The Complainant has filed this case alleging deficiency-in-service by the O.P, where O.P is the Divisional Manager,The Oriental Insurance Company Ltd., Police Line Square, O.T Road, Balasore.
2. The case of the Complainant in brief is that the Complainant being the owner of a Truck vide Regd. No.OR-01V-0451, was insured by the O.P on 13.11.2014 having Policy No.345700/48/2015/338 under Carrier’s Legal Liability Insurance. The said Truck met an accident on 06.05.2015, as such the Complainant registered her claim along with required documents before the O.P, but the Complainant was awarded with settlement amount of Rs.3,15,726/- (Rupees Three lacs fifteen thousand seven hundred twenty six) only against actual loss of Rs.3,80,726/- (Rupees Three lacs eighty thousand seven hundred twenty six) only, for which she received said lesser amount under protest in order to meet her exigencies arising out of ill fated accident of the vehicle. The Complainant sent a protest letter in writing to the O.P on 30.07.2015 followed by e-mails dtd.14.10.2015, 22.10.2015 and 31.10.2015 appraising her dissatisfaction for deducting 5% of sum insured as policy excess from the claim ascertained/ estimated by the Surveyor of the O.P. But, the O.P vide his letter dtd.02.11.2015 replied that policy conditions were cited as defense against the impugned award while settling her claim amounts to not only deficiency in service, but also to unfair trade practice by the O.P. Cause of action arose on 30.07.2015 and on 02.11.2015. The Complainant has prayed for compensation for loss towards policy excess along with compensation for mental agony and litigation cost.
3. Written version filed by the O.P through his Advocate denying on the point of maintainability, jurisdiction as well as its cause of action. The O.P has further submitted that the Complainant had obtained a Carrier’s Legal Liability Insurance policy bearing No.345700/48/2015/338 against his vehicle bearing Regd. No.OR-01V-0451 (tanker) for the period from 13.11.2014 to 12.11.2015 from this O.P having limits of liability per event of Rs.13.00 Lacs (Rupees Thirteen lacs) only and limit of liability per policy period of Rs.13.00 Lacs (Rupees Thirteen lacs) only for fulfillment his liability, subject to terms and conditions exclusion/ exceptions of policy. On 06.05.2015, the Complainant intimated that the said vehicle met with an accident while loaded with 20,000 liters of high speed diesel, thereby the loaded diesel has spilled out, accordingly one Surveyor-cum-loss assessor was deputed in order to assess loss caused due to alleged accident. But, the Complainant submitted intimation of loss in writing along with copy of Bisoi S.D Entry No.122 and 123, dtd.06.05.2015 and 169, dtd.08.05.2015 before the O.P on 08.05.2015, as such the O.P provided a claim form to her. Accordingly, the Complainant submitted the claim form along with copy of documents to the O.P on 29.05.2015 and the said Surveyor submitted his report to O.P on 20.06.2015 assessing loss of Rs.3,80,726/- (Rupees Three lacs eighty thousand seven hundred twenty six) only, subject to deduction of policy excess as per terms and conditions of policy. On receipt of the same, the O.P asked the insurer of said vehicle (Tanker) admitted under Motor Comprehensive Insurance policy covering the vehicle with Cholamandalam M.S General Insurance Co. Ltd. to confirm admissibility of own damage claim of the aforesaid vehicle and after receipt of the same, the O.P settled the claim at Rs.3,15,726/- (Rupees Three lacs fifteen thousand seven hundred twenty six) only in full and final settlement after deduction of policy excess of 5% of the sum insured from the assessed amount of Rs.3,80,726/- (Rupees Three lacs eighty thousand seven hundred twenty six) only and accordingly, sent a discharge voucher in duplicate of Rs.3,15,726/- (Rupees Three lacs fifteen thousand seven hundred twenty six) only to the Complainant on 27.07.2015 with a request to submit the same after duly signed by her along with Bank account details and cancelled cheque for payment of settled amount. Thus, the Complainant submitted the same duly signed by her along with other documents towards receipt of such amount and on receipt of the same, the O.P paid the settled amount of Rs.3,15,726/- (Rupees Three lacs fifteen thousand seven hundred twenty six) only to the Complainant on 04.08.2015 and credited to her S.B.I account. Further, the Complainant having received the said amount without any protest, she is estopped from contending that she is entitled for more amount than what she has received. Besides, there is no complaint that the discharge voucher had been obtained from the Complainant fraudulently or exercise of undue influence or by misrepresentation or the like coercive bargaining. But, after two months of receiving the aforesaid amount towards full and final settlement of claim without protest, the Complainant sent mail on 14.10.2015, 22.10.2015 and on 31.10.2015 to the grievance cell and Customer service department of the Oriental Insurance Co. Ltd., New Delhi stating that settlement of claim under Carrier’s Legal Liability is not acceptable since deduction of policy excess @ 5% of sum insured amount i.e. Rs.65,000/- (Rupees Sixty five thousand) only from the assessed amount is unlawful and unjustified, which was forwarded to this O.P for reply and in reply, this O.P intimated the Complainant with a request to go through the policy, wherein it is mentioned that “the insurance under this Policy is subject to conditions, clauses, warranties and endorsement attached” and item No.2 under the heading of “Excess” of terms and conditions of Carrier’s Legal Liability Insurance Policy, it is clearly mentioned that “Tankers: 5% of the sum insured or Rs.15,000/- (Rupees Fifteen thousand) only each and every claim, whichever is higher” and accordingly, this O.P has deducted Rs.65,000/- (Rupees Sixty five thousand) only @ 5% of the sum insured of Rs.13.00 Lacs (Rupees Thirteen lacs) only from the amount assessed by the deputed Surveyor/ loss assessor towards policy excess and settled the claim and as such there is no deficiency of service on the part of the O.P.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that after registration of her claim along with required documents before the O.P, the Complainant was awarded with settlement amount of Rs.3,15,726/- (Rupees Three lacs fifteen thousand seven hundred twenty six) only against actual loss of Rs.3,80,726/- (Rupees Three lacs eighty thousand seven hundred twenty six) only, which is deduction of 5% of sum insured as policy excess, which is totally illegal and arbitrary, for which she has approached this Forum praying for compensation for loss towards policy excess along with compensation and litigation cost. On the other hand, it has been argued on behalf of the O.P that after report of the Surveyor, loss was assessed to Rs.3,80,726/- (Rupees Three lacs eighty thousand seven hundred twenty six) only and on the basis of policy excess as per agreement, 5% of sum has been deducted from the sum insured amount. So, there is no illegality on the part of the O.P. According to Annexure-2 filed by the O.P, policy excess for Tanker, 5% of the sum insured or Rs.15,000/- (Rupees Fifteen thousand) only each and every claim, whichever is higher. So, in the instant case, the O.P has deducted 5% of the sum insured amount as policy excess causing no illegality. The discharge voucher available in the case record discloses that it was simply received by the Complainant without any protest. But, in her pleading, the Complainant has stated that she has received the amount under protest. So, according to settled principle of Law, protest should be in writing and the oral protest has no value when challenged. However, the Advocate for the O.P has relied upon the authority reported in 1999 (3) CPR-53 (SC) in the case of United India Insurance (Vrs.) Ajmer Singh Cotton & General Mills and ors., wherein it has been held by the Hon’ble Supreme Court of India that mere execution of discharge voucher and acceptance of claim would not estop Consumer from making further claim. But, that should be that the Consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. Similar view is taken in the Authority reported in 2008 (4) CPR-96 (SC) in the case of National Insurance Company Ltd. (Vrs.) Nipha Exports Pvt. Ltd., wherein it has been held by the Hon’ble Supreme Court of India that where insurance claim was settled and received by insured, in absence of any evidence that discharge voucher or receipt had been obtained from Complainant fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining, Consumer complaint would not lie. So, in the instant case, there is no question of undue influence or misrepresentation or coercive bargaining on the part of the O.P while obtaining the discharge voucher by the Complainant.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above Authorities as discussed earlier, I found no illegality on the part of the O.P and there is no deficiency of service by the O.P and the Complainant has failed to prove any illegality against the O.P, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.P, but in the peculiar circumstances without any cost.
Pronounced in the open Forum on this day i.e. the 19th day of January, 2018 given under my Signature & Seal of the Forum.
