimed?
Whether there is deficiency in service on the part of the opposite party?
Whether the complainant is entitled to compensation and costs?
In support of the complaint, complainant has filed affidavit in lieu of chief examination and has marked Exts. P1 to P15 and commission report as Ext. C1. In rebuttal opposite party filed affidavit in lieu of oral evidence and has marked Exts. D1 to D7.
Points (i) to (iii):- There is no point in dispute regarding the validity of the insurance policy. It has been the case of the complainant that the remedial works were done on the building with the full knowledge and consent of the opposite party and opposite party was fully aware of the nature of the works that had been undertaken. It is the very case of the complainant that for restoration of the affected portion of the building an amount of Rs. 4,18,681/- was charged by M/s Yamuna Constructions and a claim was lodged to opposite party for the said amount. Opposite party repudiated the claim and after strenuous efforts and having frequent correspondence opposite party issued a cheque for an amount of Rs. 1,05,926/-. It is the case of the complainant that she received the said amount with objection and complainant requested for the balance claim amount which was objected by the opposite party on the ground that the payment was made in full and final settlement of the claim. Ext. P1 is the fire policy schedule copy wherein it is seen mentioned the sum insured is Rs. 1 crore and policy period is from 17.08.1998 to 16.08.1999, insured's name: The Secretary, Sreevaraham Vanitha Samithy Building, Fort, Thiruvananthapuram, Situation of risk: Building Nos. 991, 992, 993, 994, 995 & 996. Ext. P2 is the certificate issued by Meteorological Department, Government of India. Ext. P3 is the letter from the complainant to the opposite party informing them that a big crack has developed in the Priyadarsini Hall which is covered under the aforesaid policy due to heavy rain and lightning and hence requested to issue a claim form. Ext. P4 is the estimate dated 24.03.1999 issued by Yamuna Constructions Pvt. Ltd. for Rs. 2,97,225/-. Ext. P5 is the bill for works done at Sreevarahom Vanitha Samithi for Rs. 4,18,681/- issued by Yamuna Constructions. Ext. P6 is the letter issued by opposite party to complainant seeking certain clarifications from the complainant. Ext. P7 is the letter dated 18.03.2000 from the complainant to opposite party stating that as per the policy conditions opposite party is liable to pay an amount of Rs. 4,18,681/- by way of damage, that the payment has been received by cheque No. 586346 dated 03.03.2000 for Rs. 1,05,926/- only which shows in full and final settlement of the claim, that the cheque amount is only a partial payment. Ext. P8 is the letter dated 10.12.1999 from the complainant to opposite party in response to letter dated 09.12.1999. Ext. P9 is the letter from the complainant to opposite party. Ext. P10 is the letter from the opposite party to complainant dated 04.04.2000 showing their inability to consider the claim for Rs. 4,18,681/-. Ext. P11 is the letter dated 18.03.2000 issued by complainant to opposite party. Ext. P12 is the fire policy. Ext. P13 is the letter from the opposite party dated 17.02.1999 to the complainant. Ext. P14 is the bills for Rs. 4,18,681/- issued by Yamuna Constructions. Ext. P15 is the letter dated 20.09.2000 issued by Yamuna Constructions demanding the balance amount from the complainant. Ext. C1 is the commission report furnished by the expert commissioner. As per Ext. C1 it is seen that some other works were also carried out along with the actual damage rectification works and expert has assessed an amount of Rs. 1,11,251/- which is the total amount for additional or irrelevant works. Commission has pointed out that the total claim is in excess of Rs. 1,11,251/-. Deducting the said amount from the total claim amount, the net claim will be limited to Rs. 3,07,430/-. No objection to commission report is seen filed by the opposite party. Opposite party has filed Ext. D1 to D7. D7 is the fire policy 'A' which shows the exclusions and conditions. The question primarily to be considered for discussion is whether the complainant accepted the amount as full and final settlement of claim. It is to be noted that mere execution of discharge voucher and acceptance of claim under protest will never estop the insured from making further claim from the insurer. Ext. D4 is the voucher executed by the complainant insured for Rs. 1,05,926/-. It is stated in Ext. D4(a) that the said amount received from opposite party in full and final settlement of all claims. As per Ext. D2 series surveyor submitted 2 reports. First report on 11/99. After submitting the first report, on 08.12.1999 surveyor was requested by the opposite party to submit fresh estimate for construction of the building. Accordingly surveyor furnished the fresh estimate on 16.02.2000. As per the report dated 16.02.2000 estimated market value comes to Rs. 76,86,335/-, the sum insured is Rs. 90 lakhs. It is further stated therein that the damage to the building was noticed by the watchman of the building and he brought it to the notice of the insured and subsequently to the insurers, that since it is masonry structure scorching is not visible, but there is a clear fresh crack or dislocation or lateral displacement observed on the wall of the building. It is further reported by the surveyor that there is a tendency for lightning to struck on tall and isolated structures, lightning has not struck the base, but due to the lightning effect on the top, the weak point of the structure yielded and cracks developed. The insured is not aware of the weakness of the building until the failure occurred. It is further stated that damage to switch board occurred later. As per the second report the net assessed loss comes to Rs. 1,07,676/-, whereas as per the first report dated 11.11.1999 the net loss assessed was Rs. 2,37,790/-. Complainant has not filed objection to survey report. The prime point for consideration is whether the complainant has received Rs. 1,05,926/- in full and final settlement of her claim. Opposite party relied on the decision of the Hon'ble Supreme Court in the case United India Insurance Vs. Ajmer Singh Cotton & General Mills & others in II (1999) CPJ 10 (SC). At this juncture it will be helpful if we look at the observation made by the Hon'ble Supreme Court in the aforesaid case. The court observed as under; “ The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief”. The above position was reiterated in various decisions of the National Commission. In this case we find that complainant has made no allegation about the exercise of undue influence, misrepresentation or the like, coercive bargaining compelled by circumstances etc. and the only reason set up for receiving the said amount was that complainant has been in high financial constraints and has no other option, but to receive the said amount under protest. But on perusal of Ext. D4(a) voucher no protest is seen recorded. After the receipt of Rs. 1,05,926/- on 18.03.2000 complainant sent a letter to opposite party stating that the cheque amount is only a partial payment and she is entitled to get the balance amount of claim. There is no dispute that complainant signed the discharge voucher and accepted the said amount. A perusal of the discharge voucher would reveal that complainant received a sum of Rs. 1,05,926/- from the opposite party in full and final settlement of her claim under policy. It is pertinent to point out that complainant is not an illiterate person. Since complainant having signed the discharge voucher she is bound by the contents of the voucher. From a reading of the contents of the said letter it is seen that complainant has received a sum of Rs. 1,05,926/- in full and final settlement of her claim. If that be so, it is not open for her to ask for any thing more on the basis of the surveyor's reports if any. Further it is to be pointed out that since complainant having received the said amount without any protest, she is estopped from contending that she is entitled for more amount than what has been received under Ext. D4(a) voucher. Opposite party denied the claim vide letter dated 04.04.2000 by Ext. D5. In Ext. D5 repudiation letter it is seen pointed out that fire policy does not cover plinth and foundations of the building. Also, since the building was more than 30 years old depreciation was applied on the cost of materials and the manner in which the claim amount of Rs. 1,05,926/- has been computed is mentioned in Ext. D5. Accordingly the cost of materials assessed by the surveyor is Rs. 80,540/-, depreciation @27% which comes to Rs. 21,746/-, thereby the net cost of materials is Rs. 58,794/-. Labour charges of Rs. 49,132/- is assessed and added to the above, thereby the total amount comes to Rs. 1,07,926/- less the value of salvage Rs. 2,000/-, the balance comes to Rs. 1,05,926/-. No objection to surveyor report filed by the complainant nor was surveyor cross examined by the complainant to prove otherwise. The loss finally assessed upto Rs. 1,05,926/- which has already been received by the complainant towards full and final settlement. In view of the above discussions and evidence available on records, we find complaint has no merits at all, which deserves to be dismissed.
In the result, the complaint is dismissed.
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 17th day of January 2011.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
Sd/-
S.K. SREELA : MEMBER
jb
O.P. No. 249/2000
APPENDIX
I COMPLAINANT'S WITNESS :
NIL
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of fire policy schedule.
P2 - Copy of certificate issued by Meteorological Department,
Government of India.
P3 - Letter from the complainant to the opposite party dated
08.02.1999.
P4 - Copy of estimate dated 24.03.1999 issued by Yamuna
Constructions Pvt. Ltd.
P5 - Copy of the bill for works done at Sreevarahom Vanitha
Samithi for Rs. 4,18,681/- issued by Yamuna Constructions.
P6 - Letter issued by opposite party to complainant dated
09.12.1999
P7 - Letter dated 18.03.2000 from the complainant to opposite
party.
P8 - Letter dated 10.12.1999 from the complainant to opposite
party
P9 - Letter from complainant to opposite party.
P10 - Letter from opposite party to complainant dated 04.04.2000
P11 - Copy of the letter dated 18.03.2000 issued by complainant to
opposite party.
P12 - Fire policy.
P13 - Letter from the opposite party dated 17.02.1999 to the
complainant.
P14 - Bills for Rs. 4,18,681/- issued by Yamuna Constructions.
P15 - Letter dated 20.09.2000 issued by Yamuna Constructions.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Fire claim form.
D2 - Reports submitted by the surveyor.
D3 - Photographs and negatives.
D4 - Vouchers.
D5 - Repudiation letter dated 04.04.2000
D6 - Copy of fire policy.
D7 - Copy of policy form.
V COURT EXHIBIT
C1 - Commission Report.
Sd/-
PRESIDENT
