Per Sri A. Hazarath Rao,  President:-

          The complainant filed this complaint U/S 12 of the Consumer Protection Act, 1986 seeking Rs.12,96,150/- as the remaining amount of claim towards damage to the lorry; Rs.50,000/- towards mental agony and harassment besides costs.    

2.      In brief the complaint averments are hereunder:

          The complainant is owner of the lorry bearing No.AP07 TU 5238 and insured the said vehicle with the opposite party.  The insurance was valid from 12-10-08 to 11-10-09.   One Shaik Share Ali and T. Venkateswara Rao were driver and cleaner of the said lorry.   The said lorry was transporting 425 bags of coriander.   While so on 17-08-09 near Pondugula village, Guntur district the said lorry was involved in fire accident resulting damage to the stock and lorry.   The concerned SHO filed charge sheet.  The complainant claimed Rs.20,69,650/-  estimating loss.   On 09-11-11 the opposite party paid Rs.7,73,500/- only.   The complainant was under pressure, provocation and under undue influence as the said vehicle was under finance.   The complainant accepted Rs.7,73,500/- as part payment.   The complainant got issued notice to the opposite party on 09-03-12.  The opposite party neither paid the amount nor settled the claim.   The conduct of the opposite party amounted to deficiency of service.

3.      The contention of the opposite party in short is hereunder:

          The complaint is barred by time.  The opposite party did not commit any deficiency of service.   The complainant approached this Forum suppressing material facts.   The opposite party appointed surveyor for assessing the loss.   The opposite party after obtaining consent letter from the complainant processed and settled the claim.   The complainant returned the settlement intimation voucher duly signed agreeing to accept Rs.7,73,500/- towards full satisfaction of claim.   The complainant hypothecated the said lorry to HDFC Bank, Vijayawada.  The complaint is therefore bad for non joinder of HDFC Bank, Vijayawada.  The complainant submitted two notarized affidavits dated 13-07-10 and 13-04-11.   Rest of the allegations contra mentioned in the complaint are all false and are invented by the complainant to suit his claim.   The complaint therefore be dismissed. 

4.      Exs.A-1 to A-6 on behalf of complainant and Exs.B-1 to B-6 on behalf of opposite party were marked.

5.      Now the points that arose for consideration in this complaint are:

1. Whether the complainant accepted Rs.7,73,500/- towards part satisfaction of claim under pressure and undue influence and if so amounted to deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

6.   Admitted facts in this complaint are these:

a. The complainant was the owner of the vehicle AP07 TU 5238.

b. The complainant insured the said vehicle with the opposite party                 and the insurance was valid from 12-10-08 to 11-10-09 (Ex.B-1).

c. The opposite party appointed surveyor and he assessed the loss.

d. The opposite party gave Rs.7,73,500/- by way of cheque.

e. Exchange of notices between the parties (Ex.A-1, A-2 and B-4).

7.   POINT No.1:-   Burden is on the complainant to prove that he received Rs.7,73,500/- under pressure and undue influence.   The opposite party on the other hand, relied on the notarized affidavits of complainant (Exs.B-2 and B-3 dated 13-07-10 and 13-04-11).   In Ex.B-1 the complainant insured the said lorry by mentioning its value as Rs.12,25,000/- only.   The complainant therefore claiming Rs.12,96,150/- after deducting Rs.7,73,500/- from out of Rs.20,69,650/- is untenable and devoid of merit.  

8.      Ex.B-2 revealed that the insured lorry suffered damage to such an extent that it was beyond repair. Ex.B-2 further revealed that the complainant agreed to take compensation on total loss basis.   No doubt, there was delay in settling complainant’s claim as rightly contented by the complainant.  Whether such delay forced the complainant to accept Rs.7,73,500/- towards full and final settlement of the claim is the question before this Forum.  

9.      Ex.B-1 is the terms and conditions of the insurance policy and they are binding on both the parties i.e., the insured and the insurer.   In Manoj Benarjee vs. Oriental Insurance Company Limited 2013 (1) CPR 378 (NC) it was held that the terms and conditions of the insurance policy have to be construed strictly and if there is any violation of the terms the party cannot claim relief.  

10.    In Ex.A-4 M/s Bismillah Auto Garage estimated the cost of repairs at Rs.20,69,650/-.   The surveyor appointed by the opposite party under Ex.B-6 recommended that claim may be settled on total loss basis as the loss on repair basis exceeded 75% of the market value of the insured vehicle.   In this case the insured declared value (IDV) was Rs.12,25,000/-.   The estimate of repair under Ex.A-4 exceeded the IDV.   The complainant is entitled to IDV only in case the repairs exceed the IDV.   

11.       At page 5 of Ex.B-1 it was mentioned IDV will be treated as the market value through out the policy period without any further depreciation for the purpose of total loss (TL)/constructive total loss (CTL) claims, insured vehicle will be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV of the vehicle.       The opposite party settled complainant’s claim on CTL basis without ‘c’ book.          

12.    Ex.B-2 affidavit dated 13-04-11 was attested by notary Sri Sikha Benerjee.  The complainant addressed Ex.B-3 to the opposite party.                     For better appreciation Ex.B-3 is extracted below:

13.    In M/s Worldwide immigration services centre vs. M/s Reliance General Insurance Company Limited and others 2013 (1) CPR 189 (NC) it was held that in the absence of any fraud, misrepresentation, undue influence or coercion being used by the insurance company to make the petitioner/complainant to sign the discharge voucher the claim cannot be accepted.   No doubt the complainant averred pressure, provocation undue influence and force.     Under Ex.B-3 the complainant agreed to take the damaged parts of the burnt lorry and estimated them at Rs.1,25,000/-. After Ex.B-3 the complainant on 08-11-11 executed discharge voucher for Rs.7,73,500/- agreeing to receive the said amount towards full satisfaction of the claim.   

14.   To rebut the same the opposite party relied on Ex.B-3 notarised affidavit.   The complainant for the reasons best known to him did not cross examine the notary by serving interrogatories.   The complainant filed this complaint about six months later i.e., on 03-05-12.     No prudent person will keep quite without responding immediately if any pressure or undue influence, force was exercised.   Therefore the delay in filing this complaint in our considered opinion negatived the use of undue influence, force or pressure by the opposite party.   Under those circumstances we opine that the complainant executed Ex.B-3 and B-5 voluntarily.   The opposite party in our considered opinion therefore did not commit any deficiency of service as alleged by the complainant.   We therefore answer this point against the complainant.

15.  POINT No.2:-  In view of above findings, the complainant is not entitled to any compensation.   We therefore answer this point also against the complainant.

16.  POINT No.3:-  In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 1^st day of April, 2013.

          MEMBER                                                              PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant  :

For opposite party:     

                                                                                          PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.