State Consumer Disputes Redressal Commission
Oic Ltd. vs Ritesh Singh on 13 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.892 of 2012
Date of Institution: 03.07.2012
Date of Decision : 13.07.2015
Oriental Insurance Company Limited, through its Regional Manager,
Regional Office, SCO No.109-111, Surindra Building, Sector 17-A,
Chandigarh.
.....Appellant/Opposite party
Versus
Ritesh Singh son of Shri Ram Sarup Singh, resident of H.No.12840, Geet
Nagar, Tajpur Road, Ludhiana.
... Respondent/Complainant
First Appeal against order dated
17.05.2012 passed by the District
Consumer Disputes Redressal Forum,
Fatehgarh Sahib
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri. Harcharan Singh Guram, Member Present:-
For the appellant : Sh.Satpal Dhamija, Advocate
For the respondent : Sh.Vaibhav Sehgal, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated First Appeal No.892 OF 2012 2 17.05.2012 of District Consumer Disputes Redressal Forum Fatehgarh Sahib, accepting the complaint of the complainant by directing the OPs to pay Rs.2,19,856/- after deducting Rs.500/- as excess clause i.e. Rs.2,19,356/- to the complainant with 6% interest p.a from the date of accident i.e. 27.03.2011 till actual payment, besides costs of litigation of Rs.5000/- by directing the complainant to give the salvage to OP, which was valued as Rs.20,000/- by the OP. The instant appeal has been preferred against the same by the OP now appellant in this appeal.
2. The complainant Ritesh Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant is owner of a vehicle i.e. Mahindra Bolero Pick Up Van bearing registration no.PB-10-CN- 0145, Chassis No.91D30705, Engine No.91D50671, which was insured with OP, vide policy no. 233603/31/2011/2307, operative from the period 14.05.2010 to 13.05.2011. The insured amount was Rs.4,00,000/- thereof and the premium paid by the complainant was Rs.10744/-. During the intervening night of 26/27.03.2011, the above vehicle met of complainant with an accident in the area of Police Station Kahnuwan, District Gurdaspur, in which the above vehicle was badly damaged and DDR No.4 dated 27.03.2011 was lodged at Police Station Kahnuwan, District Gurdaspur about this accident. The complainant submitted the insurance claim with the OP, duly supported with the documents by making compliance of the formalities, but no amount was paid to complainant by the OP. The First Appeal No.892 OF 2012 3 damaged vehicle was also taken into possession by the OP and it continued in the possession of the OP and has not been released to the complainant, even after getting it repaired. The act of the OP in not paying the insurance claim to the complainant and in not releasing the damaged vehicle to the complainant is unfair trade practice, besides deficiency in service. The complainant has, thus, filed the present complaint directing the OP to pay Rs. 4 lac to the complainant with interest @ 24% p.a, besides the amount of Rs.2 lac as compensation for mental harassment. Any other additional or alternative relief, if found appropriate, was also prayed for.
3. Upon notice, OP no.1 and 2 filed separate written statement raising preliminary and legal objections that the OP no.1 and 2 never refused to settle the claim of the complainant. The complaint has been filed pre-maturely by the complainant, when the settlement claim process was still in process and under investigation and insurance claim was not even closed. The complainant has no cause of action to file the complaint. The complainant has not come to the forum with clean hands. On merits, OPs contested the complaint of the complainant. It was not disputed that Mahindra Bolero Pick Up Van was insured with the OPs for the period from 14.05.2010 to 13.05.2011 under GCCV Private Carriers other than Theree Wheelers Package Policy Zone C, vide policy no.233603/31/2011/2307 dated 18.05.2010, subject to the terms and conditions of the policy. It was also not disputed that intimation regarding the alleged accident was received by the OPs on First Appeal No.892 OF 2012 4 06.04.2011 and D.O office through their letter dated 11.04.2011 reported about the claim lodged to the concerned branch at Mandi Gobindgarh by the complainant on 11.04.2011. It was further pleaded that R.P Bhasin and Company, the Surveyors was appointed by the OPs to assess the loss and to submit report of this accident. The surveyor visited M/s Balak Automobiles Pvt. Ltd Ludhiana on 13.04.2011 at 3.30 PM and on minute inspection of the vehicle in question by the Surveyor in the presence of the insured, the said Surveyor found that vehicle was extensively damaged from its right front and due to overturning, the complete body shell was found damaged/twisted and the vehicle was damaged from the lower side as well. It was observed that vehicle cannot be declared as total loss and as it was repairable one. The insured was asked to go in for repair of it, to which he did not agree and demanded the settlement on cash loss basis. The Surveyor after making discussion with the Motor Technical Department of Regional Office Chandigarh, found that assessment on cash less basis was economical. Loss assessed by the said Surveyor on cash less basis to the tune of Rs.1,25,000/- , was agreed by the insurer for its acceptance, as full and final settlement of the claim, subject to terms and conditions of the policy. Copy of the said surveyor report dated 12.11.2011 is on the record duly signed by Ritesh Singh insured and submitted by him to the surveyor. The claim settled on cash less basis for making the payment of the claim to the tune of Rs.1,25,000/- to the complainant towards full and final settlement of the claim, was received ;on First Appeal No.892 OF 2012 5 18.11.2011. The complainant has filed complaint pre-maturely when the claim for settlement was still in process. The vehicle is still lying with M/s Balak Automobiles Pvt. Ltd, as claim in question was pending. The question of taking the possession of the vehicle by OPs did not arise at all. The OP No.1 and 2 are ready to make the said amount of Rs.1,25,000/- as full and final settlement to the complainant. The Ops controverted other averments of the complaint and prayed for dismissal of the complaint.
4. The complainant tendered in evidence the affidavit of complainant Ex.CW-1/A, copy of estimate Ex.C-1. As against it, OP tendered in evidence affidavit of Sh.A.K.Sehgal, Sr. Divisional Manager Ex.RW-1/A, copy of insurance policy Ex.R-1, copy of intimation form dated 6.4.2011 Ex.R-2, letter dated 11.4.11 Ex.R-3, survey report Ex.R-4, copy of consent letter Ex.R-5, copy of letter dated 12.11.2011 as Ex.R-6, affidavit of R.P Bhasin Surveyor and Loss Assessor E.RW-2/B. On conclusion of evidence and arguments, the District Forum, Fatehgarh Sahib, accepted the complaint of the complainant directing the OPs to pay the amount of Rs.2,19,856/- to the complainant with 6% interest p.a from the date of accident till its actual payment, besides costs of litigation of Rs.5000/- within one month from the date of receipt of copy of order. The District Forum also directed the complainant to give salvage to the OPs of amount of Rs.20,000/-. Dissatisfied with the order of the District Forum Fatehgarh Sahib dated 17.05.2012, the OPs now appellant has preferred this appeal against the same. First Appeal No.892 OF 2012 6
5. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.
6. The counsel for OP now appellant contended that order of the District Forum is erroneous and is without application of mind. It was submitted that the insured gave consent letter dated 12.11.2011 for settlement of the claim towards full and final settlement of insurance claim for Rs.1,25,000/- . It was further argued that complaint was instituted, when the claim process was not yet finalized and the present complaint is pre-mature. The only forceful submission of counsel for appellant is that once full and final settlement has been arrived at and agreed upon between the parties, then neither of the parties could back out it. He stressed that the complainant is estopped from challenging the full and final settlement in this case voluntarily arrived at between the parties.
7. From appraisal of the evidence on the record, we find that it is not disputed fact that vehicle was insured with the OP by the complainant by paying premium of Rs.10,444/- against insured declared value of Rs.4 lac thereof and policy was operative from 14.05.2010 to 13.05.2011. The accident took place on 27.03.2011 during the currency of the policy and DDR No.4 dated 27.03.2011 was lodged at P.S Cahnuwan, District Gurdaspur about this accident. Affidavit of complainant Ritesh Singh Ex.CW-1/A has been examined by us on the record. He stated in his affidavit that surveyor report has not been conducted appropriately in this case. The estimate of the loss prepared by M/s Balak Automobiles Pvt. Ltd First Appeal No.892 OF 2012 7 Ludhiana Ex.C-2 is on the record. The complainant argued on the basis of Ex.C-2 that vehicle was a case of total loss, as per the report of the authorized service center on the record. Ex.C-2 is document of the complainant to prove that complainant had suffered extensive loss and hence there is no question of full and final settlement for lesser amount of Rs.1,25,000/-. Affidavit Ex.RW-1/A of Sh. A.K. Sehgal, Sr. Divisional Manager, Oriental Insurance Company Limited has also been examined by us on the record to the effect that full and final settlement was arrived at voluntarily for the amount of Rs.1,25,000/-and the complainant is now challenging it. The affidavit of Sh.R.P Bhasin and Company Ex.RW-2/A is also placed on the record to the effect that at the instance of the complainant , the matter was finally settled for Rs.1,25,000/- as full and final settlement of this claim and complainant agreed to receive this amount and he produced consent form dated 12.11.2011 of complainant Ex.R-5. We have also carefully examined the document Ex.R-1, intimation form Ex.R-2, Ex.R-3 is intimation regarding accident of the vehicle, Ex.R-4 is report of R.P Bhasin & Company. From perusal of the report of the surveyor R.P Bhasin & Company , it is proved that the estimated loss of the vehicle is Rs.5,81,400/- and assessed the loss of Rs.2,25,495.65 paise. R.P Bhasin & Company Surveyor was appointed by the OPs and the report of the surveyor carries due weightage and is a valuable piece of evidence. It has been proved on the record, vide Ex.R-4 that loss to the vehicle was assessed by the surveyor as Rs.2,25,495.65 paise. First Appeal No.892 OF 2012 8
8. Now the point for adjudication is whether the consent letter as relied upon by the complainant Ex.R-5 is of any consequence, when the surveyor has assessed the loss to the extent of Rs.2,25,495.65 paise. Ex.R-5 as relied upon by the OP, is copy of consent form to the effect that the complainant Ritesh Singh agreed to accept Rs,1,25,000/- as full and final settlement of the claim. It is not discharge voucher issued by the complainant nor there is any evidence that complainant has received the amount of Rs.1,25,000/- and thereby waived the remaining amount. It is only of the type of proposal letter signed by the complainant for restricting the liability to the extent of Rs.1,25,000/-. We are unable to rely upon Ex.R-5 because it is neither discharge voucher nor payment of any amount by means of cheque or draft to the complainant, which has been encashed by him and thereby he waived of his rights for the remaining amount. It is only a proposal form simpliciter to the effect that complainant agreed to receive the amount of Rs.1,25,000/-. We are unable to agree with the submission of the counsel for the appellant, as to why the complainant would agree to receive inadequate amount towards loss of the vehicle when the surveyor R.P Bhasin has assessed the loss of the vehicle to the extent of Rs.2,25,495.65 as per his report dated 12.11.2011. The report of the surveyor Ex.R-4 is dated 12.11.2011 and alleged consent letter Ex.R-5 is also of the same date. We are of this view that this consent letter is nothing but the result of pressure put upon the complainant in extracting his promise to agree to accept the inadequate amount First Appeal No.892 OF 2012 9 for the claim. We do not place any reliance upon it. The report of the surveyor carries weightage in our view and it is a valuable piece of evidence. The surveyor is appointed under Section 64 (UM) of the Insurance Act and his appointment is statutory. We rely upon the report of surveyor Ex.R-4, which is of probative value and, thus, hold that the District Forum has rightly awarded the amount of compensation of Rs. 2,19,856/- to the complainant along with interest @ 6% p.a with direction to the complainant to give salvage to OP for the value of Rs.20,000/-. The law relied upon by the appellant in case titled as Raj Kumar ..versus... United India Insurance Company Ltd, reported in 2011(3) CPC Page- 254-255 has been considered by us thoroughly to the effect that valid discharge voucher was given towards full and final settlement, whereas the factual position in this case is entirely to the contrary from the factual backdrop of cited authority and hence, no benefit can be had by the appellant from the cited authority, which is distinguishable from the fact situation of this case.
9. As a result of our above discussion, we do not find any merit in the appeal and same is hereby dismissed by upholding the order of the District Forum Fatehgarh Sahib dated 17.05.2012.
10. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days for receipt of the copy of this order. First Appeal No.892 OF 2012 10 Remaining amount be paid within 45 days time from the date of receipt of this order by the appellant to the respondent/complainant.
11. Arguments in this appeal were heard on 07.07.2015 and the order was reserved. Now the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER July 13, 2015.
(ravi) First Appeal No.892 OF 2012 11