KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.545/05 JUDGMENT DATED: 29/7/08 PRESENT: JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER The Branch Manageer, Oriental Insurance Co.Ltd., : APPELLANT Branch Office, P.B.No.8 Jyothi Super Bazar, Thodupuzha, Idukki District. The Appellant is represented by The Senior Divisional Manger, The Oriental Insruace Co.Ltd. Divisional Office No.2, St.Mary Villa, Ulloor, Medical College PO. Thiruvananthapuram –695 011. (By Adv.M.Nizamudeen) Vs George Varkey, Kattunilathu House, Chelachuvadu P.O., : RESPONDENT Cutting Kara, Kanjikuzhy Village, Iduki District. (By Adv.Zeena S.Fernandez) JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER By the order dated 18/4/05 in OP No.229/04 of CDRF, Idukki the opposite party is under directions to pay to the complainant a sum of Rs.15,025/- with cost of Rs.1,000/- and it is aggrieved by the said directions that the present appeal is filed by the opposite party. 2. The case of the complainant before the Forum is that his vehicle was having an insurance policy for the period from 3/4/2004 to 2/4/2005 and during the currency of the insurance the vehicle met with an accident on 17/5/04 whereby the vehicle had sustained extensive damage. Though he had spent an amount of Rs.44,573/- towards repairing charges and another sum of Rs.1,725/- for the towing charges of the vehicle, the opposite party paid only Rs.12,930/- and inspite of repeated requests for the balance amount, the opposite party refused to pay the same. Hence the complaint was filed praying for directions to the opposite party to pay the balance amount also with 18% interest, Rs.10,000/- as compensation and cost of Rs.2,000/-. 3. Resisting the complaint, the opposite party filed version contending that the complainant had accepted the amount of Rs.12,930/- in full and final settlement and as such the complaint was not maintainable. The opposite party further submitted before the Forum that the amount was paid consequent to the final report filed by the surveyor and the complainant was not liable to get any more amount. It was further submitted that there was no deficiency in service on their part and hence prayed for the dismissal of the complaint with costs. 4. The evidence consisted of the oral testimony of PWs 1 and 2, Exts.P1 to P4, DWs 1 and 2 and Exts.R1 to R9. 5. We heard the learned counsel for the appellant/opposite party who submitted his arguments based on the contentions taken in the version as well as the grounds urged in the memorandum of the present appeal. It is his very case that as the complainant had accepted the amount as full and final settlement he is precluded from claiming any further amount and the Forum had gone wrong in entertaining the complaint. Much reliance was placed by the learned counsel in the decisions of the Hon’ble National Commission in United India Insurance Co.Ltd., Vs Srinivas Trading Co. II (2002) CPJ 111 (NC) and Morinda Coop. Sugar Mills Ltd., Vs New India Assurance Co.Ltd & Ors. II (2002) CPJ 57 (NC) wherein the Hon’ble National Commission has held that when the complainant had accepted the amount as full and final settlement the opposite party need not pay any further amount in the petitions filed before the Forum. It was also submitted before us by the learned counsel that the amount was paid on the basis of the report of the insurance surveyor and the amount that was eligible to be paid, had been paid to the respondent/complainant and in such a circumstance there was no deficiency on the part of the opposite party in repudiating the claim and as such the complaint ought to have been dismissed by the Forum below. 6. It is the strong contention of the learned counsel for the appellant/opposite party that as the complainant had executed Ext.R3 voucher showing that it was a final settlement, the respondent/complainant cannot come with a further claim afterwards. It is also his case that the amount was paid on the basis of a final report (Ext.R6) obtained from the surveyor. On a perusal of Ext.R3 it is noted that the complainant had signed the voucher. But no date is seen written and the amount is also seen written not by the respondent/complainant. Moreover the complainant had alleged that after receiving the cheque for Rs.12,930/- he had approached the opposite party for getting the balance amount of Rs.31,643/- and whenever he went to the office of the opposite party he was discouraged from making any further claim and it was as a last resort that the complaint was filed. In the affidavit also he has reiterated that he had received the amount not as final settlement and he was not satisfied with the amount received by him. It is to be noted that after having met with an accident and having spent an amount of Rs.44,573/- it was only natural that the complainant who was hard pressed for money would receive any amount that would be offered. However it is also noted that he has immediately filed the complaint finding that the opposite party was not ready to pay any more amount. In such a circumstance the finding of the lower forum that Ext.R3 cannot be treated as a voucher that was executed towards the full and final settlement of the claim and the same is upheld by this commission also. There is nothing wrong for the complainant to approach the forum for claiming the balance amount to be adjudicated by the Forum below. 7. It is also noted that the Forum has awarded an amount of Rs.15,025/- based on the finding that the opposite party had not considered the value of the spare parts purchased as per Ext.R7 to R7(f). The Forum has awarded the amount of Rs.15,025/- deducting the amount of Rs.5,298/-. However it is to be noted that the complainant is entitled to get any amount after deducting 40% of depreciation. The total of Ext.R7 to R7(f) it is calculated as Rs.20,223/-. After 40% is deducted the amount will be Rs.12,134/- out of which Rs.5,298/- has been paid. Hence the balance amount will be Rs.6,836/- and in our view the respondent/complainant is eligible to get only an amount of Rs.6,836/-. In the said circumstance the order of the Forum directing the opposite party to pay Rs.15,025/- cannot be supported and we reduce the amount as Rs.6,836/- to be paid to the complainant with 12 % interest from the date as ordered by the Forum below. In the result the appeal is allowed in part with the modifications as indicated above. Thereby the appellant/opposite party is directed to pay to the complainant a sum of Rs.6,836/- with 12% interest from the date of default and cost of Rs.1000/- as noted in the order dated 18/4/2005 by the Forum below in OP 229/04. In the nature and circumstance of the case the parties are directed to suffer their respective costs in the present appeal. S.CHANDRA MOHAN NAIR : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT VALSALA SARANGADHARAN:MEMBEER PK.
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.A.ABDULLA SONA | | 
