Punjab

Ludhiana

CC/16/581

Kulwant Singh - Complainant(s)

Versus

Bajaj Allianz General Ins.Co.Ltd - Opp.Party(s)

J.S.Pandher Adv.

16 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 581 of 11.08.2016

Date of Decision            :   16.01.2017 

 

Kulwant Singh son of Sh.Karnail Singh resident of House No.B-36/23, Vikas Nagar, Pakhowal Road, Ludhiana.

….. Complainant

                                                         Versus

 

Bajaj Allianz General Insurance Company Limited, Feroze Gandhi Market, Ludhiana, through its Manager/Director.

…Opposite party

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

SH.PARAM JIT SINGH BEWLI, MEMBMER

 

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.J.S.Pandher, Advocate

For OP                           :          Sh.G.S.Kalyan, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, owner of Honda Car bearing registration No.PB-10-CC-4085 got the same insured from OP vide cover Note No.MC1000296547 with validity period from 9.8.2010 to 8.8.2011 for sum of Rs.4,05,000/-. That vehicle stood damaged and claim in that respect was lodged with OP. After thorough investigation, claim for an amount of Rs.3 lac alone was allowed, despite the fact that the complainant entitled to amount of Rs.4,05,000/- along with interest @18% per annum. OP directed the complainant to park the said vehicle in the garage of M/s.Dada Motors Service Pvt. Ltd. Complainant had to pay Rs.24,000/- as parking charges, to which, he is entitled. The vehicle was insured for sum of Rs.4,05,000/-, but payment of that amount not made, despite numerous requests and that is why, by pleading deficiency in service on the part of OP and after serving the legal notice dated 29.12.2011(sent on 05.01.2012) through Sh.J.S.Pandher, Advocate, this complaint filed for directing OP to pay the balance insured amount of Rs.1,05,000/- and Rs.24,000/-(parking charges) along with interest @18% per annum. Compensation for mental harassment of Rs.50,000/- and litigation expenses of Rs.10,000/- more claimed.

2.                In written statement filed by OP, it is pleaded interalia as if the complainant has no cause of action; there is no deficiency in service on the part of OP because amount has already been settled and paid to the complainant in full and final settlement of the claim. Admittedly, after receipt of intimation dated 2.2.2011 regarding loss/damage to the insured vehicle from the front side, OP deputed G.S.Sohal & Company for assessing the loss. That surveyor submitted report on 28.3.2011 by assessing the claim on cash loss basis at Rs.1,10,000/- against assessment of Rs.2,61,190/-. Complainant executed the consent letter cum cash loss. On the basis of said consent, claim settled for amount of Rs.1,10,000/- in full and final settlement excluding the value of the damaged vehicle, which to be retained by the complainant. Accordingly, Op paid Rs.1,10,000/- in full and final settlement of the claim as per the terms and conditions of the policy. After acceptance of this amount, complainant undertook as if nothing is due against the Op. Each and every other averment of the complaint denied except that insurance policy was purchased.

3.                Counsel for complainant tendered in evidence affidavit of complainant as Ex.CW1/A along with documents Ex.C1 to Ex.C4 and then closed the evidence.

4.                On the other hand, counsel for OP tendered in evidence affidavits Ex.RA and Ex.RB of Sh.Sachin Ohri, Senior Legal Executive of OP and Sh.G.S.Sohal, Surveyor and Loss assessor along with documents Ex.R1 to Ex.R15and then closed the evidence.

5                 Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through carefully.

6.                It is vehemently contended by Sh.J.S.Pandher, Advocate for complainant that the complainant is entitled to the total loss amount as per the terms and conditions of the insurance policy, but only Rs.3 lac has been paid and as such, OP liable to pay the balance amount of Rs.1,05,000/-. However, case of OP is that Rs.1,10,000/- paid in full and final settlement of the claim of the complainant after obtaining the consent letter Ex.R7 from him. That consent letter Ex.R7 bears the signature of complainant Kulwant Singh and is attested by the Notary Public. Through Ex.R7, the complainant agreed to accept sum of Rs.1,10,000/- as per mutual discussion and negotiation in full and final settlement of his claim qua the damage to the vehicle in question after excluding the value of the damaged vehicle because the IDV to be retained by the complainant. In view of this document Ex.R7, it is obvious that OP able to prove that claim was settled for an amount of Rs.1,10,000/- in full and final settlement on submission of consent letter dated 18.2.2011 executed by the complainant. No evidence produced by the complainant to establish that amount of Rs.3 lac actually received by him and balance amount of Rs.1,05,000/- as such is recoverable. In complaint as well as in notice Ex.C3 as well as in affidavit Ex.CW1/A of the complainant, it is repeatedly mentioned as if Rs.3 lac alone given to the complainant after thorough investigation of the damaged vehicle. OP has produced on record the documents to establish that claim was fully and finally settled for an amount of Rs.1,10,000/-, but the complainant has not produced on record any documentary evidence to establish that claim was settled for an amount of Rs.3 lac or same amount paid by OP. Document can’t tell lie though a person may and as such, in view of documentary evidence produced by OP, there is no escape from conclusion that actually claim was settled for an amount of Rs.1,10,000/- to the satisfaction of the complainant and that is why, he executed the document Ex.R7 because salvage was to be retained by the complainant.

7.                This complaint filed on 22.8.2012 i.e. after more than 1year and six months of full and final settlement of the claim through Ex.R7 and as such, certainly, the claim      is not maintainable. In holding this view we are fortified by law laid down in cases titled as United India Insurance Co.Ltd. vs. Gaurav Overseas Inc-2016(3)CLT-535(N.C.) and New India Assurance Co.Ltd vs. Pradeep Kumar-IV(2009)CPJ-46(S.C.). After going through ratio of both these cases, it is made out that the surveyor report is not last and final word in matter of assessment of loss, though the same may be the basis for settlement of the claim. As report of surveyor not binding on insurer or insured as per law laid down in case of New India Assurance Co.Ltd. vs. Pradeep Kumar(Supra) and as such, the amount finally accepted by the complainant through Ex.R7 is to be taken as due amount, particularly when there is no allegation in the complaint or in the affidavit of the complainant that consent letter Ex.R7 was got signed from the complainant under coercion or by fraud or by exercise of undue influence. When the complainant signed the consent letter voluntarily and freely and without any coercion or undue influence, then complainant estopped from claiming any extra amount from the insurance company in respect of the accidental loss. This is in fact is the law laid in case of United India Insurance Co.Ltd. vs. Gaurav Overseas Inc(Ibid). As consent letter Ex.R7 shown to be voluntarily signed by the   complainant and as such, now the complainant is estopped from claiming any amount in excess of settled one through consent letter Ex.R7. In view of this, we find that the complaint filed by mentioning the wrong facts qua settlement of claim at Rs.3 lac is not maintainable. Suppression of material facts in this respect also is there. After acceptance of full and final settlement amount, complainant estopped by his act and conduct from filing the complaint now.

8.                As a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

9.                File be indexed and consigned to record room.

         

                   (Param Jit Singh Bewli)                                        (G.K. Dhir)

                                                Member                                                President

Announced in Open Forum                                                              Dated:16.01.2017

Gurpreet Sharma.