BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.57/2009 Order dated this the 21st day of August 2009 COMPLAINANT/S Sri.Ananth Kumar S/o Hanumegowda, R/at Mudigere Village, Malur Hobli, Channapatna Taluk, Ramanagaram District. (By Sri.M.J.Jain., Advocate) -Vs- OPPOSITE PARTY/S The National Insurance Co., Ltd., Branch Office, Post Box No.1576, V.V.Road, Mandya 01. Rep. by its Manager. (By Sri.S.Sudarshan., Advocate) Date of complaint 19.05.2009 Date of service of notice to Opposite party 04.06.2009 Date of order 21.08.2009 Total Period 2 Months 17 Days Result The complaint is partly allowed, directing the Opposite party to pay Rs.4,25,000/- with interest at 9% p.a. from the date of complaint and to obtain the salvage from Prerana Motors, Mysore by paying parking charges and further to pay cost of Rs.1,000/- to the Complainant within two months. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party Insurance Company to pay Rs.7,69,000/- being total loss with interest at 24% p.a. and compensation of Rs.4,00,000/-. 2. The case of the Complaint in brief as follows:- The Complainant is the owner of Lorry bearing No.KA-42-2539. The said vehicle had been insured with the Opposite party Company vide policy No.602401/31/07/6300001853. The said vehicle met with an accident on 17.04.2008 and the lorry was severely damaged. The Complainant immediately reported to the matter to Opposite party and submitted his claim petition asking to settle the claim. The Complainant has completed all the formalities to settle the claim. Even the surveyor deputed by Opposite party inspected the vehicle and submitted report. Though, it is a duty of the Opposite party to settle the claim as early as possible, but it did not do so and intentionally delayed the matter. The Complainant purchased the lorry raising the loan to earn his livelihood. On account of this accident, the Complainant is not in a position to earn anything from the date of accident till now. After the accident, the vehicle had been parked at Prerana Motors, Mysore and they are charging Rs.250/- per day as parking charges and as on 15.01.2009 they have charged Rs.65,000/- and still the vehicle is in the said premises. The Complainant learnt that surveyor had assessed the total loss at Rs.7,69,000/-. In spite of request by the Complainant, the Opposite party has not settled the claim on total loss basis, but the Opposite party has reduced the claim for Rs.3,44,000/- on cash loss basis. The Complainant did not agree for the said settlement. The Opposite party Company had closed the claim on 10.02.2009 saying that no response and no claim, which is obviously false claim, since the Complainant all along opposed the act of Opposite party in settling the claim for just Rs.3,44,000/- instead of Rs.7,69,000/- and the act of the Opposite party is nothing, but an unfair trade practice and thus Opposite party has committed deficiency in service by not settling the claim properly. The act of the Opposite party also caused mental agony and harassment and loss to the Complainant. The Complainant could have avoided the parking charges, if the claim was settled intime and would have made arrangement to earn. On this ground, the complaint is filed. 3. The Opposite party has filed version, admitting that the Lorry of the Complainant was insured and Complainant reported the accident and lodged the claim and surveyor was appointed to assess the loss and the surveyor has submitted his report, it is denied that the Opposite party did not settle the claim early and delayed the matter. Admitting that the surveyor assessed the loss in his report and surveyor advised the Opposite party of three options for settling the claim and these options were intimated to the Complainant orally in the Office and the Complainant requested the Opposite party for extension of time to decide about the options and after few days, the Complainant approached and said that he was prepared to get his claim settled under cash loss basis for Rs.3,44,000/- and further requested to pay the said amount to his financier and he would retain the salvage and he had already procured a buyer for the same for Rs.4,00,000/. Since, the proposal of the Complainant suited the Opposite party, it settled the claim of the Complainant for Rs.3,44,000/- and paid the said amount to the Financier in full and final settlement of the claim and the said Financier has executed a discharge receipt and it is false to say that the Complainant had to pay parking charges and Complainant approached so many times and Opposite party did not heed his requests. In fact, both the Complainant and Financier had agreed for the settlement of claim for Rs.3,44,000/-. The Opposite party had been repeatedly requesting the Complainant to give his written consent for such settlement. Even after, the payment was made to the Financier with a view to make unlawful gain, the Complainant failed to give a written consent and further it was learnt, the Complainant made profit by selling the salvage. Therefore, the Complainant has not sustained any loss. The claim was settled as per his will and wish. The Opposite party has not committed deficiency in service and Opposite party is not liable to pay any amount. Therefore, the complaint is liable to be dismissed with costs. 4. During trial, the Complainant and one witness are examined and documents Ex.C.1 to C.8 are marked. On behalf of the Opposite party one witness is examined and Opposite party has produced Ex.R.1 to R.24. 5. We have heard both the sides and written argument of Opposite party. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite proves that he settled the claim for Rs.3,44,000/- with consent of the Complainant? 2. Whether the Opposite party has committed deficiency in service? 3. Whether the Complainant is entitled to the amount claimed? 7. Our findings and reasons are as here under:- 8. POINTS NO.1 & 2:- The undisputed facts borne out from the materials on record are that the Complainant is the owner of TATA lorry bearing No.KA.42/2539 purchased on hire basis and the said lorry was insured with the Opposite party and said lorry met with an accident on 17.04.2008 and the Complainant reported the matter to the Opposite party Insurance Company and submitted his claim petition. The Opposite party deputed Surveyor and he inspected the damaged vehicle at Prerana Motors, Mysore and submitted the report as per Ex.C.1. It is admitted fact that the Complainant completed all the formalities. 9. According to the Complainant, though the Opposite party is bound to settle the claim as per the amount assessed by the surveyor, but the Opposite party did not do so and intentionally delayed the matter, causing a complainant to bear unnecessary burden of interest on the loan amount, parking charges, loss and further to cause loss to the Complainant, the Opposite party reduced the claim for Rs.3,44,000/- on cash loss basis. Though, the Complainant did not agree for the said settlement, the Opposite party Company had closed the claim on 10.02.2009 saying that no response and no claim. 10. But, the contention of the Opposite party is that the surveyor had proposed three options to settle the claim and the Complainant was appraised of the options and taking time, the Complainant informed that he was prepared to get his claim settled under cash loss basis for Rs.3,44,000/- and further the said amount be paid to the Financier and he would retain the salvage and he had already procured a buyer for the same for Rs.4,00,000/- and since the proposal of the Complainant suited the Opposite party, the Opposite party settled the claim for Rs.3,44,000/- and paid the amount to the said Financier in full and final settlement of the claim. Both the Complainant and his Financier had agreed for the settlement of claim for Rs.3,44,000/, further the Opposite party had been repeatedly requesting the Complainant to give his written consent for settlement. Even after, the payment was made to the Financier, the Complainant with a view to make unlawful gain failed to give a written consent and further it was learnt that the Complainant made profit by selling the salvage. 11. Now, if we consider the contentions and the documents available, even though the Complainant has stated in his affidavit that he had written letter to the Financier not accept any amount from the Opposite party and it was not a fact as per his admission and further admitting Ex.R.1 letter, but denied the sentence Release the claim amount immediately to my Financiers, it will not benefit the Opposite party and the entire case of the Complainant cannot be thrown out, because he is a driver by profession and not educated and admittedly in Ex.R.6 dated 09.01.2009 for the first time, the Opposite party wrote a letter to the Complainant stating that the claim is approved by the competent authority for Rs.3,44,000/- and asked the Complainant to return the enclosed voucher duly discharged at his end and also Financier with seal, to enable them to issue claim cheque, further to send them a letter stating that he has agreed to receive the claim amount on cash loss basis. Since, there was no reply, again the Opposite party sent letter Ex.R.5 dated 10.02.2009 stating that they had requested vide earlier letter to receive the claim amount on cash loss basis and also to return the loss voucher duly signed at his end to release the claim amount of Rs.3,44,000/-, so far, they have not heard anything about the said claim from his end. Therefore, they requested him to send them the required letter and voucher to issue cheque in favour of the Financier. If there is no response for this letter within 25th of this month, they presume that he has not interest to claim the loss and close the file permanently stating as NO RESPONSE NO CLAIM. Thereafter, admittedly as per Ex.R.1 the Complainant submitted letter dated 03.03.2009 to the Opposite party Company, stating that about letter dated 09.01.2009 to settle claim for Rs.3,44,000/- on cash loss basis and he has stated that he has not given his consent for the above basis of claim settlement to the surveyor or to the Company. As the vehicle repair costs is very high has requested the Company to settle the claim on total loss basis and to release the claim amount immediately to his Financiers. In spite of it, the Opposite party Company has sent letter dated Ex.R.4 dated 22.04.2009 to the Financier Shriram Commercial Vehicle Finance with cheque for Rs.3,44,000/- stating that amount is sent towards full and final settlement of above referred motor over damage claim. According to the Opposite party, the Complainant has submitted Ex.R.2 the receipt executed by the Financier for the full and final settlement for Rs.3,44,000/-. The complainant has denied the same in his cross-examination. The Complainant has admitted that getting the signature of the Financier, he brought a slip and gave to the Opposite party. Further, stated that the Financier had given a slip stating the amount due to them for Rs.8,25,000/-. It is pertinent to note that in Ex.R.2 the Complainant has not at all put signature authorizing the Insurance Company to pay the amount to the hirer, though the address of the Complainant is typed, but only the signature and seal of the Financier is obtained on the stamp in Ex.R.2 and the amount is mentioned as Rs.5,000/-. But in Ex.R.2 it is written that they agreed to accept in full satisfaction and discharge of the claim for Rs.3,44,000/-. In fact, the words full/partial, the word partial is not struck of by the person who has signed on the stamp of Ex.R.2. It is specific in Ex.R.6 and R.5 that the Complainant should send a letter agreeing to settle the claim on cash loss basis for Rs.3,44,000/- and also to sign the voucher and send the same to the Insurance Company. But, even though there is no duly signed discharged voucher by the Complainant and also there is Ex.R.1 letter and even in the absence of any letter of agreement to settle the claim on cash loss basis, the Opposite party Insurance Company has gone to settle the claim on 22.04.2009 as per Ex.R.4 and sent the cheque to the Insurance Company and this settlement is not at all informed to the Complainant, because no copy of this letter Ex.R.4 is sent to the Complainant. Therefore, in spite of objection by the Complainant as per Ex.R.1 not to settle the claim on cash loss basis and claiming specifically to settle the claim on total loss basis, the Opposite party Company has sent the amount to the Financier without informing the Complainant at all. 12. Though, it is contended that the Complainant orally agreed for settlement on cash loss basis since he is the custody of salvage and intended to sell for more amount and already secured a buyer of the salvage, but the documents revealed that in fact the Opposite party Company corresponded and got the quotations for the sale of salvage as per quotation letters Ex.R.15 to R.23. out of them some of the quotations are received by the surveyor. The Opposite party Official has deposed that it is learnt that the Complainant has already sold the salvage and made the profit, but the evidence of C.W.2 from Preranan Motors and the letter of parking charges proves that the salvage is still in the premises of Prerana Motors, Mysore. The Official of Opposite party Company in his evidence has stated in the cross-examination that he does not remember who gave the information that the Complainant sold the salvage for profit. So, the Opposite party witness has also given false evidence, in this manner contrary to its own version and affidavit though Opposite party has obtained Ex.R.15 to R.23. Under these circumstances, the contention of the Opposite party that the Complainant has orally agreed for settlement on cash loss basis and therefore, the Opposite party has settled the claim and paid the amount to the Financier cannot be accepted. Though, it is contended that the Financier has executed the voucher towards full satisfaction of the claim, but Complainant as the owner of the vehicle has to execute the discharge voucher for full satisfaction of the claim and not the Financier. When admittedly, the voucher Ex.R.2 does not bear the signature of the Complainant at all Ex.R.2 creates doubt. So, it clearly proves that the decision to settle the claim for Rs.3,44,000/- on cash loss basis is unilaterally taken by the Opposite party Company without consent of the Complainant at all and in spite of letter Ex.R.1 stating his unwillingness to settle the claim on cash loss basis and in spite of it the Opposite party has paid Rs.3,44,000/- to the Financier without notice to the Complainant. 13. Therefore, the Opposite party has failed to prove that the Complainant had agreed and given consent for settlement of the claim on cash loss basis and executed voucher for full satisfaction of the claim. On the other hand, the materials on record clearly established that the decision of the Opposite party is unilateral in spite of objections filed by the Complainant. Further instead of closing the claim stating as NO RESPONSE NO CLAIM and close the file permanently as per Ex.R.5 letter, the Opposite party has sent the amount to the Financier on 22.04.2009, in spite of letter Ex.R.1 by the Complainant on 03.03.2009 claiming settlement on total loss basis and not giving consent for settlement for Rs.3,44,000/- on cash loss basis, when the Opposite party has clearly mentioned in Ex.R.5 about to close the file permanently stating that as NO RESPONSE NO CLAIM, therefore this gives cause of action to the Complainant, because the Opposite party has not closed the claim. But in spite of letter Ex.R.1, it sent the amount to the Financier as observed above. Therefore, the Opposite party has committed deficiency in service in not settling the claim as claimed by the Complainant which is in accordance with the claim loss assessed by the surveyor admittedly for Rs.7,69,000/-. Therefore, the Opposite party has committed deficiency in service and hence, we answer point no.1 in the negative and point no.2 in the affirmative. 14. POINT NO.3:- The Complainant has claimed Rs.7,69,000/- towards loss sustained to the vehicle with interest at 24% p.a. and compensation of Rs.4,00,000/-. According to the Complainant, due to delay by the Opposite party, he was burdened with the interest and loss, mental agony and parking charges. It is established by the Complainant and his witness and the documents and the surveyor report that the salvage of the lorry is at Preranan Motors premises and as per Ex.C.7 and C.9 the Complainant was asked to pay the parking charges at the rate of Rs.250/- per day. Now, the evidence proves that the Opposite party has already paid Rs.3,44,000/- to the Financier of the Complainant. Therefore, the Complainant is not entitled to full amount of Rs.7,69,000/- and therefore, we have to deduct Rs.3,44,000/- and the balance amount comes to Rs.4,25,000/- and Complainant is entitled to this amount towards the loss of the damage to the lorry on total loss basis and the Opposite party is entitled to take the salvage of the lorry from Preranan Motors, Mysore by paying the parking charges. Under these circumstances, the Complainant is not entitled to compensation of Rs.4,00,000/-, but he is entitled to interest at 9% p.a. of Rs.4,25,000/- from the date of complaint. 15. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite party to pay Rs.4,25,000/- with interest at 9% p.a. from the date of complaint and to obtain the salvage from Prerana Motors, Mysore by paying parking charges and further to pay cost of Rs.1,000/- to the Complainant within two months. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 21st day of August 2009). (PRESIDENT) (MEMBER) (MEMBER)
