BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.303 of 2016.
Date of Instt.: 30.11.2016.
Date of Decision: 27.07.2017.
Vinod Kumar son of Mange Ram resident of village Jandwala Sotter, Tehsil & District Fatehabad.
..Complainant
Versus
1.Cholamandlam General Insurance Company Limited, Branch Office, Karnal District Karnal through its Branch Manager.
2.Hari Kumar son of Bhagwan Dass, resident of village Bhodia Khera, Tehsil & District Fatehabad, Agent Cholamandlam General Insurance Company Limited, Branch Office, Karnal, Tehsil & District Karnal.
..Opposite Parties.
Complaint U/S 12 of the CP Act,1986
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member. Smt. Ansuya Bishnoi, Member.
Present: Sh. R.K.Sharma, Advocate for complainant. Sh.U.K.Gera, Advocate for OP No.1.
OP No.2 given up VOD 01.03.2017.
ORDER
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.
2. Briefly stated the facts of the present complaint are that the complainant got his Car bearing registration No.HR-59C-7765 insured with OP No.1 through its agent OP No.2 vide policy No.3362/01151518/000/00 which was valid from 14.03.2016 to 13.03.2017. The aforesaid vehicle of the complainant met with an accident on 09.06.2016, as a result thereof, the vehicle was badly damaged. The complainant gave intimation to the insurance company about the accident and took the vehicle to Raja Hyundai, Raja Motors, Fatehabad for repairs as per the instructions of the officials of the OPs, where the surveyor of the company inspected the vehicle and prepared assessment sheet qua repair work to be done in the damaged vehicle. Thereafter, the complainant got repaired his vehicle and paid a sum of Rs.91,379/- to Raja Hyundai, Raja Motors, Fatehabad. After getting the vehicle repaired, the complainant submitted all the necessary documents/bills to the opposite parties and he was assured that the claim amount will be deposited/ transferred in his account but he was surprised to know that opposite party has deposited only an amount of Rs.73,200/- in his account than the actual incurred amount for the repair of the vehicle in question. The complainant visited the opposite parties several times and requested to settle the claim as per the bills submitted by him but it delayed the matter on one pretext or the other by asking that the remaining amount will be deposited within short period but lateron the OPs refused to pay the remaining amount. In this way, there is deficiency in service on the part of the opposite parties and the complainant is entitled to compensation of Rs.10,000/- from the opposite parties on account of mental agony, harassment, humiliation suffered by the complainant and litigation expenses besides payment of remaining amount of Rs.18,179/-. In evidence, the complainant has tendered his affidavit Annexure CW1/A and documents Annexure C1 to Annexure C9.
3. Upon notice, OP No.1 appeared and contested the complaint by filing reply thereof. OP No.2 has been given up by learned counsel for the complainant vide order dated 01.03.2017. It has been submitted by OP NO.1 that on receiving of intimation surveyor was appointed who inspected the accidental vehicle and submitted his report. It has been further submitted that an amount of Rs.73,200/- has been credited in the account of the complainant keeping in view the report of the surveyor as per the terms and conditions of the policy and this amount has been accepted by the complainant. The claim has already been settled and amount paid to the complainant has been accepted by him and nothing remains to be paid to him. Other allegations of the complaint were denied and prayer for dismissal of the complaint has been made. In evidence, the OP No.1 has tendered documents Annexures R1 and R2.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for opposite party No.1 reiterated the averments made in the reply and prayed for dismissal of the complaint.
5. Learned counsel for the complainant argued that he got his vehicle bearing registration No.HR-59C-7765 insured with OPs vide insurance policy (Annexure C3) by paying requisite premium and said vehicle had met with an accident. The complainant had intimated the OPs regarding this and also filed requisite documents with it for settlement of claim but the OPs had paid/deposited Rs.73,200/- only against the total repair cost to the tune of Rs.91,379/- in the bank account of the complainant without his consent. Learned counsel for the complainant further argued that the OP had neither provided the complainant with surveyor report nor any opportunity to protest the claim was given to him.
6. On the other hand, learned counsel for the OP No.1 argued that the complainant had already received an amount of Rs.73,200/- from the OPs with regard to the claim lodged by him on account of damaged vehicle and the said amount was accepted by him without lodging any protest either orally or in writing, therefore, the present complaint is not maintainable as the amount has been received as full and final. In support of his contention he has placed reliance of case law titled as Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) (5) Supreme Court 311 wherein Hon’ble Apex Court has held that Conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer-Each case must rest on its own facts- If facts disclose that the offeree had a reservation/protested in accepting the offer, his conduct may not amount to acceptance in terms of S.8 . It has been further held that in case protest and non-acceptance of the offer are conveyed before encashment of the cheque it would not amount to acceptance-However protesting after encashment of the cheque would be of no avail, as such encashment of the cheque would amount to unequivocal acceptance- An offeree cannot be permitted to change his mind after unequivocal acceptance of the offer. Learned counsel for the OP drew the attention of this Forum towards Section 8 of the Contract Act which says that Acceptance by performing conditions, or receiving consideration-Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal is an acceptance of the proposal. Learned counsel for the OP further argued that when the complainant has already received and accepted the amount assessed by the surveyor without any protest then the complainant cannot agitate now this matter before this Forum and in support of his arguments he has placed reliance of case laws titled as H.C.Saxena Versus New India Assurance Co. & Anr. 2012 (1) CPC 632 and D.N. Badoni Versus Oriental Insurance Co. Ltd. 2012 (1) CPC 528 wherein Hon’ble National Commission has held that “ Report of surveyor is an important document prepared under the legal provisions and should not be brushed aside without reasons”.
7. After hearing both the parties and going through the material available on the case file it is apparent that the surveyor had assessed the loss to the tune of Rs.73200/- and said amount has already been deposited in the bank account of the complainant. The grouse of the complainant is that he had not accepted the said amount as full and final settlement as the OP had not obtained his consent either orally or in writing before releasing of amount to the tune of Rs.73,200/- in his bank account. The complainant in his complaint and his affidavit Annexure CW1/A has specifically mentioned that he had spent Rs.91,379/- on repairing of damaged vehicle and for replacement the part of damage vehicle. No doubt an amount of Rs.73,200/- has been credited by the OP in the account of the complainant but the burden to prove that the said amount was accepted by him as full and final settlement rests on the OP No.1-insurance company because it has not produced on file any consent letter/letter of subrogation to show that it was accepted by the complainant as full and final. Thereafter the main issue for decision involved in the present case is as to whether without signing the settlement voucher by the complainant the crediting of Rs.73,200/- in his account by the OP amounts to acceptance of the claim by the complainant as full and final payment. In this regard the Hon’ble National Commission in case titled as Meena Jamwal Vs. Oriental Insurance Company Limited & others 2015 (2) CLT 316 (NC) has observed as under:-
“Full and final settlement- No voucher signed by the complainant- Insurance company transferred the amount in the account of the complainant through NEFT-Held there was no occasion to file protest before crediting of this amount in complainant’s account- as amount was directly transferred in complainant’s account, complainant had every right to file complaint and complaint cannot be thrown away on the ground of receiving payment without protest”
Relying upon the above-said observations of Hon’ble National Commission in case titled as Meena Jamwal Vs. Oriental Insurance Company Limited & others (supra) we are of the considered opinion that without signing the settlement voucher or without giving any consent by the complainant, crediting of Rs.73,200/- directly in the account of complainant by the OPs does not amount to be full and final settlement of the insurance claim and the OP has not followed the proper procedure in settling the insurance claim and the same amounts to deficiency on its part. The case laws relied upon by learned counsel for the OP No.1-insurance company are not applicable to the present case, therefore, same are being distinguished. The complainant has been able to prove his case against the OPs and the complaint deserves acceptance. It is ordered accordingly. However, a perusal of file reveals that a total payment of Rs.91,379/- (Annexure C5 + Annexure C6 + Annexure C7) has been made by the complainant for repair of the vehicle in question. An amount of Rs.73200/- has already been released by the OP. Therefore, the OP No.1 is directed to release the remaining amount (Rs.91379 – rs73200) to the complainant after making necessary deductions such as salvage value and other if any admissible, as per the terms and conditions of the policy, within a period of one month failing which the amount shall carry interest @ 6 % per annum from the date of passing of this order till realization. Copy of this order be supplied to the parties. File be consigned to record after due compliance.
Announced:
Dt.27.07.2017.
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President,
District Consumer Disputes Redressal Forum, Fatehabad.
