Punjab

StateCommission

A/293/2018

Hardial Singh - Complainant(s)

Versus

Cholamandalam ms gic ltd - Opp.Party(s)

Jagdish Singh Mahal

21 Sep 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.293 of 2018

 

                                                          Date of Institution    : 18.05.2018      

                                                          Order Reserved on  :18.09.2018

                                                          Date of Decision     :  21.09.2018

 

 

Hardial Singh, aged 61 years, son of Sh. Gian Singh, resident of H.No. 85, Phase-1, Guru Nanak Avenue, Majitha Road, Amritsar

 

                                                                            Appellant/Complainant

 

                                       Versus

 

 

1.      Cholamandalam MS General Insurance Company Limited through its Head Office, 2^nd Floor, Dare House No.2, N.S.C. Bose Road, Chennai, Tamilnadu-6000001 through its Director.

 

2.      Toyota Tsusho Insurance Broker India Private Limited, Care of Castle Toyota, having its office at M/s ANR Motors Private Limited, Castle : Toyota, Newar Daburji Bye-pass, Amritsar Punjab-143001 through its Branch Manager or Authorized Signatory.

 

 

                                                           Respondents/Opposite parties

 

First Appeal against order dated 27.03.2018 passed by the District Consumer Disputes Redressal Forum,  Amritsar.

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member

            Smt. Kiran Sibal, Member.

 

Present:-

          For the appellant           :  Sh.J.S Mahal, Advocate

          For the respondent no.1 :  Ex-parte

          For the respondent no.2 :  None.

. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellant is to order dated 27.03.2018 of District Consumer Disputes Redressal Forum Amritsar dismissing the complaint of the appellant. The appellant of this appeal is complainant in the complaint and respondents of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.

2.                The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that after purchasing Toyota make ETIOS HB Model Toyota ETIOS LIVA GD (EL) variant car bearing registration no. PB02-BN-0042, he got it insured from OP no.1/Insurance company through broker Toyota Tsusho Insurance, vide insurance policy no.TCH/97192460 with add on of depreciation and personal belongings valid w.e.f. 30 November 2015 to 29 November 2016 with insured declared value of Rs.2,78,000/- on that date. The complainant along his son Harnarinder Singh was proceeding to Tahil Sahib to Boparai Road on 10.04.2016, where the above insured vehicle met with an accident and was damaged therein. His son informed the Broker/Toyota Company about the accident and latter towed from the place of accident to garage. The complainant submitted all the documents by signing them for insurance claim. OP no.2  assured the complainant that intimation for insurance claim would be given within a week and insurance claim for repair of the car would be settled within 15 days, but to no effect. The complainant approached OP no.2 the broker after a half month, it was intimated to him that insurance claim of the car could not be processed for repair as loss to the car was major and its claim is to be settled as per total loss basis  by considering salvage loss and it would require fresh procedure for it. The broker/OP no.2 informed the complainant that salvage of total damaged of the car was settled at Rs.1,92,000/- as part of settlement of total loss value of Rs.2,77,580/- of the vehicle. The insured declared value of the car was Rs.2,78,580/- . The complainant paid Rs.4000/- for car parking in garage and surveyor charges on 21.05.2016 with gate pass and Rs.1000/- for file. The complainant signed letter to sell the salvage at Rs.1,92,000/- on 30.05.2016 and total claim value settled at Rs.2,77,580/- and complainant received Rs.1,80,000/-  in the form of DD bearing no. 770143 encashed on 30.05.2016 and Rs.12,000/- in cash and remaining amount of IDV comes to Rs.85,500/-  to be paid by OP no.1 to complainant within a week. The complainant served a legal notice on 21.07.2016 upon OPs in this regard, but to no effect. OPs have failed to pay the amount of Rs.85,500/- as per settlement, despite legal notice to complainant, hence, complainant filed complaint praying that direction be issued to OPs to pay balance amount of Rs.85,580/-  with compensation of Rs.50,000/- for mental harassment.

3.                Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has not come to the Forum with clean hands.  It was averred that OP no.1 has already sent the amount of Rs.85,580/- to the complainant, vide cheque no. 691531 dated 25.07.2016 , which has been duly received by complainant. Any deficiency in service on its part was denied by OP no.1. Rest of the averments of the complainant were denied by OP no.1 and it prayed for dismissal of the complaint.

4.                OP no.2 filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has got no cause of action to file the complaint. The complainant is stopped by his own act, conduct, omission or commission from filing the complaint. It was averred that OP no.2 is only broker and not the insurance company nor its agent. OP no.2 was having no concern with payment of insurance claim of the car of the complainant. The entire deficiency in service is attributed to OP no.1 only. The payment of amount i.e. Rs.1,92,000/- has been paid by insurance company/OP no.1 and OP no.2 has no concern with payment of amount of insurance claim to complainant. The remaining amount of Rs.85,500/- was also to be paid by OP no.1 as such, OP no.2 has no concern with the payment of said remaining amount also. Rest of the averments of the complainant were denied by OP no.2 and it prayed for dismissal of the complaint.

5.               The complainant tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-14 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of Ashutosh Kumar Manager Legal as Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/10 and closed the evidence. OP no.2 tendered in evidence affidavit of Rakesh Kapoor Finance Manager of OP no.2 as Ex.OP-2/1 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Amritsar dismissed the complaint of the complainant by virtue of order dated 27.03.2018. Aggrieved by above order of the District Forum Amritsar, complainant now appellant carried this appeal against the same.

6.                We have heard learned counsel for the appellant as respondent no.1 is exparte, whereas none has appeared for respondent no.2 in this appeal at the time of arguments. Record of the District Forum has been carefully appraised by us. The dispute between the parties pertains to payment of amount of Rs.85,000/-, being part payment of the settlement to complainant. The submission of counsel for complainant is that the amount of Rs.85,000/- has not been paid to him by OPs and as such, he served a legal notice upon OPs in this regard. The evidence led by complainant is consisting of his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-14, which  have been carefully examined by us.

7.                To counter this evidence, OP no.1 tendered in evidence affidavit of Sh.Ashuthosh Kumar Manager  Legal as Ex.OP-1/1. Copy of insurance policy is Ex.OP-1/2. Vehicle gate pass is Ex.OP-1/3. Copy of registration certificate is Ex.OP-1/4. Copy of voter card is Ex.OP-1/5. Claim for is Ex.OP-1/6 and estimate given by Toyota of the insured vehicle is Ex.OP-1/7.  Ex.OP-1/8 is claim form. Ex.OP-1/9 is  consent letter signed by the complainant for total settlement claim of Rs.2,77,580/- and Rs.1,92,000/-  of salvage value out of the same. The complainant himself admitted this fact that he has received demand draft of the amount of Rs.1,80,000/- out of settlement amount of Rs.2,77,580/- as per consent form executed by him Ex.OP-1/9. The dispute pertains to the payment of balance amount of Rs.85,580/- only. The plea raised by OPs in this case is that they have paid this amount to complainant by virtue of cheque no.691531 dated 25.07.2016, which is alleged to have been duly received by him. The bone of contention between the parties, is whether OPs have sent the amount of Rs.1,80,000/- to complainant and he has received it or not. On this point, our attention has been drawn to document Ex.OP-10 by OPs, which is payment details. It has recorded that amount of Rs.85,580/- was paid to Hardyal Singh  and claim status is paid and cheque no.691531dated 25.07.2016 vide voucher no.1038195299. The District Forum has correctly relied upon the payment of details is Ex.OP-1/10, wherein the status shows that amount is paid to complainant of Rs.85,580/- on 25.07.2016. The complainant has not placed on record any document to discrediting Ex.OP-1/10. The complainant has not proved certificate from any bank that the cheque of the amount of the amount of Rs.85,580/- was not encashed by him. In the absence of any bank document to this effect, we are unable to rely upon the contention of complainant in the presence of document Ex.OP-10. The District Forum has correctly reached the conclusion that complaint filed by complainant is groundless and dismissed the same. There is no illegality or material irregularity in the order of the District Forum calling for any interference in this appeal.

8.                As a result of our above discussion, finding no merit in this appeal, the same is hereby dismissed.

9.                     Arguments in this appeal were heard on 18.09.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

10.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                         (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                   (KIRAN SIBAL)            

                                                                        MEMBER

September 21 , 2018                                                          

(ravi)