Haryana

Ambala

CC/273/2014

DINESH K RAJPAL - Complainant(s)

Versus

IFFCO TOKIO INSS. - Opp.Party(s)

PUNEET SIRPAUL

11 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 273 of 2014

                                                          Date of Institution         : 30.09.2014

                                                          Date of decision   : 11.09.2017

Dinesh K. Rajpal S/o Darbari Lal, # 55, Anand Vihar, Nanhera Road, Ambala Cantt.

……. Complainant.

1. IFFCO Tokio General Insurance Col ltd. Registered office at o/o Iffco      Sadan, C-1, District Center Saket, New Delhi-110017.
2. Iffco Tokio General Insurance Co. ltd. Branch Office at #6330, IInd Floor,        above Dena Bank Punjab Mohalla, Ambala Cantt.

 ….…. Respondents.

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                   

                   MS. ANAMIKA GUPTA, MEMBER       

Present:       Sh. Puneet Sirpaul, counsel for complainant.

                   Sh. M. Bindal, counsel for OP.

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant purchased a car Tata Nano, bearing No.HR01AE-4649 from Ambala and same was insured with OPs vide cover note/policy NO.1-24U75AS, P400 policy: B4203687 from 10.06.2013 to 09.06.2014 for a premium of Rs.5323.36/-. On 10.10.2014, the above said vehicle met with an accident at G.T. Road, Rajpura due to break failure and a result of which the vehicle in question got damaged and intimation in this regard was given to the OPs immediately and accordingly Surveyor was appointed who asses the loss and thereafter the complainant spent Rs.27180/- on the repair of the vehicle. Thereafter all the formalities were completed to the insurance company but the insurance company failed to settle the matter in time and harassing the complainant without any reasonable cause. Hence, the present complaint.

2.                Upon notice OPs appeared and resisted the present complaint by filing their written statement. OPs in their written statement submitted that as a matter of act the claim of the complainant was duty entertained in due course and the duly appointed Surveyor after affording full opportunity to the complainant and after considering all the facts in detail legally assessed the loss without any discrimination and the OPs recommended and approved the payable claim to the tune of Rs.3308/- as per the assessment made by the Surveyor by ignoring/denying the loss associated with the mechanical/engine loss due tonegligence of the insured himself. It is not out of place to mention here that during the Surveyor, the Surveyor found that the mechanical breakdown and engine loss has been caused due to negligent attempts of the driver Ms. Sneh Lata who tried to start the car in question time and again inspite of the fact that the water had entered into the engine by putting/driving the car in deep waters and according to car manual and even the general sense, the car should not be stared time and again if the car has stopped into deep water and the water has accordingly entered into engine. So as per the terms and conditions of the Motor Insurance Policy, the company is liable to indemnify the insured against damage to vehicle caused by accidental external means i.e. damage to car body, paint and flushing out of water etc. and not the subsequent loss and wear/tear caused due to negligent handling of the situation and is not liable to make any payment in respect of mechanical breakdown and engine loss that too due to the negligence on the part of driver. It is pertinent to mention here that the insurance company is bound to perform strictly within the ambit and purview of the terms and condition of the policy and as per insurance byelaws according to which a certain procedure has been specified and every claim under their respective policy is payable as per the assessment made by the IRDA licensed Surveyor without any discrimination and the complainant is very much aware about the scope and limitations of the answering OP and accordingly he issued satisfaction voucher while receiving the approved and sanctioned amount of Rs.3308/- as assessed by the Surveyor but now in order to put undue pressure, the complainant has filed this false complaint by exploiting the process of law. So, Ops have prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X along with documents as annexure C-1 to C-5 and close his evidence. On the other hand, counsel for the Ops has also tendered affidavit as Annexure R-X &                   R-Y alongwith documents as Annexure R-1 to R-4 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.3308/- (Annexure R-3) from the OPs with regard to the claim lodged by him on account of damaged vehicle in question. The complainant has not led any evidence that before/after taking the said amount (Rs.3308/-) he had 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.3308/- 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-1 along with sworn affidavit of Surveyor Annexure R-Y which shows that the loss was assessed to the tune of Rs.3308/- 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-3. 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.

7.                    In view of the above-said factual position and legal proposition, we are of the view that 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 :11.09.2017                                  (D.N. ARORA)

                                                                                       President

 

    

     (PUSHPENDER KUMAR)

                                                                                            Member

 

 

              (ANAMIKA GUPTA)

                                                                                            Member