Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.155/28.04.2016
Sh. Vijay Singh, s/o Sh. Ram Naresh Singh
R/o. H.No. C-102, Gali No. 6, Rajeev Nagar,
Libaspur, Delhi-42 …Complainant
Versus
Choloa Mandalam MS General Insurance Company Ltd
Plot No-6, Pusa Road, Near Metro Pillar No 81
New Delhi-5 ...Opposite Party
Order Reserved on: 29.03.2023
Date of Order: 03.05.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Introduction to case of parties) : Complainant bought insurance policy for white TATA 1109 LPT vehicle bearing no. HR-69A 9564 (in brief 'vehicle') from OP and a policy cover issued was valid up-to 05.05.2015 for IDV Rs.9,40,000/. The policy was issued against payment of premium of Rs.33,675/-. The said vehicle was also got financed by Financer. However, on 8.5.2014 at 2pm, the vehicle was parked at 66 foota road in front of Pundit Dhaba but it was not found there on 10.5.2014 at 5am. After thorough search and inquiry by complainant, FIR of theft was lodged to police, it remained untraced by the Police. OP was also informed of theft of the vehicle. The complainant also informed concerned RTO Sonepat Haryana of theft of vehicle. The OP had appointed surveyor and complainant had furnished all papers for settlement of claim to surveyor as well as to OP but no result. There is deficiency of service as well as harassment, for which complaint has been filed.
1.2. Whereas, OP does not dispute of finance and insurance of the vehicle, however, the complaint is opposed by other reasons that it abuse of process of law, since neither there is any deficiency of service nor any kind of harassment by the OP nor any cause of action in favour of complainant. There is full and final settlement of claim for Rs.7,33,200/- vide consent letter dated 04.12.2014 duly notarized. On the basis of such consent letter and settlement, the OP tendered payment to Financer/creditor of subject insured vehicle.
2. (Case of Complainant)- The complainant got insured his vehicle no. HR-69A 9564 from OP vide policy no. 3379/01038866/000/00 valid from 06.05.2014 to 05.05.2016 for IDV of Rs.9,44,000/-. The said vehicle was also financed by OP. On 8.5.2014 at 2pm, the vehicle was parked at 66 foota road in front of Pundit Dhaba, it remained parked there on 9.5.2014 but it was not found on 10.5.2014 at 5am despite thorough inquiry & own search by the complainant. Lastly an FIR no. 465/2014 u/s 379 IPC of theft against unknown person was lodged with the police, it remained untraced by the Police despite investigation, On 26.8.2014 the police filed 'untraced report' in the court of Ld. M.M., Rohini. The complainant also informed concerned RTO Sonepat Haryana of theft of vehicle.
OP was also informed of theft of the vehicle. The OP had appointed surveyor Shri Rajesh Sharma, Investigator and complainant had furnished all papers demanded by him. OP was also furnished all papers like copies of DL, ID proof, FIR, R/C, permit particulars, un-traced report. However, despite several visits to the office of OP for payment of theft loss and insurance claim but there is no result. The OP failed to discharge its legal duties to pay the claim, since huge premium was taken for covering the risks insured. The complainant makes claim of insurance amount of stolen vehicle of Rs.9.44.000/- with interest at the rate of 24% pa, apart from compensation of Rs.4,00,000/- for loss and injury, mental pain and agony, losses suffered financially, physically, socially and morally besides costs of Rs.35,000/-. The complaint is supplemented with copies of insurance cover, RC, FIR, untraced final report of vehicle by police, DL, adhar-card, and other correspondence between the complainant and the OP, intimation to RTO Sonepat.
3. (Case of OP). OP does not dispute of finance and insurance of the vehicle, however, the complaint is opposed by OP that it is abuse of process of law, since neither there is any deficiency of service nor any kind of harassment by the OP nor any cause of action in favour of complainant. There is full and final settlement of claim theft loss for Rs.7,33,200/- vide consent letter dated 4.12.2014 duly notarized. On the basis of such consent letter and settlement, the OP had paid amount to Financer of subject insured vehicle. It is settled law that once the claim is settled and amount is accepted by the insured in full and final satisfaction of his claim, without protest, then no cause of action exists to file complaint, the complainant is not maintainable. The OP relies upon insurance policy, consent letter and further payment tendered to financer.
4.1 (Replication of complainant)- The complainant filed rejoinder and opposed vehemently that there is no substance in the allegations of written statement. The OP had obtained complainant's signatures on blank papers under false assurances that complainant would get a cheque against his claim amount. The complainant reaffirms the complaint as correct.
4. (Evidence of parties) - The complainant Shri Vijay Singh filed his affidavit of evidence, which is on the pattern of complaint along with documents. The OP filed affidavit of Shri Jitender Dhabhai as its evidence, it is on the lines of written statement along with documents.
5. (Final hearing) . The complainant as well as the OP filed their written arguments, it is reiteration of their respective case, which was put by them in evidence but apart from the case law referred. Further, Sh. Ram Naresh Advocate for complainant and Sh. Neeraj Nagar Advocate for OP made their oral submissions It does not required to reproduce the rival contentions as the same will be dealt appropriately.
6.1 (Findings) - The contention of both the sides are considered, keeping in view the material on record. On plain pleading of the case of the parties, it is undisputed fact that vehicle was got Financed from financer as well as it was insured by the complainant with the OP. There was theft of vehicle during the validity of insurance policy, the police could not trace the vehicle despite investigation in FIR, which result into filing of untraced report, which was also accepted by the Court of Ld. Metropolitan Magistrate, Rohini, Delhi.
6.2 After analytical assessment of case of both the sides, the following conclusions are drawn:-
(i) The complainant claims total sum insured amount to Rs. 9,40,000/- of theft loss of the vehicle, but OP contends that there was an amicable settlement with the consent of both sides, consequently the amount agreed was Rs.7,33,200/-.
(ii) There is consent letter dated 04.12.2014 on the non-judicial stamp paper under the signature of complainant Vijay Singh duly notarized, however, the complainant contends that blank papers were got signed from him under false assurances that he will get a cheque of claim amount within a week.
(iii) The complaint case is supplemented with copy of intimation to Regional Transport Authority (RTA), Sonepat of subject vehicle, apart from copy of RC, this intimation to RTA Sonepat is also under the signature of complainant and the contents of this intimation reflects that there was theft of the vehicle as well as full and final settlement of the claim of his vehicle, for which he has also executed agreement bond assigning the ownership of vehicle in favour of Insurer.
(iv) The OP has filed record of transfer of amount (Annexure-C) that after settlement with the complainant that amount of Rs. 7,33,200/- was transferred/paid to financer Cholamandalam Investment and Finance Company Limited - A/c Vijay Singh, since complainant is borrower.
(v) It is settled law of pleading in cases when there is breach of trust or undue influence or misrepresentation, such facts should be mentioned in the complaint, however, the complaint is silent throughout that there was obtaining of signature of complainant on blank papers by the OP on the pretext of issuing a cheque for claim and it was first time mentioned in the rejoinder, that too after OP filed the reply along with the documents that there was full and final settlement between the parties. The OP relies upon United India Insurance v/s Ajmer Singh Cotton & General Mills & Ors [1999 (6) SCC 400] that when there is settlement, discharge voucher were admittedly executed voluntarily and the complainant had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the present case there is also amicable settlement out of free consent.
(vi) On plain leading of case of the parties, it is also apparent the complaint was filed on 28.04.2016 and the said settlement is of 04.12.2014 and it is never the case of complainant that in between, he was called to pay the installments or loan amount by the Financer. It infers that there was settlement between the parties, consequent thereto the OP had tendered the settled amount to the Financer on account of borrower/complainant.
7. In view of the conclusion drawn in paragraph 6 above, it is held that complainant could not establish his complaint of deficiency of services by the OP and for want of proof of the complaint, this complaint fails. The complaint is dismissed. No order as to cost.
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
9: Announced on this 3rd May, 2023 [वैशाख 13 , साका 1945].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
