Punjab

Ludhiana

CC/14/357

Shree Salaser Tpt Co. - Complainant(s)

Versus

HDdI General Ins.Co.Ltd - Opp.Party(s)

24 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          C.C.No.357 of 09.05.2014

                                                          Date of Decision: 24.02.2015

Shree Salasar Transport Company, MIG-1147, Sector 32, Chandigarh Road, Ludhiana through its Partner Sandeep Pareek. 

                                                                                       … Complainant

                                             Versus

1.Magma HDI General Insurance Company, 211-213, Savitri-I, Near Dholewal Chowk, G.T.Road, Ludhiana through its Branch Manager.

2.Megma HDI General Insurance Company Limited, Magma House, 24 Park Street, Kolkata-700016 through its Chairman/Managing Director/authorized signatory.

                                                                   …             Opposite Parties

          Complaint under section 12 of the Consumer Protection Act,1986

 

Quorum     Sh. R.L.Ahuja, President.

                   Smt.Priti Malhotra, Member.

                   Sh.Sat Paul Garg, Member.

                                                        

Present       Sh.Akash Bhalla, Adv. for complainant.

                   Sh.Vyom Bansal, Adv. for OPs.

                                                ORDER

R.L. AHUJA, PRESIDENT

1.                Present complaint u/s 12 of the Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Sandeep Pareek being partner of Shree Salasar Transport Company, MIG-1147, Sector 32, Chandigarh Road, Ludhiana (hereinafter in short to be referred as ‘complainant’) against Magma HDI General Insurance Company and others (herein-after in short to be referred as ‘OPs’)- directing them to pay the claim of Rs.3,54,600/- alongwith interest @24% p.a. besides Rs.2 lakh as damages suffered by the complainant due to deficiency in service on the part of the Ops and other benefits to the complainant.

2.                Brief facts of the complaint are that the complainant is owner of one truck bearing registration No.PB-10-DZ-5374 having engine No.DBHZ402912 which was insured by the complainant with OP1 vide Certificate cum policy No.P0013100018/4103/171611 dated 31.3.2014 which was valid upto 30.3.2014 on payment of full premium to the Ops by the complainant. After the purchase of the said vehicle, the complainant got registered the same with District Transport Office. On 23.2.2014, the said vehicle met with an accident and loss of Rs.3,54,600/- was caused to the said vehicle and in this regard, the claim was lodged by the complainant to the Ops on 15.3.2014 vide claim No.C/14/100018/4103/1/05003401 alongwith all the documents. Thereafter, instead of settling the abovesaid full claim, the Ops only issued the cheque for Rs.1,80,302/- which was the meager amount. Thereafter, the complainant time and again approached the Ops to sanction the full claim as they have suffered a lot, but Ops always postponed the matter on one or the other false pretext and finally, Ops have repudiated the claim of the complainant on the false and frivolous grounds. Such act and conduct of OPs for repudiating the genuine claim of the complainant is claimed to be deficiency in service on their part by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel Sh.Vyom Bansal, Advocate and filed their written reply, in which, they took up certain preliminary objections that the present complaint is frivolous and vexatious and deserves to be dismissed with costs as per the provision of Section 26 of the Consumer Protection Act; the complainant has not approached this Hon’ble Forum with clean hands and is guilty of suppression of material facts as the sole motive of this complaint is to extort illegal and unjust money from the answering Ops which is neither payable nor due towards the complainant as the claim of the complainant has been denied for violation of the terms of the policy; the present complaint is not maintainable before this Hon’ble Forum as the insured is not covered under the definition of Consumer under Consumer Protection Act, 1986 and the present complaint is not maintainable before this Hon’ble Forum as no cause of action arose within the territorial jurisdiction of this Hon’ble Forum. Further, it is submitted that the vehicle of the complainant i.e. Ashok Leyland-1616 Tipper was insured vide commercial vehicle class Package Policy No.P001300018/4103/171611 valid from 31.3.2013 till 30.3.2014 by the answering Ops. The accident was intimated by the complainant on 23.2.2014 to the answering Ops and the claim form was received thereafter. The answering Ops appointed ER.Virender Kumar, surveyor and loss assessor having SLA No.73153 to survey the loss and the amount so payable to the complainant for repair of the vehicle. The said surveyor vide its report dated 12.4.2014 submitted his report whereby, he assessed the net liability of the insurance company at Rs.1,80,302.15P. The officials of answering Ops after considering the survey report, allowed the claim of Rs.1,80,302.15P and paid the amount to the complainant. The claim had been paid as full and final payment and no further cause of action had arisen against the answering OP and therefore, the present complaint is liable to be dismissed at the very outset on this score alone. On merits, the fact regarding insurance of the vehicle in question by the answering Ops as alleged and lodging of claim are not denied. However, it is submitted that the answering Ops had after due consideration and as per the terms of the policy, paid the amount under insurance policy to the complainant. As per the terms and conditions of the contract of insurance, necessary deductions were made on the metal, glass and other parts by the surveyor in terms of the insurance contract. The complainant is not entitled to receive the amount of Rs.3,54,600/- at all as alleged. The claim of the complainant was rightly settled. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying any deficiency in service and all other allegations of the complainant being wrong and incorrect, answering OPs prayed for dismissal of the complaint with costs.

4.                Learned counsel for the complainant in order to prove the case of the complainant, adduced evidence by placing on record affidavit of complainant as Ex.CA, in which, he has reiterated all the allegations made by him in the complaint. Further, learned counsel for the complainant has proved on record documents Ex.C1 to Ex.C7.

5.                On the contrary, learned counsel for the OPs in order to rebut the evidence of complainant, adduced evidence by placing on record affidavit Ex.RA of Sh.Ved Tripathi, its Manager, in which, he has reiterated all the contents of reply filed by OPs and refuted the case of the complainant. Further, learned counsel for the Ops tendered into evidence affidavit Ex.RB of Sh.Virender Kumar, who was appointed as surveyor and loss assessor by the Ops in order to assess the loss to vehicle No.PB-10-DZ-5374 on 23.2.2014, in which, he has proved his report dated 12.4.2014 Ex.R4. Further, learned counsel for the OPs has proved on record the documents Ex.R1 to Ex.R5.

6.                We have heard the learned counsel for both the parties.

7.                Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the contents of the complaint and further, it has been submitted that the surveyor was appointed by the Ops, who had not acted in an impartial and judicial way as he had ignored the actual loss suffered by the complainant and prepared his own report, wherein, he had assessed very lesser amount as damages to be paid to the complainant and made prayer for the amount of claim be passed on the basis of the bills submitted by the complainant and the surveyor ‘s report may not be treated as basis for passing the claim in question.

8.                On the other hand, learned counsel for the Ops has contended that it is proved on record that after lodging the claim by the complainant, Ops had appointed the surveyor and loss assessor Sh.Virender Kumar, who had submitted his detailed report dated 12.4.2014 and on the basis of the said survey report, the claim was settled and paid by the Ops to the tune of Rs.1,80,302.15P and now nothing is due against the complainant. The complainant has neither raised any objections or protest at the time of receiving the settled amount nor the complainant has taken such plea in his complaint that the complainant has not settled the claim and he has not received the amount nor the complainant has taken the plea that settlement has been effected by Ops by playing any fraud, undue influence, coercion of any mis-representation. The complainant seized to be a consumer after settlement and after receiving the payment. Further, learned counsel for the Ops has relied upon judgment tilted as National Insurance Co.Ltd. vs. Sardar Gurmit Singh-III(2004)CPJ-46(N.C.)..

9.                We have considered the rival contention of the learned counsel for the complainant and have also gone through the written arguments alongwith judgment filed by the learned counsel for the complainant and have also gone through the record on the file very carefully.

10.              It is an admitted fact between the parties that the complainant is the owner of the vehicle in question i.e.Truck bearing registration No.PB-10-DZ-5374 which was insured with Ops vide insurance policy Ex.C5 for the period from 31.3.2013 to 30.3.2014 on payment of premium. Further, it is a proved fact on record that the vehicle of the complainant met with an accident on 23.2.2014 and the claim to the tune of Rs.3,54,600/- was lodged by the complainant with the Ops which was duly registered and processed by the Ops and the surveyor and loss assessor namely Sh.Virdern Kumar was duly appointed by the Ops, who after his thorough inspection, submitted his report dated 12.4.2014 Ex.R4 with the Ops, vide which, he had assessed the loss to the tune of Rs.1,80,302.15P on net liability which was paid to the complainant vide cheque No.33234088 dated 22.4.2014 Ex.C4.

11.              Perusal of the complaint as well as evidence of the complainant reveals that the complainant has not uttered even a single word that he has received the aforesaid amount of Rs.1,80,302/- under any protest or some fraud, mis-representation or any coercive methods has been applied by the Ops while settling the claim and made the payment of Rs.1,80,302/- to the complainant. Rather, it appears from the evidence of the Ops that Ops had paid the amount on the basis of the survey report Ex.R4 to the complainant. It is a well settled principle of law that after receiving the settled amount on the basis of the survey report, the insured is seized to be a consumer.

12.               In view of the above discussion, we are of the opinion that the complaint of the complainant does not appear to be maintainable and the same hereby dismissed being devoid of any merit. Copy of order be made available to the parties free of costs. File be completed and consigned to record room.

(Babita)                (Sat Paul Garg)              (R.L.Ahuja)

  Member                Member                        President  

Announced in Open Forum

Dated:24.02.2015

Gurpreet Sharma.