State Consumer Disputes Redressal Commission
The Branch Manager, Icici Lombard Motor ... vs Smt. Mamata Jena, on 25 January, 2023
1
STA|E CONSUMER DISPUTES REDRESSAL COMMISSION,
ODISHA. CUTTACK
FIRST APPEAL NO. 695 of 2012
(Frorl an order dated 23.05.2012 passed by the District
Forum, Sundargarh-Il in Consumer Complaint No.
331201r)
The Branch Manager, ICICI Lombard
Motor Insurance Co. Ltd., Panposh Road, Ps.
Raghunathpalli, Rourkela-769004, Dist.
Sundargarh, being represented through its
Manager(Legal), Sneha Singhania, aged about
25 )'ears, D/o Sri Raj I(umar Singhania, At
present working as Manager-Legal, ICICI
Lombard General Insurance Co. Ltd, Apeejay
House, 7tr'Floor, Block-B, Park Street, I(olkata-
16, West Rengal.
Appellant.
-Versus-
1) Srnt. Mamata Jena, Wo S.K.Jena, permanent
Address, AtlPo. Sankara, Dist. Sundargarh, At.
Present residing at G.M.-18, Basanti Colony, Ps.
Uditnagar, Rourkela, Dist. Sundargarh.
2) The Director, Indira Motors, Panposh Road, Ps.
Raghunathpalli, Rourkela -7 6900 4 .
Respondents.
Counsel lbr the Appellant- Sri Jaysarrkar N,l ishra,
Sri H.N4ishra.
Counsel for the Respondent No. I - Sri Pabitra Kunrar Nayal<,
Sri FI.B.Dash,
Sri G.N,lohapatra.
Counsel lor the Respondent No.2- None.
I'ITES[,NT :- Sri D.K. Mohtrpntra, Mcmbcr.
Sri S.L.Pattnail<, Member.
DATE OF HIIAITING- 26 .04 ,2022 DATE OF OII.DER- 25. OI.2O23 Sri D.K.Mohapatra. Mcm bcr. ORDEII 'l'he case of the Corr-rplainant is that, hc hard pLrrchasccl one -lirta Motors Car on 12-04-2010 vide Chassis No. MAT607l(r14WC16342 and Engine No.4750DTl4CZYl>29168 bearing Itegd. No. OR-14-V-0406 and the vehicle was under covered rvith insr-rrance of ICICI [.ou-rbarcl Certelal hrsurance Co. Ltd, Opposite Party No.1 vide Policy No.3004/ '1M1100,55/ 00/000 tiorn 12-04-2010 to 11-04-2011 as passenger carrying pacl<age policy. The car rvas insured lor an arroLrnt of Its.4,55,B9B/- and I{s. l8,l i9i- was paid towards insurance pren-riurn. During the periocl of validity of the ittsrrttnce on 15-04-2010 just alter thrcc clays o1- purchase, thc velricle niet u,ith an accident and got completely damagecl, which was cluly lepoltcd 3 before the Opposite Party No.1. The estimate was made for Rs.5,63,4711- by Opposite Party No.2 for repairing of the vehicle, the Surveyor report discloses for Rs.4,50,000/-. Thereafter the Opposite Parly No.1 compelled the Complainant to receive the amount of Rs.2,14,880/- without any basis * Rs. 1,60,000/- towards salvage, total amounting to Rs. 3,74,8801- and disclosed that the vehicle was not registered before the Registering Authority in due time by the Dealer of TATA car-Opposite Party No.2.
Thus alleging deficiency in service against the Opposite Parties, the Complainant filed C.D. Case No.33/2011 before learned Dist. CDR Forum, Sundargarh-Il, Rourkela praying for a direction to the Opp. Parly No.1-Insurer to pay balance own damage amount of Rs.75, l20l- and Rs.13,000/- towards unfair practice and Rs.10,000/- towards mental agony, harassment and cost of litigation, in total Rs.98, l20l-.
On rcccipt of thc noticc. thc Opp. Party No.2 opted not to respond and did not file any written version, though the Opp. Parly No. t has entered appearance through his counsel and has filed written version.
Opp. Party No.1 filed its written version denying the allegations of the Cornplainant and contended that Opposite Party No.1 has received an intirnation about accident of vehicle from the Complainant, 4 immediately deputed one licensed surveyor for conducting survey of the said vehicle and issued a claim fbrm to the Complainant for lodging her claim. Furlher the Opposite Party No.1 contended that since the vehicle in question was insured as a passenger carrying vehicle i.e. as a Transport/Commercial vehicle, insurance company/O.P. No.1 required the police papers and documents of the said vehicle, in compliance to which the Complainant has submitted a copy of Temporary Registration Cerlificate No. OR-14-V-0406 (Temp) dt.l6-04-2010 and a ceftificate from Kutra Police to the effect that, the new indigo car met with an accident on 15-04- 2022 in which two persons sustained injuries in their person and a police case has been registered. The Cornplainant could not supply any valid Registration Certificate as well as as Permit in respect of the alleged vehicle covering the date of loss i.e. 15-04-2022.
Furlher the Opposite Party No.1 stated in its written version that as per the provision of law in the M.V.Act-1988, Chapter-IV and V about Registration of Motor Vehicles and Control of Transport vehicle in Central M.V. Rules, 1989, Chapter-Ill and IV that, "no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance which Chapter-IV of M.V.Act and 5 application for registratin of Motor Vehicle is to be made within 7 days from the date of taking delivery of motor vehicle and no dealer shall deliver a motor vehicle to a purchaser without temporary or permanent registration". Further as per Chapter-V of M.V.Act, 1988, use of Transport vehicle in public place is prohibited without valid Permit. Opposite Pafty No.1 in its written version has stated that, on the date of alleged accident on 15-04-2010 the insured vehicle was being plied on public road without any Registration Cerlificate and without any valid permit, and the insurance company could have repudiated the claim on that score only. However with a positive approach for the Cornplainant the insurance company/Opposite Party No.1 considered the clairn of the Cornplainant for settlement at Rs.2,14,880/- to which the Cornplainant accepted the same and duly discharged the loss voucher towards full and final satisfactin of the claim for Rs.2,14,880/- and the Complainant after receipt of said claim cheque Lowards full and final satist-action of the claim, with some ulterior motive has f-rled the complaint case against the O.P. No.1 insurance company and the same is liable to dismissed.
After hearing the case learned forum below directed Opp. Parly No.1 to pay the balance amount of Rs.75 ,l2ol- rounded up to Rs.75,000/- to the Cornplainant along with interest at the rate of 8oh per annum from the 6 date of filing of this case i.e. 07-03-2011 till realization. Furlher the Op No.1 is directed to pay Rs.3,000/- towards mental agony, harassment and cost of the case.
Challenging the impugned order the Appellant/Opposite Party No.1 has filed the present appeal.
During the course of hearing, counsel for Appellant/Opp. Party No.1 submitted that, the insurance policy is a contract between the insurer and the insured and the terms and conditins of the policy is to be strictly followed. The Appellant adrnit ted the insurance policy of the Complainant/Respondent No. 1 .
The Counsel for the Appellant further submitted that, the Appellant-insurnace company received information from the Complainant that the vehicle met with an accident on 15-04-2010 and with a sood gesture towards the Cornplainant, deputed one licensed surveryor for conducting survey of the said vehicle and issued a clairn form to the Cornplainant for lodging her clairn. The Appellant-Insurance Company considered the claim of the cornplainant and settled the claim at Rs.2,l4,BB0/- to which the Complainant accepted the same and issued discharged voucher(Annexure- III) towards full and final settlement of the claim for Rs.2,14,880/- and the 7 Complainant after receipt of the said claim cheque towards full and final settlement of the clairn has filed consulner cornplaint case before learned forum below.
The learned Counsel of appellant further submitted that admittedly the vehicle was insured for Rs.4,55,8981- and met an accident while plying on road without any valid registration and permit as required under law. The Complainant out of her own agreed for cash loss settlement of the clairn assessed at Rs. 2,I4,8BO1- as full and final settlement of her claim and shown her willingness to hold the salvage of the damaged vehicle. Once the settlement is over means the contractual obligations is over for all times to come. The Insurance Cornpany already settled the claim on the request of the Cornplainant and encahsed the clairn amount through cheque and after receiving the settled amount, Complainant has filed the case which is not tuaitrtairrable in the eyes of law. Counsel of appellant, the Insurance Company relied on the judgrnents of Hon'ble Suprerne Courl and citated the following decisions.
(i) ArR 2006 Suprerne courl page 2331, M/s. Bhagwati prasad pawan Kumar Vs- Union of India in support of claim of appellant, where in Hon'ble Apex courl has held that, "section I of the contract,Act provides for acceptance by performing 8 conditions of a proposal. ln the instant case, the Railways rnade an offer to the appellaut layirrg tlt.lwrt llre uundition that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in fult and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque andl or encashment thereof will automatically amount to satisfaction in full and final settlement of the clairn. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer rnade in the letters of the Railways datecl April 7, 1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and therefore, could not rnake a clalm later. However, if the appellant had not encashed the cheques and protested to the Railways calling u$)on thenr to pay the balance amount, and expre$secl its inability to accept the cheques remitted to it, the controversy would have acquired a differe nt cnmplexion. ln that event, irr view of flre expres$ non acceptance of the offer, the appellant could not be presumed to have accepted the offer. what, however, is significant is that the protest and non acceptance must be conveyed before the cheques are encashed. lf the cheques are encashed without protest, then lt must be held that the offer stood unequivocally accepted. An 'offeree' cannot be permitted to change his mind after the unequivocal acceptance of the offer."
9Furlher the Counsel of appellant cited thedecision reported in (United India Insurance Vs. Ajmer Singh Cotton and General Mills) (1999) 6 SCC page 400 where in Hon'ble apex courl has held that, "The mere execution of the discharge voucher lyould not ahvays deprive the consumer from preferring claim rvith respect to the deficiency in service or consequential benefits arising out of the amount paid in dcfault of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such dischargc voucher or receipt had been obtained from him under the circumstances rvhich can be termed as fraudulent or exercise of undue influence or by mis-representation or the like. If in a given case thc consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-represcntation, under inlluence or the likc, coercive bargaining compelled by circumstances, the authority before rvhom the complaint is made rvould be justificd in granting nppropriatc relief. florvever, lvhere such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the tribunal or the commission rvould be justified in granting the appropriate relief under the circumstances of e:rch case. The mere execution of the discharge voucher and acceptance of the insurance claim rvould not estopp the insured from making further claim from the insurcr but only under the circumstances as noticed enrlier. The Consumer Disputes Redressal Forums and Commissions constituted under thc Act shall also have the power to f:rsten liability against the insurance 10 companies notrvithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability ag:rinst the insurance companies over and above the liabilities payable under the contract of insurance envisagcd in the policy of insurance. The claim preferrerl rcgarding the deficiency of scrvice shall be deemccl to be based upon the insurance policy, being covered by the provisions of Section -l,l of theAct. ln the instant cases the discharge vouchers ryere aclmittedly executed voluntarily and the complainants hacl not alleged their execution under fraud, undue inlluence, mis-represcntation or the lil<e. In the absence of pleadings and evidence the State Commission rvas justified in clismissing their complaints. The National Commission however granterl relief solely on the ground of delay in the settlement of cl:rim uncler the policies. The mere delay of a couple of months rvoultl not have authoriserl the National Commission to grant relief particularly rvhen the insurer h:rd not compl:rinecl of such a delny at the time of accept:rnce of the insurance amount under the policy. We are not satisfied rvith the reasoning of the N:rtional Commission and are of thc vien' that the State Commission was justifierl in rlismissing the complaints though on different reasonings. The obscrvations of the State Commission in Jiyajeerao Cotton Mills Ltd. Vs. Nerv lndia Assurance Co. Ltd. (Original Petition No. 52 of 1991 clecirled on November 28, 1991) shall :rhvays be construed in the light of our findings in this judgment ancl the mere rcceipt of the amount rvithout any protest would not ahvays 4ebar the claimant from filing the complaint. Untlcr the circumstances the appeals are allorved. The orde rs of the National Commission are set asirle by confirming ll the orders passed by the State Commission. The complaint of the respondents shall st:rnd dismisscd rvithout any order as to costs.o, We have heard learned counsel for the appellant, perused the Appeal rlemo, DFR, written notes of submission filed on behalf of the Appellant.
In the present case, it is adrnitted fact that during the accident time the trme the vehicle had no pennit, pennit, furlher the Cornplainant has written a letter to Appellant/Opp. Parly No.1 stating that, The subject vehicle met with an accident/ or got damaged on dated 15-04-2010 ond l/we have lodged a claim with you, number cts MoroL592632. In pursuant of the claim, the vehicle wAS assessed by loss assessor, as appointed by yow, and a final assessnlent was made assessing the loss sustained as 2,l4,BB0/-.
The assessment was explained to me in detail the .finar assessment was done in due consultation with me and I have provided my consent .for the same. The above asses.sment is inclusive of salvage value I would be recovering by disposal of the wreck.
I hereby request you to kindly assist me in disposing oJf the salavage by getting the valuation done for the wreck on as-is- 12 where-is-basis.
I/we hereby agree t fu full and final assessment of the vehicle tovvards the captionecl claint lodged with your company for an amount of Rs.2,l4,BB0/- (Rupees T\.uo Lakhs Fourteen Thousand Eighr llundred & Eighr Only).
I/we would like to confirm that l/we not claim/demand any fitrther amount pertaining to the said motor vehicle. I/tue further request you to cancel the policy issued for the subjec:t vehicle bearing l{umber OR-14-V-0406 (k*p) .fro* the date o/' the acciclent i.e. I 5-04-20 1 0.
Copy of the said willing letter has been annexed to Written Note filed by appellant as Annexure-1. Further Cornplainant has also firrshined the indemnity cum declaration underlaking executed on 27-10-2010 stating that out of her free will she agreed to a cash loss settlement as full and final settlement of claim with complete satisfaction. The Cornplainant has also signed the dischage vor-rcher towarrds full and t-rnal settlement of clain-r vide Annexure-Ill to written note submitted by counsel of appeallant.
We find the Opp. Paay No.1 in its written version at Para-10 has catagorically stated that on the date of alleged accident i.e. on l5-04- 2010 the insured vel-ricle was plying without Registration Certiflcate and l3 pennit. Further at Para-13 has catagorically stated that the Corrplainant has accepted the settled amount duly execLrting the vouchers and recciveci the auottnt towarcls lirll and f-inal satisfection of claim fbr Its.2,14,880i-. Alier. receipt of atnoltnt has liled this cornplaint. We find tl-re Conrplainant cxculated the indernnity-cun-r-c'leclaration under tal<ing t>n 27-10-2010 anci t-rled the Corrplaint case on 07-03-2011 and has not taken anl,grouncl lbr sucll dclay in liling thc con"rplaint petition i.c. afier loLrr nronLhs o1' execution of indeminity curn declaratior-r under tal<ing.
We for,rncl learned lbrum belorv without going throLrgh the writtcr"r vcrsion filed by the Opposilc I)ar1y No.l/Appellar-rt ancl tl-rc provisior-r of Motor vehicle Act and rules frarne there uncier has passcd the impugnccl ordcr directing the Opp. Party No.1/Appellanl to pay balancc amount ol' Rs.75,1201- rounded up to Rs.75,0001- along with interest (D Bo/o per irnnLrm and Its.3,000/- towards tt-rental agony, harassrnent u,hich is illegal. arbirlary, atid not sustainable in thc eyc of law.
thking into consideration the willingncss lettcl of Contltlainanr discharge voltcher and the ratio o1' jr.rdgernents of I Ion'ble Apex Court cited above, we have no hesitation to hold that the impugnecl order passecl [;y learned lbunn below is illegal arbitrary and liable to be set aside. 14
Flence the impugned order is set aside.
The appeal is allowed.
No cost.
Free copy of the order be supplied to the respective parties or tl-rey r-r-ray downloac'l sarle liorn the confonet or webside of this Commission to treat same as copy of order received fiorn this Commission.
Send back the DFI{.
Due to non constitution of bench the order is delivered to-day i.e. on dt5-01-2023.
(D.K (Mem ber 1*."ylrttxr*'vt-
(S.L.I'}attnaik) (Mcmber)