Haryana

Ambala

CC/391/2016

Rakesh Sharma - Complainant(s)

Versus

Futura General Inss Co. - Opp.Party(s)

Shailender Sharma

07 Mar 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 391 of 2016

                                                          Date of Institution         : 21.10.2016

                                                          Date of decision   : 07.03.2018

 

 

Rakesh Sharma son of Shri Jai Parkash Sharma resident of Village Jandhera, P.O.Ban, Tehsil Ladwa, District Kurukshetra. 

……. Complainant.

Vs.

 

Future General Insurance Company Limited, Rai Market, Ambala Cantt,

District Ambala (Insurer of Hyundai Santro bearing No. HR26AC-0022

(Through its Authorised Signatory)

 

 ….….Opposite Party.

 

Before:        Sh. D.N. Arora, President.

                   Sh. Pushpender  Kumar, Member.            

                   Ms. Anamika Gupta, Member.

 

 

Present:       Sh. Shailender Sharma, counsel for the complainant.

                   Sh. Viresh Parshad Gupta, counsel for OP.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant is owner of Hyundai Santro Car bearing registration No.HR26AC-0022 and was insured with the OP  for the period from 23.09.2015 to 22.09.2016 vide policy/cover note no.H2196201. The above said vehicle of the complainant had met with an accident on 13.05.2016 at Kurukshetra-Yamuna Nagar Road, near village Badhsami and in the said accident car got damaged. The intimation regarding the said accident/incident was given to the company on the same very day. After receipt of the intimation from the complainant the OP registered the claim of the complainant successfully vide claim no.CV660751. After registration of the claim, the OP deputed Sh. Raman Auto Surveyors and Loss Assessor for the survey as well as assessment of the loss of the vehicle in question and completed the survey of the vehicle on 16.05.2016. Thereafter, in accordance with the instructions received from the surveyor/assessor, the complainant got repaired his vehicle from Kaushalya Hyundai, District Kurukshetra and charged a total sum of Rs. 78,754/- from the complainant. After repair of the said vehicle, the complainant submitted all the documents to the OP and official of the OP have assured to him that the payment of claim will be reimbursed as early as possible.  The complainant lodged his claim for a sum of Rs. 78,754/- with the OP but the OP has only approved the claim of the complainant for a sum of Rs. 55,717.04/- only and credited the same in the account of the complainant. The complainant approached the OP and requested them to make the payment of the balance claim amount which come to Rs. 23,036.96 paisa but OP has wrongly withheld the above said payment of Rs. 23,036.96/- intentionally and did not pay the same to him in spite of repeated request. The OP has violated the terms and conditions of the policy of insurance.  The OP has harassed the complainant without his any fault and he has facing great mental agony, hardships and financial loss due to the above said act and conduct of the OP. Hence, the present complaint.

2.                Upon notice, OP No appeared through counsel and tendered written statement and stated that as per the intimation received on 14.05.2016 from the complainant by the OP through call centre intimation, the above said vehicle was alleged to have met with an accident on 13.05.2016 and got damaged. The complainant did not intimate the OP on 13.05.2016. The OP just on receiving the intimation deputed Sh.Raman Auto Surveyor and Loss Assessors to conduct the survey  in Kaushalya Motors, Kurukshetra on 16.05.2016. Keeping in view the financial  interest  of the complainant , his claim was lodged and processed bona-fiddly by the OP. The surveyor, who is a qualified and experienced, was given an estimate to him. During survey he inspected the opened vehicle  and conducted the survey minutely and bona-fiddly and submitted his detailed report dt.16.05.2016 in respect  of nature and extent of loss/damages  in accordance with the terms and conditions, exceptions and limitations of the insurance policy and recommended  Rs. 55,717/- after deducting  a sum of Rs. 15,263.50/- as depreciation, Rs. 1451 as salvage and Rs.1000/- as excess clause as per the terms and condition of the insurance policy to be payable to the complainant. Vide his detailed report, the surveyor specifically considered and assessed the loss and quantified the amount of claim payable to the complainant after deducting compulsory excess clause and salvage value etc.  The loss was assessed by the surveyor bona-fiddly and with due application of mind. Thereafter, the claim file and the surveyor’s report were duly scrutinized and perused and the claim for Rs. 55,717/- was approved by the competent authority and with due application of mind as per the terms and conditions, exceptions and limitations of policy and was paid to the complainant through the Financier Bank which was received by the complainant voluntarily without any protest or objection of any kind and he got the same en-cashed with his free will. So, there is no deficiency in service on the part of OP and prayed for dismissal of the present complaint.

3.               To prove his version complainant tendered his affidavit as Annexure C-X with documents as annexure C-1 to C-9 and close his evidence. On the other hand, Counsel for the OP tendered affidavit as Annexure R-X along with Annexure R-1 to R-9 and close his evidence.

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

5.                It is not disputed that the complainant had already received an amount of Rs.55,717.04/- from the OPs with regard to the claim lodged by him on account of damaged vehicle in question. After receiving  the said amount (Rs.55,717.04/-) the complainant had not lodged any complaint orally or in writing with the insurance company that he is not satisfied with the amount paid to him. Hon’ble Supreme Court in case titled as Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) (5) Supreme Court 311 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.  Section 8 of the Contract Act says 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. In the present case, the complainant has failed to show any evidence that he had lodged any protest before or after receiving of the amount, therefore, we have no hitch to reach at a conclusion that the acceptance made by the complainant by accepting the amount of Rs.55,717.04/- without any protest ceased him to approach this Forum by way of the present complaint. Moreover, the opposite party has produced the Surveyor report as Ex.R-7 along with sworn affidavit of Surveyor Annexure R-X which shows that the loss was assessed to the tune of Rs.55,717.04/- and even that amount has been paid by the opposite party to the complainant. So, as per legal proposition, when the complainant has already received and accepted the amount assessed by the Surveyor without any protest, the complainant cannot agitate now this matter before this Forum and he has also signed on the discharge voucher as per Annexure R-8 dated 13.05.2016. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case H.C.Saxena Versus New India Assurance Co. & Anr. 2012 (1) CPC 632  has held that “ Report of surveyor is an important document prepared under the legal provisions and should not be brushed aside without reasons.” The Hon’ble National Commission in case titled as D.N. Badoni Versus Oriental Insurance Co. Ltd. 2012 (1) CPC 528 again has held that “The Surveyor report should not be ignored in which the amount of claim has rightly been determined.” The above-said law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is fully applicable to the present case as in the present case, the Surveyor had assessed the loss of the vehicle in question and same was accepted by the complainant without any protest. Even then, the complainant has not moved any application for cross examination to the surveyor on the point that he had wrongly assessed the claim in order to favour the insurance company. It is strange fact that the complainant had approached to this Forum after a period of five months of the settlement of the claim as well as receiving of amount as assessed by the surveyor in his report dated 05.07.2016. We hold that there is no deficiency on the part of the insurance company. Accordingly,  there is no merit in the complaint and as such, the complaint stands dismissed with no order as to costs. Copy of this order be supplied to the parties. File be consigned to record after due compliance.

Announced on : 07.03.2018

 

                    

 

 

 (PUSHPENDER KUMAR)       (ANAMIKA  GUPTA)          (D.N. ARORA)

Member                                 Member                                      President