DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 85 of 14-03-2008

Decided on 27-09-2013

Dewan Chand Garg S/o Sh. Tej Ram Garg R/o Namdev Marg, 40’ Road, Corner Bhatti Road, Bathinda.

…...Complainant

Versus

1. Iffco Tokio General Insurance Co. Ltd., IInd Floor, Opposite Nirankari Bhawan, G.T. Road, Bathinda, through its Branch Manager

2. Iffco Tokio General Insurance Co. Ltd., Shastri Nagar, Near Railway Crossing through its Branch Manager, Ludhiana.

3. Smarat Insurance Services (Franchisee), Iffco Tokio General Insurance Co. Ltd., No. 13, Shakti Market, The Mall, Bathinda, through its Owner/ Proprietor.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt.Sukhwinder Kaur, Member

For the Complainant : Sh. Naresh Garg, counsel for the complainant.

For the opposite parties : Sh. Varun Gupta, counsel for opposite party Nos. 1 & 2.

Opposite party No. 3 exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an ’Act’). The case in hand was dismissed by this Forum on 19-2-2009 on the ground that intricate questions of law and facts were involved which cannot be adjudicated by this Forum in just and proper manner, leaving the complainant to approach the civil court. The Hon’ble State Commission, Punjab, Chandigarh vide its order dated 05-08-2013 in first appeal No. 358 of 2009, has remanded back this complaint for deciding the same on merits and the complaint is registered at its old number.

2. Briefly stated the case of the complainant is that his car bearing registration No. PB-03-K-1688 was comprehensively insured with the opposite parties vide cover Note No. 35404151 for the period from 28-12-2007 to 27-12-2009 for the IDV of Rs. 2,30,000/-. The said car of the complainant met with an accident on 10-1-2009 at Bibi Wala Road, Bathinda and was badly damaged. The intimation in this regard was given by the complainant to opposite party No. 3 and at their instance, he shifted the damaged car to the premises of M/s. Krishna Autos, Bathinda i.e authorized service centre of Maruti manufacturing company, after which they deputed their surveyor Sh. Rajpal Singhal, who inspected the car in question on 10-1-2008 and received estimate for its repairs. The complainant alleged that at that time, the said surveyor obtained the signatures of the complainant on blank consent form, claim form, acceptance letter and discharge voucher with the assurance that payment of full claim amount will be made as per estimate submitted by him. The complainant also handed over copies of requisite documents including registration certificate, insurance cover note and driving licence to the said surveyor. The complainant further alleged that his car was repaired by the said repairers under the supervision of surveyor appointed by the opposite parties. The spare parts were also purchased under his supervision from Delhi and local market at Bathinda, by the complainant, for a sum of Rs. 51,631/-. The complainant received part payment in the sum of Rs. 21,555/- from opposite party No. 1 on 28-2-2008 and immediately he lodged protest with them against making payment of inadequate amount. The complainant further alleged that the opposite parties and their surveyor have used unauthorized coercive methods in making the part payment of loss suffered by the complainant. The opposite parties have failed to provide services and have not made full payment as per bills. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to make payment of Rs. 30,076/- alongwith interest besides compensation and cost.

3. The opposite party Nos. 1 & 2 filed their joint written statement and admitted that the car in question was insured with them vide cover note No. 35404151 and it met with accident on 10-01-2009 and damaged, loss of which was duly assessed and received unconditionally by the complainant to his entire satisfaction towards the full and final payment qua his claim. The opposite party Nos. 1 & 2 have admitted that the complainant gave intimation of loss and shifted his damaged car with Krishana Autos, Bathinda, duly authorized service centre of Maruti manufacturing company of the car in question. The opposite party Nos. 1 & 2 have pleaded that the complainant who is a senior most Advocate, not even supposed to sign any alleged blank consent form, claim form and discharge voucher as on 10-1-2009 and rather signed all the said documents voluntarily with free will, sound disposing mind, unconditionally without any protest to his entire satisfaction as full and final payment qua his claim. The opposite party Nos. 1 & 2 have admitted that the payment of Rs. 21,555/- has been made by them to complainant towards full and final satisfaction of the claim. It has been pleaded that the complainant first received the cheque amount without any protest to his entire satisfaction as full and final payment and then wrongly sent the letter demanding balance payment and lodging protest to harass the opposite parties.

4. The opposite party No. 3 filed its separate written statement and pleaded that the complaint against it, is not maintainable as the opposite party No. 3 is a franchisee of Iffco Tokio General Insurance Co. Ltd., and has no powers/authority to issue insurance policy or to appoint surveyor or settle the claim on behalf of insurance company. The opposite party No. 3 has further pleaded that their duty is to collect the insurance cover note and premium amount from the agent of the insurance company and forward the same to insurance company and further to forward the documents, if any, submitted by the clients to higher/concerned office of insurance company for further necessary action. The opposite party No. 3 has admitted that the complainant has intimated them for accident of his car and stated that his car is lying at Krishna Autos, Namdev Marg, Bathinda and accordingly, the opposite party No. 3 has forwarded the same to opposite party No. 2 for further action and opposite party No. 2 appointed Sh. Raj Pal Singhal, as surveyor to assess the loss. The opposite party No. 3 has further pleaded that when the vehicle was being repaired by authorized service centre, it is the duty of workshop to repair the vehicle within their workshop, hence local market bills were not considered. The complainant has submitted the estimates to surveyor or the insurance company and the loss was assessed after considering the clause and depreciation as per age and model of the car. The insurance company has settled the claim as per survey report.

5. Parties have led their evidence in support of their respective pleadings.

6. Arguments heard. Record alongwith written submissions submitted by the parties perused.

7. These are admitted facts of the parties that the car bearing registration No. PB-03-K-1688 of the complainant met with accident on 10-01-2008 which was got repaired by him from M/s. Krishna Autos, Bathinda, the authorized service centre of the Maruti vehicles, by spending Rs. 51,631/-. As per estimates dated 10-1-2008 Ex. C-19 to Ex. C-21, M/s. Krishan Autos, Bathinda, estimated the cost of repairs as Rs. 51,631/-, but Sh. Rajpal Singh, the surveyor appointed by the opposite parties assessed the loss vide his report dated 7-2-2008 Ex. R-4 to the tune of Rs. 21,600/-. The opposite parties paid an amount of Rs. 21,600/- to the complainant vide cheque No. 3540451 regarding which discharge voucher Ex. R-6 was executed by the complainant and acceptance letter dated 4.2.2008, Ex. R-5 was also signed by him.

8. The submission of the learned counsel for the complainant is that the blank proforma of acceptance letter as well as discharge voucher Ex. R-5 & Ex. R-6 respectively were got signed by the Surveyor and he had not accepted the amount paid to him as full and final settlement as immediately after receipt of the said amount, he lodged the protest and sent registered letter dated 28-2-2008 Ex. C-4. The learned counsel for the complainant submitted that the document Ex. R-7 has been filled later on. The report Ex. R-4 was made on 7-2-2008 whereas the date mentioned on Ex. R-5 is 4-2-2008. Moreover, in Ex. R-5, the surveyor has mentioned the assessed loss to the tune of Rs. 29,573/- and salvage value of Rs. 7,973/- whereas in the survey report Ex. R-4, he has assessed the salvage value to the tune of Rs. 503/-. The submission of the complainant is that he is entitled to the claim amount as per estimates of the authorized service centre as the repair has been carried out under the supervision of the surveyor appointed by the insurance company. The surveyor has not allowed many parts without giving any reason.

9. On the other hand, the submission of the opposite parties is that neither the opposite parties nor their surveyor has obtained any signatures of the complainant on any blank document. The complainant has accepted the amount so assessed by the surveyor to his entire satisfaction without protest and with his free will and sound disposing mind as full and final amount of claim and not as part payment.

10. The Hon’ble State Commission, Punjab, Chandigarh, vide aforesaid order has held in para No. 10 :-

    “...On going through the blank acceptance letter ( Ex. C-17) and blank discharge voucher (Ex. C-18) which are signed by the complainant and filled up acceptance letter (Ex. R-5) and discharge voucher (Ex. R-6) submitted by the opposite parties, it can easily be made out that the signatures on blank proformas were obtained by the opposite parties from the complainant and these were completed subsequently. Even from the documents, placed on record by the opposite parties, it is proved that discharge voucher and acceptance letter were obtained by fraud and coercion because the report of the surveyor (Ex. R-4) was prepared on 7-2-2008 whereas the acceptance letter (Ex. R-5) is shown to have been executed on 4-2-2008. The amount released to the complainant is based on the report of the surveyor but the discharge voucher has been signed even prior to its submission.”

11. Hence, in view of the above said order of the Hon’ble State Commission, Punjab, Chandigarh, it has been proved on file that the amount released to the complainant is based on the report of the surveyor but the signatures on blank proformas of discharge voucher and consent letter were obtained by the opposite parties from the complainant prior to submission of the survey report and these were completed subsequently.

12. Ex. C-19 & Ex. C-21 is the estimate regarding the parts of the car in question, required to be replaced, and Ex. C-20 regarding labour charges, issued by Krishna Autos, Bathinda, Maruti authorized service station, to the tune of Rs. 36,120/- & Rs. 17,500/- respectively. The complainant has placed on file bills Ex. C-6 to Ex. C-10 to the tune of Rs. 51,631/-. A perusal of these documents reveal that the complainant has made the payment of the said bills in cash including VAT/CST. Vide Ex. C-6 an amount of Rs. 17,977/- has been paid by the complainant to Krishna Autos as labour for denting, painting, opening, fitting as per estimate. Thus, when Krishna Autos, authorized Maruti Service Station has charged Rs. 17,977/- as labour for doing the job as per its own estimate, it cannot be said that the parts Ex. C-7 to Ex. C-9 have not been purchased by the complainant.

13. A perusal of survey report Ex. R-4 reveals that surveyor has not allowed many items without giving any detail against them as to why those items were not allowed. The Hon’ble Supreme Court in Civil Appeal No. 3253 of 2002 in the case titled New India Assurance Company Limited Vs. Pradeep Kumar has observed in para No. 15 that :-

    “.....but surveyor’s report is not the last and final word. It is not the sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”

14. As per registration certificate Ex. C-3 of the car in question, the month of year of manufacture of the car is January, 2003. The accident took place on 10-01-2008 meaning thereby that on the date of accident, the age of the vehicle was five years.

15. Hence, keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered opinion that there is deficiency in service on the part of the opposite party Nos. 1 & 2 in not paying his genuine claim to him and the opposite parties and their surveyor have used un-authorized coercive method in making the part payment of the loss to the complainant.

16. In view of what has been discussed above, this complaint is accepted with Rs. 5,000/- as cost and compensation against opposite party Nos. 1 & 2 and dismissed qua opposite party No. 3. The opposite party Nos. 1 & 2 are directed to pay the amount of parts which are not allowed by the surveyor in his report Ex. R-4, to the complainant after applying depreciation, on which parts it is applicable, as per rules keeping in view the age of the vehicle, as discussed above. The opposite party Nos. 1 & 2 are further directed to pay the difference of labour charges as the complainant has paid Rs. 17,977/- to Krishna Auto vide Ex. C-6 and Rs. 1150/- to Namdhari Refrigeration & Air Conditioning Centre, vide Ex. C-10.

17. The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which the aforesaid claim amount, as detailed above, will yield interest @ 9% P.A. w.e.f. the date of this order till realization.

    A copy of this order be sent to the parties concerned, free of costs and the file be consigned to the record.

    Pronounced in open Forum

    27-09-2013 (Vikramjit Kaur Soni)

    President

     

    (Amarjeet Paul)

    Member

     

     

    (Sukhwinder Kaur)

    Member