State Consumer Disputes Redressal Commission
A.P. Jos,T-17, New No.22, Plot ... vs The Customers Service ... on 21 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.NO.45/2009 [Against order in C.C.No.33/2007 on the file of the DCDRF, Chennai (North)] DATED THIS THE 21st DAY OF JANUARY 2011 A.P. Jos, | T-17, New No.22, Plot No.4110, | Appellant / Complainant Anna Nagar, | Chennai 600 040. | Vs. The Customers Service Manager, | Respondent / OP.
M/s.ICICI Lombard General Insurance Co. Ltd., | Chottabhai Centre, HoH | 140, Nungambakkam High Road, | Chennai 600 034. | The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to pay the difference of claim amount of Rs.20,206/- with interest of 18% per annum from date of claim till payment, to pay Rs.50,000/- towards damages deficiency in service, mental and physical agony and wrong attitude, to pay Rs.10,000/- as cost of the complaint. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.21.10.2008 in C.C.33/2007.
This appeal coming before us for hearing finally on 11.01.2011, upon hearing the arguments of the either counsels and perused the documents, Written Submission of appellant as well as the order of the District Forum, this commission made the following order:
For the Appellant /Complainant : Party in Person.
Counsel for the Respondent/OP : Mrs.Elveera Ravindran, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The complainants claim was dismissed by the District Forum, as per the order dated 21.10.2008 and the result is this appeal.
2. The complainant/appellant had taken house insurance with the opposite party for one year from 11.08.2005 to 10.08.2006. Due to heavy rain on 27/28.10.2005 and 5/6.11.2005, the flood water entered into the house, causing severe damage, not only to the building, but also to the house hold articles, for which, a claim for Rs.38,050/- was lodged, before the opposite party. The opposite party instead of paying the amount, as claimed, paid only a sum of Rs.17,844/- and obtained a discharge voucher on 11.4.2006, as if, the complainant has failed to prove the damages. Premium was collected on the basis of the accepted value and having collected the premium, the opposite party is not entitled to reject the claim, when the value of the goods is claimed, based upon damage. Since the opposite party has failed to pay the amount, they have committed deficiency and therefore, the complainant is entitled to difference of amount namely Rs.20,206/- with interest thereon, in addition to, a sum of Rs.50,000/- as compensation for mental agony.
3. The opposite party admitting the Home Insurance Policy taken by the complainant, as well as admitting the damage caused to the house, as well as to the articles to some extent, opposed the claim of the complainant, inter alia contending, that the claim is barred by limitation, that the claim of the complainant at Rs.38.050/-
is not based upon correct assessment, that as per the conditions of the policy, assessing the damage at Rs.17,844/-, when the opposite party offered the amount, the same was accepted by the complainant in full and final settlement, for which, he had issued receipt also, that because of the settlement had already taken place, the complainant is estopped from claiming the amount, that the claim being already settled, no question of negligence and deficiency, warranting any compensation also, thereby praying for the dismissal of the complaint.
4. The District Forum considering the rival contentions of the parties as well as the conduct of the complainant, in receiving the amount in full and final settlement, came to the conclusion, that he is estopped from claiming further amount and as such, the complaint itself is not maintainable, in this view, the complaint came to be dismissed on 21.10.2008, which is challenged in this appeal.
5. Under Ex.A1, for the period 11.08.2005 to 10.08.2006, the complainant had taken a Home Insurance Policy, paying a premium of Rs.2950/-.
This policy covers Fire and Special Perils for structure, including damage caused to the building or the articles wherein, by floods also. As pleaded in the complaint not under dispute before us, the entire property including some articles were damaged due to heavy rain and flood on 27/28.10.2005 and 5/6.11.2005. The complainant estimating the loss at Rs.38,050/-, lodged a claim before the opposite party, as seen from the letter dated 24.03.2006-Ex.A3. After several communications, though the complainant had claimed a sum of Rs.38,050/-, the opposite party offered to pay only a sum of Rs.17,844/- as evidenced by Ex.B1 dated 30.03.2006. The complainant had agreed to receive the sum of Rs.17,844/- towards full and final settlement of the claim, registered by him, in Claim No.631549 that is the claim lodged by the complainant. As agreed under this communication, amount was paid, even as admitted by the complainant, and this being the position, for the entire amount claimed, settled towards full and final settlement and thereafter nothing remains. It is the not the case of the complainant, that without prejudice to his right to claim the further amount, due to some unavoidable reasons, reserving the right to claim further amount, at later point of time, he accepted the amount. Therefore, as rightly recorded by the District Forum and rightly urged on behalf of the opposite party, the entire claim based upon the policy was settled, once for al and therefore, he is estopped from claiming any more amount.
6. The submission of the learned counsel for the appellant/complainant, that the opposite party having collected the premium based upon market value, should pay the actual damage, is not acceptable to us, since though the sum assured may be on the higher side, reimbursement would depend upon the actual damage, suffered on ascertaining due to the events, in this case flood. As seen from the communication from the opposite party, they have assessed the loss, giving depreciation for Painting (inner), Painting (outer), Refrigerator, Jet Motor, Computer, Furnitures etc., thereby totaling a sum of Rs.17,844/-. Though in the claim, Rs.38,050/- is claimed, as per the estimate, we do not have materials, that the complainant incurred such an expenses though a completion certificate is available. If really, the complainant had incurred expenses of Rs.38,050/-, it is not known, why he had accepted Rs.17,844/- in full and final settlement of the claim. Assuming that there was more damage, though we had no substantive evidence to prove the same, when the complainant himself had admitted to receive Rs.17,844/-, received the same in full and final settlement, no claim survives, for the settled claim once again, which was rightly assessed by the District Forum, while dismissing the claim, in which finding, we are unable to see any error, either on law or on facts to disturb the same. Hence, the appeal is to be dismissed as unacceptable.
7. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai [North], in C.C.33/2007, dated 21.10.2008. Under the facts and circumstances of the case, there will be no order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Insurane