State Consumer Disputes Redressal Commission
I.S. Motors P. Ltd. vs Sabir Ali on 7 March, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 185 / 2013
National Insurance Company Limited
through its Manager
Regional Office, 56, Rajpur Road
Dehradun
...... Appellant / Opposite Party No. 1
Versus
1. Sh. Sabir Ali S/o Sh. Ishtiyaq Ali
R/o House No. 223, Ahbab Nagar
Jwalapur, District Haridwar
...... Respondent No. 1 / Complainant
2. I.S. Motors Pvt. Ltd.
Branch Office at E-17, Industrial Area
Haridwar and Head Office at
6th Km. Milestone, Roorkee-Dehradun Highway
District Haridwar through its General Manager / Managing Director
...... Respondent No. 2 / Opposite Party No. 2
Sh. Rajiv Kakkar, Learned Counsel for the Appellant
None for Respondent No. 1
Sh. Ram Singh Negi, Learned Counsel for Respondent No. 2
AND
FIRST APPEAL NO. 188 / 2013
I.S. Motors Pvt. Ltd. through its Manager
E-17, Industrial Area
Haridwar and Head Office at
6th Km. Milestone, Roorkee-Dehradun Highway
Roorkee, District Haridwar
through its General Manager / Managing Director
...... Appellant / Opposite Party No. 2
Versus
1. Sh. Sabir Ali S/o Sh. Ishtiyaq Ali
R/o House No. 223, Ahbab Nagar
Jwalapur, District Haridwar
...... Respondent No. 1 / Complainant
2. National Insurance Company Limited
Divisional Office, 1B, Govindpuri
Haridwar through its Divisional Manager
...... Respondent No. 2 / Opposite Party No. 1
Sh. Ram Singh Negi, Learned Counsel for the Appellant
None for Respondent No. 1
Sh. Rajiv Kakkar, Learned Counsel for Respondent No. 2
2
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. Balveer Prasad, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 07/03/2019
ORDER
(Per: Justice B.S. Verma, President):
These two appeals, one by the insurer of the subject vehicle and another by the dealer of the subject vehicle, who were opposite parties before the District Forum, filed under Section 15 of the Consumer Protection Act, 1986, are directed against the order dated 19.06.2013 passed by the District Forum, Haridwar in consumer complaint No. 262 of 2011.
2. Briefly stated the facts giving rise to the present appeals are that on 15.06.2009, the complainant had purchased a Tata Indica car bearing registration No. UK08-TA-0636 from opposite party No. 2 - I.S. Motors Pvt. Ltd. for sum of Rs. 3,63,740/-, for plying the same as a taxi for the purposes of earning his livelihood. On 23.06.2010, the said vehicle met with an accident and for the accidental repairs, the vehicle was handed over to opposite party No. 2 for carrying out necessary repairs in the vehicle. On the date of accident, the vehicle was insured with opposite party No. 1 - National Insurance Company Limited and the insurance was valid upto 14.06.2011. The surveyor of the insurance company inspected the vehicle at the dealer's workshop and stated that it is a case of total loss. Out of the sum assured of Rs. 3,22,335/-, the insurance company paid a sum of Rs. 1,71,835/- to the complainant by way of cheque and assured for payment of balance sum of Rs. 1,50,500/- and took the vehicle in their custody and thereafter sold the same. The complainant visited the office of the insurance company on several occasions for payment of 3 the balance sum, but he was told that the matter is in process. On 07.03.2011, when the complainant visited the office of the insurance company along with his friend, he was denied the balance payment. Thus, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The opposite party No. 1 - National Insurance Company Limited filed written statement before the District Forum and pleaded that the surveyor has submitted his report to the insurance company; that the surveyor has assessed the loss to the tune of Rs. 1,71,835/- on net off salvage basis; that the amount recommended by the surveyor has been paid by the insurance company to the complainant in full and final settlement of the claim; that the complainant is not entitled to any further amount and that there is no deficiency in service on their part.
4. The opposite party No. 2 - I.S. Motors Pvt. Ltd. filed written statement before the District Forum and pleaded that the vehicle was brought to their workshop on 23.06.2010 after the accident; that the insurance of the vehicle was valid till 14.06.2011; that on the asking of the complainant as well as insurance company's surveyor, the vehicle was delivered to Sh. Puneet Sahni on 08.10.2010 and that there is no deficiency in service on their part.
5. The District Forum, after perusal of the record, allowed the consumer complaint vide impugned order dated 19.06.2013 and directed the appellants - opposite parties to pay compensation of Rs. 1,55,000/- to the respondent No. 1 - complainant within a period of one month from the date of the order. Being aggrieved by the impugned order, National Insurance Company Limited has filed First 4 Appeal No. 185 of 2013 and I.S. Motors Pvt. Ltd. has filed First Appeal No. 188 of 2013, thereby assailing the legality and propriety of the impugned order passed by the District Forum. Since both the appeals arise out of the same impugned order, therefore, these appeals are being decided together by this common order.
6. None appeared on behalf of respondent No. 1 - complainant. We have heard Sh. Rajiv Kakkar, learned counsel for National Insurance Company Limited and Sh. Ram Singh Negi, learned counsel for I.S. Motors Pvt. Ltd. We have also perused the record available before us.
7. Learned counsel for the insurance company submitted that the insurance company has already settled the claim of the complainant - insured in full and final satisfaction and since the complainant has received the amount offered by the insurance company in furtherance of the loss assessed by the surveyor and has voluntarily executed the discharge voucher in favour of the insurance company and hence the complainant was not at all entitled to any further sum and the District Forum has not properly considered the plea raised by the insurance company in that respect and has wrongly allowed the consumer complaint. Learned counsel for the dealer submitted that the dealer has got no concern with the matter in issue and the District Forum has wrongly fastened the liability upon the dealer also. Learned counsel further submitted that the initially, the consumer complaint was instituted only against the insurance company and later on, by way of amendment, the dealer was made party to the consumer complaint and was impleaded as opposite party No. 2, but no strong allegation of deficiency in service or unfair trade practice was made as against the dealer. Even otherwise, it is a case of accidental repair and the 5 insurance company having already settled the claim and paid the amount, the dealer can not be fastened with any liability.
8. Having considered the submissions put forward before us and after going through the material available on record, we find force in the arguments advanced by the learned counsel for the insurance company. The reason being that there is no dispute with regard to the fact that sum of Rs. 1,71,835/- has already been paid by the insurance company to the complainant, as has been admitted by the complainant in para 5 of the consumer complaint. There is further no dispute that Sh. Alok Garg, surveyor and loss assessor, appointed by the insurance company, per his report dated 30.08.2010 (Paper Nos. 35 to 39 on the record of First Appeal No. 185 of 2013), has assessed the loss of Rs. 1,71,835/- on net off salvage basis and the insurance company has paid the said sum. The record also shows that the complainant has voluntarily executed the discharge voucher (Paper No. 42 on the record of First Appeal No. 185 of 2013) and has received the sum of Rs. 1,71,835/- towards full and final settlement of his claim. The said discharge voucher bears the signature of the complainant and there is also an endorsement that the cheque for the said sum be issued in favour of the financier - Uttaranchal Gramin Bank, Jwalapur, Arya Nagar, Haridwar. In the said discharge voucher, it is clearly mentioned that this may be treated as full and final discharge towards the claim. Thus, there remain no doubt that the complainant has received the sum of Rs. 1,71,835/- towards full and final settlement of his claim without any protest or alike. Although the discharge voucher does not contain any date, but it looks that the payment must have been made sometime in the year 2010, as the survey report, on the basis of which the payment was made, is dated 30.08.2010 and the consumer complaint came to be filed before the District Forum on 19.06.2013. However, since the insurance company has already 6 settled the claim of the complainant in full and final and has already made the payment, the complainant was not at all entitled to any further amount.
9. The learned counsel for the insurance company cited a decision of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Nipha Exports Pvt. Ltd.; 2008 (4) CPR 96 (SC). In the said case, the claim was finally settled by the insurer on 08.04.1994 and amount of Rs. 70,38,038/- was paid to the respondent on 08.06.1996, who received the amount and gave discharge. It was held that the respondent could not raise a consumer dispute. Learned counsel also cited a decision of the Hon'ble National Commission in the case of M/s Apna Surat Saree Centre Vs. New India Assurance Company Limited; 2016 (1) CPR 297 (NC), wherein it was held that the complainant can not raise further claim after signing discharge / settlement voucher in full and final settlement of claim. Learned counsel further cited another decision of the Hon'ble National Commission in the case of The Oriental Insurance Company Limited through its Chief Manager Vs. T. Gopal; 2015 (1) CPR 102 (NC), wherein it was held that the complainant is estopped from making any further demand against insurance company after accepting any amount voluntarily in full settlement of all his claims.
10. In view of the above factual aspects of the case as well as the law on the subject, the complainant was not entitled to any further amount from the insurance company and the District Forum has wrongly allowed the consumer complaint against the insurance company and has erred in fastening the liability upon the insurance company. Thus, the appeal filed by the insurance company deserves to be allowed.
711. So far as the appeal filed by the dealer is concerned, first of all, it need to be stated here that the complainant had no cause of action against the dealer and the dealer had got no concern with the matter in issue. Secondly, as pleaded by the dealer, with the consent of the complainant, the vehicle in question was delivered to Sh. Puneet Sahni on 08.10.2010, who has executed the receiving letter dated 08.10.2010 (Paper No. 15 on the record of First Appeal No. 188 of 2013) and has received the vehicle on "AS IS WHERE IS" basis along with the documents of the vehicle. Thus, no deficiency in service can be attributed on the part of the dealer also. Therefore, the appeal filed by the dealer also deserves to be allowed.
12. The District Forum has not properly considered the facts and circumstances of the case and has wrongly allowed the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside. Consequently, the appeals are fit to be allowed.
13. Appeals are allowed. Order impugned dated 19.06.2013 passed by the District Forum is set aside and consumer complaint No. 262 of 2011 is dismissed. The statutory amount of Rs. 25,000/- each deposited in the above appeals, be released in favour of the respective appellant. No order as to costs.
14. Let the copy of the order be kept on the record of First Appeal No. 188 of 2013.
(MRS. VEENA SHARMA) (BALVEER PRASAD) (JUSTICE B.S. VERMA) K