Before the District Forum:Kurnool
Present Sri K.V.H.Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Friday the 30th day of April 2004
C.D.No 105/2003
P. Ramachandra Reddy,
S/o. Venkata Rami Reddy,
H.No. 10-59-G-1,
Behind SLY Theatre,
Koilakuntal, Kurnool Dist. . . . Complainant represented by his
counsel Sri M.L. Srinivasa Reddy
-Vs-
The Divisional Manger,
The United India Insurance-
Company Ltd, Kurnool. . . . Opposite party represented by his
counsel Sri Syed Shafaqath Hussain.
O R D E R
( As per Smt C.Preethi, Member)
This case of the complainant is filed under Sec. 12 of C.P. Act, 1986 seeking a direction on the opposite party to pay Rs.96,162/- insurance amount to the complainant with 12% interest per annum, Rs.16,000/- as demages costs of the complaint and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
The gist of the complainant’s case is that the complainant owner of the vehicle bearing No. AP 21 U 6767, insured the said vehicle with opposite parties under policy bearing No. 051102/31/02/01013 and the policy was in force at the time of the accident and the policy cover own damages also. On 28.10.2002 the said vehicle met with accident near Podili in Prakasam Dist. Immediately after the accident the vehicle was surveyed and survey report was filed to the opposite parties. The said vehicle was extensively damages and the loss was assessed to Rs.1,52,162/-. The complainant submitted bills spent for getting the vehicle repaired to the opposite party but the opposite party dis- allowed the said bills as non-standard and settled the claim to Rs.56,000/- only and the complainant received the said amount on 4.4.2003 under oral protest. Thereafter the complainant sent a protest letter dt 6.4.2003 and also a legal notice dt 29.4.2003 to the opposite party and the opposite party sent reply letter dt 9.4.2003 and reply notice dt 19.5.2003. the reasons mentioned by the opposite party for reducing the claim as non-standard claim are not tenable either on fact or on Law which amounts to deficiency of service on part of the opposite party. Hence the opposite party is liable to pay a sum of Rs.1,52,162/- - Rs.56,000/- = Rs.96,162/-.
The complainant in support of his complaint averments filed the following documents Viz (1) letter of complainant to the opposite party dt 6.4.2003 (2) postal acknowledge for receipt of Ex A.1. (3)letter dt 9.4.2003 addressed by the opposite party to the complainant (4) legal notice issued by complainant’s counsel to the opposite party dt 29.4.2003 (5) reply legal notice dt 19.5.2003 by opposite parties counsel to the complainant’s counsel and (6) postal receipt for sending Ex A.1, the above documents are marked as Ex A.1 to Ex A.6 for its appreciation in this case, besides to the above documents the complainant filed his sworn-affidavit in reiteration of his complaint averments as evidence and suitablely replied to the interrogatories filed by the opposite party.
In pursuance to the notice of this Forum of this case of the complainant the opposite party made appearance through its standing counsel and filed its written version denying the complaint as not maintainable either in law or on facts. It admits the complainant’s vehicle bearing No. Ap 21 U 6767 insured with the opposite party vide policy bearing No. 051102/31/02/01013 and the policy was in force at the time of the accident which occurred near Bodili in Prakasham District on 28.10.2002. It also admits the complainant submitted bills for Rs.1,52,162/-, as per the terms and conditions of the policy, claim has to be settled on the basis of assessment done by a qualified surveyor. In the present case the opposite party appointed a surveyor and the said surveyor inspected the said vehicle and submitted its repot to the opposite party. Letter another surveyor was appointed to conduct final survey and he assessed to loss to the damage vehicle in question to Rs.81,500/-. After discussions with the complainant and as per terms and conditions of the policy excluding uneffected/uncovered parts, including value of salvage, and the complainant gave his written concept on the copy of the estimation.
The vehicle in question is a goods vehicle, but as per the case record, apart from driver and cleaner 3 passengers were travelling in the said vehicle which is clear violation of policy conditions. Hence the opposite party settle the claim on non-standard basis @ 75% of the loss assessed by the surveyor, after deducting depreciation and value of salvage and after discussions with the complainant the opposite party arrived to an amount of Rs.56,000/-. The complainant agreed for this amount, after producing no objection certificate from his financier, Ashok layland Finance dt 4.4.2003. The complainant also produced discharge voucher duly stamped and signed by him for Rs.56,000/-, and the opposite party delivered a cheque No. 983799 dt 7.4.2003 for Rs.56,000/-. Hence the settlement made by the opposite party is in accordance with rules and policy conditions and the complainant receiving the said amount with any protest the complainant is not entitled to any claim and seeks for the dismissal of complaint with costs.
The opposite party in support of its defence filed his sworn affidavit in reiteration of his written version as evidence and also filed the following documents (1) policy copy No. 051102/31/02/01013 along with conditions (2) letter dt 3.4.2003 addressed to Ashok ley land finance to the Branch Manager M/s United India Insurance Co Ltd, Nandyal (3) settlement intimation voucher sent by opposite party to the complainant (4) spot survey report dt 10.2.2002 of R.P.Rama Krishna, Insurance Surveyor (5) Private and confidential motor final survey report dt 10.1.2003 of B.P.K. Reddy Insurance Surveyor (6) estimation dt 1.11.2002 issued by Sai Ram Auto works, Kurnool. The above documents are marked as Ex B.1 to B.6 for its appreciation in this case.
Hence, the point for consideration is whether the complainant proved his case alleging deficiency of service on part of opposite party:-
It is the case of the complainant that his vehicle bearing No. AP 21 U 6767 insured vide policy No. 051102/ 31/02/01013 with opposite party. While the policy was in force the said vehicle met with accident on 28.10.2002 and the said vehicle was extensively damaged and the complainant assessed an amount of Rs. 1,52,162/- standard claim on 4.4.2003. The complainant alleges that he is entitled to the remaining balance of Rs.92,162/- but the opposite party alleges that the complainant violated terms and conditions of the policy and as per terms and conditions of the policy his claim was settle to Rs.56,000/- only.
The final surveyor after inspection assessed the loss to the said vehicle in question at Rs.81,500/- subject to depreciation applicable excluding un effected/ un covered parts and including value of salvage as the complainant did not surrender the salvage to the opposite party. In the above circumstances the opposite party settled the claim of the complainant after deducting depreciation and value of salvage on non-standard basis @ 75% of the loss assessed by the surveyor and the opposite party arrived to an amount of Rs.56,000/- only, after through discussion with the complainant and after producing no objection statement from the complainant’s financier the said amount also finalised and the complainant also discharged voucher duly stamped and signed by him.
But the learned counsel for complainant argues that the complainant accepted the settled amount of Rs.56,000/- as he was in need of money on 4.4.2003 tow days later i.e on 6.4.2003 the complainant wrote a protest letter stating that accepting the above amount is under protest and the complainant relys on the following judgement on National Commission reported in 2001 (3) CPR 92 (NC) between M/s Morinda Co- operative Sugar Mills Ltd Vs The New India assurance Co Ltd and ors, it was held that if protest is lodged within shortest possible time then payment could not be said to be accepted in full and final settlement. In the present case no doubt the complainant made a protest letter to the opposite party but the opposite party settled to claim as non standard @ 75% of assessed amount paid Rs.56,000/- to the complainant after making proper deductions of depreciation and value of salvage as salvage has not been surrendered to the opposite party from the assessed amount and the complainant received the said amount hence the deduction made cannot be urged, moreover there is no material placed by the complainant that the said deductions made by the opposite party is not correct, hence the complainant cannot rely on the above said decisions.
The other decisions which the complainant relies are (1) New India Assurance Co Ltd Vs Raj Karan Singh and others 2003 CCJ 540 (NC) and (2) National Insurance Co Vs Moolachand Singh Rathore reported in 2002 (5) ALT pg 27 (CPA) (NC) both the above decisions say that when there is violation of policy conditions and such violation is not contributing to the accident then the Insurance Company is liable to pay damages as assessed by the surveyor. In the present case the insurance Company paid the assessed amount deducting depreciation and value of salvage to the complainant. Hence there is no wrong on part of the opposite party.
The other decision relied by the complainant reported in 2000 (3) CPR 187, between M/s Kateel Sri Durga Hotels Pvt Ltd Vs United Insurance Co ltd. It was held that mere execution of discharge voucher would not deprive the complainant from preferring claim with respect to deficiency of service but it is for the complainant to prove that the said discharge voucher was obtained by the opposite party under suspicious circumstances and he is remaining entitled to the entire claim amount, the complainant failed to do both the things in the present case.
The Ex A.1 is the letter addressed by the complainant to the opposite party dt 6.4.2003 stating that he received the said settled amount under protest and he is moving to the Court for claiming remaining amount, but doesn’t makes a mentioned that he received the said amount as he was in need of money as mentioned in the complainant averments. Hence what remains is that the complainant accepted the said amount but later wrote a protest letter to take undue advantage. Ex A.3 is reply dt 29.4.03 given by the opposite party to Ex A.1 it says that the opposite party accepted the assessment made by the surveyor which is subject to depreciation applicable, and as the complainant did not surrender the salvage to the opposite party the value of salvage has been deducted from the assessed amount. Further it says the complainant violated policy condition and MV rules y allowing passengers, in the said vehicle hence the claim was considered as non-standard claim and settled to 75% of assessed loss and the claim was settled to Rs.56,000/- only.
The Ex A.4 is the legal notice dt 29.4.2003 it says that the complainant accepted the settled claim of Rs.56,000/- as he was badly need of amount under oral protest and later wrote a protest letter dt 6.4.2003 and there was no willful violation of policy conditions, on part of the complainant to reduce the claim as non standard claim and seeks for payment of remaining balance amount. The Ex A.5 dt 19.5.2003 reply to Ex A.4. It says that the complainant submitted bills for Rs.1,52,162/- but the surveyor assessed the loss to the said vehicle a Rs.81,500/- subject to depreciation applicable as per policy conditions and including value of salvage. On the basis of said report and at the time of the accident the complainant was carrying passengers in violation of terms and conditions, hence the claim was considered as non-standard and settled to 75% of the assessed loss therefore the complainant cannot question it. Hence the assessment made by the opposite party is in accordance to policy terms and conditions. The Ex A.2 and Ex A.6 are the acknowledgement of opposite party and postal receipt No. 5611.
The complainant seeks for payment of balance amount of Rs.96,162/- but the exhibits relied by the complainant doesn’t support the case of the complainant neither bills are filed in support of the above claim as evidence nor any supporting cogent material is placed by the complainant worthy of consideration for granting the claim of Rs.96,162/-. It shall be relevant as to how the opposite party reached the figure of Rs.56,000/- there are deductions, depreciation on spare parts value of salvage as the complainant did not surrender salvage to the opposite party, on the assessed amount of the surveyor i.e Rs.81,500/-. As the assessed amount is subject depreciation and deducting value of salvage, there appears nothing wrong in said deductions the opposite party except blank denial by the complainant there is no material on record to rebutt that the said deducting made by the opposite party are without any basis and that the complainant is entitled to he claim of Rs.96,162/-. The said deduction are made subject to policy conditions and the said deductions cannot be found faulted, as the complainant is entitled only to the assessed amount of the surveyor and not on his personal assessment.
To sum, up of the above discussions the complainant is entitled only to assessed amount of the surveyor, the said amount is subject to depreciation on spare parts as the complainant did not surrender salvage to the opposite party, value of salvage also deducted from the above said amount and settled as non standard @ 75 of assessed amount and an amount of Rs.56,000/- is settled infavour of the complainant, hence there is no merit in the case of the complainant.
In the result the complaint is dismissed for want of merit and force.
Dictated to the Stenographer, transcribed by him, corrected and pronounced in the Open bench this the 30th day of April, 2004.
PRESIDENT
MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex A.1 Letter dt 6.4.2003 addressed to the opposite party by the complainant.
Ex A.2 Acknowledgement of opposite party for receipt of the letter i.e Ex A.1.
Ex A.3 Reply letter dt 9.4.2003 sent by opposite party to the complainant.
Ex A.4 Legal notice dt 29.4.2003 issued by complainant’s counsel to the opposite
party.
Ex A.5 Reply notice dt 19.5.2003 issued by opposite party.
Ex A.6 Postal receipt No. 5611.
List of Exhibits marked for the opposite party:-
Ex B.1 Policy No. 051101/31/02/01013 along with condition.
Ex B.2 Letter dt 3.4.2003 addressed by Ashok Layland finance to the Branch
Manager, M/s United India Insurance Co., Ltd Nandyal.
Ex B.3 Settlement intimation voucher sent by opposite party to the complainant.
Ex B.4 Spot Motor Survey report dt 10.2.2002 of Pratti Rama Krishna, Insurance
Surveyor.
Ex B.5 Private and confidential motor final survey report dt 10.1.2003 of B.P.K.
Reddy Insurance Surveyor .
Ex B.6 Estimation dt 1.11.2002 issued by Sai Ram Auto works, Kurnool.
PRESIDENT MEMBER
