BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 36/2012.
THIS THE 11th DAY OF JANUARY 2013.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. K.H. Sri Ramappa, B.A.LLB. MEMBER.
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COMPLAINANT :- M/s. Priya Construction Co. Through its
Accountant, Veeraraju S/o. M. Adeppa, Age: 41 years, Priya Construction Company, Shaktinagar,
Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. The Branch Manager, Bajaj Allianz General
Insurance Company Ltd., Shop No. B-2 to 5, Ashwini Complex, Opp: Public Gardens, Station Road, Raichur- 584 101.
2. The Branch Manager, Bajaj Allianz General Insurance Company Ltd., 2nd floor, Sitaram Complex, Double Road, Opp: Cosmopolitan Club, Gandhi Nagar, Bellary- 583 101.
CLAIM : For seeking direction to pay sum assured of Rs. 15,00,000/- along with interest etc., alleging deficiency service on the part of the opposite.
Date of institution :- 04-05-12.
Notice served :- 24-05-12.
Date of disposal :- 11-01-13.
Complainant represented by Sri. B.S. Patil, Advocate.
Opposite represented by Sri. A.S. Mali Patil, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. K.H. Sri Ramappa, Member:-
This is a complaint filed by complainant U/sec. 12 of Consumer Protection Act against the opponent seeking direction to pay sum assured of Rs. 15,00,000/- along with interest etc., alleging deficiency service on the part of the opposite.
2. The facts of the case briefly sated as under:
The complainant is a constructing company and engaged in the construction the KPCL Building and towers at Shaktinagar and it is having vehicle concrete miller lorry bearing No. KA-04/1052 and the said vehicle insured with the opponents vide policy No. 06-1701-1811-00000498 for sum assured of Rs. 15,75,000/- for period from 13-11-2010 to 10-11-2011. Further case of the complainant that, on 07-01-2011 at about 23:15 hours the said vehicle met with an accident on Raichur Shaktinagar Road, near Tayamma Temple, and the vehicle is completely damaged in the said accident. In this regard the Rural Police was registered a case in its Crime No. 8/2011 and immediately the complainant informed the accident to the opponents Insurance Company and the opponents appointed a surveyor for spot inspection and surveyor shifted the damaged vehicle to the Md. Basheer Garage, Mechanic of the lorry for repair. The surveyor inspected the damaged vehicle and submitted the report along with the estimation of the repair to the opponents and the complainant has submitted claim to the opponents along with required documents, bill for Rs. 3,42,460/- for the cost of the repair of the said vehicle. After receipt of the claim the opponents sent the cheque for Rs. 98,000/- only by writing a letter as full and final settlement and made demand the complainant to acceptance of the said amount. The complainant further alleged that, claim of Rs. 98,000/- as full and final settlement made by the opponents is not reasonable and arbitrary one and as per the will and wish of the opponents and the policy covers for Rs. 15,75,000/- and as per the bills and estimation and the surveyor report the opponent bound to pay compensation towards the damage of the vehicle for Rs. 3,42,460/- with interest penalty cost and the complainant not accepted said amount and signed the consent letter for full and final settlement and the complainant further requested to the opponents for reconsideration of his claim that the opponent not heed the request of the complainant. Lastly the complainant has got issued legal notice to opponents on 18-02-2012, even after receipt of the legal notice the opponents have not replied and responded the request of the complainant and make delay to settle the claim which shows that, there is a deficiency in service on the part of the opponents. On these grounds the complainant prayed for allowing the complaint by awarding Rs. 15,00,000/- with interest penalty etc.,
3. Opponents have appeared though its common counsel and filed written version by resisting the claim of the complainant and opponent has denied that, the complainant is a constructing company and engaged in the construction and it is having concrete miller lorry bearing No. KA-04/1052 and the said vehicle insured with the opponents vide policy No. 06-1701-1811-00000498 for sum assured of Rs. 15,75,000/- for period from 13-11-2010 to 10-11-2011 and also denied the accident took place on 07-01-2011 at about 23:15 hours and the vehicle damaged in the accident. The opponents further contended that, opponents have appointed a surveyor and surveyor has assessed the total amount of Rs. 1,11,278/- including the loss for parts and labor expenses, by deducting the salvage, compulsory excess and depreciation assessed in net Rs. 97,404/- and the opponents have after assessing the actual loss and given sufficient opportunity to the complainant the complainant has settled the matter and he has received the said compensation amount of Rs. 98,000/- after signing the discharge voucher by way of cheque bearing No. 047277 dt. 21-02-2011 as full and final settlement and he received the said cheque without any protest and after lapse of some days of claim settlement, he has claimed further amount saying that, settlement amount is meager. Once the complainant has received the entire compensation amount as full and final settlement he cannot claim any compensation or damages by filing the present complaint. The opponents further contended that, the complainant produced one estimation letter 12-01-2011 issued by the Md. Basha Gas Welding & tinkering which showing approximate value of the repair but complainant not at all produced any repair bills and if, really the complainant has incurred Rs. 3,42,460/- for repair of the said vehicle definitely complainant could have produced the said bills before the forum. And the complainant has made false claim of Rs. 15,00,000/- towards deficiency in service after settling the matter, and there is no deficiency in service on the part of the opponents. Hence complaint filed by the complainant is not maintainable in the eye of law. On these grounds the opponents prayed for dismissal of the complaint.
4. One Veeraraju Accountant and authorized of the complainant company has filed his affidavit-evidence as PW-1, and documents marked as Ex.P-1 to Ex.P-11 and also filed affidavit-evidence of the Md. Basha, owner of Basha Gas Welding & Tinkering works, Bellary as PW-2, and closed their side. As against this, the legal Manager of the Opponents by name Vinod has filed affidavit-evidence as RW-1 and documents marked as Ex.R-1 to Ex.R-4 and affidavit of the surveyor filed as RW-2, and closed their side. Both parties have filed written arguments and also advanced the oral argument.
5. Now, on the basis of the facts the following points would arise for our consideration:
1. Whether the complainant has proved that, there is deficiency in service on the part of the opponents in settling his claim. If so, whether complainant is entitled for the reliefs as prayed in his complaint.?
2. What order?
6. Our findings on the above points are as under:-
(1) In partly affirmative.
(2) As discussed in the body of this judgement and as noted in the final order.
REASONS
7. From the material and evidence placed on record by the parties, it is evident that, the complainant is being constructing company and is having concrete miller lorry bearing No. KAC-04/1052 and the said vehicle insured with the opponents vide policy No. 06-1701-1811-00000498 for sum assured of Rs. 15,75,000/- for period from 13-11-2010 to 10-11-2011 as per the policy issued by the opponents and marked at Ex.P-4 and the FIR and Photos marked at Ex.P-1, Ex.P-5 to Ex.P-5(c) and the evidence of the RW-2 established that, the said vehicle met with an accident on 07-01-2011 at about 23:15 hours on Raichur Shaktinagar Road, near Tayamma Temple and the vehicle damaged in the said accident and he has assessed the damaged vehicle. The contention of the complainant that, the opponents sent the cheque Rs. 98,.000/- as full and final settlement of his claim through letter is not reasonable and it is arbitrary one and as per the will and wish of the opponents and the policy covers for Rs. 15,75,000/- and opponents bound to pay compensation of Rs. 3,42,460/- as per the bills and estimation with interest and complainant is not ready to accepts meager amount as full and final settlement and refused to sign the consent letter and the opponents made delay to settle the claim and not ready to pay any compensation inspite of requests made by him and alleged deficiency in service on the part of the opponents. As against this, the specific contention of the opponents that, after assessing the actual loss and giving sufficient opportunity to the complainant the claim settle for Rs. 98,000/- as full and final settlement and after signing the discharge voucher by way of cheque bearing No. 047277 dt. 21-02-2011 and amount received without any protest and further only after lapse of some days the complainant has claimed that, the settlement amount is meager and once the complainant has received the entire amount of compensation as full and final settlement he cannot claim any compensation or damages by filing present complaint. Hence the complaint is not maintainable in the eye of law.
8. On the material it is no doubt true that, the opponents surveyor conducted the spot and final survey and the surveyor assessed the total loss including the loss for parts and labor expenses at Rs. 1,11,278/- and after deducting salvages, compulsory, excess and depreciation assessed in net Rs. 97,404/- as per Ex.R-3 and opponents settle the claim for Rs. 98,000/- as full and final settlement through cheque by wring consent letter to the complainant and made demand to accept the amount as full and final settlement by signing the discharge voucher. On perusing contention of the complainant it is not the case of the complainant that, there is discrimination in the survey report and the surveyor has not considered the bill produced by the complainant. Admittedly the surveyor has assessed the loss on the basis of the estimation submitted by the complainant for Rs. 3,42,460/-. More over the affidavit evidence of the PW-2 Md. Basha who is the owner of the Basha Gas Welding & Tinkering works nothing discloses that the vehicle was repaired and spare parts purchased and replaced and it establishes that, he issued only estimation for Rs. 3,42,460/- for labor charges, requirement of spare parts and replacement and assessed the claim by the surveyor on the estimation submitted by the complainant. The complainant has not produced any evidence to ignore the survey report. Unless it is discredited by producing evidence to the contrary the report of the surveyor cannot be ignored. In this regard we would like to refer a decision reported in : I 2010 CPR 265 (NC) (CP) in which it has held that, in the insurance claim cases the detail report of the surveyor cannot be ignored and it has considered as evidential value, unless it is discredited by producing evidence to the contrary. The bills submitted by the complainant with a memo at the fag end of the stage of the order without seeking permission for production of documents in proper manner, the documents cannot be considerable and permissible under law, because the surveyor already assessed the loss of the damaged vehicle on the basis of the documents produced by the complainant, again these documents cannot be relied upon to consider the claim of the complainant. Hence we find that, no merits in the contention of the complainant to discard the survey report.
9. On perusal of the discharge voucher marked at Ex.R-4 shows that, it is in the nature of the printed form and it also does not carry the details of the amount and cheque number and through which the amount of Rs. 98,000/- was eventually paid to the complainant. Nothing has been shown for encashment of the claim amount and it was accepted by the complainant and claim was settled as full and final settlement either by the complainant or by the opponents. Even, the consent letter issued by the opponents also not placed on record. Mere signing on the blank voucher does not amount that, the opponents have settled the claim of the complainant for Rs. 98,000/- as full and final settlement and the amount was accepted or enchased by the complainant. It is bounded duty of the opponents to produce the required documents to show that, the amount of Rs. 98,000/- paid to the complainant as full and final settlement and complainant accepted the same and the burden heavily lies on the opponents. In the absence of any materials for the payment of the claim amount as full and final settlement, there is no merit in the contention of the opponents. Where the binding decision of National Commission is relied and applicable to the present case, the decision referred by the opponents are not applicable to the subject matter of the present case. On looking to the facts and circumstances of the case, we find that, there is a deficiency in service on the part of the opponents and opponents are liable to pay the amount of Rs. 98,000/- as per the assessment made by the surveyor with interest and Rs. 2,000/- towards the litigation expenses, hence we answer Point No.1 in affirmative and proceed to pass the following order.
ORDER
The complaint filed by the complainant U/sec. 12 of Consumer Protection Act is partly allowed with cost.
The opponents jointly and severally are directed to pay Rs. 98,000/- with interest at 9% p.a. from the date of the complaint till its realization.
The opponents jointly and severally are also pay Rs. 2,000/- towards the cost of proceedings.
The opponents are granted to pay the above said sum within six weeks from the date of receipt of this order.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 11-01-13)
Sri. K.H. Sri Ramappa Sri. Pampapathi,
Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur.
*RK*
