Punjab

Ludhiana

CC/15/27

Pawan Kumar - Complainant(s)

Versus

ICICI Lombard General Insur. - Opp.Party(s)

Vishal Kumar

27 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 27 of  09.01.2015

Date of Decision          :   08.09.2015

 

Pawan Kumar, aged 56 years, son of Sh.Mansa Ram, resident of Street NO.12, Basant Nagar, Khanna, District Ludhiana. 

….. Complainant

 

Versus

 

ICICI Lombard General Insurance Company Limited, having its branch office situated at Kunal Tower, Mall Road, Ludhiana, through its Branch Manager.

..…Opposite party

 

 

   (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Harjinder Singh, Representative

For OP                           :       Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Sh.Pawan Kumar filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as the ‘Act’) against the OP, by alleging that he purchased car bearing registration No.PB-26-F-2443 and thereafter, he got the same insured with OP. Said car met with an accident and thereafter, surveyor was appointed by OP. OP gave cheque of Rs.69,912/- in favour of complainant, but OP has not touched the labour portion charges of Rs.29,781/-, qua which, the claim is alleged to be pending. Despite repeated requests, amount of Rs.29,781/- not disbursed, but now OP refused to disburse the said amount.

2.                On appearance, OP filed written statement by claiming interalia as if complainant has concealed the material facts; complaint barred under section 26 of the Act; complainant does not remain to be a consumer after receiving the amount of Rs.12,855/- in full and final discharge/settlement of claim on 21.02.2014 without any protest; complainant is stopped by his act and conduct from filing the complaint; complicated questions of law and fact are involved requiring elaborate evidence and as such, civil court alone is competent; complainant had already invoked the remedy of filing the complaint before Insurance Ombudsman at Chandigarh and thereafter, in pursuance to the arrived settlement, additional amount of Rs.69,912/- has been paid. Initially loss was assessed to the tune of Rs.12,855/- by IRDA approved surveyor. Charges related to engine seizure being consequential loss were disallowed because the car hit against a big stone and engine oil leaked. Claim payment was released vide cheque No.273249 dated 28.02.2012, but said cheque was not encashed owing to preference of an appeal by the complainant before Insurance Ombudsman, Chandigarh. Complainant produced bill/invoices alongwith towing receipt and thereafter, claim was re-assessed by surveyor Sh.Manoj Kukreja, who confirmed the loss to the tune of Rs.12,855/-. Thereafter, claim was settled vide order dated 23.10.2013 and payment of Rs.69,912/- was released vide cheque No.489410 dated 11.12.2013. Even letter of settlement dated 19.12.2013 was sent with that cheque. That settlement cheque was duly encashed by the complainant without any protest and in view of that relationship of consumer came to an end. Claim of the complainant was duly entertained, processed and registered and thereafter, surveyor submitted report dated 6.11.2013 for assessing the loss of Rs.12,855.06P including the labour charges. That report was submitted after scrutinizing the documents placed in the claim file, but assessed amount of Rs.12,855/- was not accepted by the complainant, despite sending cheque of aforesaid amount. Total amount of Rs.69,912/-           was accepted by the complainant, which includes all applicable charges against survey report of Rs.12,855/-. So complainant is not entitled to any amount now. There is no deficiency in service on the part of the OP and as such, prayer made for dismissal of complaint.

3.                Complainant to prove his case tendered his affidavit Ex.CA alongwith documents EX.C1 to Ex.C3 and thereafter, closed the evidence.

4.                On the other hand, Sh.Rajeev Abhi, Advocate for OP tendered in evidence affidavit Ex.RA of Ms.Meenu Sharma, Manager Legal of OP and even tendered affidavit Ex.RB of Sh.Romit Modi, Surveyor and Loss Assessor appointed by OP and also tendered affidavit Ex.RC of Sh.Manoj K.Kukreja, an IRDA approved surveyor and even tendered documents Ex.R1 to Ex.R12 and thereafter, closed the evidence.

5.                          Written arguments submitted by OP alone. It is not submitted by the complainant. Oral arguments addressed and were heard. Records gone through minutely. 

6.                It is vehemently contended that Sh.Harjinder Singh, representative for the complainant that labour portion charges not included in the paid amount of Rs.69,912/- and as such, there is deficiency in service on the part of the OP. Ex.R1 is certificate-cum-policy schedule, whereas Ex.R2 is insurance policy and Ex.R3 is claim form submitted by the complainant with OP. Ex.R4 is final survey report of surveyor namely Sh.Romit Modi dated 7.3.2012, where through he finally assessed the amount of claim payable as Rs.12,855/-. As that report was not acceptable to complainant and that is why, he preferred an appeal before Ombudsman of OP at Chandigarh and thereafter, settlement through letter dated 23.10.2013 Ex.R7 was arrived at as per which, the complainant agreed for a settlement of claim for admissible amount as assessed by surveyor as per policy terms and conditions including applicable depreciation after verification of copy of bill and towing receipt submitted by Shri Pawan Kumar with Ombudsman. Even if receipt of towing charges was submitted by the complainant, but despite that letter Ex.R11 issued by Bhagat Automobile Pvt. Ltd., there on record to establish that as the car in question was provided free road side assistance and that is why towing charges were not got from the complainant at all. In view of this letter Ex.R11, there remains no doubt that towing charges claimed by the complainant without actual payment thereof. So, claim for towing charges rightly repudiated by Sh.Manoj Kukreja, the appointed surveyor through Ex.R8. However, fitting, denting and painting charges of Rs.3000/- were assessed as payable amount after assessing the estimated value as Rs.14,242.65P. Labour charges of Rs.3309/- were included in this report is a fact born from perusal of para 10.1 of report Ex.R8. As labour charges paid by complainant were taken into consideration while assessing the initial compensation amount of Rs.12,855.06P and as such, it is not a case, in which, the labour charges were not included in the assessed payable amount to the complainant. Labour detail payment are contained in invoice Ex.R9=Ex.C3 of Rs.3309/- and as such, the claimed amount by the complainant as labour charges allowed or taken into consideration through Ex.R8 itself. Through another invoice Ex.R10=Ex.C2, amount of Rs.94,112/- including labour charges was to be  paid  by  the  complainant  to  Bhagat   Automobile  Pvt.  Ltd.  and   it is on the basis of same that amount of Rs.69,912/- paid towards final settlement of the claim amount by sending settlement letter Ex.R12=Ex.C1 alongwith cheque No.489410 dated 11.12.2013. That cheque admittedly has been got encashed by the complainant and as such virtually the complainant accepted the amount of Rs.69,912/- in full and final settlement of his claim.

7.                It is not the case of complainant that cheque of Rs.69,912/- got encashed under protest or that consent for settlement was obtained by mis-representation or fraud and as such, in view of the acceptance of amount of Rs.69,912/-, the complainant has ceased to be a consumer. In holding this view, we are fortified by law laid down in cases Kanta Mathur vs. National Insurance Company Ltd-I(2015)CPJ-151(N.C.); Vijay Stationers vs. United India Insurance Co.Ltd.-I(2013)CPJ-637(N.C.); Haryana State Co-Operative Supply & Marketing Federation Ltd. vs. Iffco Tokio General Insurance Company Limited and another-II(2013)CPJ-364(N.C.); M.L.Kathuria vs. Oriental Insurance co.Ltd. and another-II(2013)CPJ-586(N.C.); A.P.Jos vs. ICICI Lombard General Insurance Company Limited-II(2013)CPJ-386(N.C.); Yogesh Kumar Sharma(Dr.) vs. National Insurance Company Limited-II(2013)CPJ-178(N.C.); Ravindra Spinners Ltd. vs. National Insurance Company Limited and another-III(2013)CPJ-539(N.C.); Nirmal Singh vs. Oriental Insurance Company Limited-IV(2012)CPJ-641(N.C.) and Rajendra Panigrahy vs. Oriental Insurance Company Limited and another-II(2010)CPJ-589(Orissa State Consumer Disputes Redressal Commission, Cuttack). Ratio of all these cases says  that when complainant got encashed the cheque sent by the insurance company in full and final settlement of claim qua insurance without protest and no coercion or fraud or undue influence pleaded or alleged, then complainant ceased to be a consumer, particularly when protest not raised at the time of encashment of the cheque. Same is the position in the case before us. As complainant has accepted the full settlement amount of Rs.69,912/- without any protest and without writing back to OP and as such, in view of ratio of above cited cases, complainant has ceased to be a consumer, particularly when he already availed remedy by preferring an appeal before Insurance Ombudsman at Chandigarh and agreed to the settlement of claim by putting signature on settlement letter Ex.R7 dated 23.10.2013 and payment has been made as per settled conditions contained in Ex.R7 itself.

8.                In view of above observations, we do not find any deficiency in service on the part of the Op.

9.                Therefore, as a sequel of the above discussion, the present complaint merits dismissal and same is hereby dismissed without any order as to costs. Copy of this order be made available to the parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

 

                   (Sat Paul Garg)                            (G.K.Dhir)

                       Member                                      President

Announced in Open Forum

Dated:08.09.2015

Gurpreet Sharma.