Date of Filing:18.06.2008<br /> Date of Order:18.11.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 18TH DAY OF NOVEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 1343 OF 2008<br /> <br /> Mumtaz Pasha,<br /> S/o Abdul Salam, R/at No. 22,<br /> LIG, 80 Feet road, II Stage,<br /> Kengeri Satellite Town,<br /> Bangalore 60 Complainant<br /> <br /> V/S<br /> <br /> The Manager,<br /> M/s Oriental Insurance Company Ltd.,<br /> Branch Office at No.6, <br /> 80 Feet road, III Block, Koramangala,<br /> Bangalore-34. Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act 1986.<br /> The brief facts of the case are that the complainant has taken vehicle insurance policy for the period from 21/05/2005 to 20/05/2006 on payment of Rs.10,692/- as premium. The policy amount is of Rs.4,00,000/-. The vehicle met with an accident on 6/11/2005. Accident was reported to the police and to the opposite party also. The complainant got repaired the vehicle through M/s SLV Motors and spent Rs.1,90,096/-. The complainant put up claim with the opposite party but the opposite party released an amount of Rs.1,08,000/- on 28/07/2006. Being aggrieved by the short payment the complainant has filed this complaint. Complainant is entitled for entire amount of Rs. 1,90,096/- from the opposite party. Opposite parties by making part payment has committed deficiency of service. The complainant has prayed that opposite party be directed to pay Rs.82,096/-. Hence, the complaint.<br /> 2. Notice issued to opposite party. Opposite party was put in appearance through advocate and filed defence version stating that the opposite party rendered prompt service to the complainant. Claim has been decided within 45 days from the date of submitting the documents. There is no deficiency or negligence in service. Claim of the complainant was considered for Rs.1,08,000/-. The complainant had executed full and final settlement voucher and encashed the amount and as such complainant is not entitled to any further amount. The liability of the opposite party cannot be beyond Rs.1,08,000/-. For all these reasons stated above the opposite party has prayed to dismiss the complaint. <br /> 3. Both the parties filed affidavit evidence. Arguments are heard.<br /> 4. The point for consideration is:-<br /> “Whether the opposite party can be directed to pay an amount of Rs.82,096/- to the complainant?” <br /> REASONS<br /> 5. It is an admitted case of the parties that the vehicle of complainant was insured with the opposite party. The insured value was for Rs.4,00,000/-. The period of insurance covered was from 21/05/2005 to 20/05/06. The complainant has paid premium amount of Rs.10,692/-. The vehicle bearing No. KA-05 C-3552 had met with an accident on 6/11/2005. The matter was reported to the opposite party. Opposite party deputed the Surveyor to survey the loss. Surveyor submitted the preliminary survey report on 11/11/2005. Sri. K. Rangarao Engineer/Surveyor and Loss Assessor had submitted another survey report on 28/12/2005 is marked as Ex.R-16. As per this survey report he has assessed the loss at Rs.1,93,661/-. The Surveyor submitted in the report that the insured expressed his inability to invest heavy amount towards repairs and requested for on account payment to the M/s RAVINDU TOYOTA who is one of the authorised dealer. The claim was also discussed with Divisional Manager along with Branch Manager and in view of the liability of less than 75% of the IDV it has been decided that the repairs to the vehicle is acceptable. RAVINDU TOYOTA Motors Ltd., has made the assessment of loss to the tune of Rs.3,44,030/-. This service estimate is produced at Ex.R-17. The RAVINDU Motors Pvt. Ltd., has submitted another service estimate as per Ex.R-18 which is dated 9/12/2005. As per this estimate the amount of repair and spare parts has been shown at Rs.2,59,881/-. TOYOTCH Motors had submitted estimate on 25/01/2006 at Ex.R-19. This estimate is for Rs.2,17,982/-. The complainant had given letter to the Manager, Oriental Insurance Company on 14/02/2006 as per Ex.R-20 stating that SLV Motors at J.P Nagar is doing satisfactory work and he informed that he had shifted the vehicle from TOYOTECH Motors to SLV Motors for repairs on 13/02/2006. The estimate prepared by SLV Motors is produced at Ex.R-21. As per this estimate the grand total of the estimate was for Rs.2,07,192/-. The complainant has produced cash vouchers of SLV Motors and Manu Automobiles. All the original vouchers, receipts and tax invoices have been produced by the complainant are marked as Ex.R-22(entire set of vouchers). The total amount covered under the vouchers and invoices is Rs.1,90,096/-. Surveyor K. Rangarao had submitted another report on 24/06/2006 as per Ex.R-23. In this report he has made assessment at Rs.1,15,718/-. This survey report has been relied on by the opposite party for settling the claim. By going through the survey report Ex.R-23 number of corrections, additions, deletions, calculations, and recalculations have been made. Therefore, the survey report relied on by the opposite party for settling the claim on the face of it cannot be accepted. Survey report alone cannot be a basic document for settling the claim. Survey report alone cannot be relied upon by the opposite party for settling the claim. The last survey report submitted by K. Rangarao as per Ex.R-23 having number of corrections, insertions, overwriting and that report is contrary to the earlier survey report. The S.L.V Motors survey report is for Rs.2,07,192/- and TOYOTECH Motors estimate is for Rs.2,17,982/- and RAVINDU TOYOTA estimate is for Rs.2,59,881/- and another RAVINDU TOYOTA estimate is for Rs.3,44,030/-. The complainant has produced original cash bills, vouchers and receipts for having paid the amount to the repairers and having purchased the spare parts. All the said vouchers and bills are marked as Ex.R-22. As per the purchased bills and vouchers, the total amount spent by the complainant is Rs.1,90,096/-. The opposite party shall have taken into consideration the cash bills and vouchers produced by the complainant for settling the claim. The opposite party has completely overlooked cash bills and vouchers submitted by the complainant. The opposite party has not given any reasons for not accepting the claim of the complainant as per the cash bills and vouchers. The opposite party has blindly relied upon survey report of K. Rangarao as per Ex.R-23. Except relying on Ex.R-23 the opposite party has not taken into consideration of other estimates, the vouchers and the cash bills produced by the complainant. The learned Advocate for the opposite party argued that the complainant has executed the discharge voucher as per Ex.R-25. As per this discharge voucher the complainant has received Rs.1,08,800/- towards his claim. It is true that the complainant has received the amount as per Ex.R-25. The learned Advocate for the complainant submitted that due to financial compulsion and coercion the complainant had accepted the amount offered by the opposite party without any protest. But that cannot be considered that the complainant had agreed for the settlement of the claim. The counsel argued that the complainant is entitled for the balance amount of Rs.82,096/- as per the bills and vouchers submitted by him. In support of his argument he relied upon a decision of Hon’ble National Commission in a case of Mullangie Spintex Pvt. Ltd. Vs. New India Assurance Co. Ltd & Ors. reported in 1(2007) CPJ 363 (NC) wherein the Hon’ble National Commission has held as under:-<br /> “Consumer Protection Act, 1986 – Sections 2(1)(d) and 14(1)(g) – Insurance – Complainant obtained seven insurance policies – Fire broke out – Insurance Company was informed – Surveyor appointed – Complainant received Rs.33,15,104 on basis of surveyor’s report – Alleged that amount was received under financial compulsion and coercion – Filed complaint – Documentary Evidence – Central Excise Register brought on record – No reason to disbelieve – Claims further compensation – Amended 12% interest plus further compensation. <br /> Another latest decision relied on by the counsel for the complainant is of Hon’ble National Consumer Disputes Redressal Commission in a case of National Insurance Co. Ltd Vs. Vasavi Traders reported in 1(2008) CPJ 487 (NC) wherein it has been held as under:-<br /> NATIONAL INSURANCE CO. LTD. -Petitioner<br /> versus<br /> VASAVI TRADERS - Respondent <br /> Revision Petition No.4275 of 2007 – Decided on 11.1.2008.<br /> Consumer Protection Act, 1986 – Section 21(b) – Insurance – Full and final settlement of claim – Fire accident – Entire stock burnt – Business had come to stand still – Complainant constrained to sign discharge voucher due to financial crisis – Complaint filed for balance – Coercive bargaining indulged in by Insurance Company – Distressed insured who lost all means of earning livelihood, has no other choice but to accept any amount as initial payment in first instance – State Commission granted average of amount claimed by complainant and assessed by Surveyor – Payment of different amount with interest directed – No interference required in revision. <br /> <br /> Hon’ble Tamilnadu State Commission in a case of Oriental Insurance Co. Lt., Vs. K.L. Shivakumar reported in 1(2006) CPJ 334 wherein it has been held as under:-<br /> Consumer Protection Act, 1986 – Section 15 – Insurance – Repudiation of claim – Contention, accident could not have happened in manner suggested by complainant – No material/evidence produced in support of contention – Repudiation to be justified by insurer – Surveyor’s report alone cannot be relied in such cases – Something more needed when a particular statement is made and asserted – Repudiation unjustified – Complaint allowed by Forum – Appeal against order dismissed. <br /> Again Hon’ble Orissa National Commission in a case of National Insurance Co. Ltd., Vs. Sambit Tripathy reported in IV (2005) CPJ 202 wherein it has been held as under:- <br /> Consumer Protection Act, 1986 – Section 15 – Insurance – Assessment of loss – Accident claim – Vehicle completely damaged – Claim repudiated without any valid ground – Claim based on bills – Validity of bills not challenged – Surveyor’s report not acceptable in face of bills submitted by complainant – Damages assessed on basis of bills – Amount payable with interest – Compensation and cost awarded. (para 5) <br /> Result: Appeal dismissed.<br /> Hon’ble Chattisgarh National Commission in a case of Amalndu Rudra Vs. Oriental Insurance Co. Ltd & Anr reported in VI (2005) CPJ 347 wherein it has been held as under:-<br /> Consumer Protection Act, 1986 – Section 15 – Insurance – Accident claim – Full and final settlement – Loss assessed to extent of Rs. 4,98,000 – Rs.3,73,500 paid towards full and final settlement – Complainant immediately lodged protest about inadequacy of amount – Printed discharge receipt even if signed by complainant, not amounts to full and final settlement – Complainant entitled to balance amount – Complaint wrongly dismissed by Forum – Order set aside in appeal. <br /> Again Hon’ble National Commission in a case of Oriental Insurance Co. Ltd. & Others Vs. Government Tool Room And Training Centre reported in I (2008) CPJ 267 wherein it has been held as under:-<br /> Consumer Protection Act, 1986 – Section 21 – Insurance – Full and final settlement of claim – Concept of coercive bargaining – Discharge voucher signed under compulsion – Wrong practice followed by Insurance Company in not paying single pie without having discharge voucher – Mere execution of discharge voucher and acceptance of insurance claim, not estop insured from making further claim. <br /> 6. Therefore, going through all the above authorities, one thing is clear that the discharge voucher signed in this case by the complainant cannot be considered as full and final settlement of the claim. The accident in this case had taken place on 6/11/2005. The opposite parties have not settled the claim with a reasonable time. They have taken discharge voucher from the complainant on 27/07/2006 after more than 8 months of the accident. Since the complainant was put to loss and mental tension on account of the vehicle being met with an accident, he was naturally under financial crisis and he had lost his sources of livelihood and income. Therefore, under financial compulsion he executed discharge voucher as per EX.R-25 and received the amount of Rs.1,08,000/-. The complainant had produced original bills and vouchers and the amount covered under all the cash bills is Rs.1,90,096/-. The opposite party could have considered the cash bills and vouchers submitted by the complainant and settled the claim as per the bills but unfortunately the opposite party in this case has settled the claim of the complainant for lesser amount. Therefore, the opposite party cannot harp upon the only document i.e., discharge voucher to deny the genuine claim of the complainant. The learned Advocate for the complainant submitted that insurance policy was renewed for subsequent period by opposite party after accident. Opposite party while collecting the premium had considered Rs.1,90,096/- as claim amount and collected Rs.24,820/- as premium amount. Therefore he submitted that, it is crystal clear that opposite party for the purpose of collecting the premium considered the repair bills produced by the complainant. While releasing the claim amount the opposite party considered the survey report. Therefore, the learned Advocate submitted that this approach of the opposite party is not proper and it is highly objectionable and the opposite party has used the double standard. Therefore the learned counsel submitted that the claim put up by the complainant in this case is quite just and reasonable and requested to direct the opposite party to pay balance amount of Rs.82,096/- to the complainant with interest. The learned Advocate for the opposite party very much argued that in the face of discharge voucher the complainant is not entitled for any amount since he has accepted the claim settled by the opposite party. I am of the opinion that in view of the latest judgment of Hon’ble National Commission mere execution of discharge voucher and acceptance of the claim the complainant will be estopped from making further claim. The complainant in this case has produced estimates made by S.L.V Motors, Toyotech Motors and Ravindu Toyota. Apart from these estimate and reports he has submitted original cash bills and vouchers to show that he had spent Rs. 1,90,096/- towards repairs of the vehicle and purchase of spare parts. Therefore taking into consideration of all the documents, arguments and the decisions of Hon’ble National Commission, I am of the opinion that it is just, fair and reasonable to direct the opposite party to pay Rs.82,096/- to the complainant. The complainant is entitled interest at 12% p.a on the said amount from 27/07/2006 (date of discharge voucher) since there is delayed payment. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 7. The Complaint is allowed. The opposite party is directed to pay Rs. 82,096/- to the complainant along with interest at 12% p.a on that amount from 01/08/2006 till payment/realisation. The complainant is entitled to Rs. 5,000/- towards cost of the present proceedings from opposite party.<br /> 8. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> 9. Pronounced in the Open Forum on this 18TH DAY OF NOVEMBER 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br /> Rhr.<br />