KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 43/2010
JUDGMENT DATED:25-11-2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
P.I. George, Proprietor,
J.B.Takies, Parappur.P.O, : APPELLANT
Thrissur.
(By Adv.Sri.G.S.Kalkura)
Vs.
Manager,
United India Insurance Co. Ltd.,
Branch Office, Orison Complex, : RESPONDENT
Wadakkancherry Road,
Kunnamkulam.
(By Adv.Sri.R.Jagadish Kumar)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeal is preferred from the order dated:16th November 2009 passed by CDRF, Thrissur in OP.805/04. The complaint therein was filed by the appellant herein as complainant alleging deficiency of service on the part of the respondent/opposite party, United India Insurance Company Ltd, Branch office Kunnamkulam in partly repudiating the insurance claim for Rs.16.lakhs with respect to the damage caused to the insured theatre in the fire accident which occurred on 19/2/2002. That the insurance company has only paid a sum of Rs.4,79,761/- and hence the complaint was filed claiming the balance insurance claim for Rs.11,20,239/-.
1. The respondent/opposite party, Manager, United India Insurance Company Ltd., Branch office, Kunnamkulam entered appearance and filed written version denying the alleged deficiency of service. The opposite party contended that the insurance claim preferred by the complainant was finally settled by payment of Rs.4,79,761/- and that the complainant/insured accepted the aforesaid amount by way of full and final settlement of the insurance claim with respect to the insurance policy No.101202/11/11/16/4810/01. It was further contended that the loss suffered by the complainant/insured was assessed by the approved surveyor, K.U.Varunny, M/s Zanders, General Insurance Surveyor, loss assessor and project consultant and that the surveyor assessed the loss at Rs.4,96,961/- including the cost of fire fighting equipments. After deducting policy excess and the value of the fire fighting equipments which were not covered by the policy, the insurance amount due to the complainant/insured was fixed at Rs.4,79,761/- and that the same was accepted by the insured by way of full and final settlement of the insurance claim. Thus, the opposite party prayed for dismissal of the complaint.
2. Before the Forum below, the complainant was examined as PW1 and Ext.P1 copy of the cinema operators license was marked. On the side of the opposite party/insurance company the surveyor was examined as RW1. Ext.R1 to R10 documents were also marked on the side of the opposite party. On an appreciation of the evidence on record, the Forum below dismissed the complaint in OP.805/04. Aggrieved by the said order, the present appeal is filed by the complainant therein.
3. We heard both sides. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that Rs.4,79,761/- was paid by the insurance company by way of part claim and that the complainant/insured is entitled for the balance claim of Rs.11,20,239/-. He also relied on R4 to R6 documents to substantiate the claim for Rs.16.lakhs preferred by the complainant/insured. Thus, the appellant/complainant prayed for setting aside the impugned order dated:16th November 2009 passed by CDRF, Thrissur in OP.805/04. On the other hand, the learned counsel for the respondent/opposite party/insurance company supported the impugned order passed by the Forum below. He much relied on Ext.R10 discharge voucher executed by the appellant/complainant (insured) for acceptance of Rs.4,79,761/- by way of final settlement of the insurance claim. He also relied on R1 survey report dated:9/4/2002 and R2 addendum survey report submitted by the approved surveyor. Thus, the respondent/opposite party justified their action in repudiating the further claim for Rs.11,20,239/-.
4. The points that arise for consideration are:-
1. Whether there was any deficiency of service on the part of the respondent/opposite party in denying the claim for Rs.11,20,239/- towards the balance of the insurance claim preferred by the appellant/ complainant?
2. Whether the case of the respondent/opposite party/insurance company that there was full and final settlement of the insurance claim by executing R10 discharge voucher can be upheld?
3. Whether the Forum below can be justified in dismissing the complaint in OP.805/04 vide order dated:16th November 2009.
5. Point.Nos:1 to 3:-
There is no dispute that the appellant/complainant had insured his theatre by name J.B.Talkies, vide insurance policy No. 101202/11/11/16/4810/01, and that the insured JB Talkies was destroyed by fire in a fire accident which occurred on 19/2/2002. Admittedly the aforesaid JB Talkies was insured for the period from 20/4/2001 to 19/4/2002 for a total of (building for Rs.8,40,000/-, machinery and accessories to Rs.7,15,000/- and furniture for Rs.5,44,500/-) Rs.20,99,500/-. Thus, at the time of fire accident the said cinema theatre was having an effective and valid policy of insurance covering the risk of fire.
6. On getting intimation about the fire accident, the respondent/opposite party/insurance company deputed the approved surveyors M/s Zanders, General Insurance surveyor/loss assessor and project consultant and that the surveyor submitted R1 survey report dated:9/4/2002 and R2 addendum survey report estimating the loss at Rs.4,96,961/-. The surveyor who assessed the loss has been examined as RW1. He deposed in support of the assessment of loss. It is to be noted that the appellant/complainant has not filed any objection to the aforesaid survey report. There is no other material available on record to discard or disbelieve the survey report submitted by RW1.
7. Based on the loss assessment made by the approved surveyor, the respondent/opposite party/insurance company estimated the actual loss at Rs.4,79,761/-. The opposite party/insurance company deducted the policy excess of Rs.10,000/- and value of the fire fighting equipments at Rs.7,200/-. It is to be noted that the fire fighting equipments were not covered by the insurance policy. The opposite party/insurance company in their written version has also given the details of the loss assessed by the approved surveyor and the deductions made by the insurance company. Thus, the respondent/opposite party/insurance company can be justified in assessing the actual loss suffered by the complainant at Rs.4,79,761/-. The liability of the insurance company would come to Rs.4,79,761/-.
8. The appellant/complainant produced R4 estimate dated:25/9/2002 and R5 and R6 quotations submitted by the Cosmo Electricals and Kolathattil Wood Industries. But R4 estimate or R5 and R6 quotations have not been proved by the complainant. So, the claim of the complainant based on R4 to R6 documents cannot be accepted. There is no contra evidence forthcoming from the side of the complainant to disprove the survey reports submitted by the approved surveyor. It is to be noted that the survey report submitted by the approved surveyor is to be treated as a valuable piece of evidence and the same cannot be ignored or discarded without assigning any valid reason. In the present case on hand, the appellant/complainant has not adduced any acceptable piece of evidence to discard R1 and R2 survey reports submitted by the approved surveyor. Thus, the appellant/complainant has not succeeded in establishing his case that he suffered total loss of Rs.16.lakhs in the fire accident which occurred on 19/2/2002.
9. The definite case of the respondent/opposite party/insurance company is that the insurance claim preferred by the appellant/complainant was settled by the payment of Rs.4,79,761/- by way of full and final settlement of the insurance claim. The insurance company much relied on R10 discharge voucher. Ext.R10 discharge voucher would make it abundantly clear that the appellant/complainant being the insured accepted a cheque for Rs.4,79,761/- by way of full and final settlement of the insurance claim preferred by him. Ext.R10 discharge voucher would make it crystal clear that the appellant/complainant/insured accepted the cheque on 19/12/2002 without any sort of objection or protest. Execution of R10 voucher by the appellant/complainant as insured would support the case of the respondent/opposite party/insurance company that the insurance claim preferred by the appellant/complainant was finally settled at Rs.4,79,761/- and that the complainant/insured accepted the said amount without any objection or protest. It is pertinent to note that the aforesaid amount of Rs.4,79,761/- was accepted by the complainant/insured by way of cheque which he received on 19/12/2002. There is nothing on record to show that after 19/12/2002 the complainant/insured has raised any objection before the respondent/opposite party/insurance company regarding the settlement of the insurance claim at Rs.4,79,761/-. Thus, it can very safely be concluded that the appellant/complainant as insured executed R10 voucher and received the cheque for Rs.4,79,761/- by way of full and final settlement of the insurance claim.
10. There is no case for the appellant/complainant that he executed R10 voucher without understanding the consequence of executing such a voucher. He has also no case that he executed R10 voucher under compulsion or coercion. He has also no case that the respondent/opposite party/insurance company exercised fraud or undue influence in getting R10 voucher executed by the appellant/complainant (insured). It is a settled position that the burden is upon the person who alleges fraud, coercion etc to plead and prove fraud, coercion, undue influence etc. But in the present case on hand, the appellant/complainant (insured) has no such case. There is no pleading regarding fraud, undue influence, coercion etc. No evidence was also adduced by the complainant to prove any such fraud, compulsion, undue influence etc. Thus it can very safely be concluded that the appellant/complainant accepted the insurance claim amount of Rs.4,79,761/- and executed R10 discharge voucher with his free will and volition. If that be so, the present claim for the balance insurance amount of Rs.11,20,239/- is legally unsustainable. The Forum below is justified in dismissing the complaint in OP.805/04.
11. The fire accident occurred on 19/2/2002. The approved surveyor inspected the fire accident spot on 20/2/2002 and he filed R1 survey report on 9/2/2002. The surveyor has also filed R2 addendum survey report on 15/6/2002. The complainant/insured executed R10 voucher and accepted the cheque for Rs.4,79,761/- on 19/12/2002. It is prior to the acceptance of the cheque on 19/12/2002, the complainant submitted the letter on 14/11/2002 expressing his disagreement with the assessment of loss by the surveyor. It is after the said letter dated:14/11/2002, the respondent/opposite party/insurance company issued R7 letter to the complainant. R7 is dated 18/12/2002. Prior to the issuance of R7 letter there was discussion between the complainant and the officials of the insurance company. Ext.R7 letter would also show that the complainant agreed to settle the insurance claim on accepting a sum of Rs.4,79,761/-. The complainant himself has affixed his signature on R7 letter agreeing the said settlement. The aforesaid endorsement made by the complainant on R7 letter is dated:19/12/2002. It is to be noted that on19/12/2002 the complainant had also accepted the cheque for Rs.4,79,761/- and made an endorsement to that effect on R10 discharge voucher. So, the subsequent filing of the complaint in OP.805/04 can be considered as an after thought of the complainant/insured. There is nothing on record to show that immediately after accepting the cheque for Rs.4,79,761/-, the complainant raised any objection to the settlement of the aforesaid claim for Rs.4,79,761/-. It is pertinent to note at this juncture that the complainant as insured accepted the cheque for Rs.4,79,761/- without any demur or objection. The available circumstances and evidence on record would make it clear that the complaint in OP.805/04 was filed as a test case without any merit. If that be so, the CDRF, Thrissur is perfectly justified in dismissing the complaint in OP.805/04. We do not find any legally sustainable ground to interfere with the impugned order passed by the Forum below. The present appeal deserves nothing but dismissal. These points are answered accordingly.
In the result the appeal is dismissed. The impugned order dated:16-11-2009 passed by CDRF, Thrissur in OP.805/04 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
