Per Mr.B.S. Wasekar, Hon’ble President
1) The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986. According to the complainant, he had purchased a vehicle from one Shri Hemant Yeshwant Pingle on 12th June, 2011 for total price of Rs.15,50,000/-. For this purpose, he has availed loan amount Rs.10,00,000/- from HDFC Bank. The vehicle was insured for the period from 20th November, 2010 to 19th November, 2011 in the name of original owner Shri Pingle. After purchase, the complainant submitted papers to the R.T.O. agent for recording his name in the record. The vehicle was transferred in the name of the complainant at R.T.O. Andheri office on 7th July, 2011. On 12th June, 2011, the complainant parked his vehicle near his residence. The said vehicle was stolen in the early hours of 15th June, 2011. The complainant lodged police complaint with Versova Police Station. After police report, the complainant informed the incidence of theft to the opponent/insurance company. The complainant received letter dated 20th February, 2012 from the opponent in which the opponent denied the liability to pay the insurance claim. Mr.Pingle wrote letter dated 14th March, 2012 to the opponent stating that he has sold the vehicle to the complainant. Thereafter, vide letter dated 7th November, 2012, the opponent repudiated the claim. Again, on 26th December, 2012, previous owner Mr.Pingle sent letter to the opponent stating the N.O.C. for transfer of policy and consent for settlement of claim. The opponent vide letter dated 28th January, 2013 issued claim of Rs.8,82,960/- stating that the said amount is being sanctioned as full and final settlement towards the claim of the complainant. The vehicle was insured for the amount of Rs.14,73,268/-. But, the claim was issued only for Rs.8,82,960/-. The opponent arbitrarily settled the claim. Therefore, the complainant has filed this complaint to direct the opponent to pay Rs.5,90,308/- with interest at the rate of 18% per annum. He has also claimed interest Rs.2,02,288/-. He has also claimed compensation of Rs.50,000/- and also cost of Rs.50,000/-.
2) The opponents appeared and filed written version. It is submitted that the claim is already settled and as per settlement, cheque for the amount of Rs.8,82,960/- was issued as full and final settlement of the claim. As the vehicle was assigned to HDFC Bank for the security of loan availed by the complainant, cheque was given to the said HDFC Bank A/c No.18863738. The complainant himself duly executed number of documents i.e. consent letter for settlement, indemnity bond, letter of subrogation, consent letter and request letter to release the settlement amount. The claim was settled as per the request of the complainant himself. The complainant has suppressed these facts and filed this false complaint. Therefore, the complaint is liable to be dismissed with cost. The claim amount of Rs.8,82,960/- was paid to the complainant as a result of full and final settlement which has been arrived between the complainant and the opponent. The complainant has accepted the settlement claim after mutual negotiation. He has given undertaking that he would never raise any issue or litigate on the said mode of mutual negotiation. Therefore, the present is not maintainable.
3) After hearing both the parties and after going through the record following points arise for our consideration
POINTS
Sr.No. | Points | Findings |
1) | Whether there is deficiency in service ? | No |
2) | Whether the complainant is entitled for the relief as claimed ? | No |
3) | What Order ? | As per final order |
REASONS
4) As to Point No. 1 & 2 :- According to the opponents, the claim of the complainant is already settled and the settlement amount is already paid to the complainant as full and final settlement by cheque dated 24th January, 2013. The complainant himself submitted the documents to the opponent for settlement i.e. consent letter, indemnity bond, letter of subrogation, another consent letter and request letter to release the settlement amount. Copies of these documents are produced by the opponents alongwith the written version. Those are not challenged by the complainant in his affidavit of evidence or in his written notes of argument. It is not disputed that after settlement, cheque dated 24th January, 2013 for the amount of Rs.8,82,960/- was issued and the same was encashed by the banker of the complainant. On perusal of the documents executed by the complainant and produced by the opponents, it is clear that the complainant executed consent letter which was notarized on 31st December, 2012. The complainant also executed indemnity bond which was notarized on the same day. The complainant executed letter of subrogation in presence of notary dated 31st December, 2012. Again, the complainant executed another consent letter dated 24th December, 2012 requesting the opponent to release the settlement amount. These documents are not challenged by the complainant. On perusal of these documents, it is clear that the claim was settled mutually by the consent of the complainant and the complainant accepted the amount as full and final settlement by cheque dated 24th January, 2013. Thereafter, on 19th April, 2013, the complainant issued notice through advocate. The complainant has nowhere challenged the documents executed by him and produced by the opponents. It is not the case of the complainant that those documents are obtained by fraud. Therefore, the complainant is bound by the documents executed by him. The learned advocate for the opponents has submitted that as the claim is settled mutually and the complainant accepted the amount without protest, the complaint is not maintainable. For this purpose, she has placed reliance on the judgment of Hon’ble National Commission in Revision Petition No.3954/2012 dated 20th February, 2013. In this judgment, the Hon’ble National Commission has discussed the judgments of the Hon’ble Supreme Court. In para 14 of the judgment, the Hon’ble National Commission has laid down as under :
In the present case there is nothing on record to show that the petitioner was compelled by the respondent at any stage to settle the claim at a lesser amount than the claim made by him. There is also not an iota of evidence on record to show any coercion on the part of the respondent that he compelled the petitioner to settle the claim at a lesser amount. Once the petitioner had received the amount unconditionally, then he ceases to be a ‘Consumer’ as per the Act. The privity of contract of consumer and service provider between the parties, if any, came to an end, the moment the petitioner accepted the amount unconditionally.
Identical facts are before us. The claim was settled mutually and the complainant accepted the amount of settlement. He has not challenged the documents executed by him. Therefore, the present complaint is not maintainable. Similar view is taken by the Hon’ble National Commission in Revision Petition No.354 of 2007, 723 of 2012, 4713 of 2012 and 3689 of 2009. In view of the law laid down by the Hon’ble National Commission in the abovecited judgments, the complainant is not entitled for the claim as prayed. The learned advocate for the complainant has also placed reliance on the judgment of Hon’ble National Commission in Revision Petition No.3498 of 2012. In view of this judgment, insurance company can not repudiate the claim in case of comprehensive policy. In the instant complaint before us, the opponent has not repudiated the claim but there is settlement by mutual consent. Therefore, the abovecited judgment is not relevant. The learned advocate for the complainant has further placed reliance on the judgment of Hon’ble Supreme Court in Civil Appeal No.3409 of 2008. The Hon’ble Supreme Court has held that the insurance company can not repudiate the claim in toto on the ground of breach of condition and it was necessary for the insurance company to settle the claim on non standard basis. In the instant complaint before us, the insurance company has already settled the claim of the complainant mutually. Thus, there is no merit in the complaint of the complainant. Hence, we proceed to pass the following order.
ORDER
- Complaint stands dismissed.
- Parties are left to bear their own costs.
- Inform the parties accordingly.
Pronounced
Dated 22nd April, 2014