C.S.RAJANI PAMEDATH vs Divisional Manager, New India Assurance Co. Ltd.

THE complainant in O.P. No. 145 of 1997 of the District Forum, Thiruvananthapuram, is the appellant.

THE complainant alleged deficiency of service by the respondent and claimed compensations which are detailed in the complaint. THE complainant is the owner of Maruti 800 C.C. A/c car bearing Registration No. KL-01-G.6489 which he purchased on 6.2.1996. THE car was insured with the opposite party for a total estimated value of Rs. 2,37,000/ and the annual premium of Rs. 9,950/-was paid by the complainant on 2.4.1996. THE insurance cover was valid upto 1.4.1997. While so, on 28.6.1996 at about 4.30 p.m. the car met with an accident at Varkala as according to the complainant the car skidded because of rain and hit against an electric post near Kovoor which resulted in heavy damage to the car. THE accident was immediately reported by the complainant to the respondent and the car was transported to the Maruti Auto House, Mundakkal, Kollam for repairs. Since the car was having insurance coverage respondent sent its Surveyor who inspected the vehicle and ascertained the quantum of damages. According to the complainant spare parts worth Rs. 34,341/- had to be replaced, and he incurred labour charge of Rs. 4,750/-. Apart from that an amount of Rs. 1,200/- had to be paid for the damaged electric post. Rs. 750/- was also incurred for transporting the car to the workshop. Though the complainant claimed Rs. 41,041/- from the opposite party/ respondent, respondent issued cheque only for Rs. 15,702/- which the complainant received on 15.2.1997. THE complainant alleges that soon after the receipt of the cheque he went to the office of the Insurance Company but he could not gather the calculation arrived at Rs. 15,702/-. THE aforesaid conduct of the respondent, according to the appellant/complainant, is deficiency in service and therefore he prayed for an order directing the respondent to pay the balance amount of Rs. 25,339/- and also Rs. 10,000/- as compensation. The respondent/opposite party filed its version in which it was contended that the complaint is not maintainable as the complainant had accepted cheque for Rs. 15,702/- in full and final settlement of his claim. In view of the said acceptance of the cheque in full and final settlement of the claim no cause of action would accrue to him. It is not disputed that the respondent sent its Surveyor for valuation. It is maintained by the respondent that after considering the report of the surveyor the respondent offered an amount of Rs. 15,702/ which is inclusive of Rs. 4,750/- for labour charges, Rs. 9,736/- for replacement of parts, Rs. 750/- for towing charges and Rs. 1,226/- towards damages for causing damage to the electric post. According to the respondent the claim of the complainant is inflated and there is no deficiency of service and therefore the respondent prayed for dismissal of the complaint.

The District Forum by the impugned order dismissed the complaint.

LEARNED Counsel appearing for the appellant maintained that the 2 decisions relied on by the District Forum for non-suiting the complaint do not apply to the facts of this case particularly, in the face of the decision of the National Commission reported in 1997 NCJ 625. It was also maintained by him that the view that the complainant has signed Ext. D2 voucher in full and final settlement of the claim is not correct. LEARNED Counsel maintained that if the total conduct and the attending circumstances are taken together it would reveal that the signing of Ext. D2 by the complainant was not voluntary. On the other hand the learned Counsel for the respondent maintained that the said decision relied on by the appellant is not as such applicable and maintained that it is covered by decision reported in I (1991) CPJ 236 (NC) and I (1992) CPJ 41 (NC) (both of the National Commission). According to the learned Counsel in the aforesaid decisions the National Commission expressed the view that when fraud and vitiating circumstances are alleged, the proper Forum for adjudicating the same i s not the Consumer Court but the regular Civil Court. According to the learned Counsel since the appellant has issued a voucher (Ext. D2) he cannot be heard to contend in the Forum that there is no full and final settlement. Learned Counsel also made reliance on decision in 1991 CPR 638 to urge that the appellant being an educated person his issuing a voucher has to be held to be voluntary unless he proves otherwise. The learned Counsel maintained that once there is a full and final settlement of a claim by the claimant he cannot re-open the matter for claiming a higher amount.

IT may be that once a person admits that he signed and issued the voucher, it is for him to prove the vitiating grounds. But the same can be achieved by attending circumstances negativing the case that the discharge was voluntary. His conduct would assume importance in that context. With due regard to the nature of the contentions now raised it is necessary to note the position of law as is pronounced by the National Commission in the decision reported in 1997 NCJ 625. The said decision held that where the case that the insured has accepted the amount quantified, and executed discharge in full and final settlement of the claim is questioned, the conduct of the insured would become relevant on the facts of the case to find out whether the discharge was given voluntarily in full and final settlement or he was coerced into executing such discharge. The National Commission observed in the said decision : "In cases where the claim has been quantified and offered, the complainant may have been compelled to give a valid discharge .to the Insurance Company who may have coerced the complainant into accepting the settlement of the claim unwillingly or involuntarily. The Insurance Company will not disburse the amount unless discharge voucher in full and final settlement without protest is given by the insured. The complainant may have no option but to accept the amount offered due to the financial constraints or other compelling reasons. The insured may lodge a protest immediately on receipt or soon thereafter. The conduct of the insured becomes relevant on the facts of each case to find out whether the discharge was given voluntarily in full and final settlement or he was coerced into."

This decision being a later decision the view expressed by the National Commission therein has more relevance in considering whether the full and final settlement was voluntary. What is to be noted is that the Court has alerted, the conduct of the insured will be relevant to find out whether the discharge was voluntary. Therefore in a given case to see whether the discharge was voluntarily given, the conduct of the insurer has to be taken into account. Learned Counsel for the respondent maintained that there is no effective pleading in the complaint and that what is averred in the affidavit it is inconsistent. It is true, in the complaint there is no specific statement to the effect that there was no voluntary discharge. In appreciating this aspect it should be remembered that the necessity to plead is for the purpose of enabling the opposite party to answer the same. It will be enough if on a fair reading, the opposite party can understand as to what he is called upon to defend. A pleading cannot be construed as a statute. In para 6 of the complaint it is stated that on seeing the cheque for Rs. 15,702/- the complainant went to the office of the Insurance Company 3 times to ascertain how they arrived at the said amount of Rs. 15,702/-, and the officials of the respondent/opposite party made him to sign printed forms on the assurance that they shall effect immediate payment. He alleged that Ext. D2 is manipulated to their convenience. Learned Counsel for the respondent maintained that there is an inconsistency in his case in the complaint on this aspect as is seen in para 6 of the complaint and the averment in the affidavit that he was not willing to accept the amount mentioned in Ext. D2. His conduct on receiving the cheque lends support to his case that he did not accept the amount voluntarily. Adding to this there is yet another circumstance which also supports the complainant''s case. On the 23rd day of the acceptance of the cheque the complainant filed the instant complaint. It has to be noted, according to him he went to the office of the respondent thrice for getting clarification as to how the amount was reached by them and that the same did not yield any result. Closely on the heels of the signing of Ext. D2 he went to the Forum with grievance that he is entitled to get more amounts towards repair charges etc.

WHETHER this grievance is genuine or not has to be appreciated in the context of the fact that the respondent''s own valuer has assessed the damages at Rs. 35,522.50. There is no explanation or reason as to why this particular amount assessed by the respondent''s value was not acceptable to them. In the cross-examination of the appellant/insured he said that, he signed Ext. D2 as the Office of the Insurance Company insisted that if only he signs Ext. D2 the amount would be disbursed. This statement appearing in the cross-examination of PW 1 has to be appreciated in the light of the conduct of PW1 of which advertence has already been made. When the cumulative effect of all the circumstances throwing light on the conduct of the complainant is taken into account it can be seen that the same is inconsistent with the contention that the discharge was voluntary. In view of the same we are of the view that the complainant cannot be pinned down to Ext. D2 so as to disqualify him what is genuinely due to him from the respondent Insurance Company. The basic material on this aspect is the survey report furnished by the Surveyor deputed by the respondent and the Surveyor has assessed in Ext. D3, the total loss incurred by the complainant/appellant as a consequence of the accident at Rs. 35,522.50. There is no case that at the time of accident there was no coverage of insurance. Therefore the respondent is bound to pay the said amount. He has already received Rs. 15,702/-. The respondent/Insurance Company is bound to pay the balance amount together with interest from 28.9.1996 till date of payment.

IN view of the above, we set aside the order of the District Forum and direct the respondent/INsurance Company to pay to the appellant/complainant Rs. 35,522.50 after deducting Rs. 15,702/-which they have already paid. The balance shall bear interest @ 12% from 28.9.1996 till date of payment. Payment shall be effected within a period of one month from the date of receipt of this order. Appeal disposed of.