State Consumer Disputes Redressal Commission
Tarik Ahmed Khan vs Cholamandalam Ms General Insurance ... on 8 May, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/725
Instituted on : 20.01.2017
Tarik Ahmed Khan, Aged 28 years,
S/o Rahmat Khan,
R/o : House No.150, Vishwakarma Para,
Village Nawagarh, Ambikapur,
District Surguja (C.G.) ..... Appellant/Complainant
Vs.
Cholamandalam, MS General Insurance Co. Ltd.,
Near Ambedkar Chowk, First Floor of office of
The Oriental Insurance Company Limited,
Ambikapur, Tehsil & Dist. Surguja (C.G.) .....Respondent/O.P.
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri Vivek Pandey, Advocate for the appellant (Complainant).
Shri Ghanshyam Patel, Advocate for the respondent (O.P.).
ORDER
DATED : 08/05/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 24.09.2016, passed by District Consumer Disputes Redressal Forum, Surguja - Ambikapur (C.G.) (henceforth "District Forum") in Complaint Case No.C.C./2016/09. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
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2. Briefly stated, the facts of the complaint of the complainant are that the complainant, is registered owner of vehicle bearing registration No.C.G.15-AC-4213, which was comprehensively insured with the O.P. under Policy No.3379/01205477/000/00 for the period from 08.06.2015 to 07.06.2016. During the subsistence of the insurance, on 04.08.2015 the vehicle met with accident while saving the animal. The intimation regarding the accident was given to Police Station and the O.P. The O.P got examined the vehicle at the place of occurrence. The Insurance Company appointed Surveyor, who conducted survey. The O.P. demanded estimate regarding damages to the vehicle along with claim form from the complainant, which was immediately given by the complainant. As per instructions of the O.P. the vehicle was brought to Ambikapur with the help of crane and the O.P. instructed the complainant to got repair the vehicle and accordingly the complainant gave the vehicle to Shivam Motors where repairing of the vehicle was started. After inspecting the vehicle, Shivam Motors gave estimate of Rs.3,05,000/- and also provided estimate of Rs.55,000/- for repairing of front portion of the vehicle which was submitted by the complainant before the Insurance Company. The complainant sent all bills and documents regarding expenses incurred in repairing of the vehicle to the tune of Rs.3,86,360/- to the O.P. and the O.P. assured to pay the amount of the expenditure incurred by him at the earliest. The complainant continuously contacted the O.P. and requested to make // 3 // payment of the compensation, but the O.P. avoided to make payment of the amount and till date from the date of accident, the O.P. did not make payment of the compensation to the complainant, which is definitely deficiency in service. The complainant submitted written application to the O.P. on 15.09.2015 and demanded copy of Spot Survey Report, Final Survey Report and Re-Inspection Survey report, so that action should be taken. After receiving the above letter, the O.P. called the complainant in its office on 17.09.2015 and was providing cheque of Rs.1,95,800/- only but the complainant was refusing to accept the same but the complainant accepted the amount under protest because he had taken loan for repairing of the vehicle. The complainant raised objection and also mentioned that the above amount is very meager and the assessment of the amount was wrongly made, whereas all details regarding damages to the vehicle and expenditure incurred and documents been given to the O.P. The actual loss occurred to the vehicle is Rs.3,58,360/- and Rs.18,000/- was incurred for bringing the vehicle, but the O.P. has only paid amount of Rs.1,95,800/- and remaining amount of Rs.1,80,560/- has not been paid and thus the O.P. committed deficiency in service. The complainant is entitled to get the above amount from the O.P. Hence the complainant filed instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
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3. The O.P. filed its written statement and averred that the O.P. appointed Shri Abhishek Tiwari as Surveyor, who assessed the loss to the tune of Rs.1,95,800/-, which was paid by the O.P. to the complainant. The complainant received the amount in full and final satisfaction of his claim, therefore, the complaint is liable to be dismissed.
4. The complainant has filed documents. Document A-1 is list issued by Madhur Courier Services, A-2 is receipt issued by Madhur Courier Services, A-3 is bill issued by Surya Crane Service, A-4 is bill issued by Global Road Carrier, A-5 is letter dated 06.10.2015 sent by the complainant to the Competent Officer, Cholamandalam, Raipur (C.G.), A-6 is receipt issued by Madhur Courier, A-7 is letter sent by the complainant to the Competent Officer, Cholamandalam, Raipur (C.G.), A-7 is letter dated 06.10.2015 sent by the complainant to the Competent Officer, Cholamandalam, Raipur (C.G.), A-8 is Tax Invoice issued by Shivam Motors, A-8 is Excise Invoice, A-9 is Quotation issued by Shivam Motors (P) Ltd., A-10 is Certificate of Fitness of vehicle bearing registration No.C.G. AC-4213, A-11 is Motor Policy Schedule Cum Certificate of Insurance, A-12 is Registration Certificate Details of vehicle bearing registration No.C.G.-15-AC-4213, A-13 is permit for goods vehicle.
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5. The O.P. has filed documents. Document D-1 is Motor Policy Schedule Cum Certificate of Insurance, D-2 is Registration Certificate Details, D-3 is Motor Final Survey Report of Shri Abhishek Tiwari, Surveyor and Loss Assessor.
6. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint by the impugned order.
7. Shri Vivek Pandey, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is registered owner of vehicle bearing registration No.C.G.15-AC-4213 which was insured with the respondent (O.P.) for the period from 08.06.2015 to 07.06.2016. During subsistence of the insurance policy, on 04.08.2015, the vehicle met with an accident. The intimation regarding the accident was given to the concerned Police Station as well as to the respondent (O.P.). The respondent (O.P.) appointed Surveyor, who inspected the vehicle and assessed the loss. The respondent (O.P.) demanded estimate regarding damages to the vehicle along with claim form. The appellant (complainant) immediately provided the estimate along with relevant documents to the respondent (O.P.). The vehicle was brought to Ambikapur with the help of crane. The estimate for Rs.3,05,000/- was given by Shivam Motors and another estimate for Rs.55,000/- for repairing was also given by Shivam Motors and total estimate given for // 6 // Rs.3,86,360/- as against which the respondent (O.P.) only provided a sum of Rs.1,95,800/- to the appellant (complainant). The appellant (complainant) is entitled for remaining amount of Rs.1,80,560/-, but the respondent (O.P.) did not provide the above amount to the appellant (complainant) and committed deficiency in service. The impugned order is erroneous and is liable to be set aside. The appellant (complainant) is entitled to get the reliefs as mentioned in the relief clause of the complaint. The appeal of the appellant (complainant) may be allowed.
8. Shri Ghanshyam Patel, learned counsel appearing for the respondent (O.P.) has argued that respondent (O.P.) appointed Surveyor and Loss Assessor, who assessed the loss to the tune of Rs.1,95,88/- and the cheque for the said amount, was given to the appellant (complainant) and the appellant (complainant) received the cheque in full and final satisfaction of claim without any protest. After 20 days of receiving the cheque, the appellant (complainant) sent letter to the respondent (O.P.) for making payment of remaining amount. The appellant (complainant) has not filed any evidence to prove that he received the cheque under pressure, coercion or under undue influence, therefore, it is presumed that the appellant (complainant) has received the amount with his free consent. The report of the Surveyor is a reliable document, therefore, the Surveyor's report is genuine and dependable. The Report of the Surveyor can be given due weightage and it cannot be discarded lightly. On the basis of Survey Report, the // 7 // amount was paid to the appellant (complainant), therefore, the appellant (complainant) is not entitled to get Rs.1,80,560/-. The learned District Forum has rightly reached to the conclusion that the appellant (complainant) received the amount as assessed by the Surveyor and has rightly dismissed the complaint of the appellant (complainant).
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
10. It is admitted that the appellant (complainant) is registered owner of the vehicle bearing registration No.C.G.15-AC-4213 and the said vehicle was insured with the respondent (O.P.) for the period from 08.06.2015 to 07.06.2016 and during subsistence of the insurance policy, the vehicle met with an accident on 04.08.2015 and was damaged.
11. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
"Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
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12. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v.
Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
13. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
14. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
15. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
// 9 // "17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
16. The respondent (O.P.) has filed document D-3, which is Motor Final Survey Report of Shri Abhishek Tiwari, Surveyor and Loss Assessor. The Surveyor assessed the loss to the tune of Rs.1,95,800/-. The Surveyor gave detailed reasons for assessment of loss. The report of the Surveyor is a reliable document, therefore, the Surveyor's report is genuine and dependable. The Report of the Surveyor can be given due weightage and it cannot be discarded lightly.
17. Now we shall examine whether the appellant (complainant) received the amount under pressure, undue influence given by the respondent (O.P.) ?
18. In Section 14, 15, 16, 17 & 18 of The Indian Contract Act, 1872 "Free Consent" "Coercion", "Undue Influence", "Fraud" and "Misrepresentation""respectively have been defined. Section 14, 15, 16, 17 & 18 of The Indian Contract Act, 1872, run thus :-
// 10 // "Section 14. "Free Consent" defined .-
Consent is said to be free when it is not caused by -
(1) coercion, as defined in Sec, 15, or (2) undue influence, as defined in Sec. 16, or (3) fraud, as defined in Sec. 17, or (4) misrepresentative, as defined in Sec. 18, or (5) mistake, subject to the provisions of Secs. 20, 21 and 22.
Consent is said to be so caused when it would not have been given by for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
Section 15. "Coercion" defined. -
"Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Explanation : It is immaterial whether the Indian Penal Code (45 of 1860), is or is not in force in the place where the coercion is employed.
Section 16 "Undue influence" defined.- (1) A contract is said to be induced by "undue influence"' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another -
(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or // 11 //
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental bodily distress.
(3) Where a person who is in position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of Sec. 111 of the Indian Evidence Act, 1872 (1 of 1872)."
Section 17 "Fraud" defined - "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract -
(1) the suggestion, as a fact of that which is not true, by one who does not believe it to be true ;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation. - Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
Section 18 "Misrepresentation" defined - "Misrepresentation means and includes -
// 12 // (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though the believes it to be true ;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any cone claiming under him by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
19. From the above, it is made out that the consent given by a person would be deemed to be a free consent and would be binding upon the parties to the contract, unless it can be show that it was obtained by exercise of coercion, undue influence, fraud, misrepresentation, etc., as defined in Sections 15 to 18 or by mistake subject to provisions of Sections 20 to 22 of the Indian Contract Act.
20. In the appeal memo, the appellant (complainant) mentioned that the appellant (complainant) was called by the respondent (O.P.) in its office on 17.09.2015 and gave cheque of Rs.1,95,800/-. Initially the appellant (complainant) refused to accept the cheque but he was in need of money for repairing of the vehicle, therefore, he received the cheque under protest.
21. The appellant (complainant) has not filed any evidence to prove that he received cheuqe under protest. The appellant (complainant) has // 13 // filed document A-7 which is letter dated 06.10.2015 sent b him to the respondent (O.P.) in which it is mentioned that the respondent (O.P.) assessed the loss to the tune of Rs.1,95,000/- whereas the appellant (complainant) spent a sum of Rs.3,58,360/- in repairing of the vehicle and the same was paid by him to the repairer. The Surveyor only assessed Rs.1,95,000/- which is prima facie illegal, therefore, he raised objection against the amount assessed by the Surveyor.
22. According to the appellant (complainant) he received cheque on 17.09.2015, whereas letter document A-7 was sent by him to the respondent (O.P.) on 06.10.2015, after near about 20 days of the date of receiving the cheque.
23. In the instant case, there is no material or evidence on record from which it could be held that the respondent (O.P.) (Insurance Company was in a position to dominate the Will of the appellant (complainant) and used that position to cause undue influence upon appellant (complainant). There is no evidence that the mental capacity of the appellant (complainant) was temporarily or permanently affected by reasons of age, illness or mental or bodily distressed. The appellant (complainant) did not make allegation that any fraud was committed by the respondent (O.P.) (Insurance Company). Even there is no allegation regarding misrepresentation, therefore, on the basis of document A-7 it cannot be presumed that the appellant (complainant) received the // 14 // amount under need. If the appellant (complainant) would have received the above amount under protest or under coercion or under undue influence given by the respondent (O.P.), then the appellant (complainant) would have immediately sent letter to the respondent (O.P.) regarding receiving the amount under protest. Therefore, we are of the firm view that the appellant (complainant) having voluntarily accepted a sum of Rs.1,95,800/- from the respondent (O.P.) in full and final settlement of his claim, therefore, the appellant (complainant) has stopped from claiming any further amount from the respondent (O.P.) in respect of claim in question.
24. Therefore, the finding recorded by the District Forum, is just and proper and does not call for any interference by this Commission.
25. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar)
President Member
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