State Consumer Disputes Redressal Commission
Het Ram vs New India Assurance on 4 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 393 of 2012 Date of Institution 27.11.2012 Date of Decision 04.03.2013 Het Ram Chauhan and Sons, SCF No.7, Subzi Mandi, Sector 26, Chandigarh through its Proprietor Het Ram Chauhan. .Appellant/Complainant V E R S U S The New India Assurance Co. Ltd., SCO No.58, Sector 26-C, Chandigarh through its Branch Manager. ...Respondent/Opposite Party BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT MRS. NEENA SANDHU, MEMBER
Argued by:
Sh.Bhupinder Ghai, Advocate for the appellant.
Sh.Raghujeet Singh Madan, Advocate for the respondent.
MRS. NEENA SANDHU, MEMBER This appeal is directed against the order dated 22.08.2012 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant
2. In brief, the facts of the case are that the complainant took insurance policy, from the Opposite Party to indemnify the loss, if any, in his business of selling and sending fruits and vegetables to distant places. It was stated that on 06.09.2008, 617 boxes of apples were sent by the complainant, to Banglore, and before sending the same, it (consignment) was got insured from the Opposite Party vide their Marine Declaration Form No.272853 dated 06.09.2008 (Annexure C-1). It was further stated that the truck carrying the consignment of apples from Chandigarh met with an accident, on way, to Bangalore. On receipt of information of the accident, the claim was lodged by the complainant with the Opposite Party to the tune of Rs.6,20,000/- which appointed a Surveyor to assess the loss. However, the Opposite Party, released the claim for an amount of Rs.2,99,300/-. According to the complainant, the act of the Opposite Party by not honouring the full claim amounted to deficiency in rendering service. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3. In its written reply, it was admitted that the complainant took an Open Marine Policy for Rs.25,00,000/-. It was stated that when the complainant gave intimation that his Truck carrying the consignment of apples had met with an accident, a Surveyor was deputed to access the loss. The salvaged apples available at the site in 476 boxes were sold at the spot for Rs.1,16,620/-. The amount was paid to the complainant. It was further stated that the loss was assessed by the Surveyor to the tune of Rs.3,21,894/- and after deducting necessary excess of Rs.22,533/-, a claim of Rs.2,99,360/- was passed. It was further stated that the complainant gave his full and final consent, for receipt of this amount, and further undertook not to initiate any proceedings, in any Court of law, about the loss. It was further stated that after receipt of the amount, in full and final settlement, the complainant was now only trying to create confusion and complicate the matter. It was further stated that, the Opposite Party, was neither deficient, in rendering service nor indulged into unfair trade practice.
4. The Parties led evidence, in support of their case.
5. After hearing the proxy Counsel for the complainant, the Counsel for the Opposite Party, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
7. We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellant/complainant submitted that on 06.09.2008, the complainant sent 617 boxes of appeals, in a truck to Bangalore, and before sending the same, it (consignment) was got insured from the Opposite Party vide Marine Declaration Form No.272853 dated 06.09.2008 (Annexure C-1) and the GR (Annexure C-2) was issued by the transporter. The said truck met with an accident and the matter was reported to the Opposite Party, which appointed its surveyor to assess the loss. He further submitted that the Opposite Party sold all the material i.e. 617 boxes of apples at the spot. He further submitted that after completion of all the formalities, the claim was not released. Thereafter on 04.06.2009, the Opposite Party paid a partial amount of Rs.2,99,360/- and, therefore, the complainant got served a legal notice upon the Opposite Party on 09.07.2009 and only thereafter a further sum of Rs.1,06,479/- was released on 03.10.2009. He further submitted that the complainant again sent a legal notice to the Opposite Party on 28.09.2010, which was duly replied on 12.10.2010 stating therein that the amount of Rs.2,99,360/- was released in full and final settlement of the claim, which was totally contrary to the facts because if it is believed that the complainant accepted the amount of Rs.2,99,360/- in full and final settlement of his claim then why the Opposite Party released further amount of Rs.1,06,479/-. He further submitted that since the complainant was under debt and so in order to clear payments, under coercion, he was pressurized to sign the satisfaction note, in full and final settlement of his claim. He further submitted that, no doubt, the Opposite Party paid a sum of Rs.2,99,360/- + Rs.1,06,479/- but still an amount of Rs.2,15,170/- was outstanding against it. He further submitted that the order of the District Forum being illegal is liable to be set aside.
9. On the other hand, the Counsel for the respondent/Opposite Party, submitted that the complainant accepted a sum of Rs.2,99,360/- by executing a satisfaction note, in full and final settlement of his claim without any coercion and pressure. He further submitted that the complainant failed to adduce any evidence to the effect that he had signed the satisfaction note under coercion and pressure. He further submitted that once the complainant accepted an amount of Rs.2,99,360/- in full and final settlement of the claim, and executed a satisfaction note , Annexure R-3, then he had no right to agitate the matter again. As regards, the payment of Rs.1,06,479/- is concerned, the Counsel for the Opposite Party, submitted at the bar, that the same was paid as salvage value, only as per the surveyors report and hence, the order of the District Forum, being legal, is liable to be upheld.
10. The perusal of the report of the surveyor, which was not produced before the District Forum by either of the parties and the same was produced during the pendency of the appeal, by way of additional evidence, shows that the surveyor assessed the loss to the tune of Rs.3,21,894/- (i.e. Rs.4,38,514/- minus Rs.1,16,620/-
towards salvage value). Out of the said assessed amount of Rs.3,21,894/-, the Opposite Party released a sum of Rs.2,99,360/- to the complainant after deducting the necessary excess of Rs.22,533/-, which was duly accepted by the complainant, in full and final settlement of his claim, and the same is evident from the satisfaction note (Annexure R-3). The complainant failed to adduce any evidence, that the same was executed under coercion and undue pressure. Hence, in the absence of any tangible evidence, we do not find any merit in the contention of the Counsel for the complainant and the same is rejected. Once, the complainant accepted the claim in full and final settlement without any coercion and undue presence, then he had no right to raise any dispute as held in United India Insurance Vs. Ajmer Singh Cotton &General Mills, (SC) -1999(3) RCR (Civil)-634.
11. As regards, the payment of Rs.1,06,479/-, the Counsel for the Opposite Party submitted that the same was paid on account of salvage value as per the report of the surveyor. Since the complainant never challenged the report of the surveyor, thus we are left with no alternative than to believe the contention of the Opposite Party that the same was paid as salvage value. Keeping in view the facts and circumstances of the case, we are of the considered opinion, that the District Forum rightly dismissed the complaint The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. The order of the District Forum, being legal and valid, is liable to be upheld.
12. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with no order as to costs. The order of the District Forum is upheld.
13. Certified Copies of this order be sent to the parties, free of charge.
14. The file be consigned to Record Room, after completion.
Pronounced. Sd-
04.03..2013 [JUSTICE SHAM SUNDER[RETD.] PRESIDENT Sd/- [NEENA SANDHU] MEMBER cmg APPEAL No. 393 of 2012 Argued by:
Sh.Bhupinder Ghai, Advocate for the appellant.
Sh.Raghujeet Singh Madan, Advocate for the respondent.
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Alongwith the appeal, an application for condonation of delay of 40 days, in filing the same has been moved. In the application, it was stated that somebody had received copy of the order from the office of the District Forum, without the consent and permission of the applicant/appellant, with a motive to infringe the rights of the applicant/appellant. It was further stated that copy of the order was applied on 12.11.2012 and the same was delivered on 19.11.2012. It was further stated that the delay was neither intentional nor deliberate but on account of the reasons mentioned above.
2.
Reply to the application, on behalf of the respondent, was filed stating therein that the delay, in filing the appeal, could not be condoned on the basis of apprehension.
3. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in our considered opinion, the application deserves to be allowed, for the reasons, that it is settled principle of law that normally every lis, should be decided on merits, than by default. When the procedural wrangles and substantial justice are pitted against each other, then the latter shall prevail over the former, as the very purpose of the Tribunal is to advance the cause of justice than to thwart the same. The applicant/appellant may be having a meritorious case, and if the same is dismissed, only on technical ground, that the same was barred by limitation, an irreparable injustice, shall occasion to him. Finding sufficient cause, the delay, in filing the appeal requires to be condoned.
4. For the reasons recorded above, the application is accepted and the delay aforesaid is condoned.
5. Admitted.
It be registered.
6. Arguments in the main appeal already heard.
7. Vide our detailed order of the even date recorded separately, the appeal is dismissed with no order as to costs and the order of the District Forum is upheld as per directions contained therein.
04.03.2013 [NEENA SANDHU] MEMBER [JUSTICE SHAM SUNDER (RETD)] PRESIDENT cmg