BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

                                                          C.C.No.44 of 2016.                                                                       

   Date of Instt.: 29.01.2016.                                                               

Date of Decision:11.01.2017

Birbal Singh son of Sh.Gopi Ram Caste Jat, resident of village Bhirdana Tehsil & District Fatehabad.

          ..Complainant

                              Versus

1. Garg Motors Mahendera, Shobhraj Dharampal GT Road, Fatehabad at present in front of Hanuman Tample Sirsa Road, Fatehabad District Fatehabad through its proprietor.

2.The India Assurance Bldg. 87 MG Road Fort, Mumbai 400001.

3.The India Assurance Company Limited Branch Office 353501 6269 Nicholson Road, Ambala District Ambala.       

                                                                             ..Opposite Parties

          Complaint U/S 12 of the CP Act,1986                                 

Before:                  Sh.Raghbir Singh, President.                                                             Smt.Ansuya Bishnoi, Member.

Present:                 Sh.Zile Singh, Advocate for complainant.                                         Sh.Jagmohan Dhariwal, Advocate for OP No.1.                              Sh.U.K.Gera, Advocate for OP Nos.2 & 3.                                                                      

ORDER

                    The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as ‘OPs’) with the averments that he is registered owner of vehicle Mohindra Bolero Ambulance bearing No.HR62-8586  and he got his vehicle insured vide policy No.14010331140100003292 having validity from 09.09.2014 to 08.09.2015 and now the vehicle is insured vide policy No.14010331150100003870 having validity from 09.09.2015 to 08.09.2016. It has been further averred that on 02.07.2015 the vehicle of the complainant met with an accident near Surewala turn and got damaged.  The complainant had intimated about this to the agent of the company through mobile and on his asking he took the vehicle to the OP No.1 where surveyor of OP Nos.2 & 3 inspected the vehicle and assessed the loss to the tune of Rs.1,33,777/-. The Op No.1 asked the complainant that it will take 15 days in repairing the vehicle and the cost thereof would be borne by the company but till today the OP No.1 has not fully repaired the vehicle and also not fitted the original/genuine parts in the same. It has been further averred that OP No.1 has painted the vehicle with inferior quality of paint which is growing fainter and it has also changed the roof of the same with inferior product in order to make exaggerate estimate.  On 17.08.2015, the complainant visited the Op No.1 for receiving the vehicle but it demanded Rs.59,000/- and also got the same recovered forcibly from the complainant. It has been further averred that the Op No.1 had intentionally damaged the vehicle in order to decrease the value of the same and even it has also caused mental agony, harassment and financial loss to the complainant by keeping the same in its garage for about 1-1/2 months.  The complainant requested the OPs and also got served legal notices upon them to pay the compensation on account of mental agony, harassment and financial loss pay the balance amount but to no avail. The act and conduct of the OPs clearly amounts to deficiency in service on their part.  In evidence the complainant has tendered his affidavit Ex.CW1/A and also tendered documents Annexure C1 to Annexure C6.

3.                          On notice, OPs appeared and contested the complaint of the complainant by filing separate replies.  OP No.1 in its reply has submitted that the vehicle of the complainant is insured with OP Nos. 2 & 3 having validity from 09.09.2014 to 08.09.2015.Said vehicle met with an accident on 02.07.2015 and it was brought to the agency on 03.07.2015 by the complainant where the estimate/quotation of the repair of the vehicle to the tune of Rs.1,53,892/- was prepared. It has been further averred that on information surveyor of the company had inspected the vehicle and assessed the loss to the tune of Rs.1,33,771/- but the insurance company had only paid Rs.78216/- out of the total amount, therefore, the OP No.1 had charged Rs.59,000/- from the complainant being not paid by the insurance company on account of not covered material under insurance, salvage, class, depreciation of plastic IMT etc. It has been further averred that after deduction the OP No.1 is accountable to pay Rs.3445/- to the complainant but he refused to receive the said amount. Objections about cause of action, suppression of material facts from this Forum and complainant does not fall within the ambit of consumer have also been taken.

4.                OP Nos.2 & 3 in their reply have submitted that the complainant has received the amount of claim as full and final settlement as per the report of surveyor who is a separate entity, therefore, there is no deficiency in service on their part. It has been further averred that nothing is due towards the insurance company qua the claim of the complainant. Objections about cause of action, locus standi and estoppal have also been taken. All the OPs have controverted the other allegations levelled by the complainant in his complaint. In evidence, the Ops have tendered  affidavit of Ravinder Goyal as Ex.RW1/A, affidavit of I.C.Sirohi, authorized signatory as Annexure R2 and documents Annexure R1, Annexure R3 and Annexure R4.

4.                Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the replies and prayed for dismissal of the complaint.

5.                There is no dispute that vehicle of the complainant had met with an incident for which the insurance (Annexure C2) had been obtained. It is also not disputed that the Op No.1 had repaired the damaged vehicle of the complainant. The grouse of the complainant is that the OP No.1 had forcibly recovered Rs.59,000/- (Annexure C1) from him qua repairing of the vehicle despite the fact that that all the repair cost was to be borne by the company with which the vehicle in question was insured. In his complaint the complainant has also levelled allegations against Op No.1 that he has damaged the vehicle of the complainant with malafide intention and has extracted Rs.59,000/- from him by blackmailing him and by using the illegal means. It has been also alleged that the inferior quality of paint has been used and non-genuine parts have been fitted. Perusal of the case file, evidence and other documents available on the case file reveal that there is nothing from which it could be gathered that the OPs have been deficient in providing service to the complainant.  Had it been so, then it was open for the complainant to initiate criminal proceedings against OP No.1 but the complainant has not taken any action against it for the reasons best known to him. As per OP No.1, the total repair cost of the damaged vehicle was Rs.1,33,771/- but the insurance company had only paid Rs.78216/- to it, therefore, the balance amount was to be recovered from the complainant and the amount of Rs.59,000/- was rightly recovered from him. This plea finds support from Satisfaction Certificate (Annexure R4) duly signed by the complainant qua receiving/settlement of his claim to the tune of Rs.78216/- being full and final and in this very document the complainant had also agreed to make the above said payment to the Op No.1. Moreso, the complainant has also not led any evidence to show that his signature on this document was obtained under coercion and the claim was not finalized as full and final. There is also not an iota of evidence on record to show that any official of the OP Nos. 2 & 3 compelled the complainant to settle the claim.   In the case in hand, it can be easily held that complainant was not a victim of any kind of duress or coercion exercised by the Insurance Company because while receiving the amount, at no point of time, the complainant had even whispered that the Insurance Company was exercising duress and coercion to accept the said amount to be paid to the OP No.1 as full and final settlement. Therefore, the complainant is stopped to file the present complaint against the OP Nos.2 & 3. On this point reliance can be taken from judgment dated 03.07.2014 of Hon’ble National Commission passed in case law titled as M/s Tata AIG General Insurance Company Limited Vs. M/s Nissan Electronics passed in first Appeal No.424 of 2008.   The complainant has also not led any cogent and reliable evidence to prove his allegations levelled against OP No.1. Therefore, no defieincy is established against Ops and the presnet complaint is liable to be dismissed. It is ordered accordingly. Since, the Op No.1 in its reply has admitted that it is accountable to pay Rs.3445/- to the complainant, therefore, the complainant OP No.1 is directed to pay Rs.3445/-  to the complainant. Compliance of this order be made with 30 days. A copy of this order be supplied to both the parties free of cost.  File be consigned after due compliance.

Announced in open Forum.                                                     Dated:11.01.2017

                                                                                                                                                                                                                   (Ansuya Bishnoi)                                        (Raghbir Singh)                   Member                                             President                                                                                  District Consumer Disputes                                                              Redressal, Forum, Fatehabad.