Punjab

Ludhiana

CC/14/707

M/s Megaline Enterprises - Complainant(s)

Versus

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

C.S.Chopra

19 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                              CC No: 308 of 17.04.2013

                                                                             RR No.707 of 13.10.2014

                                                                              Date of Decision: 26.02.2015

 

M/s Megaline Enerprises, D-292, Phase-VII, Focal Point, Ludhiana, through its Proprietor Mr.Sunil Verma s/o Sh.Parshotam Lal Verma.

……Complainant

Versus 

1. Bharti Axa General Insurance Co. Ltd. 3^rd Floor, Kunal Tower, Mall Road, Ludhiana-141001, through its Manager/Authorized Representative.

2. Bharti Axa General Insurance Co. Ltd. 1^st Floor the ferns Icon, Survey no.28, Next to Acme Baillet, Doddanekundi, Off Outer Ring Road, Banglore-560037, through its Manager/Authorized Representative.

3. M/s Bedi Financial Services Pvt. Ltd., SCF HIG Flat, Ghumar Mandi, Ludhiana, through its Director Mr.Surinder Bedi.

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Smt.Babita, Member

 

Present:       Sh.C.S.Chopra, Advocate for complainant.

                   Sh.Nitin Kapila, Advocate for OP1 and OP2.

                   Sh.S.R.Wadhera, Advocate for OP3.

 

 

                                            ORDER

 

(SAT PAUL GARG, MEMBER)

 

1.                The present complaint bearing No.308 dated 17.04.2013 was filed by the complainant before this Fora which was adjourned sine die vide order dated 26.12.2013, as none had come present on behalf of complainant on 26.12.13. However liberty was given to the complainant to get it revived, as and when so desired. Thereafter, Ld counsel for complainant had moved an application for revival of the complaint, which was allowed, vide order dated 01.10.14 and the complaint was ordered to be re-registered. Pursuant to which, the present complaint has been re-registered.

2.                Brief facts of the complaint are that complainant is a registered firm at Ludhiana and is represented by Mr.Sunil Verma. The complainant was issued insurance policy/cover note by the OPs from Ludhiana, vide cover note no.30938697 dated 02.09.11 for the period 8.9.11 to 7.9.12 for his vehicle bearing registration no.CH-01-AD-0926 having chassis no.WDO-21202561007929 and Engine no.64285040970449 and the complainant deposited premium amount of Rs.77,000/-. Prior to this the complainant rejected the proposal, which was received by him from Avinash Singh, Authorized Manager/Representative of another General Insurance Co. at lower amount of Rs.73,100/- and accepted the proposal of the Ops when the officials of the Ops promised to the complainant that they will provide the best possible services and there will be no deduction arising from any claim, if the complainant vehicle meets with any accident or there comes any abnormality in the functioning of the vehicle and they are insuring the vehicle fully without any exception clauses. Thereafter on 9.9.11, a claim was lodged with Joshi Auto Zone Pvt. Ltd. dealer for Mercedes Benz at Ludhiana and a job card was prepared and thereafter after repeated perusals by the complainant and after enough delay of more than five months the vehicle was retuned to the complainant and thereafter all the documents required by the OPs were submitted by the complainant. Thereafter the partial payment of Rs.1,26,489/- was made to the complainant on 5.4.12 through NEFT from the total claim of Rs.5,86,900/- without any clarification and details. Mrs.Hartej Singh officer of OP1 and OP2 and Mr.Surinder Bedi of Bedi Financial Services Pvt. Ltd. always put off the matter on one or the other false pretext saying that they are talking to the higher authorities of OP1 and OP2 and the complainant will receive his balance payment of claim within the shortest period and thereafter the OP3 told that the OP1 and OP2 had assured Mr.Surinder Bedi on this matter. Thereafter three months, the status did not change and was same and the Ops gave the same answer. Thus, the complainant was forced to launch his strong protest against the attitude of the OPs personally and through E-mail of not replying and of the illegitimate action of illegally deducting the claim of Rs.4,60,411/- from the total claim amount of Rs.5,86,900/-. Complainant also issued legal notice through his counsel, through Regd. A.D. dated 16.08.12, but the OPs never gave any remedy to the complainant and neither replied to the legal notice. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint and prayed that OPs be directed to pay Rs.4,60,411/- the pending claim amount, to pay Rs.5000/- as fee for legal notice, to pay Rs.10,000/- as litigation expenses and to pay Rs.2500/- as miscellaneous expenses to the complainant alongwith with 24% interest from the date of submission of claim to the OPs alongwith any other additional or alternative relief. 

3.                Ld. counsel for OP1 and OP2 filed their written statement, wherein they took certain preliminary objections that the complaint is false, vexatious and has been filed with a malafide intention to harass the OP1 and OP2; the matter has already been settled full and finally. The amount of Rs.1,26,489/- has duly credited in the account of the complainant as per the settlement; the complainant executed discharge voucher in favour of OP1 and OP2. Moreover the policy taken by the complainant is standard policy, which does not cover Hydrostatic Loss occurs when the vehicle is cranked while it is in contact with water, which results in extension of loss. For covering Hydrostatic Loss extra premium was required to be paid by the insured, but in the present case no extra premium was paid by the complainant to cover the Hydrostatic Loss; the complainant has not come to the Forum with clean hands and suppressed the material facts; the complainant is stopped by his own acts and conducts from filing the present complaint; the complaint contains intricate and complicated questions of facts and law. So, the complaint should be relegated to its remedy before the Civil Court of competent Jurisdiction. On merits, reiterating the facts taken in the preliminary objections and denying the contents of all other paras OP1 and OP2 prayed for dismissal of the complaint.

4.                Ld. counsel for OP3 also filed written statement taking preliminary objections that complaint is not maintainable and complaint was filed previously on the same cause of action and matter was fixed for arguments for 21.3.13. Sh.C.S.Chopra, Advocate for the complainant suffered a statement that “due to technical defect in the present complaint, I do not want to proceed with the present complaint and the same may kindly be dismissed as withdrawn. However, complainant reserves his right to file the fresh complaint after curing the technical defect. Document may kindly be returned to me.” On this statement of Sh.C.S.Chopra, Advocate, the learned Tribunal did not call upon the OPs for any reply etc. The order dated 21.03.13 was passed, whereby in view of the statement of counsel for the complainant the complaint stands dismissed. After the complaint had been dismissed, the members of the Tribunal become ‘Functus Officio” and the next part of the order was passed without any jurisdiction or authority. On merits, it is denied that M/s Bedi Financial Services Pvt. Ltd. is authorized agent of OP1 and OP2 and further denied the contents of the remaining paras of the complaint specifically in the light of the fact that OP1 and OP2 issued cheque for Rs.1,26,489/- on 5.4.12. The payment of Rs.1,26,489/- made by OP1 and OP2 accepted by the complainant and discharge voucher duly signed by him and complainant is not entitled for 5,86,900/-.

5.                Ld. counsel for complainant adduced the evidence by way of duly sworn affidavit of Sh.Sunil Verma s/o Sh.Purshotam Lal Verma, Proprietor of M/s Megaline Enterprises, D-292, Phase-VIII, Focal Point Ludhiana Ex.CW1/A, wherein, the same facts have been reiterated as narrated in the complaint and also attached documents Ex.C1 to Ex.C36. On the other hand, Ld. counsel for OP1 and OP2 has adduced the evidence by way of duly sworn affidavit of Ms.Shivali Sharma, Legal Manager, Bharti Axa General Insurance Company, Mercantile House, 7^th Floor, K.G. Marg, New Delhi Ex.RA1, wherein, the same facts have been reiterated as narrated in the written statement and also attached documents Ex.R1/1 to Ex.R1/4. Whereas, Ld. counsel for OP3 has adduced the evidence by way of duly sworn affidavit of Sh.Surinder Bedig s/o Sh.G.S.Bedi, 3 SF, HIG Flats, Ghumar Mandi, Ludhiana Ex.RA3, wherein, the same facts have been reiterated as narrated in the written statement and also attached documents Ex.R1 to Ex.R4.

6.                Case was fixed for arguments. Ld. counsel for complainant filed written arguments averring that there is not misuse of process of law and complaint is not maintainable and is liable to be dismissed and further averred that the claim which lodged by the complainant with Joshi Auto Zone Pvt. Ltd. and job card was prepared and thereafter the delay of 5 months vehicle was handed over to the complainant and the OPs make the partial payment through NEFT out of total claim of Rs.5,86,900/-, but failed to satisfy the full claim. Ld. counsel for complainant also relied upon the judgements passed in cases titled as Oriental Insurance Co. Ltd. and others Vs Government Tool Room and Training Centre-I (2008) CPJ 267 (NC), Ramesh Agrawal Vs Oriental Insurance Co. Ltd-III (2007) CPJ 193 (Chhattisgarh State Commission, Raipur), Sub Treasury Officer, Thodupuzha Sub Treasury and another-III (2007) CPJ 196 (Kerala State Commission, Thiruvananthapuram).

7.                Ld. counsel for OP1 and OP2 argued orally stating that full and final settlement was reached between the complainant and OPs and Rs.1,26,489/- paid to the complainant by the ops and discharge voucher Ex.R1/4 was duly signed by the complainant. Ld. counsel for OP1 and OP2 has relied upon the judgement passed in cases titled as Shree Balaji Woolen Mills Vs Oriental Insurance Co. Ltd.-II (2013) CPJ 366 (NC).

8.                Ld. counsel for OP3 argued that Annexure B-2 produced by the complainant in the earlier complaint shows that the cheque issued by the complainant was cleared on 9.9.11. From the perusal of the said document produced by the complainant in earlier complaint, it is apparent that OP1 and OP2 issued a cheque for Rs.1,26,489/- on 5.4.12. This itself shows that there was no liability of OP3 to make any payment

9.                We have gone through the pleadings of the complainant as well as defence taken by OPs and have also perused the entire record placed on record.

10.              It is evident that the amount of Rs.1,26,489/- was duly credited in the account of the complainant as per the settlement, which the complainant did not agree. Since the amount was credited by way NEFT in the account of the complainant on their own by OP1 and OP2, which the complainant avers that when he came to know about the same, he raised protest with OP1 and OP2 regarding partial payment of claim. It is observed that the loss to the internal part of the vehicle in dispute was caused by the complainant due to its own negligence. In the present case no extra premium was paid by the complainant to cover the Hydrostatic Loss, whereas the complainant alleged that he paid higher premium. The stand taken by the complainant that he never settled the matter with OP1 and OP2 with his free consent cannot be considered to be tenable as no duress or coercion was alleged by complainant. Ex.R1/4, which is a discharge voucher, the complainant himself entered into full and final settlement and received from Bharti Axa General Insurance Co. Ltd a sum of Rs.1,26,489/-, which further stated that the complainant agreed to accept this amount in full and final satisfaction and thereafter discharged his claim no.C0147548 and there are signatures alongwith stamp of the complainant company affixed on the discharge summary as relied upon by the OP1 and OP2 case titled as Shree Balaji Woollen Mills Vs Oriental Insurance Co. Ltd.-II (2013) CPJ 366 (NC), according to which once insurance has received the amount as full and final settlement of his claim and signed the discharge voucher. Complainant has not been able to establish that discharge voucher was obtained in undue influence or any type of coercion.

11.              Sequel to the above discussion, the present complaint is hereby dismissed being devoid of any merits with no order as to cost. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

 

                   (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

                   Member                           Member                         President

Announced in Open Forum.

Dated:26.02.2015 

Hardeep Singh