Punjab

Ludhiana

CC/15/328

Karamjit Singh - Complainant(s)

Versus

Bharti Axa Gen.Ins.Co.Ltd - Opp.Party(s)

Rajnesh Mahajan ADv.

14 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 328 of 18.05.2015

Date of Decision          :   14.02.2017

 

Karamjit Singh aged 50 years son of S.Mohan Singh, resident of House No.9757, Street No.5, Kot Mangal Singh Nagar, Ludhiana.

….. Complainant

Versus 

1.Bharti Axa General Insurance Company Limited, Ist Floor, The Ferns Icon, Survey No.28, Doddanekundi, Bangalore-560037.

2.The Manager, Bharti Axa General Insurance Company Limited, The Mall, Kunal Tower, Ludhiana.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Rajnish Mahajan, Advocate

For OPs                         :       Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, the registered owner of Mercedes Benz E-220 CDI Model 2011 bearing registration No.PB-11-BG-0121 availed insurance policy from Ops vide policy cover note No.32986774 with validity period from 21.1.2014 to 22.1.2015 by paying premium of Rs.69,878/-. The vehicle of the complainant met with an accident on 20.01.2015 and thereafter, it was taken to M/s Joshi Automobiles, G.T.Road, Ludhiana. Then complainant lodged claim with Ops. Vehicle of the complainant was repaired in the workshop and thereafter, handed over to him. The front mirror of the vehicle was not changed and thereafter, the complainant approached and inquired about Joshi Automobiles for the reason for not change of the front mirror and got reply that insurance   company has not paid for the same. Even insurer has not passed the claim for change of the mirror and same alleged to be an act of unfair trade practice and deficiency in service. Surveyor of Ops made inspection at the spot and took the photographs. Complainant completed all the formalities. It was disclosed by the workshop that there was requirement of change of front mirror as the same was having cracks. Complainant requested Ops as well as surveyor Mr. Ravi Kumar to do the needful, but to no effect. Complainant was unable to ply the vehicle because of cracks in the mirror. After serving legal notice dated 11.02.2015 through counsel, this complaint filed with request to direct Ops to change the front mirror of the vehicle. Compensation for physical and mental harassment of Rs.5 lac and litigation expenses of Rs.21,000/- more claimed.

2.                In written statement filed by Op1 and OP2 jointly, it is pleaded interalia as if complaint is not maintainable because no cause of action has accrued to the complainant against Ops; complainant is estopped by his act and conduct from filing this complaint; complainant has suppressed the material facts from this Forum; complicated question of law and facts are involved requiring elaborate evidence and as such, Civil Court alone is competent to decide the controversy. Besides, it is claimed that the complaint is bad for non-joinder and mis-joinder of necessary parties. Bharti Axa General Insurance Company Limited at SCO No.350-351, 1^st Floor, Sector 34-A, Chandigarh is a necessary and proper party, but the same has not been impleaded. Complainant has not challenged the survey report and nor filed objections to the survey report and as such, complaint is not maintainable. Complainant is not a consumer because he after receipt of full and final settled amount of Rs.1,51,724/- has ceased to be a consumer. Admittedly, after receipt of claim on 21.1.2015, the same was duly registered, entertained and processed. Complainant reported the loss on account of hitting of dog with car from front side on 20.1.2015. Sh.Ravi Kumar, an IRDA licensed surveyor and loss assessor was appointed as surveyor, who personally inspected the vehicle on 22.1.2015, took the photographs and other documents and thereafter, submitted his report. Surveyor assessed the loss of front bumper/portion of the car on account of hitting of dog as per claim form after taking into consideration the relevant material. After receiving the final repair bill, the claim was processed further for payment. Complainant has never reported about loss to the front mirror and nor any bill was submitted to Ops and as such, the complainant is not entitled for any payment on account of damage to the mirror. No amount of value of the mirror is mentioned in the final repair bill submitted by the complainant. After receipt of the report of surveyor and scrutinizing the documents and applying the mind, the officials of insurance company approved the claim for an amount of Rs.1,51,724/- in full and final settlement of the claim. That amount was paid to M/s Joshi Auto Zone Pvt. Ltd., as per the instructions of the complainant in full and final settlement of the claim. Complainant executed the satisfaction letter/voucher in that respect for discharging Ops of all liabilities arising out of the claim. After payment of assessed amount of Rs.1,51,724/- in full and final settlement of the claim, complainant ceased to be a consumer legally as per provisions of the Consumer Protection Act. Admittedly, the complainant is a registered owner of the car in question, which was got insured with Ops. Each and every other averment of the complaint denied by praying for dismissal of complaint.

3.                Complaint to prove his case tendered in evidence his affidavit Ex.CW along with documents Ex.CW1 to Ex.CW4 and thereafter, closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Ms.Shivali Sharma, Manager (Legal) of Bharti Axa General Insurance Co.Ltd, affidavit Ex.RB of Sh.Ravi Kumar, Surveyor and loss assessor along with documents Ex.R1 to Ex.R25 and then closed the evidence.

5.                Written arguments on behalf of Ops submitted today. Oral arguments of counsel for parties heard. Records gone through minutely. 

6.                Undisputedly, the vehicle in question was insured with Ops and the claim was lodged, which was processed. Copy of insurance cover note Ex.CW1 and of driving license of complainant Ex.CW2 has been produced on record. Counsel for the complainant by placing reliance on documents Ex.CW3, vehemently contends that the front mirror of the insured car even was damaged in the accident, but replacement of the same has not been done and as such, there is deficiency in service on the part of Ops, particularly when despite issue of legal notice Ex.CW4, payment for change of front mirror has not been made. It is admitted during course of arguments by counsel for Ops that amount of Rs.1,51,724/- has been paid by the insurance company to the repairer. Only grievance of the complainant is that claim with respect to the front mirror has not been paid. After going through Ex.CW3, it is not made out at all that damage to the front mirror of the car even was caused. Affidavit of person, who prepared the report Ex.CW3 even has not been submitted and as such, complainant has withheld the best available evidence for proving that front mirror of the car in question even stood damaged in the accident in question that took place on 20.1.2015. No marking of arrow there on the mirror of the car in question in Ex.CW3, albeit such marking is there near the wipers and top portion of the front wind screen. So, after going through Ex.CW3, it is not at all made out that front mirror of the car even was damaged as per this report. This report Ex.CW3 is of date 4.2.2015 and even, it is not clear as to who prepared this report. However,   on the basis of claim submitted by the complainant with Ops, a surveyor was appointed, who inspected the spot on 21.1.2015 and submitted report Ex.R9. That surveyor assessed the final claim amount of Rs.1,51,724/-, but without mentioning the damage to  the front mirror of the car in question. The damaged portions of the car in question specified in the processing sheet Ex.R9 at serial Nos.1 to 17. No mention of damage to the front mirror made in the serial nos.1 to 17 in Ex.R9 at all and as such, the surveyor after inspection of the car on the next date of accident did not found any damage to the front mirror. If that be the position, then submissions advanced by counsel for Ops has force that surveyor appointed by the Ops after inspection of the car in question immediately after accident has specified the damaged portions. Had damage to the front mirror been caused, then the surveyor would have mentioned about said damage in report Ex.R9, but that mention is not made and as such, certainly submissions advanced by counsel for Ops has force that the damage to the front mirror is not proved. Moreover, in the motor claim notification Ex.R8, mention just made qua frontal damage to the car, but without mentioning the portions that stood damaged in the accident in question. Even the invoice summary of the damaged portions or the repair bill Ex.R10 shows that total loss by the dealer found to be of Rs.1,54,178/-. Out of this Rs.1,54,178/-, the amount of repair assessed by the repairer, the amount of Rs.1,51,724/- as assessed by the surveyor, has been paid to the repairer in full and final satisfaction of the claim recorded through satisfactory letter/voucher Ex.R6 by the complainant. Satisfaction letter/voucher Ex.R6 shows that the complainant called upon the insurer to pay Rs.1,51,724/- directly to the repairer i.e. Joshi Auto Zone Pvt. Ltd in full and final settlement of discharge of claim qua the accident in question. In Ex.R6, it is specifically recorded that repair of the vehicle has been done to the utmost satisfaction of the complainant by M/s Joshi Auto Zone Pvt. Ltd. After execution of this satisfaction letter/voucher Ex.R6 and disbursal of the amount of Rs.1,51,724/- to the repairer as revealed by the claim transaction enquiry report Ex.R7, certainly complainant cased to be a consumer of Ops.

7.                There is no allegation in the complaint or in the affidavit of complainant that satisfaction letter/voucher Ex.R6 got executed by Ops from him by exercising undue influence or by playing fraud with him. It is not the case of complainant that he lodged protest at the time of disbursal of the above referred insurance claim amount to the repairer. Rather, satisfaction letter/voucher Ex.R6 recorded full and final satisfaction of the claim, so certainly complainant ceased   to be a consumer, due to which, consumer complaint is not maintainable.

8.                As per law laid down in cases Gursharan Singh and another vs. Aegon Religare Life Insurance Company Limited and others-IV(2015)CPJ-3B(CN)(Union Territory State Consumer Disputes Redressal Commission, Chandigarh); New India Assurance Co.Ltd. vs. Combined Medical Institute Private Limited-III(2015)CPJ-503(N.C.); MJRJ Medichem Surgicals vs. National Insurance Company Limited and others-I(2015)CPJ-681(N.C.); Kanta Mathur vs. National Insurance Company Limited and others-I(2015)CPJ-151(N.C.); Oriental Insurance Co.Ltd. and another vs. Mohan Lal and others-I(2015)CPJ-628(N.C.); Garg Acrylics Limited vs. United India Insurance Co.Ltd.-I(2015)CPJ-185(N.C.); Ankur Surana vs. United India Insurance Co.Ltd. and others-I(2013)CPJ-440(N.C.); Upendra Kumar vs. New India Assurance Company Limited and another-I(2013)CPJ-595(N.C.); Laxmi Devi Kakhani vs. Oriental Insurance Company Limited-IV(2012)CPJ-483(N.C.); Nirmal Singh vs. Oriental Insurance Company Limited-IV(2012)CPJ-641(N.C.) and Vijay Stationers vs. United India Insurance Company Limited-I(2013)CPJ-637(N.C.), when claim is fully and finally settled by paying the amount on execution of satisfaction voucher by the complainant voluntarily, then certainly the complainant estopped from filing excess claim provided the said satisfaction voucher is not result of exercise of undue influence or of playing of fraud etc. If the amount has been accepted without protest, then complainant concerned will be estopped by his act and conduct from claiming in excess of the amount mentioned in executed satisfaction voucher in full and final settlement of the claim. Ratio of all these cases is fully applicable to the facts of the present case in view of the above discussion and as such, certainly this complaint is not maintainable.

9.                As per law laid down in case Gawar Construction Company, Hisar vs. United India Insurance Company Limited and another-I(2015)CPJ-632(N.C.), the report made by the surveyor appointed by the insurance company liable to be accepted unless the same shown incorrect or the result of          malafide. In this case, report Ex.R9 is not the result of malafide. Rather, in view of the contents of Ex.R10 and Ex.R11, it is made out that the surveyor assessed the loss almost Rs.3000/- less than that of the costs of the repair assessed by the repairer. Photographs Ex.R13 to Ex.R20 even did not show the damage to the front mirror, despite the fact that those were snapped by the surveyor before preparation of Ex.CW3. In the Motor Insurance Claim Form Ex.R21, mention of damage to front mirror was not made, but it is just mentioned there, as if dog hit the front     of car, resulting in damage to the front side. Motor Car Inspection Report Ex.R29 even prepared and the same also do not show the damage to the front mirror and as such, allegations of damage to the front mirror not at all proved. After execution of satisfaction letter/voucher Ex.R6, complainant ceased to be a consumer of Ops and as such, complaint is not maintainable at all.

10.              Therefore, 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.

11.                        File be indexed and consigned to record room.

 

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

                       Member                                                President

Announced in Open Forum

Dated:14.02.2017.

Gurpreet Sharma.