Haryana

Karnal

264/2012

Mangal Singh S/o Lakhmi - Complainant(s)

Versus

Chollamandlam M/s General Insurance Company Limitedrvices Ltd - Opp.Party(s)

Rajesh Mani

24 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                                 Complaint No.264 of 2012

                                                               Date of instt. 23.05.2012

                                                               Date of decision: 24.01.2017

 

Mangal Singh son of Shri Lakhmi resident of village and post office Bahadurgarh, Tehsil Safidon, District Jind.

                                                                                       ………….Complainant.       

                                                         Versus

 

1. Chola Mandlam MS General Insurance Company Ltd. Sector-12, Karnal through its Divisional Manager.

2. Mangesh Karekar, Regional Service Manager, Mahindra Navistar Automotive Ltd. Survey no.175, village Sadawadi, Tal Maval, District Pune.

3. Mahindra Navistar Automotive Ltd. Survey no.175, village Sadawadi, Tal Maval, Distt. Pune through its Area Sales Manager Shri Vikas Kashyap.

4. Malwa Motors Sales (P) Ltd. G.T.Road, Karnal through its Proprietor/Partner.

5. Mahindra and Mahindra Finance Services, Ltd. SCO no.87-88, 2^nd floor, behind bus stand, Karnal through its Branch Manager.

                                       

                                                                                 ………..Opposite Parties.

 

                   Complaint u/s 12 of the Consumer Protection Act.          

 

Before                   Sh.K.C.Sharma……. President.

                   Sh. Anil Sharma……….Member.

                  

 

 Present       Shri Rajesh Mani Advocate for complainant.

                   Shri Rohit Gupta Advocate for opposite party no.1

                   Shri Pardeep Gill Advocate for opposite parties no.2 and 3.

                   None for Opposite party no.

                   Shri Vineet Rathore Advocate for opposite party no.5.

 

ORDER:                    

 

                        This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986, on the averments that he purchased Mahindra Navister MN25 (Red) BSIII bearing registration no.HR-56-A-2014 from opposite party no.4 for Rs.18,59,217/- to earn his livelihood. He got financed the said vehicle from opposite party no.1. He obtained loan of Rs.16,30,000/-and paid Rs.2,29,217/- in cash. The said vehicle was got insured with opposite party no.1, vide cover note no.8603365, valid from 11.10.2011 to 10.10.2012.On 20.1.2012 at about 9.30 p.m. the said vehicle turned turtle near Kachwa Mod and damaged. He immediately informed the opposite party no.1, regarding the accident. Sh. Virender Singh was appointed as surveyor by opposite party no.1, who visited the place of accident. As per his instruction on 21.1.2012 the vehicle was placed in right position. The surveyor asked him to get repaired the vehicle and assured that the claim would be released. On the next day, vehicle was brought to M/s Mobin & Mosin Miya, Transport Nagar, Karnal with the help of crane and necessary repair was got done. An amount of Rs.28500/- was paid to the said workshop. Thereafter, he was sent to Lather Denting and Painting for further repair and paid Rs.13,500/- and Rs.15,000/- for denting and painting. On 1.2.2012, the vehicle was shifted to premises of opposite party no.4 for further repairs and the engine of the vehicle was opened by the opposite party no.4. He was told that some parts of the engine were not available and he was asked to purchase those parts from Delhi. Ultimately, he purchased the said parts from Indraprastha Automobiles Pvt. Ltd. Sirsapur Road, Delhi on 6.3.2012 for an amount of Rs.38884/-. He spent an amount of Rs.1,89,801/- on repairs of the vehicle. The vehicle after repair was delivered to him on 15.3.2012. During that period, he could not deposit installments of opposite party no.5. After delivery of the vehicle, he started depositing the installments. The opposite party no.5 started threatening him to snatch the vehicle for non-payment of those installments. It has further been pleaded that he submitted all the bills and relevant documents to opposite party no.1 and lodged claim for Rs.1,89,801/- , but only an amount of Rs.35,000/- was offered to be paid to him by opposite party no.1. He requested the opposite party no.1 several times to pay the amount spent on the repairs, but the opposite party flatly refused to admit his claim. In this way, there was deficiency in service on the part of the opposite parties due to which he suffered mental agony, pain and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite parties. Opposite party no.1 put into appearance and filed written statement controverting the claim of the complainant. Objections  have been raised that the complainant has no locus standi and cause of action to file the complaint; that the complaint is not maintainable; that complicated questions of law and facts are involved, which cannot be adjudicated by this forum under summary jurisdiction and that there was no deficiency in service on the part of the opposite party no.1.

                   On merits, it has been submitted that the claim of the complainant was duly processed and Er. J.K. Sharma, Surveyor and Loss Assessor, Karnal conducted spot survey. Thereafter, Virender Singh Surveyor and Loss Assessor was appointed for final survey and assessment of the loss, who conducted the survey and assessed the loss to the tune of Rs.48700/- subject to the terms and conditions of the Insurance Policy. Thereafter, the claim of Rs.35000/- on non-standard basis was approved and the said amount was paid to the complainant towards full and final settlement of the claim.  The complainant had accepted the said amount in full and final settlement of the claim without any protest. Therefore, he is estopped from filing the complaint by his own acts and conduct. The other allegations made in the complaint have been denied.

3.                Opposite parties no.2 and 3 filed joint written statement disputing the claim of the complainant. Objections have been raised that the complainant is not consumer of opposite parties no.2 and 3; that the complainant has no cause of action to file the complaint against opposite parties no.2 and 3; that the complaint is not legally maintainable; that the complaint is false, frivolous and vexatious and that there is no allegation of the complainant against the manufacturer and as such there was no deficiency in service on the part of the opposite parties no.2 and 3.

                   On merits, it has been alleged that Mahindra Navistar exited from the joint venture business with Mahindra and Mahindra Limited in February, 2013 and thereafter since June, 4, 2013 Mahindra and Mahindra had taken over the entire business and renamed it as Mahindra Truck and Buses Ltd. (MTBL). The vehicle was a commercial one purchased by the complainant for commercial purpose, therefore, the complainant is estopped from saying that the vehicle was plied by himself for his livelihood by way of self-employment. It has further been averred that there is no allegation of any manufacturing defect against opposite parties no.2 and 3, therefore, there was no deficiency in service on their part.

4.                Opposite party no.5 also filed written statement. It has been alleged that the complainant was required to repay the amount financed by opposite party no.5 by way of 42 equal monthly installments of Rs.45571/- each, but he stopped paying the installments and opted to surrender the vehicle as per the terms and conditions of loan agreement and asked the opposite party no.5 to dispose off the vehicle in order to recover the balance amount. Even after disposing of the vehicle huge amount was outstanding against the complainant and for that recovery conciliation proceedings were initiated against him, but he did not participate. Arbitral award has been passed against him. As per terms and conditions of the policy if any payment is allowed to the complainant against insurance claim of the vehicle by opposite party no.1, then the same is liable to be credited in the defaulted loan account of the complainant maintained by opposite party no.5. The other averments made in the complaint have not been admitted for want of knowledge.

5.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C31 have been tendered.

6.                On the other hand in evidence of the opposite parties, affidavit of Amit Sharma Assistant Manager Legal Ex.OP1/A, affidavit of Mahender Partap Singh authorized signatory of Mahindra and Mahindra Pvt. Ltd. Ex.OP2/A, affidavit of Pankaj Rana Ex.OP5/A and documents Ex.OP1/B to Ex.OP1/H, Ex.R2/1 to Ex.R2/3, Ex.P1 and Ex.P2 have been tendered.

7.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.                The complainant purchased one Mahindra and Mahindra vehicle from opposite party no.4 by obtaining financial help from opposite party no.5. The said vehicle was got insured with opposite party no.1, vide cover note no. 8603365 valid from 11.10.2011 to 10.10.2012. The said vehicle met with an accident on 20.1.2012 and damaged in the said accident. Information was given to opposite party no.1, who appointed spot surveyor and final surveyor and they submitted their reports. The complainant has alleged that an amount of Rs.1,89,801/- was spent by him on the repairs. However, the opposite party no.1 paid an amount of Rs.35000/- only and claimed that the said amount was accepted by the complainant as full and final settlement of his claim.

9.                Learned counsel for the opposite party no.1 laid emphasis on the contention that the claim of the complainant was processed. The surveyor assessed the loss as Rs.35000/- and accordingly that amount was paid to the complainant. The complainant issued satisfaction voucher Ex.OP1/D after accepting that amount as full and final satisfaction, therefore, the present complaint is not maintainable.

10.              To wriggle out the aforesaid contention the learned counsel for the complainant vehemently argued that the signatures of complainant on the satisfaction voucher were obtained by the opposite parties by playing fraud and exercising the undue influence, assuring that the balance amount would be paid lateron. Therefore, the opposite parties were not absolved of their liability to pay the balance amount of Rs.1,54,801/- spent by the complainant on repair of the vehicle.

11.              The copy of the satisfaction voucher is Ex.OP1/D, according to which the claim of the complainant was settled for Rs.35000/- and he accepted that amount in full and final settlement of his claim. He had signed the said document. If, any fraud was played upon the complainant for obtaining his signatures on the satisfaction voucher, he could proceed against the opposite party no.1 in Criminal or Civil Court, but no such step was taken by him.

12.               It is well settled proposition of law that where one of the parties to contract issues full and final settlement voucher (or no dues certificate as the case may be) confirming that he has received the payment in full and final settlement of all claims and he has no outstanding claim, that amounts to discharge of contract by acceptance of performance and the party issuing discharge voucher/ certificate cannot thereafter make any fresh claim or revive any settled claim. In this context reference with advantage may be made to the judgment of Hon’ble Supreme Court in National Insurance Company Versus Boghana Poly Pvt. Ltd. 2009(1) SCC 267. In New India Assurance Co. Ltd. Vs. Genus Power Infrastructure Ltd. 2015 AIR SCW 67 also the Hon’ble Supreme Court dismissed the claim on the ground that complainant had accepted the payment in full and final settlement of claim. Hon’ble National Commission in Andhra Fabrics Pvt. Ltd. Vs. United India Insurance company Ltd. 2015(2) CPR 482 (N.C.) and A.P.Jos Versus ICICI Lombard General Insurance Company Ltd. 2013(2) CPC 391 (N.C.)  and Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula  in first appeal no.288 of 2016 titled as Shri Ram General Insurance company Ltd. Versus Bhag Singh relied upon the aforecited judgments of Hon’ble Supreme Court held that when the complainant had accepted the payment in full and final settlement of the claim, he cannot make any fresh claim or revive the settled claim.

13.              Thus, in view of the proposition of law laid down in the aforediscussed authorities, the complainant after issuing satisfaction voucher accepting the amount of Rs.35000/- as full and final settlement of the his claim was left with no right to put up fresh claim or revive his claim or claim that he had spent more amount on repair of the vehicle than paid by the opposite parties.

14.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 24.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member