IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 266/09 DATED 22.10.2009<br /> ORDER<br /> <br /> Complainant K.Madhavan, <br /> S/o N.Krishnappa Goundar,<br /> Mysore Road, Near Shanti College, Malavalli Patna, Mandya District. <br /> <br /> (By Sri.C.K.Venkatesh, Advocate)<br /> <br /> Vs. <br /> Opposite Party Branch Manager, <br /> M/s Bajaj Allianz General Insurance Company Ltd., No.363, Sri hari Complex, Seetavilas Road, Mysore-24. <br /> <br /> (By Smt.K.L.Sugandhi, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 23.07.2009<br /> Date of appearance of O.P. : 17.08.2009<br /> Date of order : 22.10.2009<br /> Duration of Proceeding : 2 MONTHS 5 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking a direction to opposite party to pay the entire cost amounting to Rs.1,87,370/- towards the repair of the vehicle of the complainant, which was met with an accident, deducting Rs.84,426/- already paid along with interest at the rate of 21% p.a. and so also, damages of Rs.50,000/- and the cost of the proceedings.<br /> <br /> 2. It is alleged in the complaint that, the complainant is R.C. owner of Iser vehicle No.KA-11-8071. It was insured with opposite party with policy No.09-09-9995-1803-00028340 valid from 13.07.2008 to 12.07.2009. On 13.11.2008, when the vehicle was carrying coffee powder from Mysore to Hubli met with an accident at 3.30 am on N.H.4 after passing Hiruyur. Lorry No.TN-24-W-7146 dashed from behind to the vehicle of the complainant. Consequently, vehicle of the complainant was severely damaged and the driver of the vehicle Mr.Bharath lodged the complaint with the police. After getting the vehicle released from police, the complainant left the vehicle for repairs at Rashika Motors, Mysore. The complainant submitted claim with all details. The opposite party also inspected the vehicle. The Rashika Motors repaired the vehicle and issued bill for Rs.1,87,370/-. The complainant called upon the opposite party to pay entire amount of the said bill. But, the opposite party instead of paying the said amount paid only Rs.84,426/- not to the complainant, but to Sriram Transport Finance Company Ltd., from whom the complainant has raised loan. On what basis, said amount was ascertained has not been informed to the complainant and even the opposite party did not informed the complainant regarding payment of that amount to the finance company. As on the date of the accident, the vehicle was only one year old. The opposite party is liable to pay entire amount regarding repairs of the vehicle. Complainant got issued notice to opposite party, calling upon to pay the entire amount, but there is no response. Hence, there is deficiency in service on the part of opposite party. Accordingly, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version had denied the allegations made in the complaint and has contended that complainant is not entitled for entire expenses towards repairs. But, the liability is after making deduction towards depreciation under law. Secondly, it is contended that, with consent of the complainant, the claim has been settled and the complainant has duly signed the discharge voucher and hence, the complaint is not maintainable etc., Also, it is contended that on the basis of the report of the surveyor, damages was assessed etc., Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the respective contentions, the complainant as well as opposite party have filed their affidavits. Certain documents are produced. We have heard the arguments and perused the material on record.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved deficiency in service on the part of opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- Before proceeding to consider the damage claimed by the complainant, the contention taken by the opposite party that since there is full and final settlement, the complaint is not maintainable, needs to be decided. Because, on this point, if it is found that the complaint is not maintainable, then further assessment of damages will not arise.<br /> <br /> 8. The opposite party has contended that, claim is settled with due consent of the complainant, who has signed the discharge voucher and accepted the claim towards full and final settlement. Hence, he is estopped from claiming the balance amount. In this regard, it is relevant to note, the facts alleged in the complaint. In paragraph 6 of the complaint, it is alleged by the complainant that, towards repairs of the vehicle, he had submitted the bill given by Rashika Motors for Rs.1,87,370/- to the opposite party. The opposite party instead of paying the said amount, paid only a sum of Rs.84,426/- to Sriram Transport Finance Company Ltd., from whom the complainant had borrowed loan to purchase the vehicle. Also, it is stated, at the time of making payment to said finance, the opposite party even did not inform or intimate the complainant and also, not informed on what basis said amount was assessed. Also, specifically it is stated that, the opposite party ought to have taken signature of the complainant and without intimation to the complainant and obtaining signature said amount has been paid to the financier. Hence, in the complaint itself, the complainant has denied and disputed alleged full and final settlement. When that is so, heavy burden is on the opposite party to prove it.<br /> <br /> 9. It is true, officer of the opposite party has filed an affidavit, stating that the surveyor assessed the loss and it is binding on both the parties and the claim is settled with due consent of the complainant. Also, she has stated in the affidavit that, the complainant affixed signature on discharge voucher and accepted the claim. On the other hand, as noted here before, the complainant has specifically disputed the said contention of the opposite party. In the affidavit, on third page, the complainant has specifically stated that, he has not at all signed in the receipt. Hence, when the complainant has denied and disputed the signature on the voucher, it is for the opposite party to prove the alleged full and final settlement.<br /> <br /> 10. It is true, the opposite party has produced claim discharge cum satisfaction voucher and as claimed by the opposite party, there is a signature said to be of the complainant. But, as noted above, the complainant all along has denied and disputed his signature. At this stage, it is relevant to note that, the complainant having denied and disputed the signature on the alleged voucher, had filed an application to send the said voucher to the hand writing expert to ascertain, whether the signature there on is on the complainant or otherwise. That application was strongly opposed by the opposite party, contending that strict evidence act is not applicable to the proceeding before the Forum etc., Of course, for the reasons recorded, particularly that in the summary proceedings, forgery of the signature or otherwise, cannot be decided, the application has been dismissed. But, first of all, the burden is on the opposite party to prove the alleged voucher. In this case, except interested statement of the officer of the opposite party, there is no other cogent evidence to hold that in fact the complainant has signed the voucher voluntarily and agreed for full and final settlement. We are of the opinion that the opposite party has failed to prove the alleged voucher.<br /> <br /> 11. Learned advocate for opposite party relied on the rulings in Civil Appeal No.602/08 judgement dated 26.02.2008 of the Hon’ble Apex Court and also, Civil Appeal No.619/08 judgement dated 29.09.2006 and Civil Appeal No. 535/94 judgement dated 12.08.1999 of the Hon’ble Apex Court. In these rulings, it is held that, if full and final settlement is proved, the insured cannot make further claim. As regards, law laid down in the rulings, there cannot be any dispute. But, has considered here before, the opposite party has miserably failed to prove that the complainant has signed said voucher voluntarily agreeing for full and final settlement. Hence, these rulings will not help the opposite party.<br /> <br /> 12. The complainant has claimed that the damaged vehicle was left for repairs with Rashika Motors and after repairing the same, issued bill for Rs.1,87,370/-. The bill has been produced by the complainant. On the other hand, the opposite party contend that surveyor has surveyed the vehicle and has assessed the damages at Rs.84,426/-. Copy of the surveyor report is produced by the opposite party. It is preliminary assessment report. While assessing the loss, the surveyor has considered labour charges and 50% depreciation in respect of various items stated therein. He has mentioned on the last page that certain items, the depreciation at 10% and the others at 50%. It is a relevant to note that complainant claims, as on the date of accident, the vehicle was not more than one year old. Thereby, it can be said that the vehicle was new one. The surveyor in the report at the end, has made total estimation at Rs.1,91,190/-. However, considering the depreciation, he has assessed the loss at Rs.84,426/. Then the surveyor has put a note, stating that the assessed loss is without dismantling of the vehicle, if once the vehicle is dismantled/opened up, the internal damages will come to light. Hence, the liability of the company may further go up by 15 to 20% of the above and loss on repair basis. Hence, from the report, it is found that firstly, the estimation was Rs.1,91,190/- and secondly, depreciation on certain items at 10% and on other items at 50% has been considered and thirdly the said assessment of loss was without dismantling the vehicle and even according to the surveyer, after dismantling the vehicle internal damages will come to light and the liability of the company may further go up. As noted above, the assessment is preliminary one. Absolutely, there is no material on record, why either the said surveyor or the opposite party did not further assess the damage after dismantling the vehicle and why final assessment report was not submitted or obtained. For these reasons, amongst other facts, the said preliminary loss assessment report placed on record by the opposite party, cannot be accepted.<br /> <br /> 13. As noted above, the complainant got the vehicle repaired from the Rashika Motors, who have issued the bill for Rs.1,87,370/-. Further, at the cost of repetition, in the preliminary assessment report produced by the opposite party also the estimation is Rs.1,91,190/-. Considering the fact that the vehicle was only about one year old at the time of accident and so also, the bill produced by the complainant, as well as the preliminary report of the loss assessor including the estimation made by him, as well as the note, under the circumstances, we feel it just and proper determine the loss at Rs.1,50,000/-.<br /> <br /> 14. Accordingly we answer the point partly in affirmative.<br /> <br /> 15. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.1,75,000/- less Rs.84,426/- to the complainant towards loss, within a month from the date of the order with interest at the rate of 12% p.a. till realization.<br /> 3. Further, the opposite party to pay a sum of Rs.10,000/- towards mental agony and inconvenience and a sum of Rs.1,000/- towards cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 22nd October 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />