C.C.NO.77/2008
Between:
1. Smt. Kuntimall Kalavathi,

Late K.Ramesh,

2. Kuntimalla Prasanna Kumar,

S/o Late K.Ramesh,

3. Kuntimalla Gowthami Priya,

D/o Late K.Remesh,

2 & 3 Minors being rep. by Guardian,

& Next Friend 1st complainant K.Kalavathi,

4. Kuntimalla Venkata Swamy,

S/o K.Rama Swamy,

5. Smt.Kuntimalla Varalakshmamma,

W/o K.Venkata Swamy,

All are residing at D.No,.4/878,

Siva Nagar, Dharmavaram,

Anantapur District. … … Complainants.

Vs

The Divisiona Manager

United India Insurance Company Limited,

Subash Road,

Anantapur. … Opposite party.

This case coming on this day for final hearing before us in the presence of Sri P.Venkata Narayana, Advocate for the complainant and Sri A.G.Neelakanta Reddy, Advocate for the opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:

O R D E R

Sri C.Thyagaraja Naidu, President: - This complaint has been filed by the complainants under section 12 of the Consumer Protection Act, 1986 against the opposite party claiming compensation of Rs.2,30,000/- for the death of the deceased K.Ramesh in the Motor Accident under personal accident coverage policy.

2. The brief facts of the complaint are that: - The 1st complainant is wife, the complainants 2 & 3 are children and the complainants 4 & 5 are parents of the deceased K.Ramesh (herein after referred to as the deceased), who died in the Motor accident. The deceased had insured his Motor Cycle bearing No.AP-02-4691 with the opposite party under policy bearing No.051001/31/05/01045 which covers personal accident to the owner and driver of the Motor Cycle and it was valid from 25.10.2005 to 24.10.2006. The deceased died on 24.02.2006 at about 10.30 P.M. while going on the Motor Cycle from Anantapur to Dharmavaram met with an accident and died on the spot near Yerraipalli Village Anantapur Bathalapalli Road. A case has been registered in Crime No.21/06 of Bathalapalli P.S. under section 304-A I.P.C. After the death the complainants have made oral requests for settlement of the claim with the opposite party under the cover of personal accident clause. But the opposite party has not settled the same. The complainants are the legal heirs of the deceased and as per the terms and conditions of the policy the complainants are entitled for Rs.2,00,000/- under personal accident clause for the death of the deceased Since the opposite party did not settle the claim of the complainants. Hence, the complainants got issued legal notice to the opposite party on 02.05.2008 and the same was served on them on 05.05.2008. But the opposite party did not give any reply to the complainants and did not settle the claim of the complainants. Thus there is deficiency in service on the part of the opposite party. Hence, the complainants have filed this complaint against the opposite party claiming insurance amount of Rs.2,00,000/-, for causing mental agony Rs.25,000/- and towards costs of the complaint Rs.5,000/- and prayed to direct the opposite party to pay the said amount to the complainants.

3. The opposite party filed counter and contended that the complaint is barred by limitation. The accident took place only due to the rash and negligent driving of Motor Cycle A.P.02.4691 by the deceased himself. If it is proved that the complainants are entitled to compensation under the Insurance policy for personal accident, the liability of the opposite party is limited to Rs.1,00,000/- only as peer the terms and conditions of the policy. The driver of the Motor Cycle did not possess valid driving license at the time of accident as such, this opposite party is not liable to pay any compensation to the complainants. The opposite party has denied the other averments mentioned in the complaint and contended that the complaint filed by the complainants is available to be dismissed with costs.

4. Basing on the above pleadings the following points that arise for consideration are:-

1. Whether the repudiation by the opposite party in respect of the insurance claim of the complainants for the death of the deceased in the Motor Cycle Accident amounts to deficiency in service or justified?

2. To what relief?

5. In order to prove the case of the complainants, the 1st complainant filed her evidence on affidavit and Exs.A1 to A8 were marked basing on the evidence on affidavit of the 1st complainant. On behalf of the opposite party, the opposite party filed his evidence on affidavit. No documents were marked on behalf of the opposite party.

6. Heard both sides.

7. POINT NO.1:- The evidence on affidavit of the 1st complainant goes to prove the fact that her husband, the deceased died on 24.02.2006 at 10.30. P.M. near Yerraipalli Village Anantapur while going on his Motor Cycle bearing No. A.P.02.4691 from Anantapur to Dharmavram. Her husband was the owner of the said Motor Cycle and he had insured the same with the opposite party. The opposite party had issued Insurance Policy bearing No.051001/31/05/01045 and same was valid from 25.10.2005 to 24.10.2006. The opposite party had also collected the premium of Rs.771/- including Rs.50/- towards compulsory personal accident to the owner and driver of the Motor Cycle. After the death of the deceased the case was registered as crime No.21/2006 by Bathalapalli P.S. under section 304-A I.P.C. The complainants are the legal heirs of the deceased and they requested the opposite party to pay the insurance amount of Rs.1,00,000/- under personal accident clause for the death of the deceased and also got issued legal notice to the opposite party on 02.05.2008 and the same was served on them on 05.05.2008. But the opposite party did not give any reply. Hence, they filed this complaint claiming compensation from the opposite party as the opposite party repudiated the claim without any basis, which amounts to deficiency in service of the opposite party.

8. On perusal of Ex.A1 certified copy of F.I.R. in crime No.21/2006 of Bathalapalli P.S. it goes to prove the fact that on the complaint given by the 4th complainant K.Venkata Swamy a case has been registered under section 304-A I.P.C. for the death of the deceased in the Motor Cycle Accident. Ex.A2 certified copy of the inquest report in respect of the inquest conducted over the dead body of the deceased and Ex.A3 certified copy of the P.M. report relating to the deceased goes to prove the fact that the deceased died in the Motor Cycle Accident. Ex.A4 is the certified copy final report submitted by the S.I.Police Bathalapalli P.S. wherein it is stated that even after sincere and sustained efforts the identity of the accused and crime vehicle could not be traced and no foul play was suspected in the death of the deceased. The case was treated and un-detectable. Thus the evidence on affidavit of the 1st complainant and Exs.A1 to A4 clearly goes to prove the fact that the deceased died in to Motor Cycle Accident on 24.02.2006 at 10.30 P.M. near Yerraipalli Village, Anantapur.

9. As seen from Ex.A7 Xerox copy of the insurance policy issued by the opposite party in favour of the deceased, it goes to prove the fact that United India Insurance Company Limited i.e., opposite party has issued insurance policy in the name of the deceased which is valid from 25.10.2005 to 24.10.2006. The said policy also covers the personal accident to the owner cum driver for Rs.1,00,000/- for which the opposite party has collected Rs.50/- and in all Rs.771/- was collected towards the insurance premium for the above said period by the opposite party from the deceased..

10. As seen from Ex.A5, it is goes to prove the fact that the complainants got issued legal notice through an advocate to the opposite party on 02.05.2008 stating that the deceased died in the Motor Cycle Accident on 24.02.2006 at 10.30 P.M. near Yerraipalli Village. Anantapur and requested the opposite party to pay a sum of Rs.1,00,000/- under the personal accident benefit covered under the insurance policy which was obtained by the deceased from the opposite party. Ex.A6 is the postal acknowledgment of the opposite party in respect of receiving the notice under Ex.A5 from the complainants. The opposite party inspite receiving the said notice neither settled the amount nor gave any reply to the complainants. Therefore, considering the said facts it can be presumed the opposite party has repudiated the claim of the complainants with out any valid reasons.

11. The contention of the counsel for the opposite party is that the complainants ought to have filed this complaint before this tribunal with in two years from the date of the accident i.e., from on 24.02.2006. But this complaint has been filed on 09.07.2008 i.e., with the delay of 136 days. Therefore the complaint filed by the complain filed by the complainants is barred by limitation as per section 24 (A) of the Consumer Protection Act, 1986. The said contention hold no good because alongwith the complaint the complainants have filed I.A.159/09 to condone the delay of 136 days in filing the complaint and the said petition was allowed by this tribunal on 05.08.2008. Therefore, the complaint filed by the complainants is not barred by limitation.

12. The next contention of the counsel for the opposite party is that the complainants are not the consumers. Therefore, the complaint filed by the complainants is not maintainable. The said contention holds no good because the 1st complainant is the wife, the complainants 2 & 3 are the children and complainants 4 & 5 are parents of the deceased. Ex.A7 copy of the Insurance Policy issued by the opposite party in favour of the deceased also covers for personal accident. When the deceased died in the Motor Cycle Accident he cannot be expected to file the complaint as a Consumer. His legal heirs alone are the entitled for the benefit under the said insurance policy and they have to be treated as Consumers. Therefore, the complainants being the legal heirs of the deceased are entitled to file this complaint as consumers.

13. The next contention of the counsel for the opposite party is that the deceased had no valid driving license at the time of the accident when he was driving the Motor Cycle. Therefore, the complainants are not entitled for the amount claimed in the complaint. The said contention also holds no good because the complainants have filed Ex.A8 Xerox copy of the driving license of the deceased issued by R.T.A. Anantapur. As seen from Ex.A8 it goes to prone the fact that the R.T.A. Anantapur issued licence to the deceased on 28.10.200, which is valid up to 30.06.2021. The said license covers for LMV and MCWG.

14. The next contention of the counsel for the opposite party is that the complainants have only informed about the death of deceased by notice dt.02.05.2008, which was served on them 05.05.2008. Thus there was a delay in giving the information to the opposite party with regard to the death of the deceased. Therefore, on that ground the complainants are not entitled for the amount claimed in the complaint. In support of the said contention he placed reliance in the reported decisions.

1. IV (2008) CPJ 276 Majarashtra State Consumer Disputes Redressal Commission, Mumbai. New India Assurance Company Limited Vs. Chandrakant Motichand Kandle. Wherein it was held that:- “Consumer Protection Act,1986 section 15-Insurance- Terms and conditions violated – Janata Personal Accident Policy- Claim to be preferred within one month from happening of event – Complainant sustained injuries on 17.07.2000- Sent intimation to insurer on 08.11.2002- Delay of more than 2 years in giving first information to Insurance Company – Direct breach of Policy condition very much fatal –No just and sufficient cause shown for inordinate delay in intimating insurer – Delay not to be condoned – No relief entitled’. (para.11).

2. II (2008) CPJ 168 (NC) National Consumer Disputes Redressal Commission, New Delhi. Sasanka Mohapatra Vs. New India Assurance Company Limited. Wherein it was held that:- “Consumer Protection Act, 1986 –Section 21(b) – Insurance –Janata Personal Accident Policy- Insured met with accident, suffered disability- Claim inordinately delayed – Repudiated by Insurance Company- Complaint allowed by Forum – Hence appeal – State Commission held, direction regarding payment of compensation after holding that Insurance Company not guilty of deficiency in service, not legal – Order of Forum set aside – No interference required in revision”. (paras 4 & 5).

15. On perusal of the above decisions the above decisions do not apply to the facts of this case because in the above decisions the complainants sustained injuries and there was abnormal delay in informing the insurer with regard to the accidents and their claim. Where as in this case it is death of the deceased and immediately after the death of the deceased 4th complaint has been given report to the police and the same was registered as crime and there after P.M. examination was conducted and Doctor who conducted P.M. has issued P.M. certificate. Merely because there is a delay in informing about the death of the deceased to the opposite party it can not be said that the opposite party has been prejudiced in any way. Therefore, considering the said facts the said contention of the Counsel for the opposite party cannot be accepted.

16. The next contention of the counsel for the opposite party is that in this complaint the issues which involve disputed factual questions should not be adjudicated and interpretation of the policy. Therefore, it should be adjudicated only by civil Court and not by this Forum. In support of his contention he placed reliance in the reported decisions.

1. 2006 (7) SCJ 225 between Oriental Insurance Company Limited Vs. Munimahesh Patel. Where in it was held that: - “Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated’.

2. 1999 CCJ 949 (SC) Saushish Diamonds Limited Vs. National Insurance Company Limited. Where in it was held that: - Consumer Protection Act, 1986 section 2 (1) (c) - Complaint Maintainability of –National Commission relegated complainant to civil action – Contention that in view of the policy undertaken by the insurance company relief should have been granted Interpretation of the Policy itself is a subject-matter of dispute – Whether National Commission has rightly rerlegated the parties to civil action – Held: yes.

3. IV (2008 CPJ 128 (NC) National Consumer Disputes Redressal Commission, New Delhi: - Durga Enterprises Vs. Oriental Insurance Company Limited. Where in it was held that:- “Jurisdiction – Summary- Insurance - Verification of claims – Disputed factual questions not adjudicable by Consumer For - Appellant if wants to support his claim by leading further evidence, to settle disputed questions, any For a other than Consumer For a can be approached – Time spent before Consumer For a to be excluded for computation of limitation.

17. On perusal of the above decisions the above decisions do not apply to the facts of this case because in this case the issue involved is where the complainants are entitled in respect of personal accident benifit of the deceased covered under the policy issued by the opposite party. Repudiation of the same by the opposite party amounts to deficiency in service or justified is the issue which has to be decided basing on the documentary evidence placed by both parties and no issues are involved with regard to the disputed factual questions and also interpretation of the policy itself to be decided by this forum. Therefore, the said contention of the contention of the Counsel for the opposite party cannot be accepted.

18. On considering entire evidence on affidavit of the 1st complainant, Exs.A1 to A8 and the entire facts and circumstances of the case,it clearly proves the fact that the deceased died in the Motor Cycle Accident on 24.02.2006 at 10.30 P.M. near Yerraipalli Village, Anantapur.. Therefore, the opposite party is liable to pay Rs.1,00,000/- with interest @ 9% p.a. from the date of the complaint till the date of realization to the complainants under personal accident policy of the deceased since the opposite party in spite of receiving the notice under the original of Ex.A5 did not pay the amount covered under original of Ex.A7 policy, which amounts to deficiency in service of the opposite party. Since the complainants are grated interest @ 9% p.a. from the date of the complaint till the date of realization on the said amounts of Rs. 1,00,000/-. Hence, the complainants are not entitled for the amount claimed under heading mental agony of Rs.25,000/-. Accordingly this point is answered.

19. POINT NO.2. In the result the complaint is allowed. The opposite party is to direct to pay a sum of Rs.1,00,000/- with interest @ 9% p.a. from the date of the complaint till the date of realization to the complainants within one month of the date of this order. Out of the said amount the complainants are entitled for equal share. The opposite party is also liable to pay cost of Rs.2,000/- to the complainants.

consumer case(CC) No. op/02/849

K. Premarajan
...........Appellant(s)

Vs.

Dream World Water Theam Park and Hotels Pvt Ltd

United Indian Insurance Company. TSR
...........Respondent(s)

BEFORE:
1. Padmini Sudheesh
2. Rajani P.S.
3. Sasidharan M.S


Complainant(s)/Appellant(s):
1. K. Premarajan


OppositeParty/Respondent(s):
1. Dream World Water Theam Park and Hotels Pvt Ltd
2. United Indian Insurance Company. TSR

OppositeParty/Respondent(s):
1. V. R. Ramachandran

OppositeParty/Respondent(s):
1. K. K. Gopinathan
2. I. I. Antony

ORDER

By Smt. Padmini Sudheesh, President:

The first respondent is conducting an amusement park by name Dream World Water Theme Park and Hotels (P) Ltd. The Park is insured with the 2nd respondent. On 18.3.2002 the complainant along with his friends visited the park with sufficient ticket. The complainant entered the water slider at 2-45 PM. The functioning of water slider is that the person who slides through it will fall into the water pool which is situated down to the water slider. The complainant with the direction of security guard entered into the slider and fell in the water pool. At that time he was hit with the head of PW2 who was entered the slider just before him. So the complainant sustained injury to his neck. He was taken to St. James Hospital, Chalakudy and was referred to Metropolitan Hospital, Thrissur. There he was admitted and surgery was conducted. Iron rod and plate were fitted on the back side of neck and did not remove so far. The complainant has incurred medical expenses of Rs.40,000/- and in order to remove the rod and plate Rs.15,000/- is expected. The complainant is an Autorickshaw driver and he and his family is living out of the income derived from the Auto. The income is approximately Rs.6000/-. Because of the accident he cannot drive the vehicle. He has still the complaints of pain to neck. In order to get compensation and treatment expenses he had sent lawyer notice and first respondent replied with the notice but no remedy so far. The averments in the reply notice are not true. Hence the complaint.

2. The counter of first respondent is as follows: This respondent is running an amusement park namely Dream World and there are a large number of equipments in the park for the entertainment of children and adults. Those who use these equipments for entertainment are under their own responsibility. The complainant has not taken any ticket to enter into the respondent park. This respondent has arranged sufficient number of workers for supervising and operating the equipments. It was not possible for the occurrence of accident as stated by the complainant in the water sliding. Only one person is admitted in the water sliding and there is one employee at the beginning and one is at the end to look after the safety. A person is allowed to enter into the sliding only after making it sure that there is no one in the pool at the bottom and these directions are clearly exhibited to the visitors. Hence there is no chance to occur any accident and no accident has been reported earlier. And if any accident happened in the park there is facility for giving first aid within the park and if any serious incident happens vehicles are available within the park carrying the victim to the nearby hospital. No deficiency in service has been committed by this respondent. Hence dismiss the complaint.

3. The counter of 2nd respondent is that the 2nd respondent has been impleaded solely because the first respondent in their reply notice has stated that their amusement park has been insured with this respondent. The petitioner or the first respondent have not cared to furnish the policy particulars together with the period of validity of policy without which this respondent denied the policy. The various remarks made in the petition such he has visited the amusement on 18.3.2002, he took part in water sliding game met with an accident in the pool, sustained injuries and treated outside hospital are matters not known to this respondent and hence he is put under strict proof. Even if this respondent happens to admit policy later on it is submitted that it is subject to terms and conditions attached. Hence dismiss.

4. The points for consideration are
(1) Is there any deficiency in service on the part of respondents?
(2) If so, reliefs and costs.

5. The evidence consists of Exts. P1 to P9 and depositions of PWs-1 and 2 on the part of complainant and Exts. R1 and R2 on the part of respondents.

6. Points-1 & 2: Ext. P1 is the copy of entry ticket issued by Concepts India Marketing and according to the complainant by this ticket he along with his friends entered the first respondent Amusement Park. In the counter the first respondent denied the entry of petitioner into the park. The complainant is examined as PW1 and during cross examination for first respondent he deposed that on 2002 March 18th he had visited the park by taking ticket from an agency named Concepts India Marketing. It was asked that the complainant was not visited the Dream World Amusement Park on 18.3.2002 and is denied by him. In the reply notice which is marked as Ext. P6 the first respondent totally denied the case of complainant and in the counter also they taken the same version and stated in the counter that if any liability is found it is to be made by the 2nd respondent. The Company and first respondent produced the policy details and marked as Ext. R1 and R2. The definite case of complainant is that immediately after the accident he was taken to St. James Hospital, Chalakudy and he produced Ext. P2 certificate issued from the same hospital. In Ext. P2 the Doctor certified that as per records the complainant came here on 18.3.02 at 5.55 P.M. with history of his neck collided with his friend’s head while sliding down through water slides into the water pool at Dream World Water Park, Chalakudy on 18.3.02. In the complaint it is stated that the complainant and his friends entered into the park at 2.45 P.M. and the consultation in St. James Hospital, Chalakudy was at 5.55 P.M. The history of injury stated by the complainant is recorded in Ext. P2 and there is nothing to think otherwise. In the counter the first respondent stated that the accident occurred to the complainant may be by motor accident. If it was so the police should register crime and there is no evidence regarding this aspect. The first respondent only alleging matters without any basis. The complainant has no need to make a big lie to the doctor who was treated him in the St. James Hospital, Chalakudy. Ext. P3 the discharge summary issued from Metropolitan Hospital also says the history of injury as head hit against his friend’s head while sliding down in water slides into the water pool. The medical records confirmed the case of complainant and the first respondent trying to escape from the liability by simply alleging matters. They did not even take steps to call for the doctors who have issued Exts. P2 and P3.

7. The case of complainant is that his head while sliding through water slider hit against the head of his friend Girish. The friend is examined as PW2 and he admitted that the accident was occurred and he had only complaints of pain. The version of PW1 and PW2 is that only because of the carelessness of security guards of first respondent Park the accident was occurred. During cross examination for first respondent it was asked to PW2 that at the time of sliding he was under the influence of alcohol. But there is no such question asked to complainant. So the version taken by the first respondent is not sustained. There is also no cross examination on every aspects stated in the proof affidavit.

8. There is no oral evidence adduced by Respondents-1 and 2. They have produced only Exts. R1 and R2 and submitted no oral evidence to them. In the counter the first respondent stated that if any liability is occurred it is to be made by the 2nd respondent. In the counter of 2nd respondent there is no denial of such a contention. They only stated that the complainant or the first respondent has not cared to furnish the policy particulars. So they made a request before the Forum to direct the other parties to furnish the policy particulars to them. There is no serious contention in the counter of 2nd respondent Company. They did not deny their liability towards the complainant. During cross examination also they did not put questions in support of their case. They have no serious case at all.

9. The complainant produced Ext. P7 series bills to show the expenses incurred to him. In the complaint he stated that Rs.40,000/- was the medical expenditure, but as per Ext. P7 series bills the medical expenses are Rs.29,052.50. So he is entitled only to get this amount from the respondents. In the complaint he stated that Rs.15,000/- will be incurred for removing the plate and rod. The complaint is filed in the year 2002 and there is no evidence brought by him at this juncture to show that these things were removed and incurred an expense of Rs.15,000/-. So he is not entitled to get this amount. There is serious deficiency in service on the part of first respondent in not providing vehicle facility and such other things to take the complainant in hospital. In the counter they stated that there is well facilities to treat the visitors if any accident is occurred. From the records it is clear that they did not even used facilities availed to them to get the complainant to hospital and to give first aid. So the first respondent is liable to pay compensation to the complainant.

10. In the result, the complaint is allowed and the 2nd respondent is directed to pay only the amount shown in Ext. P7 series bills and the first respondent is directed to pay
Rs.10,000/- (Rupees ten thousand only) as compensation with costs Rs.1000/- (Rupees one thousand only) to the complainant with in one month.

consumer case(CC) No. CC/07/102

A.Shamsudeen, S/o. Abdul Rehman, Puthen Veedu
...........Appellant(s)

Vs.

The Branch Manager, United India Insurance Company

The Branch Manager,S.B.T., Moonnamkutty,Kilikolloor,Kollam

The Divisional Manager,United India Insurance Company
...........Respondent(s)

BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

ORDER

SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complaint for an excess amount of Rs,1,00,000/-, compensation and costs.

The averments in the complaint can be briefly summarized as follows:

The complaint is the owner of a stationery shop engaged in the sale of stationery items for the last 51 years near at Moonamkutty, Kollam. The complainant has obtained a policy from the opp.party on the basis of the proposal given by the insured sum of Rs.4,50,000/- from the 3rd opp.party. But unfortunately onn 9.9.2006 the insured shop caught fire at night. After the said incident the complainant approached the 1st opp.party and claimed Rs.346436/- as insurance amount. But the 1st and 2nd opp.parties allowed only Rs.1,50,000/- The complainant approached this Forum for getting the balance claim amount as well as compensation due to the deficiency in service and the unfair trade practice of the 1st and 2nd opp.parties. Hence the complaint.

The opp.parties 1 and 2 filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. The complainant in this case had already received the claim amount of Rs.1,50,000/- towards full and final settlement of the claim by executing a discharge voucher duly stamped and signed by him along with the 3rd opp.party on 23.1.2007. The insurance amount was received by the complainant in full satisfaction and discharge of the said claim. The discharge voucher was signed by the complainant along with the 3rd opp.party voluntarily and freely without any protest. The opp.parties have issued a standard fire and special peril policy for a insured sum of Rs.4,50,000/- to the complainant with an endorsement of bank clause for his shop premises engaged in the sale of Books and Stationery items under the name and style Shaji Books stall at Moonamkuitty., Kollam. The complainant has reported a claim before the 1st opp.party stating that the insured shop caught fire during night on 9.9.2006 and the stocks kept in the shop room were destroyed. The opp.party immediately issued a claim form to the complainant with a request to resubmit the same after duly filled and signed along with the estimate of loss The opp.party thereafter deputed a licensed surveyor and loss assessor for conducting a survey of the claim reported by the complainant and for assessing the extent of loss sustained to the complainant. On 10.9.2006 the surveyor has conducted the survey in the presence of the complainant The surveyor at the time of inspection found that the shop and the contents therein such as stock of books, stationery items, furniture and fittings are damaged by fire which was occurred at about 12.30 a.m. on 10.9.2006. The allegations made in the complaint that the complainant sustained a loss of Rs.3,50,000/- due to the incident of fire is totally baseless and false. The surveyor at the time of his inspection found that the complainant was not maintaining any stock register and was not in possession of any purchase bills or any authentic documents showing the actual stocks maintained by the complainant in his shop premises at the time of loss. The complainant has given a list of 521 items showing a total cost of Rs.3,46,436.60 to the opp.party claiming to be the value of the stocks kept in the shop premises at the time of fire. On a careful examination of the above list, it can be seen that the items mentioned in the list and its quantity and the cost are exaggerated figures without any basis. The surveyor though requested the complainant to produce authentic documents to show the actual physical stock at the time of fire incident, the complainant did not produce any of such documents and has given a reply that most of the documents were damaged due to fire. The surveyor on going through the fire report prepared by the Fire Force authorities after fire fighting operations, found that according to the fire force authorities, the approximate damage sustained to the articles kept in the shop is assessed as Rs.756,000/- The surveyor after detailed examination at the place of occurrence and after ascertaining various aspects in detail has assessed the total loss to a sum of Rs.1.60,000/- and submitted the report dated 22.11.2006 before this opp.party. The opp.party after receipt of the survey report from the surveyor has settled the claim for a sum of Rs.1,50,000/- after deducting compulsory policy excess of Rs.10,000/- from the net liability assessed by the surveyor. There is no deficiency in the service on the part of these opp.parties. Hence the opp.parties pray to dismiss the complaint.



The 3rd opp.party filed a separate version contending, interalia that the complaint is not maintainable either in law or on facts. The 3rd opp.party is totally an unnecessary party in this proceedings. No allegation of deficiency in service or negligence has been alleged against the 3rd opp.party. The averment in the complaint that the 3rd opp.party is not entitled to realize interest for the defaulted amount from the complainant is not at all sustainable. The complainant is liable to pay interest for the outstanding amount, as per the terms and conditions which he had agreed at the time of availing the credit facility. The complainant has not claimed any relief as against the 3rd opp.party. Hence the 3rd opp.party prays to dismiss the complaint.

Points that would arise for consideration are:

1. Whether there is the deficiency in service on the part of the opp.parties

2. Reliefs and costs.

For the complainant PW.1 to 3 are examined. Exts. P1 to P 6 are marked.

For the opp.party DW.1 to 3 are examined. Exts. D1 to D4 are marked.

Points:

The complaint is filed by the complainant with a quantum dispute regarding the amount awarded on the basis of Ext. D4 Survey report. The case of the complainant is that the amount awarded by the surveyor is very low. However he failed to establish that the report filed by Surveyor is vitiated. According to the surveyor the various records such as stock Register, copies of purchase bills, sales bills etc were not produced before him by the complainant. The complainant has no case that the necessary documents produced by lhim have not been considered by the surveyor while preparing Ext. D4. The power of District Forum in interfering with survey reports which is evidence is limited and can interfere with the same only when it is arbitrary or when the complainant establishes that the surveyor failed to consider all relevant records produced by him.. It is well settled that the Consumer Forum has no right to sit in judgement on the report of surveyors. In this case in our view the complaint failed to establish that Ext.D4 is vitiated.



As pointed out earlier the complainant herein involves a quantu7m dispute and it is well settled that the Consumer Fora cannot go into quantum dispute and reliance can be drawn from the decision of National Commission reported in 111 [2008] CPJ93. It has been further held therein that in such circumstances the petition shall be free to either approach the Civil Court or IRDA or Arbitration proceedings.



Another contention is that the complainant has received the insurance amount of Rs.1,50,000/- in full and final settlement. It is argued by the opp.parties that Ext. D1 discharge voucher was executed by the complainant voluntarily with his free will and there is no allegation either in the complaint or in the chief affidavit that Ext. D1 is vitiated by fraud, or misrepresentation or undue influence. As a matter of fact there is no pleading that Ext. D1 is vitiated by fraud or misrepresentation or undue influence. No evidence is also let in this regard. Moreover Ext. D1 is signed by the bank authorities also. The bank manager was examined as DW.1 The Bank Manager has also no case that Ext. D1 is vitiated by misrepresentation, fraud or undue influence. The learned counsel for opp.parties 1and 2 would convasses the point that in the absence of pleading that the discharge voucher was executed under vitiating circumstances such as undue influence misrepresentation or fraud the complaint is liable to be dismissed holding that the discharge voucher was executed voluntarily on free will relying on the decision of Apex Court reported in II [2008]CPJ 18 . It has been further held therein that “If in a given case the Consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by it circumstances the authority before whom the complaint is made would be justified in granting appropriate relief”. In this case as pointed out earlier the complainant failed to plead and prove such vitiating factors in the execution of Ext. D1. So this Forum has no other alternative than to hold that Ext. D1 was executed voluntarily in full and final settlement. In view of the foregoing paras we hold that the complainant is not entitled to get any enhancement in compensation. There is no deficiency in service on the side of the opp.parties. Point found accordingly.

Dear Sir/Madam,

The award is passed by the Hon'ble Adl. MACT, Gangavathi, Dist: Koppal, in MVC 216/2008, Smt. Narasamma & others V/s P.Srinivas and others, to pay the compensation amount of Rs.3,49,000/- only with interest @ 6% pa from the date of filing the petition. That, the order is passed on 26.3.2011.

That, you are hereby requested to deposit the amount of the compensation as early as possible in order to avoid the further consequences.

Feel free to contact: V.N.Patil, advocate, 9480062120 or vnpatil_adv@rediffmail.com

I was agent of united india insurance co. at Ahmedabad, Branch code D.O.2 ,address- handloom house, Ashram Road, Ahmedabad and My agency code no.5/5196. I am not working from 2008.So cancle my agency code.Becose I also agent of LIC of India.My licence renewal date 11/11/2011.According to IRDA I am Composite Agent.So please cancle my agency code of United India Insurance co.now.