Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for damages of Rs.59,900/- with interest and compensation of Rs.25,000/- alleging deficiency in service. 2. The brief facts of the complaint are thus; The complainant is the owner of the tractor and trailer bearing No.KA-11-T-4136-4137 and the said vehicles were insured with the Opposite party valid from 30.07.2007 to 29.07.2008. The said vehicle met with an accident on 01.09.2007 at 1.30 p.m. near Maddur and the Police registered the case in C.Mis.No.421/2007 and on account of the accident, damages were caused to the vehicle and the complainant informed the same to the Opposite party and Opposite party deputed surveyor and complainant got repair estimation and then got repaired vehicles at Cauvery Tractors Ltd., Mandya. The complainant spent Rs.85,000/- for the repairs. When the claim was made to the Opposite party, to his utter surprise the Opposite party sent cheque for Rs.25,100/- dated 13.12.2007 drawn on Corporation Bank, Mandya. Though the complainant submitted the original bills to the Opposite party, the settlement for meager amount of Rs.25,100/- is not proper. The tractor and trailer was a brand new and as such the Opposite party was not bound to make any depreciation for the bills submitted. Therefore, the Opposite party is liable to pay Rs.85,000/- and the Opposite party has committed deficiency in service. Though legal notice was sent to Opposite party, opposite party sent reply stating that the claim has been settled as per the companys policy of the condition with due diligence and that after settlement of the claim the complainant has given unconditional discharge voucher for accepting the settlement of claim for Rs.25,100/-. But, even at the time of taking the voucher, the Opposite party did not reveal its contents and on the other hand, the complainant insisted the Opposite party to record that he is receiving the cheque under protest which the Opposite party did not record and Opposite party is taking undue advantage of the signature of the complainant to discharge voucher. Since, the Opposite party has not settled the legal claim, the complainant has suffered huge loss and suffered unnecessary inconvenience, hardship and so Opposite party is liable to pay compensation. On these grounds, the present complaint is filed. 3. The Opposite party has filed version admitting that the complainant is the owner of tractor and trailer and it was insured with the Opposite party on the date of accident and the accident was informed to the Opposite party who in turn arranged for the survey of the damages caused to the tractor in question. The surveyor correctly assessed the actual damages caused to the vehicle. After assessing the actual loss and making legitimate deductions as per the conditions of the policy, a sum of Rs.25,100/- was paid to the complainant on 13.12.2007 vide cheque after explaining the legitimate deductions and complainant executed an unconditional discharge voucher for having accepted the cheque in full and final satisfaction of the claim. It is false that the complainant has spent Rs.85,000/- for repairs. Though, the complainant had furnished original bills, but they are exhorbitant and imaginary prices, but as per terms and conditions of the policy the Opposite party has paid the admissible amount. The Opposite party has not repudiated the claim, but it was settled with consent, therefore, the Opposite party has not committed any deficiency in service. The legal notice was properly replied. The complainant is not entitled to any amount or compensation and the complaint is liable to be dismissed with cost. 4. During trail, the Complainant is examined CW.1 and Ex.C.1 to Ex.C.27 are marked. On behalf of the Opposite party, Opposite party Officer is examined as RW.1 and the Surveyor is examined as RW.2 and Ex.R.1 to R.6 are marked. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the Opposite party has committed deficiency in service? 2) Whether the complainant is entitled to the amount claimed? 3) What order? 7. Our findings and reasons are as here under:- 8. POINTS No.1 to 3:- The undisputed facts are that, the complainant is the owner of the tractor and trailer bearing registration No.KA-11-T-4136 - 4137 and the said vehicles were insured with the Opposite party as on the date of accident and the vehicle was damaged in the accident on 01.09.2007. The complainant informed the same to the Opposite party and also submitted the estimate Ex.C.24, the Opposite party deputed a Surveyor (RW.2) who conducted for survey of the damages and estimated the loss and submitted report as per Ex.C.6. The complainant got repaired the tractor at Kaveri Tractors Ltd., Mandya. The complainant submitted the bills to the Opposite party and thereafter, the complainant has received cheque for Rs.25,100/- towards the claim and executed the discharge voucher Ex.R.2 and the acknowledgement Ex.R.6 for having received the cheque. 9. The contention of the complainant is that the complainant has spent Rs.85,000/- for the repairs and submitted original bills, the settlement of the claim for Rs.25,100/- is not proper and the Opposite party cannot make any depreciation for the bills submitted as the vehicle was a brand new. Further, it is pleaded that at the time of taking the voucher, the Opposite party did not reveal its contents and on the other hand, the complainant insisted the Opposite party to record that he is receiving the cheque under protest which the Opposite party did not record. 10. But, the contention of the Opposite party is that the complainant did not protest at the time of settlement of the claim and accepting the settlement, executed the settlement voucher Ex.R.2 receiving the cheque as per Ex.R.1 and the complainant did not protest at all and furnished bills are concocted and as per the policy condition, the depreciation is shown by the surveyor and hence the present complaint is not maintainable. 11. The learned counsel for the Opposite party has relied upon the decision in National Insurance Company Vs- Sehtia Shoes by the Honble Supreme Court in Civil Appeal No.1602/2008 contending that the complainant has not at all pleaded the coercion, undue influence or fraud and other circumstances and therefore the present complaint is not maintainable, when there was already settlement of the claim between the parties. On the other hand, the learned counsel for the complainant has relied upon a decision reported in 2008 (1) CPR 347 (NC) in the case of National Insurance Company Ltd., -Vs- M/s Vasavi Traders and contended that the complaint is maintainable for claiming additional amount after signing the discharge voucher towards the full and final settlement, because an act of coercive bargaining in settlement of insurance claim by the insurance company will not prevent insured from claiming further damages. 12. But, if we analyze the facts of the case before the Honble National Commission and the present complaint, decision is not helpful to the complainant, because in that case, after 7 days of receipt of the amount by way of settlement, the complainant had approached the Insurance Company and demanded the balance amount and which was declined by the company and he was asked to approach 2nd Opposite party. Since, the entire stock was burnt and the business had come to a stand still and because of financial crisis and heavy loss of interest, the complainant was constrained to sign on the discharge voucher, which was in a printed format and therefore, he had no option but to file the complaint for the balance amount. But, in the present case there are no materials at all that any coercive method or undue influence or fraud was practiced by the Opposite party for executing a voucher for settlement of the claim. Admittedly he has not approached the Opposite party after executing the discharge voucher and receipt of the cheque demanding the balance amount, nor issued any letter. Nearly 3 months later he sent legal notice without pleading anything about the fraud or coercion or undue influence for settlement of the claim and to sign the discharge voucher nor stated in the notice about his financial condition which constrained him to accept the amount to sign the voucher. Only for the first time in the complaint, the complainant pleaded that he protested at the time of receiving the cheque and also insisted to record the protest, but the Opposite party did not record. At one breath in the complainant it is pleaded that after repairs when he submitted the claim with bills to the Opposite party, to his utter surprise, the Opposite party has sent cheque for Rs.25,100/- drawn on 13.12.2007, but another breath he has pleaded that the complainant insisted the Opposite party to record that he is receiving the cheque under protest. So, the stand of the complainant is inconsistent from stage to stage. Admittedly, the complainant is a graduate. In spite of it has gone to the extent of deposing that the Opposite party obtained his signature to empty receipt at the time of giving the cheque and also obtained signature for giving the cheque, but admitted the signature in Ex.R.1 and R.2. In Ex.R.1, he has put signature writing that he has received the cheque (dated 13.12.2007) and Ex.R.2 is dated 13.12.2007 and it is a settlement intimation voucher taken out from the computer and only the date is mentioned for having received the amount in satisfaction and discharge of the claim. So, it cannot be accepted that blindly the complainant has put signature to the empty voucher. Admittedly, he has deposed that he did not give any petition to the Opposite party or his higher authority claiming additional amount or protesting the discharge voucher of settlement obtained by the Opposite party. Mere non-striking the letters full/partial in Ex.R.2 will not helpful as it is by oversight, but head line and subject matter is settlement discharge voucher. 13. Further, the complainant has submitted the estimate as per Ex.C.27 and the estimation is given for Rs.48,200/-, but he has claimed that has spent Rs.85,000/- for repairs. Though he has produced the bills, but the bills produced by the complainant shows more than Rs.88,000/-. The surveyor (RW.2) as per Ex.R.6 report estimated the repair charges at Rs.29,795/- and deducted policy excess Rs.500/- and salvage value at Rs.1,000/- and shown net loss is Rs.28,295/- and later he has writing in hand in Ex.R.6 that towing charges of Rs.1,000/- may be allowed on production of the bills, but the Opposite party has calculated the damages again at Ex.R.5 as admissible as per policy and the Opposite party has issued a cheque for Rs.25,100/-. Though, the complainant has submitted the bills amounting to Rs.88,800/-, but in the complaint he has stated that spent Rs.85,000/-, so some of the bills cannot be accepted like Ex.C.5, C.7, C.9, C.10, C.18 and C.19. It is not possible to accept that he has spent Rs.85,000/- when the estimate at Rs.42,800/- the complainant has not examined the repairer and proved all the bills. 14. So, though the complainant is entitled to Rs.29,295/- totally as per the surveyor report, but he has accepted the settlement for Rs.25,100/- by executing the settlement voucher Ex.R.2 by receiving the cheque and the complainant has not proved at all any coercive, undue influence or fraud or any other circumstances which forced him to put the signature settlement discharge voucher Ex.R.2 without knowing the contents though he is a graduate. 15. As held by the Honble Supreme Court in the case of National Insurance Company referred above, despite of executing the discharge voucher, the complaint for the remaining amount is not filed under the circumstances which can be termed fraudulent or exercise of undue influence or by misrepresentation or the like. But in the present case till the filing of the complaint, there is no wishper or protest for executing the settlement voucher and complainant has not given any petition claiming additional amount for nearly 3 months and even in the legal notice there is no wishper about the settlement for Rs.25,100/- and execution of the discharge voucher and under what circumstances he executed the discharge voucher of settlement by receiving the cheque. So, only for the first time in the complaint he has pleaded that he protested at the time of receiving the cheque and this oral assertion cannot be accepted, because at one breath it is stated that the Opposite party sent cheque for Rs.25,100/-, but in the other breath has admitted in the evidence that he received the cheque and signed the discharge voucher Ex.R.2 and therefore the complainant has not made out that the Opposite party has obtained the discharge voucher of settlement exercising undue influence, misrepresentation or the like. Therefore, the present complaint is not maintainable and the complainant has failed to prove the deficiency in service. Under these circumstances, the complainant is not entitled to the amount claimed, nor any compensation and the complaint is liable to be dismissed. 16. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. There is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 9th day of July 2008). (PRESIDENT) (MEMBER) (MEMBER)
