State Consumer Disputes Redressal Commission
Paramjit Singh vs United India Insurance Company Limited on 22 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 197 of 2013
Date of institution : 21.12.2013
Date of decision : 22.10.2013
Paramjit Singh aged about 51 years, s/o Shri Gurbax Singh, resident
of Village Nalas Khurd, P.O. Kotla, Tehsil Rajpura, District Patiala.
.......Appellant- Complainant
Versus
United India Insurance Company Limited, Divisional Office, Opposite
Main Bus Stand, G.T. Road, Khanna, District Ludhiana through its
Divisional Manager.
......Respondent- Opposite Party
First Appeal against the order dated
22.10.2012 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri A.S. Rai, Advocate. For the respondent : Shri D.P. Gupta, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by Paramjit Singh, appellant/complainant, against the order dated 22.10.2012 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") for issuance of directions to the respondent/opposite party to pay the First Appeal No.197 of 2013. 2 balance amount of Rs.1,91,000/- out of the insured value of the damaged vehicle, Rs.2,00,000/- towards deficiency in service, Rs.1,09,000/- as loss of earnings due to the act and conduct of the opposite party along with interest at the rate of 18% per annum from the date of loss till the payment and Rs.5,500/- as legal expenses, was dismissed.
2. As per the averments made in the complaint, the complainant was owner of Oil Tanker bearing registration No.PB-13-G-7507 (in short, "the vehicle"), which he got insured with the opposite party for a sum of Rs.2,90,000/-. The vehicle was engaged on contract basis with the Oil Company for transporting of petroleum products and all the safety rules and regulations were being observed. The same met with an accident on 8.7.2010 and was totally damaged by burning. At that time, it was being driven by Gurbax Singh, driver, who was holding a valid driving licence. About the accident, FIR No.127 dated 9.7.2010 was lodged against Vinod Kumar under Section 279 and 427 IPC. The complainant also gave intimation about the accident/damage to the vehicle to the opposite party and while lodging the claim submitted all the documents. Chander Shekhar was deputed as surveyor to assess the loss and he gave his opinion that the vehicle was total loss and was not repairable. Even then his claim was not processed though he visited the office of the opposite party and also approached the higher authorities many a times. After delay of one year he was called to the office of the opposite party for the settlement of the claim and his signatures First Appeal No.197 of 2013. 3 were obtained on 4/5 papers/insured printed forms by practising fraud and he was delivered cheque dated 20.10.2011 for Rs.99,000.00. He was taken into confidence by Jasbir Singh, Manager and Varinder Manro, Assistant Manager of the opposite party for delivering the original R.C. of the vehicle. It was stated at that time to him that the damaged vehicle shall be sold for Rs.1,90,000/- as per the report of the surveyor. He got the cheque encashed in good faith. The damaged vehicle/salvage is lying at Chahal Filling Station and has not been taken away by the opposite party resulting in the incurring of rent for parking. The opposite party has failed to sell the damaged vehicle nor has paid the balance compensation. As the insured value of the vehicle was Rs.2,90,000/-, so the above said offer was not acceptable to him. He got the vehicle inspected from Swastic Engineers and Fabrication, who gave the opinion that the vehicle was total loss and was not repairable. He visited the office of the opposite party several times for payment of the balance compensation but the same was not paid. Even the service of the legal notice dated 18.11.2011 did not yield any result.
3. The complaint was contested by the opposite party. In the written reply it admitted that the vehicle was got insured with it by the complainant and that the intimation regarding the accident was given to it and that the claim was lodged by the complainant along with the documents. It also admitted the appointment of the surveyor for assessing the loss and the payment of Rs.99,000/- to the First Appeal No.197 of 2013. 4 complainant by means of a cheque. While denying the other averments made in the complaint, it pleaded that the surveyor in his report, while assessing the loss, recommended for settlement of claim on net salvage basis. The claim of the complainant was settled for Rs.99,000/-, which was full and final settlement of his claim, after the same was approved by its competent authority subject to the verification of taxes, fitness and permit. The complainant deposited the tax for one month and submitted the receipt challan and the report from the DTO, Sangrur. The delay in settlement of the claim was on account of non-furnishing of those documents. The settlement of the claim was made in the presence of two Advocates who were brought by the complainant. After long discussion the complainant sought 7 days' time to rethink about the settlement and ultimately he visited its office on 2.11.2011 along with those two Advocates and accepted the cheque towards settlement of his claim on net of salvage basis while retaining the salvage of the damaged vehicle. It never agreed to sell the salvage for Rs.1,90,000/-. After the settlement, that salvage vests in the complainant and he is at liberty to dispose of the same. While accepting the sum of Rs.99,000/- as full and final settlement, the complainant submitted the consent letter dated 2.11.2011. The subsequent e-mail and the letters sent by him were duly replied. The complainant is not a "consumer" as defined in the Act since the vehicle in question was commercial vehicle and was being run to earn huge profits. The complainant had obtained Goods Carrying First Appeal No.197 of 2013. 5 Public Carriers Package Policy. There is no deficiency in service or negligence on its part and, as such, the District Forum has no jurisdiction to decide the same. After the complainant has received the above said amount in full and final settlement of his claim, he is estopped by his act and conduct from filing the complaint and the same is not maintainable. Complicated questions of law and fact are involved, which require elaborate evidence both oral and documentary and, as such, it is only the civil court, which is competent to try the complaint and the same cannot be decided by the District Forum in summary manner.
4. Both the sides produced their evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that the District Forum failed to appreciate the fact that the complainant produced conclusive evidence for proving that he never received Rs.99,000/- in full and final settlement of his claim. That amount was received by him after an assurance was given by the opposite party that the salvage of the damaged vehicle shall be sold for Rs.1,90,000/-, which never fetched that amount. After receiving the cheque, the complainant immediately lodged a protest with the opposite party and asked for the balance amount as assessed by the First Appeal No.197 of 2013. 6 surveyor. The lodging of the protest itself shows that the complainant never consented to any such settlement and never received the above said amount in full and final settlement of his claim. In these circumstances the finding recorded by the District Forum against the complainant is liable to be reversed. In support of his submissions he placed reliance on the following judgments of this Commission:-
1. First Appeal No.1564 of 2005 decided on 1.3.2011 (National Insurance Company Limited v. Rakesh Kumar);
2. First Appeal No.622 of 2007 decided on 20.4.2012 (Meena Rani v. The Oriental Insurance Co. Ltd. and others).
7. On the other hand, it was submitted by the learned counsel for the opposite party that from the evidence produced on the record, it stands proved that the settlement was arrived at between the parties in the presence of the complainant and his Advocates and he had taken one week to rethink about that settlement and thereafter came up with the offer that the settlement was acceptable to him and he received the cheque of Rs.99,000/-, which was subsequently got encashed by him. He himself had undertaken to sell the salvage of the damaged vehicle and the same was to fetch Rs.1,90,000/-. It was on account of the delay on the part of the complainant to sell the same that the same did not fetch that amount. Merely from the lodging of a protest by sending some e-mail or letter that the salvage First Appeal No.197 of 2013. 7 was to be sold by the opposite party, it cannot be concluded that the settlement was arrived at under some pressure or coercion. It was a voluntarily act on the part of the complainant and he is bound by that settlement. A correct finding was returned by the District Forum after appreciating the evidence produced by both the sides and there is no ground to set aside that finding.
8. A perusal of the evidence produced by the complainant makes it very much clear that he is not disputing the settlement as put forward by the opposite party. He himself proved on record the e- mail dated 16.11.2011 Ex.C-11, which was addressed to the opposite party. He mentioned therein that he received Rs.99,000/- cheque, as according to Chander Shekhar, Surveyor, the scrap of the burnt vehicle could have been sold for Rs.1,90,000/- but no scrap buyer was ready to pay more than Rs.1,50,000/- and as such, he was suffering a loss of Rs.40,000/- to Rs.50,000/-. He also mentioned therein that it was the responsibility of the opposite party to sell the scrap at the fixed rate of Rs.1,90,000/-. In view of the contents of that e-mail, it becomes clear that the complainant expressly admitted that the settlement was arrived at by him with the opposite party and under that settlement he received Rs.99,000/- by means of a cheque in full and final settlement of his claim. As per the letter dated 2.11.2011 Ex.R-6, which was written by him under his signatures to the opposite party, he agreed to accept Rs.99,000/- as full and final payment of the vehicle on net salvage value while retaining the salvage of the damaged vehicle with him. Once he First Appeal No.197 of 2013. 8 agreed and gave consent to that settlement, he cannot turn around and say that such a settlement was the result of fraud or was entered into under pressure or was result of coercion. No doubt, such fraud etc. can be inferred if the protest is lodged immediately after the acceptance of the amount but, as already stated above, the same is not reflected from the e-mail Ex.C-11, which was sent by the complainant to the opposite party immediately after that settlement. It was for him to see at the time of entering into settlement whether the salvage could have been sold for Rs.1,90,000/- or not. Once he had undertaken to keep the salvage with him, it was for him to sell the same. The changing of the mind subsequently by the complainant will not make the acceptance of Rs.99,000/- in full and final settlement of his claim the result of pressure or coercion. It is also pertinent to note that the cheque was got duly encashed by the complainant. That goes a long way to show that he received that cheque in full and final settlement of his claim.
9. The facts of the above said cases were different. We have carefully gone through those judgments and the ratio thereof is not applicable to the facts of the present case. In Rakesh Kumar's case (supra) reliance was placed upon judgment of the Hon'ble Supreme Court reported in II(1999)CPJ 10(SC) (United India Insurance Co. Ltd. v. Ajmer Singh Cotton & General Mills and Ors.) and the judgment of the Hon'ble National Commission reported in IV(2007)CPJ 234 (NC) (AMIRALI A. MUKADAM v. UNITED INDIA INSURANCE CO. LTD.). In those cases it was discharge voucher, First Appeal No.197 of 2013. 9 which was executed by the complainant and thereafter he had lodged a protest with the Insurance Company within a reasonable time. It was held therein that mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to deficiency in service or consequential benefits arising out of the amount paid in default 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 discharge voucher or receipt had been received from him under circumstances which can be terms as fraudulent or exercise of undue influence or by misrepresentation or the like. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer. That only in cases where he ables to prove that the discharge voucher or the receipt was obtained from him as a result of fraud or undue influence or misrepresentation or the like. In the present case, it has not been discharge voucher, which was obtained from the complainant but he had himself written a letter to the opposite party that he was ready to accept Rs.99,000/- in full and final settlement of his claim and had agreed to keep the salvage with him for the purpose of sale. Similarly in Meena Rani's case (supra), it was the discharge voucher, which was executed by the complainant and the same was found to be the result of the threat extended to the complainant.
First Appeal No.197 of 2013. 10
10. From our above discussion, we conclude that there is no merit in this appeal and the same is hereby dismissed. However, no order is made as to costs.
11. The arguments in this case were heard on 7.10.2013 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.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) October 22, 2013 MEMBER Bansal