BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA 896 of 2012 against CC 131/2011, Dist. Forum, Karimnagar
Between:
1) Oriental Insurance Company Ltd.
Regd. & Head Office :
A-25/27, Asaf Ali Road
New Delhi
Rep. by its Authorised Signatory
2) Oriental Insurance Company Ltd.
Divisional Office,
Opp. Collectorate Complex
P.B. No. 5, Karimnagar
Rep. by its Divisional Manager. *** Appellants/
O.Ps
And
Thuniki Anand Raju
S/o. Dr. T. Narasimha Raju
R/o. 4-69/54/6
Road No. 2, Vidyaranyapuru
Opp. Appollo Reach Hospital
Near Railway Station
Karimnagar. *** Respondent/
Complainant
Counsel for the Appellant : M/s. Bhaskar Poluri
Counsel for the Respondent: M/s. Indus Law Firm
CORAM:
SMT. M. SHREESHA, PRESIDING MEMBER
&
SRI S. BHUJANGA RAO, MEMBER
THURSDAY, THE TENTH DAY OF OCTOBER TWO THOUSAND THIRTEEN
ORAL ORDER: (Per Smt. M. Shreesha, Member)
***
1) Aggrieved by the order in CC No. 131/2011 on the file of the Dist. Forum, Karimnagar, the opposite parties preferred this appeal.
2) The brief facts as stated in the complaint are that the complainant got his HYUDAI car insured with the appellant/opposite party insurance company covering the period from 21.12.2010 to 20.12.2011. While so, on 28.2.2011 it met with an accident on the National Highway No. 22 between Nirmal and Khanapur in which the vehicle was extensively damaged. On a complaint the Police at Nirmal visited the scene of offence and conducted Panchanama. Immediately, the complainant informed the insurance company about the accident which in turn appointed a spot surveyor Mr. Nagesh. On his advice the vehicle was shifted to authorized service centre of HYUNDAI at Karimangar for necessary repairs. They estimated the damage at Rs. 1,04,547/-. The complainant alleges that when the claim was made, the insurance company sent a cheque for Rs. 48,000/- which was accepted by him under protest. Immediately on 30.6.2011 he sent a letter requesting the opposite parties to pay balance of amount, however, the insurance company did not oblige his request. Hence this complaint seeking for a direction to the opposite parties to pay balance of Rs. 56,547/- with interest @ 24% together with compensation and costs.
3) The appellants/opposite parties filed counter denying the allegations made by the complainant. They contended that on receipt of intimation about the accident on 28.2.2011 they deputed an IRDA surveyor on 2.3.2011 who assessed the loss at Rs. 48,000/- and the same was paid to the complainant towards full and final settlement of claim for which the complainant voluntarily executed the discharge voucher dt. 20.4.2011 acknowledging the receipt of said amount. The opposite parties sent reply to the notice issued by the complainant dt. 18.5.2011 stating that the loss was assessed in accordance with prevailing norms and the estimates submitted to the company by the surveyor and a copy of the survey report was also furnished. There is no deficiency of service on their behalf and therefore prayed for dismissal of the complaint with costs.
4) The Dist. Forum based on the evidence adduced i.e., Exs. A1 to A10 and Exs. B1 to B3 and the pleadings put forward allowed the complaint directing the opposite parties jointly and severally to pay Rs. 56,547/- with interest @ 9% p.a., from the date of complaint i.e., from 1.8.2011 till the date of payment together with costs of Rs. 1,000/-.
5) Aggrieved by the said order, the opposite parties preferred this appeal.
6) The learned counsel for the appellants filed written arguments.
7) The point that falls for our consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is the contention of the appellants/opposite parties that once the complainant has tendered discharge voucher towards full and final settlement of the claim the question of re-opening the case will not arise. The insurance company rightly settled the claim at Rs. 48,000/- based on the report of surveyor and the estimates submitted by the complainant. On the other hand, the complainant alleges that he accepted the said amount with protest and they obtained the discharge voucher under duress and coercion. Immediately he addressed a letter under Ex. A6 dt. 30.5.2011 claiming balance of amount for which the opposite parties gave reply under Ex. A7 refusing to re-open the matter. In the circumstances it cannot be said that it is an afterthought of the complainant for making unlawful gain.
9) It is pertinent to note that despite the fact that the Dist. Forum made an observation that the appellants/opposite parties did not file the report of the surveyor to find out as to how the assessment was made and what are the observations and recommendations of the surveyor and the quantum of loss assessed by the surveyor after taking into consideration depreciation, policy excess, they did not choose to file the said report even before this Commission. Therefore an adverse inference could be drawn for not filing the surveyor report. In the absence of the surveyor report, the contention of appellants/opposite parties cannot be countenanced.
10) Admittedly, the complainant got his vehicle repaired through an authorised service centre evidenced under Exs. A1 to A5 and paid an amount of Rs. 1,05,547/- towards the repairs.
11) Coming to the contention of appellants/opposite parties that the complainant had executed the discharge voucher for Rs. 48,000/- towards full and final settlement of the claim and therefore they are not liable to pay any more amount. When it was obtained under duress and coercion and that too without filing the surveyor report it cannot be construed that he has agreed for the said amount towards full satisfaction. In this context, we rely on the following judgements of Hon’ble Supreme Court and the National Commission.
The law on this subject has clearly been laid down by Hon'ble Supreme Court of India in “United India Insurance Company Vs. Ajmer Singh Cotton & General Mills, (1999) 6 S890CC 400”. It was held that discharge voucher though signed as ‘full and final’ may not be treated as final if the consumer can satisfy the Court that it was obtained through undue influence fraud or misrepresentation. Hon'ble Court has observed;
“The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, 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. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.”
The National Commission in New India Assurance Company Ltd. Vs. M/s. Polycap Industries reported in 2010(3) CPR 91 (NC) wherein it was held that “where the complainant accepted such a small amount against his claim for loss under insurance policy, it could be taken to have been accepted under duress and consumer complaint would be maintainable.”
12) Keeping in view the aforementioned reasons and judgement of the National Commission, we are of the considered opinion that the Dist. Forum has rightly directed the appellants/opposite parties to pay balance of Rs. 56,547/- with interest @ 9% p.a., from the date of complaint till the date of payment together with costs of Rs. 1,000/-. We do not find any merits in the appeal.
13) In the result this appeal is dismissed but without costs. Time for compliance four weeks.
1) _______________________________
PRESIDING MEMBER
2) ________________________________
*pnr MEMBER
UP LOAD – O.K.
