State Consumer Disputes Redressal Commission
Sh. Kamlesh Kumar. vs New India Assurance Co. Ltd. on 25 July, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 25/2017
Date of Presentation: 19.01.2017
Order Reserved On : 16.05.2017
Date of Order : 25.07.2017
......
Kamlesh Kumar son of Shri Pratap Chand resident of Village and
Post Office Pantehar (Passu) Tehsil Dharamshala District Kangra
H.P.
...... Appellant/Complainant
Versus
The New India Assurance Company Ltd. through its Divisional
Manager Divisional Office Hamirpur (H.P.)
......Respondent /opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Virender Singh Rathore vice Ms.
Latika Thakur Advocate.
For Respondent : Mr. Jagdish Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 20.12.2016 passed by Learned District Forum in consumer complaint 1 Whether reporters of the local papers may be allowed to see the order? Yes. Kamlesh Kumar Versus New India Assurance Company Ltd.
(F.A. No.25/2017) No.59/2016 title Kamlesh Kumar Choudhary Versus The New India Assurance Company Ltd.
Brief facts of Case:
2. Shri Kamlesh Kumar complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is an Advocate at District Court Kangra at Dharamshala. It is pleaded that complainant purchased vehicle in consideration amount of Rs.549711/-(Five lac forty nine thousand seven hundred eleven) on dated 07.03.2014 vide sale invoice No.6025 dated 07.03.2014. It is pleaded that vehicle was duly insured with the opposite party w.e.f. 07.03.2014 to 06.03.2015. It is pleaded that vehicle met with an accident on 16.05.2014 and vehicle was totally damaged. It is pleaded that insurance company directed the complainant to repair the vehicle. It is pleaded that insurance company has paid deficient amount and an amount of Rs.78700/-(Seventy eight thousand seven hundred) is due to the complainant from opposite party. Complainant sought relief that opposite party be ordered to pay Rs.78700/-(Seventy eight thousand seven hundred) alongwith interest @ 12% per annum. Further it is pleaded that opposite party be ordered to pay compensation of Rs.20000/-(Twenty thousand). In addition opposite party be ordered to pay Rs.10000/-(Ten thousand) as litigation costs.
3. Per contra version filed on behalf of opposite party pleaded therein that opposite party deputed surveyor to assess 2 Kamlesh Kumar Versus New India Assurance Company Ltd.
(F.A. No.25/2017) the damage. It is pleaded that matter was submitted with the opposite party as per assessment made by surveyor cum loss assessor. It is pleaded that complainant is estopped from filing present complaint due to his own act and conduct. It is further pleaded that complainant has himself accepted an amount of Rs.425000/-(Four lac twenty five thousand) voluntarily as full and final settlement. Prayer for dismissal of complaint sought.
4. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum appellant/complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arises for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit Ex.CW1 by way of evidence. There is recital in affidavit that deponent is Advocate at District court Kangra at Dharamshala. There is further recital in affidavit that deponent purchased vehicle in consideration amount of Rs.549711/-(Five lac forty nine 3 Kamlesh Kumar Versus New India Assurance Company Ltd.
(F.A. No.25/2017) thousand seven hundred eleven) vide sales invoice No.6025 dated 07.03.2014. There is further recital in affidavit that vehicle was duly insured with the opposite party vide insurance policy No.113000/31/13/-0100182458. There is further recital in affidavit that vehicle in question met with an accident on 16.05.2014. There is further recital in affidavit that information was given to opposite party on the same day. There is further recital in affidavit that loss of Rs.425000/-(Four lac twenty five thousand) was assessed by the surveyor cum loss assessor. There is further recital in affidavit that opposite party did not pay due claim to the tune of Rs.83700/-(Eighty three thousand seven hundred). There is further recital in affidavit that legal notice was also served upon opposite party.
8. Opposite party did not file any affidavit by way of evidence as required under section 13(4) of Consumer Protection Act 1986. Opposite party file Annexures OP1 and OP2 and closed the evidence on behalf of opposite party.
9. Submission of learned advocate appearing on behalf of appellant that appellant is legally entitled for a sum of Rs.78700/-(Seventy eight thousand seven hundred) alongwith compensation and litigation costs as prayed for in the relief clause of appeal is decided accordingly. It is proved on record that vehicle involved in the accident was duly insured with the opposite party at the time of accident vide insurance policy placed on record. It is proved on record that IDV value of vehicle was Rs.503700/-(Five lac three thousand seven 4 Kamlesh Kumar Versus New India Assurance Company Ltd.
(F.A. No.25/2017) hundred) as per private car package policy certificate cum policy schedule Annexure-C1 placed on record. It is also proved on record that Shri Kamlesh Kumar Choudhary complainant has issued a consent letter in the shape of affidavit addressed to Divisional Manager The New India Assurance Company Ltd. Divisional Office Hamirpur-H.P vide annexure-OP1 wherein complainant has agreed to accept a sum of Rs.425000/-(Four lac twenty five thousand) as full and final settlement. Complainant has given undertaking in affidavit annexure-OP1 placed on record that complainant has voluntarily given the consent letter. Complainant has also given undertaking that he would not raise issue in a subsequent stage. Affidavit annexure-OP1 is signed by the complainant in the presence of Latika Thakur Advocate Dharamshala. The affidavit given by the complainant is also attested by the competent authority. It is also proved on record that thereafter insurance company vide Annexure-OP2 had paid an amount of Rs.425000/-(Four lac twenty five thousand) vide cheque No.474 dated 19.11.2014 by way of NIA NEFT mode.
10. There is no evidence on record in order to prove that consent was given by the complainant under coercion or any undue influence. It is well settled law that party cannot be allowed to approbate and reprobate at the same time. See AIR 1993 Apex Court 352 title R.N. Gosain Versus Yashpal Dhir.
11. Submission of the learned Advocate appearing on behalf of respondent that in view of the fact that complainant 5 Kamlesh Kumar Versus New India Assurance Company Ltd.
(F.A. No.25/2017) voluntarily received a sum of Rs.425000/-(Four lac twenty five thousand) as full and final settlement vide consent letter annexure-OP1 and now complainant is estopped to challenge the amount paid by the insurance company at a subsequent stage is decided accordingly. It is proved on record that applicant has received a sum of Rs.425000/-(Four lac twenty five thousand) as full and final settlement. It is held that complainant is estopped due to his own act and conduct to demand more sum of Rs.78700/-(Seventy eight thousand seven hundred) after full and final settlement. See 2013(1) CPJ 440 NC Ankur Surana Versus United India Insurance Company. See 2013(1) CPJ 73 NC K.B. Sport Wear Goods world Wide Versus New India Assurance Company. See 2009 (2) CPC 436 NC National Insurance Company Ltd. versus M/s. Vasanthi Marine Food Ltd. See 2009 (3) CPJ 158 NC Sadra Rama Versus United India Insurance Company. See 2010 (4) CPJ 35 NC New India Assurance Company Ltd. versus C.P. Mathur. See 2012 (3) CPJ 281 NC Avon Automobiles versus National Insurance Company Ltd. In view of above stated facts point No.1 is answered accordingly. Point No.2: Final Order
12. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum announced in consumer complaint No.59/2016 title Kamlesh Kumar Versus The New India Assurance Company Ltd. is affirmed. Consent letter annexure-OP1 and payment voucher annexure-OP2 will 6 Kamlesh Kumar Versus New India Assurance Company Ltd.
(F.A. No.25/2017) form part and parcel of the order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 25.07.2017.
KD* 7