SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
1. The complainant has filed this case alleging deficiency-in-service by the OP, where O.P is the Divisional Manager, Oriental Insurance Company Limited situated at 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-04H-2192, was insured by the OP on 2.1.2015 having Policy No.345700/48/2015/406 under Carrier’s Legal Liability Insurance. The truck in question met with an accident on 2.5.2015, as such the complainant registered his claim along with required documents before the OP, but the complainant was awarded with settlement amount of Rs.1,09,456/- only against actual loss of Rs.1,56,051.89 paisa, for which he received said lesser amount under protest in order to meet his exigencies arising out of ill-fated accident of the vehicle. The complainant sent a protest letter in writing to the OP on 22.10.2015 & 31.10.2015 through e-mails and letter dated 17.1.2015 appraising his dissatisfaction for deducting 5% of sum insured as policy excess from the claim ascertained/ estimated by the Surveyor of the OP. But, the OP vide his letter dated 2.11.2015 replied that policy conditions were cited as defense against the impugned award while settling his claim amounts to not only deficiency in service, but also to unfair trade practice by the OP.
Cause of action arose on 17.7.2015 and on 2.11.2015. The complainant has prayed for compensation for loss towards policy excess along with compensation for mental agony and litigation cost.
3. The OP filed his written version denying on the point of maintainability, jurisdiction as well as its cause of action. The OP has further submitted that the complainant had obtained a Carrier’s Legal Liability Insurance policy bearing No.345700/48/2015/406 against his vehicle bearing Regd. No.OR-04H-2192 (tanker) for the period from 2.1.2015 to 1.1.2016 from this OP having limits of liability per accident Rs.7,50,000/- and limits of liability per policy period of Rs.7,50,000/- from the OP for fulfillment of his liability subject to terms and conditions of the policy. On 3.5.2015, the complainant intimated that on 2.5.2015 at 9.45 the said vehicle met with an accident while loaded with petroleum product, accordingly one Surveyor-cum-loss assessor was deputed in order to assess loss caused due to alleged accident. Thereafter, the complainant submitted all relevant documents along with claim form along with copy of SDE No.60 dated 2.1.2015 issued by Dharmasala PS before the OP on 26.5.2015 which was submitted to the Surveyor-cum-loss assessor and the said Surveyor submitted his report to OP on 29.6.2015 assessing loss of Rs.1,09,456/- only, subject to deduction of policy excess as per terms and conditions of policy. On receipt of the same, the OP, settled the claim at Rs.1,09,456/- and intimated the same fact to the complainant on 15.7.2015 enclosing discharge voucher in duplicate towards full and final settlement of claim for loss of 2116 liters of motor sprit and 241 liters of High Speed Diesel caused due to the accident on 2.5.2015 with a request to submit the same after duly signed by him along with Bank account details and cancelled cheque for payment of settled amount. Thus, the complainant submitted the same duly signed by him along with other documents towards receipt of such amount and on receipt of the same, the OP paid the settled amount of Rs.1,09,456/- only to the complainant on 15.7.2015 and credited to his Bank Account. But, on 17.7.2015, after receiving the aforesaid amount towards full and final settlement of claim without protest, the complainant sent a representation to the grievance cell disclosing his dissatisfaction about deduction of policy excess through E-mail dated 20.9.2015 and reminder on subsequent days. On receipt of the same, OP 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 wherein it is clearly mentioned that “Tankers: 5% of the sum insured or Rs.15,000/- each and every claim, whichever is higher” and accordingly, the deputed Surveyor/loss assessor has deducted Rs.37,500/- from the amount of loss assessed by him and accordingly the OP has settled the claim of the complainant and as such there is no deficiency of service on the part of the OP.
4. The points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has any cause of action to file this case?
(iii) Whether the case is maintainable?
(v) Whether the complainant is entitled to get the relief, as sought for?
F I N D I N G S
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 his claim along with required documents before the OP, the complainant was awarded with settlement amount of Rs.1,09,456/- against actual loss of Rs.1,56,051.89 paisa, which is deduction of 5% of sum insured as policy excess, which is totally illegal and arbitrary, for which he has approached this Commission 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 OP that after report of the Surveyor, loss was assessed to Rs.1,09,456/- 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 OP. According to Annexure-2 filed by the OP, policy excess for Tanker, 5% of the sum insured or Rs.15,000/- each and every claim, whichever is higher. So, in the instant case, the OP 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 his pleading, the complainant has stated that he 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 learned counsel for the OP has relied upon the authority reported in 1999 (3) CPR-53 (SC) in the case of United India Insurance V. Ajmer Singh Cotton & General Mills and Ors, wherein it has been observed by the Hon’ble Apex Court 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. V. Nipha Exports Pvt. Ltd, wherein it has been observed by the Hon’ble Apex Court 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 OP 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, this Commission found no illegality on the part of the OP and there is no deficiency of service committed by the OP and the complainant has failed to prove any illegality against the OP, for which the complainant is not entitled for any relief, as prayed for.
Hence, it is ordered -
O R D E R
The complaint of the complainant be and the same is dismissed on contest against the OP, but in the peculiar facts & circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 13th day of August, 2024 under my signature & seal of the Commission.
