BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.142 of 2016.
Date of Instt.: 11.05.2016.
Date of Decision: 06.04.2017.
Leela Krishan aged about 42 years son of Shri Beerbal resident of village Akkanwali Tehsil & District.
..Complainant
Versus
Cholamandlam MS General Insurance Company Limited, 2nd Floor, Dare House, 2 NSC Bose Road, Chennnai-600001.
..Opposite Party
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. Pankaj, Advocate for complainant. Sh. U.K.Gera, Advocate for opposite party.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter to be referred as ‘OP’) with the averments that he is registered owner of car Beat bearing registration No.HR22H-5789 and he got his car insured from OP vide policy No.3362/00849886/000/01 which was valid from 02.08.2014 to 01.08.2015. On 05.08.2014, the complainant and his younger brother (Sh.Dalip Singh) were going to village Kheri from village Akkanwali in the above said car, being driven by the complainant and at about 4 PM when they reached near Electricity Department of village Hajrawan Khurd, then all of a sudden a cow came on the road, therefore, the complainant lost control over the vehicle and the car hit against a kikar tree. Complainant and his brother received multiple injuries in this accident but his younger brother succumbed due to the injuries and the vehicle also got damaged. It has been further averred that a DDR No.22 dated 05.08.2014 was registered and the complainant gave intimation to the insurance company about the accident and requested to indemnify the loss. On the asking of OP the complainant got prepared the estimate of the damages to the vehicle from Padam Motors Pvt. Limited, Sirsa which estimated the loss to the vehicle to the tune of Rs.3,16,723/- vide estimate dated 31.08.2015. Thereafter the complainant requested the Op to bear the estimated cost to be spent on the repair of the vehicle but it lingered on the matter on one pretext or the other and further refused to indemnify the claim. In this way, there is deficiency in service on the part of the OP and the complainant is entitled to compensation of Rs.1,00,000/- from the OP on account of mental agony, harassment, humiliation suffered by him besides compensation of Rs.50,000/- on account of unfair trade practice. In evidence, the complainant has tendered his affidavit Annexure C1 and documents Annexure C2 to Annexure C15.
3. Upon notice, OP appeared and contested the complaint by filing reply thereof wherein it has taken many preliminary objections such as maintainability, suppression of material facts, cause of action, estoppal and jurisdiction etc. It has been submitted that the deceased Dalip Singh was driving the vehicle at the time of accident who was not having any valid and effective driving licence but in the present complaint the complainant has stated that he was driving the vehicle in question at the time of accident in order to grab compensation from the insurance company. It has been further submitted that the complainant had not provided the relevant documents with the Op despite many reminders and has also not complied with the mandatory terms and conditions of the insurance policy, therefore, the claim was rightly repudiated by the insurance company. Other allegations of the complaint were denied and prayer for dismissal of the complaint has been made. In evidence, the OP has tendered affidavit of Sh.Anirudh Deve Raj as Annexure R1 and documents Annexure R2 to Annexure R3.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of the complaint.
5. Learned counsel for the complainant argued that the complainant got his vehicle bearing registration No.HR22H-5789 insured with OP vide insurance policy (Annexure C8) by paying requisite premium and on 05.08.2014 said vehicle hit against a kikar tree, therefore the complainant and his brother Dalip Singh had received multiple injuries. It was further argued that said Dalip Singh had died due to the injuries and post mortem on the dead body was conducted on 05.08.2014 (Annexure C9) whereas the complainant took treatment from MAMC, Agroha as shown in Annexure C10 to Annexure C15 and the vehicle also got damaged but the OP-insurance company did not pay the claim as per the insurance policy and as per the estimate (Annexure C4) prepared by Padam Motors Pvt. Limited.
6. Per contra, learned counsel for the OP argued that the Rs.1 lac has already been debited in the account of the complainant (Annexure R3) and the insurance company is ready to make the payment as per repair assessment/progressing sheet (Annexure R2) but the complainant refused to receive the same.
7. The complainant has admitted that he has received Rs.1 lac from the OP-insurance company on 29.03.2016 qua the claim submitted by him on account of damage of his vehicle bearing registration No.HR22H-5789, therefore, it is enough to reach at a conclusion that the amount assessed by the surveyor had been accepted without any protest, therefore, at this stage the complainant cannot agitate this matter before this Forum. Reliance on this point can be placed on case law 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”. 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.1,00,000/- in his bank account. This plea taken by the counsel for the complainant is not sustainable because in the complaint and affidavit Annexure C1 he has not mentioned that the vehicle was repaired by him by spending a sum of Rs.3,16,723/- rather he has mentioned that said amount has been estimated by Padam Motors Limited, Sirsa qua the loss to the damaged vehicle. When the complainant has not got repaired the vehicle, therefore, the estimate given by Padam Motors Private Limited cannot be termed as a authentic piece of evidence because there is nothing on the file to prove that said Padam Motors Private Limited was the authorized service centre of the brand Chevrolet (manufactured of car Beat). Moreover, present complaint was filed on 11.05.2016 i.e. after 1-1/2 months of receiving of Rs.1,00,000/- on account of compensation qua the damaged vehicle from the Op on 29.03.2016, therefore, it is ample clear that the complainant was very well aware of the repair assessment (Annexure R2) which was got prepared by the surveyor on behalf of the OP-insurance company but despite that he had not challenged the authenticity of the surveyor report and the repair assessment (Annexure R2). The surveyor is individual entity and his report cannot be brushed aside until and unless it is proved otherwise, therefore, the end of justice would be met if the OP be directed to release the amount as mentioned in Annexure R2 to the complainant on account of compensation qua the damaged car bearing registration No.HR22H-5789. Since an amount of Rs.1,00,000/- has already been released by the OP, therefore, the OP is directed to release the remaining amount to the complainant after making necessary deductions, if any, as per the policy along with interest @ 8 % per annum from the date when the part payment was made i.e. 29.03.2016 till realization. The OP is further directed to pay Rs.10,000/- on account of mental agony, harassment and cost of litigation to the complainant. Order be complied within a period of one month. Copy of this order be supplied to the parties. File be consigned to record after due compliance.
Announced:
Dt.06.04.2017 (Raghbir Singh)
President
District Consumer Disputes
Redressal Forum, Fatehabad.
(Ansuya Bishnoi) (R.S.Panghal)
Member Member
