State Consumer Disputes Redressal Commission
The Manager, vs Fathima. K.P., on 30 September, 2010
Daily Order
First Appeal No. 777/2004 (Arisen out of Order Dated null in Case No. of District ) The Manager,Oriental Insurance Co ltd Vs. Fathima.K.P BEFORE: Sri.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: Dated : 30 Sep 2010 ORDER Disposed as Allowed
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 777/2004
JUDGMENT DATED: 30-09-2010
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPELLANT
The Manager,
Oriental Insurance Co. Ltd.,
City Branch Office, 1st Floor, RAS Building, South Bazar, Kannur.
(Rep. by Adv. Sri. Saji Isaac K.J.)
Vs
RESPONDENT
Fathima. K.P.,
"Rejinas", 7th Mile, P.O. Kuttikkol, Thaliparamba.
JUDGMENT
SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER Appellant was the opposite party and respondent was the complainant in OP No. 299/2001 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency of service on the part of the opposite party/Insurance Company in repudiating the insurance claim with respect to the balance of the insurance amount of Rs. 39,503/-. The opposite party/Oriental Insurance Company Ltd. entered appearance and filed written version denying the alleged deficiency of service. It was contended that the complainant received an amount of Rs. 24,000/- towards full and final satisfaction of all the claims with respect to the damage caused to the insured vehicle in the motor vehicle accident, which occurred on 07-11-2000. It was further contended that the insurer is not liable to honour the claim of the complainant with respect to the consequential damage caused to the vehicle on account of the negligence of the complainant in driving the vehicle without coolant in the radiator. It is also contended that the damage caused to the insured vehicle was assessed by an approved Surveyor and based on his survey report Rs. 24,000/- was paid to the complainant by way of full and final settlement of the insurance claim. Thus, the opposite party prayed for dismissal of the complaint in OP No. 299/2001.
2. Before the Forum below, the complainant was examined as PW1 and Exts. A1 to A5 documents were marked on her side. On the side of the opposite party/Insurance Company the licensed Surveyor who submitted the survey reports has been examined as DW1 and the Assistant Administrative Officer of the Insurance Company was examined as DW2. Ext.B1 and B2 documents were also marked on the side of the opposite party/Insurance Company. On a perusal of the lower Court records, it could be seen that DW1, the approved Surveyor has given oral evidence with respect to the submission of survey reports and an additional survey report. He also filed proof affidavit in lieu of examination in chief. Ext.B6 survey report and B7 supplementary report were also marked through his affidavit. The Assistant Administrative Officer of the Insurance Company who has been examined as DW2 filed proof affidavit in lieu of chief examination and certified copy of the policy as B3 and the claim form submitted by the complainant as B4, the estimate dated 07-11-2000 issued by the repairer Automatrix as B5 were also marked through DW2. He was cross examined by the Counsel for the complainant with respect to Ext.B1 voucher executed by the complainant for accepting Rs. 24,000/- from the opposite party/Insurance Company. The lower Court records would show that B1 to B7 documents were marked on the side of the opposite party/Insurance Company; but unfortunately in the appendix to the impugned order Exts. B1 and B2 alone are shown as the documents on the side of the opposite party/Insurance Company. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30th April 2004 allowing the complaint in OP No. 299/2001 directing the opposite party to pay the balance amount of Rs. 39,503/- towards the insurance claim with compensation of Rs. 2,000/- and cost of Rs. 250/-. Hence the present appeal.
3. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned Counsel for the appellant/opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on B1 voucher dated 29-03-2001 and B2 letter issued by the complainant and argued for the position that the entire claim was settled on payment of Rs. 24,000/- and that the complainant executed B1 voucher for accepting Rs. 24,000/- by way of full and final settlement of the insurance claim with respect to the insured vehicle which met with an accident on 07-11-2000. He also relied on B6 and B7 survey reports submitted by the approved Surveyor and argued for the position that no balance amount was due to the complainant towards the insurance claim. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in OP No. 299/2001 on the file of CDRF, Kannur.
4. The points that arise for consideration are:
1. Whether there was full and final settlement of the insurance claim preferred by the respondent/complainant, as contended by the appellant/opposite party Insurance Company?
2. Whether B1 voucher dated 29-03-2001 was executed by the respondent/complainant voluntarily with her free will and volition?
3. Whether the respondent/complainant is entitled to the claim for Rs. 39,503/- towards the balance of the insurance claim amount?
4. Is there any sustainable ground to interfere with the impugned order dated 30-04-2004 passed by CDRF, Kannur in OP No. 299/2001?
5. Point Nos.1 to 4: These points are interrelated and interconnected and so these points can be discussed jointly.
There is no dispute that the respondent/complainant insured her Tata Indica Car bearing Reg. No. KL 13 E 2222 with the appellant/opposite party Oriental Insurance Company Ltd. and that the insured vehicle met with an accident on 07-11-2000. Admittedly, at the time of accident, the aforesaid vehicle had an effective and valid insurance coverage. Ext.A2 is the policy of insurance for the period from 10-03-1999 to 09-03-2000. The aforesaid policy was subsequently renewed. The opposite party/Insurance Company has produced copy of the aforesaid renewed policy with the policy conditions. The aforesaid policy produced before the Forum below would show that the said vehicle was having valid policy of insurance from 10-03-2000 to 09-03-2001 and it was insured for a sum of Rs. 3,07,000/-. Admittedly, the insured vehicle met with an accident on 07-11-2000 and the insured vehicle sustained damage in the said accident. After the said accident, the respondent/complainant being the insured of the vehicle submitted motor claim form dated 08-11-2000. From the side of the opposite party the aforesaid motor claim form submitted by the complainant/insured has been produced and marked. Along with motor claim form the complainant produced an estimate for repairing the vehicle showing the estimated cost of repairs at Rs. 26,000/-. The aforesaid estimate for repair was submitted by the repairer by name Automatrix, Mangalore. Thus, the claim made by the complainant was for Rs. 26,000/-.
6. The definite case of the appellant/opposite party is that the insurance claim preferred by the complainant/insured with respect to the insured vehicle was fully settled by paying Rs. 24,000/- by way of full and final satisfaction of the claim. It is also the case of the appellant/opposite party Insurance Company that the Insurance Company arrived at Rs. 24,000/- based on the loss assessed by the approved Surveyor Praveen Kumar Kamath. The aforesaid Surveyor has been examined before the Forum below as DW1. The Surveyor has categorically deposed about B6 survey report and B7 supplementary survey report.
7. DW1, the approved Surveyor has also filed proof affidavit in lieu of examination in chief. B6 survey report is dated 21-01-2001. As per B6 survey report he assed the loss due to damage caused to the insured vehicle at Rs. 23,150/-. The details of the assessment of loss/damages have been given in B6 survey report dated 21-11-2000. It is reported that in the said motor vehicle accident damage was caused to the radiator assembly and the engine suffered starvation of coolant resulting in seizure of engine. It is also reported that the damaged vehicle has been shifted to repairer's workshop from accident spot by own power (ie, in its driving force). It is further reported that seizure of the engine necessitated major overhauling.
8. The approved Surveyor has also filed supplementary survey report dated 21-01-2001. The supplementary report has been marked as B7. DWs 1 and 2 have spoken to about B6 survey report and B7 supplementary survey report. They have also filed proof affidavits stating about the survey report and supplementary survey report. Ext.B7 supplementary survey report was filed in view of the supplementary estimate filed by the complainant claiming the repair charges of Rs. 42,105/-. In B7 survey report, the Surveyor has categorically deposed about the consequential damage to engine assembly because of driving the damaged vehicle from the accident spot to the workshop of the repairer at Mangalore. It is also reported that the vehicle was driven without coolant in the damaged radiator assembly and that the coolant had been leaked due to the damage caused to the radiator assembly. The approved Surveyor assessed the consequential loss or damage to the engine at Rs. 21,472/-. The approved and licensed Surveyor who submitted B6 survey report and B7 supplementary survey report had spoken to about those survey reports. DW1 was cross examined by the learned Counsel for the complainant. But nothing could be brought out to disbelieve the testimony of DW1. There is nothing on record to discard the survey report and supplementary survey report submitted by the approved Surveyor. Unfortunately, the Forum below failed to consider the validity of the survey reports submitted by the approved and licensed Surveyor. No sustainable reason or ground is stated by the Forum below for not relying on B6 survey report and B7 supplemental survey report. The Forum below cannot be justified in not relying on the survey report and supplemental survey report submitted by the approved Surveyor. We do not find any ground to ignore or discard the survey reports submitted by the approved Surveyor. It has been held by the Hon'ble Supreme Court that the report of a licensed/approved Surveyor is to be treated as a valid and important document and non-consideration of the survey report would result in serious miscarriage of justice. [(2000) 10 SCC 19, United India Insurance Company Ltd. and others Vs Roshan Lal Oil Mills Ltd. and others]
9. The appellant/opposite party Insurance Company vehemently contended that they paid Rs. 24,000/- to the complainant/insured by way of full and final settlement of the insurance claim and on receiving the said sum of Rs. 24,000/- the complainant/insured executed B1 voucher dated 29-03-2001. A perusal of the aforesaid voucher would make it clear that the repairer received the aforesaid sum of Rs. 24,000/- in effecting repairs to the vehicle bearing Reg. No. KL 13 E 2222. In the very same voucher the complainant/insured acknowledged payment of the aforesaid sum of Rs. 24,000/- towards the full and final settlement of the insurance claim with respect to the insured vehicle No. KL 13 E 2222 which sustained damage in the motor accident on 07-11-2000. The aforesaid voucher would make it abundantly clear that the complainant/insured acknowledged acceptance of Rs. 24,000/- by way of full and final discharge of her insurance claim with respect to the insured vehicle No. KL 13 E 2222.
10. Execution of B1 voucher dated 29-03-2001 is admitted by the complainant. The complainant as PW1 has admitted in her cross examination about execution of B1 voucher and acceptance of Rs. 24,000/- covered by said voucher. PW1 has no case that she executed the said voucher dated 29-03-2001 without her free will and volition. PW1 has no case that the said voucher was executed under compulsion or coercion. She has no case that the opposite party/Insurance Company or any other person exercised fraud or undue influence upon her for getting the voucher executed. The material on record would make it clear that the aforesaid voucher was executed by the complainant/insured voluntarily and there was no sort of compulsion from any quarter for execution of the same. If that be so, it can very safely be concluded that the said voucher was executed by the complainant on accepting Rs. 24,000/- by way of full and final settlement of the insurance claim with respect to the insured vehicle which met with an accident on 07-11-2000.
11. The Forum below failed to follow the principle or dictum laid down by the Hon'ble Supreme Court in United India Insurance, appellant Vs Ajmer Singh Cotton and General Mills and Others, respondents reported in AIR 1999 SC 3027. Infact, the aforesaid decision (supra) would only support the case of the appellant/opposite party Insurance Company. In the present case in hand, the respondent/complainant (insured) had no case that the discharge voucher was executed by her without her free will and volition or that the discharge voucher was obtained by exercising undue influence, fraud or misrepresentation or the like circumstances. There is no indication to infer coercive bargaining or other compelling circumstance for executing such a discharge voucher. The Forum below cannot be justified in ignoring or discarding the discharge voucher dated 29-03-2001 executed by the respondent/complainant. So, the finding of the Forum below with respect to the execution of the discharge voucher by the complainant/insured is liable to be interfered with. Hence we do so. Therefore, this State Commission is of the view that there was no subsisting insurance claim for the respondent/complainant to prefer an insurance claim by filing the complaint in OP No. 299/2001. The aforesaid complaint deserves dismissal only.
12. The evidence of DWs 1 and 2 and that of the complainant as PW1 would establish the fact that the damaged vehicle was driven without coolant in the radiator assembly and the aforesaid negligent act caused consequential loss or damage to the insured vehicle. The complainant as PW1 pretended ignorance about the driving of the vehicle from the accident spot to the workshop of the repairer. B2 letter issued by the complainant to the Manager of the opposite party/Oriental Insurance Company would make it clear that the damaged vehicle was driven from the accident spot to the workshop. The complainant as PW1 has admitted issuance of B2 letter. The case of the complainant that the damaged vehicle was towed from the accident spot to the workshop of the repairer cannot be believed or accepted. The aforesaid case of the complainant can be treated as an afterthought. It is also to be noted that the written complaint is silent about the Reg. No. of the vehicle which used for towing the damaged vehicle from the accident spot to the workshop of the repairer. The complainant as PW1 has not spoken to anything about the identity of the vehicle, which used for towing the damaged (insured) vehicle from the accident spot to the workshop of the repairer. The complainant filed proof affidavit in lieu of examination in chief. But, there is no whisper in her affidavit about the identity of the vehicle which used for towing the damaged vehicle. There is no whisper about the date and time of the alleged towing of the vehicle. There is also nothing on record to show the person who towed the vehicle from the accident spot to the workshop of the repairer. Nobody has been examined from the side of the complainant to prove the alleged towing of the vehicle. On the other hand, B2 letter issued by the complainant to the Manager of the opposite party/Insurance Company would show the driving of the vehicle from the accident spot to the workshop and the fact that the engine was seized up on the way. Therefore, it can very safely be concluded that the damaged vehicle was driven from the accident spot to the workshop of the repairer and the said driving was done without coolant in the radiator assembly and it resulted in causing seizure to the engine of the insured vehicle. This situation would support the case of the appellant/opposite party Insurance Company that the damage to the engine of the insured vehicle caused due to the negligence of the complainant/insured in preserving the damaged vehicle or due to the failure of the complainant in preventing further damage to the insured vehicle. The materials on record would show that the damaged vehicle sustained consequential loss or damage only due to the carelessness and negligence of the complainant/insured.
13. The policy condition regarding the exclusion Clause which is relevant for this case is as follows: " the company shall not be liable to make any payment in respect of: (a) consequential loss; depreciation, wear and tear, mechanical and electrical brake down, failures or breakages nor for damage caused by overloading or strain of the motor vehicle nor for loss or damage to accessories by burglary, huge brake or theft unless such motor vehicle is stolen at the same time". The aforesaid provision of the Exclusion Clause attached to the policy of insurance would make it clear that the Insurance Company can very well repudiate the claim with respect to consequential loss or damage caused to the insured vehicle. Thus, the opposite party/Insurance Company is perfectly justified in repudiating the insurance claim preferred by the complainant for the balance claim amount of Rs. 39,503/-. There was no deficiency of service on the part of the appellant/opposite party Insurance Company in repudiating the aforesaid claim for Rs. 39,503/-. The impugned order passed by the Forum below is liable to be set aside. Hence we do so.
In the result, the appeal is allowed. The impugned order dated 30-04-2004 passed by CDRF, Kannur in OP No. 299/01 is set aside. The complaint in the said OP No. 299/01 is dismissed. The parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER Sr. [ Sri.M.V.VISWANATHAN] PRESIDING MEMBER