KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 464/11

JUDGMENT DATED : 22.12.11

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI.S. CHANDRA MOHAN NAIR             :  MEMBER

M/s Oriental Insurance Company Ltd.,

Kings way building,
Mavoor Road,Calicut,

Represented by its Divisional Manager,           :  APPELLANT

Divisional Office –I, Thiruvananthapuram.

(By Adv. Varkala B. Ravi Kumar)

Vs

1.      Philip P.P.

          Pulimoottil House, Vettitharakara,

          Ezhakaranadu P.O., Maneed,

          Muvattupuzha.

(R1 by Adv. Sri. Mahesh, amicus curiae)                   :  RESPONDENTS

2.      The Manager

          R.F. Motors, VBM Road,

          Pathadipalam, Changampuzha Nagar P.O.,

          Cochin – 33.

(R2 by Adv. Anil. S. Raj)

3.      Kotak Mahindra Prime Ltd.,

          1^st Floor, Ceebros Centre, 45-montieth road,

          Egmore, Chennai.

JUDGMENT

SHRI.S. CHANDRA MOHAN NAIR:  MEMBER

          This appeal is preferred by the 2^nd opposite party in CC No. 154/08 before the CDRF, Ernakulam who is aggrieved by the directions contained in the order dated 21.10.10 in the above said complaint. As per the order the 1^st opposite party is directed release the vehicle to the complainant in a road worthy condition and is at liberty to claim the expenses incurred by them from the 2^nd opposite party/appellant.

2.      The case of the complainant before the Forum was that his car bearing Registration No. KL 17/E 58 met with an accident on 28.8.07 and same was entrusted to the 1^st opposite party for repairs and that the 1^st opposite party claimed a sum of Rs. 2,59,496/- towards the repairs. It is the case of the complainant that the car was purchased on 28.8.06 and since the repair cost was in excess of the cost of the car, the 2^nd opposite party was liable to settle the claim on total loss basis.

3.      The 1^st opposite party filed version contending that as per the survey report of the 2^nd opposite party, the engine block of the vehicle was also replaced and the entire work was completed on 15.12.2007 and the amount requested by him to be paid by the complainant is liable to be paid either by the complainant or by the 2^nd opposite party. It was also submitted that the complainant had signed a satisfaction letter to the 2^nd opposite party for payment of the amount and the insurance amount was released to the 1^st opposite party which was insufficient. It is their case that the complainant was liable to pay an additional amount of Rs.77,000/-  for getting the vehicle released.

4.      The 2^nd opposite party in the version contended that the payment was made towards full and final settlement and it was as per the damage assessed by the surveyor of the 2^nd opposite party. Pleading for the position that there was no deficiency in service and no further amount was liable to be paid by them, the 2^nd opposite party prayed for the dismissal of the complaint as against them.

5.      The 3^rd opposite party remained absent during the proceedings.

6.      The evidence consisted of the oral testimony of complainant as PW1 and Exts. A1 to A7 on his side. The witness of the 1^st opposite party was examined as DW1 and Ext. B1 was marked on the side of the opposite parties.

          7.      The learned counsel for the appellant/2^nd opposite party vehemently argued before us that the order of the Forum below directing the appellant to pay further amounts to the 1^st opposite party cannot be accepted since the 2^nd opposite party had released the amount to the 1^st opposite party and to the complainant as a full and final settlement. The learned counsel advanced the further contention that there was no 2^nd report as observed by the Forum below. He has also a case that the original policy and conditions ought to have been produced by the complainant and the Forum’s finding that the 2^nd opposite party had failed to produce the policy and conditions are without any basis. He has canvassed for the position that the appellant had clearly discharged their duty and it was unjust and illegal on the part of the Forum below to give liberty to the 1^st opposite party to realize the expenses incurred by the 1^st opposite party from the 2^nd opposite party. The learned counsel submitted before us that as the complainant had accepted the claim without any protest the Forum’s directions giving liberty to the 1^st opposite party is perse unsustainable.

8.      Advocate Sri. Mahesh, the learned amicus curiae opposed the contentions of the counsel for the appellant by submitting that the 1^st opposite party had replaced the engine block as per the directions of the surveyor of the 2^nd opposite party. It is further submitted by him that the appellant/2^nd opposite party ought to have produced the final report and if it was produced, it would have helped the Forum below to come to a correct conclusion. He has also submitted that the order of the Forum below is only to be upheld and the appeal be dismissed.

9.      The short question that is to be considered by us is whether the acceptance of the amount of Rs.1,65,562/- by the complainant in combination with the 1^st opposite party was towards full and final settlement. Ext. B1 clearly shows that the amount was accepted by the 1^st opposite party at the consent of the complainant. There is no mention about any disagreement in accepting the amount. In the complaint also there is no whisper about any coercion, undue influence or compelling reasons for the acceptance of the said amount. In the said circumstances it can only be believed that the amount was received by the complainant and the 1^st opposite party towards full and final settlement. In such a situation the order of the Forum below giving liberty to the 1^st opposite party to claim the excess amount incurred towards the repairs from the 2^nd opposite party/appellant cannot be sustained in the eye of law and hence we can only allow the appeal and set aside the directions as against the appellant/2^nd opposite party. How ever, the directions against the
1^st opposite party to the extent that the vehicle shall be released to the complainant in a road worthy condition is sustained. 

In the result, the appeal is allowed. The directions contained in the order dated : 21.10.10 in CC No. 154/08 before  the CDRF, Ernakulam are set aside as against the appellant/2^nd opposite party.

In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.

The office is directed to return the LCR along with a copy of this order to the Forum below urgently.

S. CHANDRA MOHAN NAIR:  MEMBER

JUSTICE K.R. UDAYABHANU:  PRESIDENT

DA