Complaint filed on: 16-08-2014
Disposed on: 29-04-2016
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COMPLEX, 1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027
CC.No.1450/2014
DATED THIS THE 29th DAY OF APRIL 2016
PRESENT
SRI.H.S.RAMAKRISHNA, PRESIDENT
SRI.D.SURESH, MEMBER
SMT.N.R.ROOPA, MEMBER
Complainant: -
Smt.Sukanya. N.
Aged about 42 years,
W/o. Sri.K.T.Muniraju,
Residing at No.376, K.T.Nilaya,
3rd Main road,
Near Nanjundeshwara Tent,
Hebbal, Bengaluru - 24
V/s
Opposite parties:-
- M/s. Bharathi Axa General Insurance Company Ltd, Office at Survey No.28, 1st Floor, Ferns Icon, Next to Akme Ballet, Doddanekkundi, Opposite outer ring road, Bengaluru.
- M/s. Bharathi Axa General Insurance Company Ltd, Office at Pride Quadra, No.30, 3rd Floor, Bellary Road, Hebbal, Bengaluru
ORDER
SRI.H.S.RAMAKRISHNA, PRESIDENT
This is a complaint filed by the complainant against the Opposite Parties No.1 and 2 (hereinafter called as OPs), under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to pay the balance insurance claim amount of Rs.1,14,076=00 and to pay cost of litigation and to grant such other relief as prayed in the complaint.
2. The brief facts of the complaint can be stated as under.
The complainant was the absolute owner of Lorry bearing Reg. No.KA-04-D-2822, Chassis No.MB1AUJFC6 CRYF9064 and Engine No.CYHZ105387. The complainant has purchased the said lorry for the purpose of his livelihood. The complainant has insured the said lorry with the OPs, bearing policy No.FCV/1085286/41/03/B1414 with effect from 31-3-2013 to 30-3-2014. On 15-6-2013 the complainant has got goods consignment from K.T. Transport, Hebbal, Bengaluru to carry goods from Bengaluru to Chennai. On the way to Chennai, the said lorry belongs to the complainant met with an accident on 16-6-2013 at 23.30 hours at Palamner Road. Immediately, the complainant has informed the OPs about accident and obtained the FC No.267847 to claim the insurance. After receiving the claim form from the complainant, the OPs have informed the complainant to deliver the vehicle for repair at L.G. Auto Works which is an authorized service centre for Ashoka Leyland. After inspecting the said vehicle, the L.G. Auto Works has issued an estimate copy for Rs.1,65,438=00. After getting the repair of the vehicle, the complainant has submitted the final bill to the OP for disbursing the claim amount of Rs.1,83,559=00, but the OPs have disbursed only Rs.69,483=00 and the remaining amount of Rs.1,14,076=00 was not disbursed. On 24-6-2014 the complainant has issued a legal notice to the OPs requesting to release the remaining amount of Rs.1,14,076=00 and the said notice was served on the OPs, but the OP has not responded. Hence this complaint.
3. In response to the notice, the OPs have put their appearance through their counsel and filed their common version. In the version pleaded that, the complaint is false, frivolous and vexatious and filed the complaint with a malafide intention and there is no deficiency of service on the part of the OPs and there is no unfair trade practice and denied the averments made in the complaint. It is admitted that, the complainant is the registered owner of lorry bearing Reg. No.KA-04-D-2822 and the complainant has obtained the insurance policy from the OPs bearing policy No.FCV/I0852864/41/03/B1414N and also it is true that, on 16-6-2013 at 23.30 hours at Palamner road, the vehicle of complainant met with an accident and immediately the complainant has informed the OPs within 24 hours and obtained the FC No.267847 to claim the insurance amount. It is true that, the OPs have informed the complainant to deliver the vehicle for repair at L.G.Auto works, Bengaluru and estimation was issued. However the OPs have informed the complainant that, the OPs would come for the spot survey, by that time, the surveyor reached the spot, the vehicle was partially dismantled and shifted to Bengaluru. The surveyor could not look into the condition of the vehicle damaged, since the vehicle was dismantled. Based on the reason and as per the norms and conditions of the policy, the OPs have released the amount of Rs.69,483=00 to the complainant. On 4-12-2013 the complainant has signed the discharge voucher and accepted the same as full and final settlement. By virtue of this settlement, the complainant has discharged the OPs from their liability and has agreed that the complainant shall not have any other claim whatsoever against the OPs. The complainant has approached this forum after lapse of 9 months and the complaint is not maintainable and there is no cause of action to file the present complaint, and prays for dismissal of the complaint.
4. So as to prove the case, the complainant has filed her affidavit by way of evidence and produced documents long with complaint. On the other hand, one Sandeep.S.R, who being the Legal Manager and authorized signatory of OPs has filed his affidavit by way evidence and produced one document along with version. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.
5. So from the averments of the complaint of complainant and version of the OPs the following points arise for our consideration.
- Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs, in not making settlement of his insurance claim as stated in the complaint?
- If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
- What order?
6. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the Point no.1, the complainant is not entitled to any relief as prayed in the complaint
Point no.3: For the following reasons.
REASONS
7. It is not an undisputed fact that, the complainant is the owner of lorry bearing Reg. No.KA-04-D-2822, Chassis No.MB1AUJFC6CRYF9064 and Engine No.CYHZ105387 and also it is not an undisputed that, the said lorry was insured with the OPs that policy bearing No.FCV/1085286/41/03/B1414 with effect from 31-3-2013 to 30-3-2014. In order to substantiate this fact, the complainant in his sworn testimony also reiterated the same fact and produced the copy of RC. As looking into this document, the RC is in the name of complainant Smt.Sukanya.N, address at No.376, KT Nilaya, 3rd main road, Near Nanjundeshwara Tent, Hebbal, Bengaluru. So by looking into this document, it is clear that, the complainant is the owner of the said lorry. The complainant is also produced the copy of policy, by looking into that document, it is very clear that, the complainant has insured the lorry with the OPs i.e. Bharti Axa General Insurance Company Ltd, the total premium is of Rs.32,821.48 and insurance covered for a sum of Rs.2.00 lakhs and the policy period from 31-3-2013 to 30-3-2014. This evidence of the complainant has not been challenged by the OPs and also there is no contra evidence to discard the sworn testimony of the complainant, therefore it is proper to accept the contention of the complainant and the complainant is the RC owner of the lorry and the said lorry was insured with the OPs bearing policy No.FCV/1085286/41/03/B1414 for the period form 31-3-2013 to 30-3-2014.
8. It is further case of the complainant that, on 15-6-2013 the complainant has got goods consignment from K.T.Transport, Hebbal, Bengaluru to carry goods from Bengaluru to Chennai, on the way to Chennai, the said lorry of the complainant met with an accident on 16-6-2013 at 23.30 hours at Palamner Road. Immediately the complainant has informed the OPs about the accident and obtained the FC No.267847 to claim the insurance amount. After receiving the claim form from the complainant, the OPs have informed the complainant to deliver the vehicle for repair at L.G.Auto Works which is an authorized service centre for Ashoka Leyland. After inspecting the said vehicle, the L.G.Auto works has issued an estimate copy for Rs.1,65,438=00. After getting the repair of the vehicle the complainant has submitted the final bill to the OPs for a sum of Rs.1,83,559=00, but the OPs have disbursed only Rs.69,483=00 and remaining amount of Rs.1,14,076=00 was not disbursed and the complainant has demanded for refund the balance amount by issuing the legal notice, even though, this fact is not undisputed and further to substantiate this fact also the complainant in her sworn testimony reiterated the same and also produced the estimate copy issued by the L.G.Auto Works. By looking into this document, it is stated on 26-6-2013, it is issued in the name of Smt.Sukanya.N, who is the complainant with regard to the accident repair estimation of the vehicle bearing Reg. No.KA-04-D-2822 and as per this estimation copy, the total estimation of the repair is around about Rs.1,65,438=00 and also produced invoice/cash bill copy, by looking into this document, it is stated on 31-7-2013, it is also issued in the name of complainant Smt.Sukanya.N, and this invoice/cash bill with regard to accident repair of the vehicle bearing Reg. No.KA-04-D-2822 and total cost of repair is about Rs.1,83,559.5, this sworn testimony of the complainant has not challenged by the OPs to disbelieve the contention of complainant there was nothing on record therefore it is proper to accept the contention of the complainant.
9. The complainant has produced goods consignment note of the K.T.Transport dated 15-6-2013, this goods consignment note issued for transportation of goods consignment from Bengaluru to Chennai, consignor name is Meyeem Creators, Bengaluru and consignee name is German Express shipping Agency, Chennai, the vehicle bearing No.KA-04-D-2822. So from this document, it is clear that, the complainant’s lorry bearing Reg. No.KA-04-D-2822 is transported the goods consignment booked by the K.T.Transport to Chennai. Further the complainant has produced the claim form, by looking into this claim form is with regard to the vehicle bearing Reg. No.KA-04-D-2822 and also in the name of complainant Smt.Sukanya.N, and further discloses that, the accident occurred on 16-6-2012 at 23.30 hours at Palamner Road.
10. The defence of OPs is that, there is no deficiency of service on the part of the OPs, after filing the claim application, the OPs have released the amount of Rs.69,483=00 to the complainant. On 4-12-2013 the complainant has signed the discharge voucher and accepted the same as full and final settlement. By virtue of this settlement, the complainant has discharged the OPs from their liability. To substantiate this, one Sandeep.S.R, who being the legal manager and authorized signatory of the OPs has reiterated the same and to substantiate this, he produced discharge voucher, as looking into this discharge voucher, the complainant has received a sum of Rs.69,483=00 from the OPs agree to accept in full and final satisfaction and discharge of her claim no.C0397786 under the policy no.10852864 in respect of the claim arising on 16-6-2013 due to accidental damage. This evidence of OPs has not challenged by the complainant and to discard the evidence of OPs, there is no contra evidence, thereby it is proper to accept the contention of the OPs that, the complainant has received a sum of Rs.69,483=00 as full and final settlement of the accident claim no.C0397786 under the policy No.10852864 in respect of the claim arising on 16-6-2013 due to accidental damage.
11. The learned counsel for the complainant argued before me, even as per the direction of the OPs, the complainant has delivered the vehicle to L.G.Auto Works which is an authorized service centre of the Ashoka Leyland. After inspecting the lorry which was met with an accident and issued an estimate copy of Rs.1,65,438=00 and after undertook the repair of the said vehicle, the final bill of Rs.1,83,559=00 was issued and the said vehicle was insured with the OPs during the policy was inforce alleged accident was occurred, thereby the OPs burden to settle claim of Rs.1,83,559=00 as claim application filed by the complainant. But unfortunately the OPs have not settled the amount of Rs.1,83,559=00. On the other hand, as against the aforesaid amount, the OPs have settled only a sum of Rs.69,483=00, for the reason, the complainant issued legal notice to OPs demanded to pay the balance amount, even though, the said notice was received by the OPs and the OPs have not fulfil the demand made by the complainant, thereby the complainant is entitled to claim for a sum of Rs.1,14,076=00, without any reason, the OPs have failed to pay the balance amount of Rs.1,14,076=00 that amounts to negligence and deficiency of service on the part of the OPs.
12. On the other hand, the learned counsel for the OPs have argued before me, no doubt, the complainant has submitted the claim form with respect to the accident of his aforesaid lorry near Palamner road and as per the estimation arrived by L.G.Auto Works a sum of Rs.1,65,438=00 and also final bill amount is of Rs.1,83,559=00 after giving information by complainant about accident, the OP’s insurance company surveyor, when visited the spot at that time, the lorry was dismantled and on the basis of that the surveyor has submitted the report and as per the terms and conditions of the policy, the OPs have reimbursed a sum of Rs.69,483=00 to the complainant, accepting the said amount as full and final settlement of the claim, thereby the complaint is not entitled.
13. In respect of OPs argument has relied upon the citations reported in Oriental Insurance Co. Ltd v/s T.Gopal- III (2014) CPJ 311 (NC); New India Assurance Co. Ltd v/s Combined medical institute Pvt. Ltd – III (2014) CPJ 503 (NC); and MJRJ Medichem Surgical v/s National Insurance Co. Ltd and Ors- I (2015) CPJ 681 (NC).
14. With these arguments and on perusal of the records and written arguments by the learned counsel for the OPs undoubtedly, it is true that, the vehicle bearing Reg. No.KA-04-D-2822 belongs to the complainant met with an accident and as per the direction of the OPs, the said lorry was delivered to the L.G.Auto works for repair and submitted the final bill of Rs.1,83,559=00 to the OPs, after securing report from the surveyor and settled the claim for a sum of Rs.69,483=00 and on 4-12-2013 the complainant has received the said amount agree to accept in full and final satisfaction and discharge of her claim no.C0397786 under the policy no.10852864. Even on perusal of the citations referred by the OPs that, it is well settled principal of law. In the event of full and final settlement of her claim arising under the policy, the complainant is estopped from the remaining balance amount. So even in the instant case also, the complainant has received the amount of Rs.69,483=00 as full and final satisfaction of the claim under the policy no.10852864 in claim no.C0397786 and issued discharge voucher, thereby the complainant has estopped from the claim balance amount. Therefore the complainant is not entitled any claim as claimed in the complaint and also the complainant has failed to prove deficiency of service on the part of the OPs. As per the claim application of complainant after conducting the survey and securing the survey report and settled the claim, thereby there is no deficiency of service on the part of the OPs. Hence, we answer this point in the negative
15. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint is dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 29th day of April 2016).
MEMBER MEMBER PRESIDENT
-:ANNEXURES:-
1. Witness examined on behalf of the complainant by way of affidavit:
Smt.Sukanya, who being the complainant was examined.
2. Documents produced on behalf of the complainant:-
1. Invoice/cash bill dated 31-7-2013
2. Estimate copy dated 26-6-2013
3. Insurance policy of complainant’s vehicle
4. Claim form dated 17-6-2013
5. RC copy of complainant.
6. Form no.47 of transport department, Karnataka
7. Copy of computerized pollution under control certificate
8. Good consignment note of KT Transport dated 15-6-2013.
9. Legal notice copy of complainant dated 24-6-2014
3. Witness examined on behalf of the OPs by way of affidavit:
Sandeep.S.R, who being the Legal Manager of OPs was examined.
4. Documents produced on behalf of the OPs:-
1. Discharge voucher dated 4-12-2013
MEMBER MEMBER PRESIDENT
