Haryana

Ambala

CC/258/2015

Udham Singh - Complainant(s)

Versus

Eakansh Wheels - Opp.Party(s)

Harjinder Singh

24 Nov 2017

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 258 of 2015

                                                          Date of Institution         : 09.09.2015.

                                                          Date of decision   : 24.11.2017

 

Udham Singh son of Shri Kuldeep Singh resident of village Nagla, Tehsil Derrabasi, District Mohali Pb.

……. Complainant.

                                      Versus

 

1. EAKANSH WHEELS, K.M.Stone No.126, Village Tepla State High Way No.5, Jagadhari Road, Ambala Cantt.
2. National Insurance Company Limited Divn. No.10, Flat No.101-106, N.1 B.M.C. House Cannaught Place, New Delhi through its Manager/Authorized signatory.

….…. Opposite parties.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

 

Present:       Sh.H.S.Hari, counsel for complainant.

                   Sh.U.S.Chauhan, counsel for OP No.1.                                                                Sh.Dev Batra, counsel for OP No.2.

 

ORDER

                   Brief facts of the present complaint are that the complainant had purchased a car Maruti Suzuki Swift VDI  bearing chasis No.777829 Engine No.2487464 on 18.12.2014  from Op No.1 duly financed by OBC Handesra branch and the same has been allotted bearing registration No.PB-65AA/2247.  The car in question was insured with Op no.2 vide policy No.351010311461358-50347 having validity from 17.12.2014 to 16.12.2015 under scheme of Zero % depreciation. On 29.01.2015 the vehicle of the complainant met with an accident with a truck bearing registration No.PB-65-T-9491 and regarding this he got lodged a DDR No.GD.Bo.32 on 30.01.2015. The complainant intimated about the accident to Op No.1 and on its asking the car was handedover to Op No.1 which assured to deliver the same after repair within 15 days but the same was returned after 2-1/2 months after illegally charging of Rs.14600/- despite the fact that the insurance policy was Zero % depreciation policy and besides this some items were also found missing from the vehicle in question. The complainant requested the OPs to pay a sum of Rs.14600/- besides compensation on account of articles stolen from the car but to no effect. The complainant also got served legal notices upon the OPs but all fell on deaf ears.  The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence the complainant has tendered his affidavit Annexure CX and also tendered documents Annexure C1 to Annexure C18.               

2.                On notice, OPs  appeared and filed their separate replies. OP No.1  in its reply has taken preliminary objections such as jurisdiction, locus standi, and concealment of material facts from this Forum etc.  It has been submitted that the vehicle was reported to it for major loss but no assurance of repairing the same within 15 days was ever given.  The survey of the vehicle was done on 22.02.2015 and the Op No.2 had demanded some documents from complainant but he had not submitted the same.  The Op No.1 has rightly charged Rs.14,600/- from the complainant but the allegations qua missing of stero, wheel cover, AC filter etc. is wrong. At the time of service, job card was prepared duly signed by the complainant wherein it has been clearly mentioned that there was no mud flaps, stero, clock, only three wheel caps and the battery was not working. The car was taken by the complainant on 14.04.2015 and regarding this satisfaction note was also given by him. There is no deficiency in service on the part of OP No.1. Other allegations levelled in the complaint have been controverted.

3.                OP No.2 in its reply has submitted that the car in question was inspected and parts which were out of repairs were allowed new and other were repaired. It was a  nil depreciation policy but the insured had to bear some nominal amount a excess clause/compulsory deductable, value of salvage etc. as permissible under the policy terms and conditions, therefore, after due consideration claim to the tune of Rs.2,58,286/- was approved. The matter regarding theft/missing of articles is not related to Op No.2. The amount of         Rs.2,58,286/-  was released by the Op No.2 under the direction of complainant without any protest duly received by Op No.1, therefore, the complainant has no cause of action to re-agitate the matter again. Objections about concealment of material facts and maintainability etc. have also been taken. Other allegations have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered Affidavits Annexure RA, Annexure A/2 and Annexure R-B/2 alongwith documents Annexure R1 to Annexure R9.

4.                We have heard learned counsel for the parties and gone through the case file very carefully.

5.                Learned counsel for the complainant argued that he got his vehicle bearing registration No.PB-65AA/2247 insured with OP No.2 vide insurance policy (Annexure C1) under Zero Depreciation Cover by paying requisite premium and said vehicle had met with an accident. The complainant had intimated the OP No.1 regarding this and also filed requisite documents with OP No.2. Though the claim was settled but Op No.1 had charged Rs.14600/- illegally and wrongly despite the fact that the policy was Zero Deprecation covers. Learned counsel for the complainant further argued that the OPs were to pay a sum of Rs.14600/- besides compensation on account of articles stolen from the car but to no avail.

6.                          On the other hand, learned counsel for the OP No.1 argued that Rs.14600/- were rightly received from the complainant as he had not furnished the demanded documents to the Op No.2 and at the time of repair of the car job sheet was issued to the complainant wherein clearly mentioned that there was no mud flaps, stero, clock, only three wheel caps and the battery was not working, therefore question of stealing of articles from the car does not arise at all.  In order to authenticate the version, attention of this Forum has been drawn towards Annexure C4 (invoice No.BR15000160 dated 14.06.2015). Learned counsel for the Op No.2 has argued that amount of Rs.2,58,286/- has already been released to the Op No.1 as full and final claim qua the vehicle of the complainant without lodging any protest either orally or in writing and even the complainant has signed satisfaction voucher Annexure R8, therefore, the present complaint is not maintainable as the amount has been received as full and final and the payment has been made as per assessment made by surveyor which has been assessed after considering the repair bill Annexure C4 and the report of surveyor Annexure R6 is an essential documents which cannot be disbelieved without any reasons.

7.                          After going through the material available on the case file, it is clear that when the complainant himself has signed the satisfaction voucher Annexure R8 qua releasing the payment to the tune of Rs.2,58,286/- as full and final to the Op No.1 without any protest, therefore, he is ceased to file such complaint mentioning therein that the OPs are deficient in providing service. Undisputedly, the vehicle of the complainant has been repaired by Op No.1 and after its repair it had charged Rs.14,600/- from the complainant but mere charging of any amount does not show that the OP No.1 had wrongly charged said amount from the complainant. As per Annexure C4 bill invoice total bill of Rs.2,72,886/- was to be charged but when the insurance company had paid only Rs.2,58,286/-, therefore, the Op No.1 had no other option but to charge balance amount from the complainant, therefore, he had charged Rs.14,600/- from the complainant vide Annexure C5.  The complainant has not disputed the report of surveyor. Since the complainant himself has signed the satisfaction voucher Annexure C8 qua settling the claim full and final without lodging any protest, therefore, he cannot agitate the matter further. On this point reliance of case law titled as Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) (5) Supreme Court 311 can be taken 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.   Further Section 8 of the Contract Act 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.  The complainant has not come to this Forum with a plea that his signature on the satisfaction voucher was obtained forcibly after putting him under pressure and by using undue influence. 

                             Though the complainant has raised another plea qua missing of some articles from the car but he has not lodged any evidence to prove this fact. Had it been so, it was open for the complainant to take action against the OP No.1 as per law but there is nothing on the file to suggest that the complainant has even taken any step qua this matter despite the fact that the incident allegedly to be have taken place around 2/1-2 years back. Mere allegations without any concrete proof of evidence have no value in the eyes of law.

8.                In view of the above discussion, we do not find any infirmity on the part of OPs as alleged by the complainant. Accordingly, the complaint is dismissed with no order as to costs.  Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced on: 24.11.2017                                  

 

                                                                            

 

(PUSHPENDER KUMAR) Member

(ANAMIKA GUPTA)                 Member

(D.N. ARORA)   President