State Consumer Disputes Redressal Commission
Divisional Manager Oriental Insurance ... vs Saji on 13 March, 2018
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL.NO.529/2016 JUDGMENT DATED : 13.03.2018 (Appeal filed against the order in CC.No.70/13 on the file of CDRF, Kollam, order dated : 30.06.2016) PRESENT JUSTICE SHRI.S.S.SATHEESACHANDRAN : PRESIDENT SRI.V.V.JOSE : MEMBER APPELLANT/ 3rd OPPOSITE PARTY Divisional Manager, Oriental Insurance Co.Ltd., V.V.Arcade, Pulamon P.O, Kottarakkara (Represented by its Deputy Manager, T.P.Hub, Ulloor, Trivandrum) By advocate Sri.V.Manikantan Nair RESPONDENTS/COMPLAINANT & 1ST AND 2ND OPPOSITE PARTY Saji. S/o Bennian, Plavila Veedu,Thalachira Muri,Thalachira P.O, Vettikvala Village, Kottarakkara (Represented as Power of Attorney holder of his sister the Complainant Suja Thomas, D/o.Thankamma, Moon Stone, Neeleswaram P.O, Kottarakkara Managing Director, KairaliFord, 508A IIIikkat Building,Edappally P.O, Kochi-682 024 Manager, Kairali Ford Kerala Cars Pvt. Ltd. KGF Building, Vallakkadavu, Thiruvananthapuram. JUDGMENT
JUSTICE SHRI. S.S.SATHEESACHANDRAN: PRESIDENT Third opposite party in CC 70/13 on the file of Consumer Disputes Redressal Forum, Kollam for short "District Forum" has filed this appeal challenging the Order of the forum directing first and second opposite parties to cure defects of the motor vehicle of Complainant, and to pay Rs.75000/- (Rupees Seventy five thousand) with 9% interest from the date of filing complaint, Rs.10000/-(Rupees Ten thousand) as compensation and Rs.2500/- (Rupees Two thousand five hundred) as costs to the complainant, jointly and severally by the opposite parties.
2. Complainant's motor vehicle, a Ford Fiesta, purchased from second opposite party during its warranty period, and also under insurance coverage with 3rd opposite party, met with an accident on 21.11.2012. The insured's declared value of the vehicle was Rs.4,50,000/- (Rupees Four lakhs fifty thousand) and the insurance coverage was for the period from 6.2.2002 to 5.2.2003. Vehicle damaged in the accident was brought to the second opposite party, and over its damages an estimate of Rs.4,17,530/- (Rupees Four lakhs seventeen thousand five hundred and thirty) was assessed. Towards labour charges and cost of parts etc. a bill for Rs.370461/- (Rupees Three lakhs seventy thousand four hundred and sixty one) was prepared by second opposite party. Third Opposite party prepared a bill check report of the vehicle assessing value of damaged vehicle at Rs.2,25,448.26/- (Rupees Two lakhs twenty five thousand four hundred and forty eight and paid twenty six) . After repair and reassembling the parts, the vehicle was delivered to complainant on 21.11.2012,but, its running condition was poor and complainant noticed that major parts of the vehicle had been removed and refitted with spare parts of old vehicles. Oil leakage and other damages sustained to the vehicle during the accident were not rectified by second opposite party. Surveyor deputed by insurance company had assessed the total sum of Rs.3,12,000/-(Rupees Three lakh twelve thousand only). But, the insurance company was willing to pay only a sum of Rs.2,25,400/-(Rupees Two lakh twenty five thousand and four hundred only) . Complainant after repair of the damaged vehicle had to incur lot of expenses to rectify the defects. There was total deficiency of service and unfair trade practice by opposite parties was the case of the complainant to approach the forum with complaint for issue of direction to opposite parties to pay an amount of Rs.4,50,000/- (Rupees Four lakh fifty thousand only) with interest taking back the vehicle, and, also to pay Rs.2,00,000/- (Rupees Two lakhs only) as compensation for mental agony and stress and Rs.3,70,000/- (Rupees Three lakhs seventy thousand only) with interest, which was stated as paid by complainant to the second opposite party. Complainant thus claimed a total sum of Rs.10,20,000/- (Rupees Ten lakh twenty thousand only) from opposite parties.
3. Opposite parties 1 and 2 jointly and 3rd opposite party separately filed versions repudiating the claims set up by Complainant. First and Second opposite parties contended that the initial assessment of damages was prepared for an amount of Rs.4,17,513/40 (Rupees four lakh seventeen thousand five hundred and thirteen and paise forty only) and estimate was placed before 3rd opposite party. After inspection and assessment of the vehicle by surveyor deputed by insurance company sanction was accorded for repair works, for which total sum of Rs.3,70,461 (Rupees Three lakh seventy thousand four hundred and sixty one only) was incurred and that was paid by Complainant. No old spare parts were used in the repair of the vehicle, according to these opposite parties. There was no deficiency o service on the part of these opposite parties and they are not liable to pay any compensation to complainant, according to them. 3rd opposite party filed a version that the claim of complainant was settled on repair basis satisfying all requirements and procedures, and an amount of Rs.2,26,900/- (Rupees Two lakh twenty six thousand and nine hundred only) ,which alone was eligible, was paid to her on 28.1.2013 on the basis of a discharge voucher executed by her towards full and final settlement of the claim. The surveyor appointed by the insurer after inspection found that the damage sustained to the vehicle was repairable and the loss assessed being less than 75% f the sum insured complainant was not entitled to total loss of vehicle and repair charges to the extent of its eligibility was promptly disbursed. There was no deficiency of service on the part of insurer in settling the claim and complainant was not entitled to set up any claim against the insurance company after settlement of the claim accepting the loss amount assessed and disbursed, according to 3rd opposite party.
4. Evidence in the case consisted of the testimony of PW.1 and Exts.P1 to P11 for the complainant, and DW.1 and Exts.D1 to D4 for the opposite parties. An expert Commissioner appointed by the Forum had prepared a report, which was exhibited as C1. Another report prepared by the Motor Vehicle Inspector was exhibited as Ext.C1(a). The forum below taking the view that the main dispute in the case is as to whether the insured vehicle was required to be treated as a complete constructive total loss or not, after examining the materials, formed and conclusion that the cost of damages to the vehicle exceded 70% of its ID value and, therefore, it was a total loss. Since complainant was paid only Rs.2,25,448/26 (Rupees Two lakh twenty five thousand four hundred and forty eight and paise twenty six only) by the insurance company and as she had incurred more sum and paid such sum to the second opposite party for repair and costs, and, Ext.C1 inspection report of expert disclosed continuing defects of the vehicle, the Forum below concluded there was deficiency of service and unfair trade practice by opposite parties, and, directed them to pay the sums as indicated earlier. Aggrieved by that Order insurance company has filed this appeal.
5. We heard the counsel on both sides and perused the records.
6. Case of Complainant presented before the Forum was that her claim over the damaged vehicle should be settled by the insurance company treating it as a total loss and also that she should be paid compensation by opposite parties for deficiency in their service and unfair trade practice on various counts imputed. Concededly after repair of the vehicle she had settled the claim with insurance company and received a sum of Rs.2,26,900/- (Rupees Two lakh twenty six thousand and nine hundred only) as full and final settlement executing Ext.D4 discharge voucher. There is no allegation, not even a whisper, in the complaint that Ext.D4 voucher was signed by her on account of any fraud or vitiative circumstance, and not voluntarily on her free will. On behalf of the Complainant her power of attorney holder, her brother, was examined as PW.1. In the affidavit sworn to in lieu of examination in chief also there is no case that Ext.D4 voucher was not freely and voluntarily executed by her and that the sum disbursed by insurance company was not received in full and final settlement of claim. No protest or objection was raised over inadequacy of the sum disbursed by insurance company on the claim raised when the amount was received executing D4 voucher is conceded by PW.1 during his cross examination. Complainant has not lodged any complaint or made any protest to 3rd opposite party that the sum paid for the loss sustained to the vehicle was inadequate. Evidently she executed Ext.D4 discharge voucher voluntarily and on her free will and she collected sum of Rs.2,26,900/- (Rupees Two lakh twenty six thousand nine hundred only) in full discharge of her claim. She was aware of the contents and also purpose of Ext.D4 and it was executed on her free from any undue influence, coercion or compulsion. There is no case in the complaint nor in evidence that Ext.D4 is not acceptable as vitiated by fraud, undue influence, misrepresentation or the like. The Apex Court in (National Insurance Company Ltd V. Sehtia Shoes ) 2008 CPJ Vol.II page 16 has held that in the absence of pleadings and evidence that the discharge voucher executed by the complainant was under fraud, undue influence, misrepresentation or the like it has to be accepted as voluntarily executed, and, where it is shown that the discharge voucher has been executed voluntarily in full and final settlement of the claim and the amount assessed towards damages paid by insurance company was collected without any protest or objection no complaint raising further claim can be entertained. The Forum below without taking note of the binding force of Ext.D4 discharge voucher executed by Complainant in full and final settlement of the claim with the insurance company had proceeded on a wrong tangent as if the claim of complainant has to be scrutinized on the basis whether there was total loss or not of her insured vehicle. In fact such an enquiry was barred and no claim from the complainant over any matter connected with the damage sustained to the insured vehicle was entertainable once she had voluntarily and freely executed Ext.D4 discharge voucher in full and final settlement of the claim over the damaged vehicle and and collected the sum assessed and paid by the insurance company. Order of the lower forum is patently erroneous and unsustainable in law and it is liable to be set aside. We do so.
In the result, allowing the appeal the Order of the District Forum is set aside with direction that C.C.No. 70/2013 on the file of the District Forum shall stand dismissed. Amount deposited by the appellant for entertaining the appeal shall be refunded on application. Appeal is allowed. Bother parties are directed to suffer their costs.
JUSTICE S.S.SATHEESACHANDRAN: PRESIDENT
V.V.JOSE : MEMBER
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THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSIION
VAZHUTHACAUDE,
THIRUVANANTHAPURAM
JUDGMENT IN A.529/2016
DATED:13.03.2018