ORDER As per Hon'ble 8mt. Veena Misra, Member :- 1. This complaint, under section 17, of Consumer Protection Act, 1986 has been filed by the complainant for award of Rs.27 ,94,317/- in his favour against the OP. 2. Indisputably, heavy goods vehicle No. CG-04-G-2032 manufactured by M/s. Volvo India Ltd., 2002 model, 290 HP was purchased by the complainant from M/s. Vishal Packaging during the policy period and the policy of insurance was duly endorsed. It is also not in dispute that the said vehicle met with an accident between Limtara and Nandghat on 21.05.04 while coming from Champa to Rawan, and the accident was reported to the police station Simga, District Raipur FIR NO.94/04 dated 21.05.04. At the time of accident, the vehicle was driven by Krishna Kumar Singh. 3. As per averments in the complaint, there was total damage to the vehicle rendering the same useless. It is further averred that the complainant reported the matter to the insurer on the same date and also completed the formalities including submission of claim form, repair estimate etc. The claim was filed on 31.05.04. It is further stated in the complaint that the complainant had filed estimate of M/s. Meher Trailors (P) Ltd., Ambemath amounting to Rs.38,17,312/- and toeing expenses incurred were Rs.10,500/- and bill dated 27.05.04 in this connection was also submitted. 4. It is averred in the complaint that since major damages were caused to the vehicle which, as per estimate, involved an expenditure of Rs.38,17,312/where as the IDV of the vehicle was Rs.36,00,000/-. Hence case was that of total loss. However, the OP did not make efforts to finalise the claim even after lapse of four months. Then the complainant sent reminders on 18.08.04 and 15.10.04 for settlement of the claim. Reminder dated 15.1 0.04 also contained a request to grant permission for disposal of the salvage in order to meet the payment of instalments but the OP did not respond to these letters also. As the aforesaid letters were not replied, the complainant served legal notice through his counsel on 31.01.05 to decide the claim properly and make reimbursement within a reasonable time. It was also mentioned in the said notice that the insurer should take possession of the salvage quickly. 5. As the aforesaid letters were not replied, the complainant served legal notice through his counsel on 31.01.05 to decide the claim properly and make reimbursement within a reasonable time. It was also mentioned in the said notice that the insurer should take possession of the salvage quickly. 5. It is further averred in the complaint that after service of legal notice the insurer OP adopted pressure ta9tics and sent a discharge voucher along with a cheque dated 3.02.05 for Rs. 13,71,0001- vide letter dated 4.02.05. The complainant accepted the payment under protest and it is stated in the complaint that mere execution of discharge voucher with conditional acceptance of part payment cannot stop the complainant from making further claim in the circumstances which can be termed as exercise of undue influence or coercion. 6. Subsequently, on 4.02.05 itself as well as on 17.02.05 and 17.03.05, the complainant sent letters to the OP for making payment of the remaining amount of Rs.22,29,000/- and to remove the salvage. But the OP failed to make any balance payment in this regard d7spite having final survey report in their possession. However, letter dated 4.02.05 was replied to by the OP vide their letter dated 8.02.05. It was stated in the said letter that the competent authority of the non-applicant approved the claim on 'Cash loss' (repair basis). It was further mentioned that the OP is writing to Regional Office for the difference amount of Rs. 29,000/-. It was further mentioned in the said letter that the consent was obtained from the insured for Rs. 14,00,000/-, though the allegation regarding obtaining of consent letter was baseless. 7. It was further stated in the complaint that claim papers were submitted by the complainant about 10 months back and the balance amount along with toeing charges had not been paid till the date of complaint. Non-payment of the same and inordinate delay in settling the claim amounts to deficiency in service and by making delay in deciding the claim the OP has disregarded its own Rules. Nonpayment by the OP resulted in huge financial loss and mental agony to the complainant. Hence, the complainant claimed relief(s) as detailed in the complaint. 8. The complainant filed affidavit of Shri Yishal Singh, Managing Director of the complainant company in support of the averments in the complaint and also additional affidavit of the aforesaid deponent. 9. Nonpayment by the OP resulted in huge financial loss and mental agony to the complainant. Hence, the complainant claimed relief(s) as detailed in the complaint. 8. The complainant filed affidavit of Shri Yishal Singh, Managing Director of the complainant company in support of the averments in the complaint and also additional affidavit of the aforesaid deponent. 9. Opposite party resisted the complaint and in their written version denied that it was a case of total loss. It was submitted in the written version that head office at Delhi had appointed Hamender Singh & Co. as surveyor and the surveyor found that it was not a case of total loss but found it is a fit case for settlement on Cash Loss basis. The surveyor also mentioned in the report that the complainant was unwilling to repair the vehicle in any way and assessed that the loss could not be made on 'repair basis' .It was further stated in the written version that C.M.D. and authorized signatory of the complainant Shri Vishal Singh on his visit to Delhi after discussion with the surveyor finalized the claim for Rs. 14,00,000/- on Cash Loss Basis. In acknowledgement of this, Shri Vishal Singh signed and submitted letter of consent dated 30.07.04 and handed it over to the surveyor at Delhi agreeing to settle the claim. Taking all these factors into account the surveyor has admitted his detailed report which was received by the head office on 10.08.04 recommending settlement of claim on cash loss basis for Rs. 14,00,000/-. Sales fax saved in the purchase of new parts in case of repair, the salvage that would remain with the complainant and cash loss were duly accounted for arriving at 'Net liability on Cash Loss Basis' by the surveyor for Rs.14,00,000/-. 10. Regarding the delay in deciding the claim it was submitted that the complainant had lodged a claim for Rs.36,00,000/- which was not within the financial authority of Branch Manager, the Divisional Manager or Regional Manager, hence the claim was referred to Head Office, Delhi, through proper channel. The process of investigation of this claim involved all the four aforesaid levels through proper channel. 11. The driving license of the driver was also required to be investigated at Sultanpur through Divisional Manager, Raibareli and Asansol, West Bengal. The process of investigation of this claim involved all the four aforesaid levels through proper channel. 11. The driving license of the driver was also required to be investigated at Sultanpur through Divisional Manager, Raibareli and Asansol, West Bengal. The competent authority at Delhi after receiving the survey report wanted certain clarifications and documents which consumed sometime before it finally settled the claim for Rs. 13,71,00/ - on which was communicated to the Branch Manager, Raipur through proper channel. After this, the cheque for approved amount was prepared on 3.02.05 and forwarded to the complainant alongwith the discharge voucher which the complainant had duly signed. 12. Ii is further averred in the written version that the aforesaid cheque was not received under protest and the discharge voucher was singed without any remarks on the said voucher. The allegation of undue influence and coercion were denied and it was reiterated that the authorized signatory of the complainant, after due discussion with the surveyor, at Delhi, had agreed to finalise the claim for Rs. 14,00,000/- on Cash Loss Basis and submitted his letter of consent dated 30.07.04 agreeing to the, settlement of c1ajmfls aforesaid. It was further alleged that there was no undue delay in deciding the claim and the complainant is not entitled to any relief sought under the complaint. 13. The affidavit of Dr. R.K. Shrivastava, Senior Divisional Manager of the, OP was filed in support of the written version and the affidavit of Hamender, Singh, Surveyor was also, filed. The said Hamender Singh was also cross-examined by the counsel for the complainant. The affidavit of Shri Yogesh Vithlani, Branch Manager of the OP, has also been placed on record. Besides the affidavits both the parties placed various documents on record as per list. 14. It appears from the policy document that IDV mentioned therein is Rs.36,00,000/-. There is no dispute regarding the fact that in case the damage caused to the subject vehicle amounts to more than 75% of the IDV, it is considered to be a case of total loss. Hence;-the first question to be decided by us is as to whether it was a case of total loss.? 15. There is no dispute regarding the fact that in case the damage caused to the subject vehicle amounts to more than 75% of the IDV, it is considered to be a case of total loss. Hence;-the first question to be decided by us is as to whether it was a case of total loss.? 15. It would appear from the letter written' by Volvo Field spares Sales and Service Pvt. Ltd., Raipur, authorised service dealer of Volvo regarding vehicle No. CG-04-G-2032, CH 1D-829898 'that the chassis chassis frame need to be replaced as the side members and the rear most cross member of the chassis frame got deformed’. It was further mentioned that 'it is' advisable to replace the chassis frame, as we do not recommend repair of the deformed long member of the chassis frame', There is a letter date 5.4.06 i.e. Annexure-14 wherein the opinion of the dealer of the manufacturer has clearly reported that the chassis frame needs to be replaced. It is noted that estimated price of chassis was Rs. 7 ,24,680/- and though the surveyor has mentioned the same at No.63 of his report and under 'Remarks' 'Repair allowed' is also mentioned but the surveyor has failed to mention his assessment regarding item No.63 of his report. This appears to have resulted in assessment of lesser amount. 16. It appears from the sutveyor's report that the assessment on repair basis were worked out to Rs.20,69.311/- and this assessment was without dismantling of the vehicle. It was further mentioned in the report that if the claim was settled on repair basis the vehicle would have to be dismantled and after dismantling, some more damages could not be ruled out due to heavy impact of the accident and in that event the liability of the underwriters would get increased at least by Rs.2,00,000/- bringing liability to Rs.22,69,3 11/- and after deducting there from the expected salvage value of Rs.20,000/-, the net liability would work out to Rs.22.49,311/- and as the insured also did not agree to get the vehicle being repaired, the surveyor had assessed the claim on Cash Loss basis and under the Cash Loss basis the net liability as accused at Rs. 14,00,000/-. 17. 14,00,000/-. 17. There is also a letter dated 01.10.04 of the surveyor addressed to Branch Manager and the said letter was received on 5.10.04 by the Branch wherein it is stated that the salvage value of Rs.20,000- mentioned by the surveyor was almost the scrap value as there was no market value of the damaged parts of Volvo. So there was no buyer interested in purchasing these parts except as scraps. It was clarified that the salvage value of Rs.20,000/- mentioned by the surveyor in the report was quite reasonable and justified. It was further stated in the letter that according to Regional Manager, the salvage value of Rs. 1,00,000/- of Bulker mentioned in the report was also very low. It was mentioned in the letter that in the report it was written that the Bulker was in badly damaged condition and its materials are not used for rebuilding of Bulker and the salvage value of Rs. 1,00,000/- mentioned in the report was almost as scrap value. It was further stated in the said letter that the surveyor had discussed the matter of salvage on 1.10.2004 with Mr. Vishal Singh, Managing Director of the insured and he was agreeable for the sale of the complete Volvo at Rs.4,00,000/- and the Bulker at Rs.50,000/- and also told the surveyor that they were prepared to dispose of the Volvo and Bulker at Rs. 4,50,000,- and also requested us to dispose the same at Rs.4,50,000/- but no buyer was interested to purchase the Volvo at this price. It was further stated that whoever, you could dispose of both the Volvo and the Bulker at a price more than Rs.4,50,000/-, the extra amount so obtained will be deducted from the earlier assessed amount of Rs. 14,00,000/- on Cash Loss basis and the insured will be happy over this assessment". 18. The investigator Shri Y.K. Chaturvedi had also given his spot survey report on 25.5.04. It is stated in the said report (page 3) regarding Bulker body that "Bulker body found pressed deep on upper portion at the rear. Front portion also found pressed deep at the upper portion. Deep dents on RHS in the middle were also noticed. Upper plat form with brackets, pipes found damaged extensively and pressed. The damage to LHS and the complete bulker body may be ascertained after lifting the unit". Front portion also found pressed deep at the upper portion. Deep dents on RHS in the middle were also noticed. Upper plat form with brackets, pipes found damaged extensively and pressed. The damage to LHS and the complete bulker body may be ascertained after lifting the unit". However, it is noted that the surveyor has assessed the loss to 3ulker at Rs.2,67.000/- though the price of Bulker is Rs.4,60,000/- and it has been admitted by the surveyor during cross examination that bulker was totally damaged. In view of the cross-examination, there seems no justification for assessing damage to 13ulker only at Rs.2,67,000/-. 19. It further appears from the survey Report Assessment sheet No.8 that items at SI.No.64 to 72 have not been assessed and the remark is 'suspected damage' though the said items were found to be damaged by the authorized dealer of the manufacturer and were covered under the estimate. There is nothing in the Report to suggest as to what led the surveyor to consider the said items to be suspected. The report of the surveyor cannot be totally relied. It appears that various items under the report have been denied as suspected and not finally assessed by the surveyor. It further appears that the surveyor admitted that the real damage to the Volvo could only be assessed after dismantling the same but he had assessed the damage on superficial basis only. 20. In view of the foregoing discussion we are of the view that if all the items are duly considered the damage would be higher and would come within the category of total loss. 21. So far as the contention of opposite party that the complainant had accepted the' cheque sent by them in full and final settlement of claim is concerned, it is noted that the date of accident was 21.05.2004 and the claim was filed on 31.05.2004 and subsequently thereto he complainant had written a number of letters to the opposite party to decide the claim as the complainant was facing financial crisis and was not able to pay due installments. It further appears that the opposite party did not bother and the surveyor kept busy in trying to persuade the complainant to bear the loss and to acceed to the assessment of his claim on cash loss basis because it was beneficial to the insurer. It further appears that the opposite party did not bother and the surveyor kept busy in trying to persuade the complainant to bear the loss and to acceed to the assessment of his claim on cash loss basis because it was beneficial to the insurer. We feel that the work of surveyor does not extend to pursue the party, to accept a particular sum which is not proportionate to the loss suffered by him. If the surveyor does so the person concerned facing financial problems as no option but to accept the amount so offered and to fight for the remaining as has been done by the complainant. 22. It appears from the material placed on record that complainant had signed Discharge Voucher and accepted the cheque in full and final settlement. Learned counsel for the complainant submitted that the complainant had accepted the cheque under protest and in this regard she drew our attention to Annexure A/8. On the contrary learned counsel for the opposite party drew our attention to Annexure-NA-25 which is also a discharge? voucher bearing signature of the complainant but without any protest: It is relevant that the complainant had sent a letter/notice dated 04.02.2005 i.e. the date on which he received the cheque. It is clearly mentioned in the letter/notice that the cheque was received under protest but due to oversight the difference amount was mentioned to be Rs.24,00,000/instead of Rs.22,29,000/-. The said letter was also replied to by the opposite party, hence it cannot be said that the complainant had not endorsed his protest on the Discharge Voucher. Even if it is accepted for a while that the complainant had not lodged protest note on the Discharge Voucher there are a number of letters i.e. dated 04.02.2005, 17.02.2005 and, 17.03.2005 through which the complainant continued to claim the difference amount after accepting the cheque on 04.02.2005 and has finally filed the complaint on 24.05.2005. In the circumstances, receipt in full and final settlement has no value. In this regard, we would like to refer to Singareddy Ramana Murthy Vs. National Insurance Co. Ltd. I , wherein simil1V observations have been made. 23. In view of the discussion herein above, we are of the opinion that the complainant deserves to be compensated on total loss basis and by not doing so the OP has committed deficiency in service. National Insurance Co. Ltd. I , wherein simil1V observations have been made. 23. In view of the discussion herein above, we are of the opinion that the complainant deserves to be compensated on total loss basis and by not doing so the OP has committed deficiency in service. The delay in settling the claim also amounts to deficiency in service. There is no material on record to suggest the present market value of the Volvo. Hence, we think it just and proper to allow the complaint and to direct that the O.P shall pay a sum of Rs.22,29,000/- (Rupees Twenty-two lakhs twenty-nine thousand only) to the complainant towards balance amount of IDV with interest @ 9% p.a. from 01.07.04 till the date of final payment. Besides the aforesaid sum, the opposite party shall also pay a sum of Rs.10,500/- (Rupees Ten thousand five hundred only) towards toeing charges and Rs.l,500/(Rupees One thousand five hundred only) towards cost of this complaint. If the salvage is still in possession of the complainant the opposite party shall be free to take possession of the same. Complainant Allowed.