SHRI A.P.MUND, PRESIDENT: Complainant Radheshyam Patel has filed this case against the O.Ps alleging deficiency in service as well as unfair trade practice. Case of the complainant is brief is that he is the registered owner of one Bolero XL 2WD Ac. Bearing Regd.No.OR-15-R-5151 which was hypothecated to O.P.No.1 and insured with O.P.No.2 vide Policy No.15010031116300013751 on dt.11.5.2011 valid from 11.5.2011 to 10.5.2012.
2. The above insured vehicle met with an accident on dt.28.2.2012 at about 8.30 A.M. near village Mantrimunda, P.S.: Kuchinda. FIR was lodged at Kuchinda police station vide SDE No.,644 dt.28.2.2012. Both O.P.Nos.1 & 2 were intimated about the accident.
3. O.P.No.1 directed the complainant to invite quotation from motor garages and spare parts shops so that they can place the matter before the O.P.No.2. Complainant submitted quotations with the O.P.No.1. O.P.N o.1 instructed the complainant to get the vehicle repaired at his own cost and produce the bill for expenses towards repair for filing claim before the O.P.No.2,
4. Complainant repaired the vehicle at Badhei Motor Garage, Ainthapali, O.P.No.3 and purchased spare parts from O.P.No.4. He spent Rs.95,000- towards repair charges (labour charges) and Rs.48,603/- for purchase of spare parts and spent a total sum of Rs.1,43,603/-. After repairing his vehicle complainant informed the O.P.no.1, who instructed the complainant to meet with one Tapas Palei, Claim Officer, Rourkela. Complainant deposited all the bills in original with Mr.Palei. After three months the O.P.No.2 sent a cheque for Rs.35,000/- to O.P.No.1 towards settlement of the claim. Complainant was not satisfied with this amount and requested vide a letter to O.P.Nos.1 & 2 to supply the details of the claim of the vehicle. But no action was taken by the O.P.Nos.1 & 2 for which complainant was harassed and mentally agonized by the action of the O.P.Nos.1 & 2 for which he filed the case before this Forum with prayer to direct the O.Ps to pay :
(1) the cost of vehicle repairing charges of Rs.1,43,603/-.
(2) a sum of Rs.1,00,000/-towards physical and mental harassment
(30 a sum of Rs.5,000/- towards cost of the proceeding .
After receipt of notices, OP.Nos.1 & 2 appeared through their advocates and filed their separate
written versions. But O.P.Nos.3 & 4 did not take any step to contest the proceeding. Hence they were set ex-parte.
In its written version the main defence of O.P.No.1 is that the financer is not liable for any
compensation as there is arbitration clause according to the loan agreement signed between the parties. Any dispute arising out of said agreement should have been referred to the Sole Arbitrator. O.P.No.1 accepted the contention of the complainant regarding finance. O.P.No.1 further avers that when there has been a contract between the parties that being a bilateral action, both parties are bound by the terms and conditions as stipulated therein.
The O.P.No.1 can receive money payable under the policy for the financed vehicle as irrevocable
power has been given to it and accordingly, O.P.No.1 has not committed any deficiency in service or unfair trade practice. So, complainant is not entitled to get any relief claimed by him from the financer and the case is liable to be dismissed against the O.P.No.1.
O.P.No.2 in its written version has agreed with the averments of the complainant that he had
taken a Passenger Carriage Commercial Insurance Policy for the alleged vehicle. O.P.No.2 also agreed about getting the intimation regarding accident of the insured vehicle, damage caused to the vehicle and lodging of claim by the complainant for indemnification by the Insurance Company.
Submission of O.P.No.2 is that the Insurance Company being a public undertaking is bound by
the regulations and directions. Accordingly it appointed a surveyor, who is supposed to ascertain the accident, actual damage and asses renovating the insured object. The surveyor is an independent licensed surveyor and his report was being received and after examination of the surveyor’s report the final assessment of loss was to be quantified as per the policy norms of the Insurance Company and such quantum was offered to the insured towards full and final settlement of the claim.
The surveyor namely Er.H.N.Agrawal was appointed in this case, who submitted his report on
dt.12.4.2012 with estimated loss of Rs.36,000/-. After deducting Rs.1,000/- towards lifting/towing charges, the Insurance Company settled the claim at Rs.35,000/- and the entire settled amount was tendered to the financer i.e. O.P.no.1 after getting the pre-receipt signed voucher from the complainant. In this respect the complainant has duly declared that he has no objection if his claim settlement cheque is paid to the O.P.no.1 and this letter is unconditional and unambiguous. O.P.No.2 submits that it is not indulged in any unfair trade practice or breach of any terms of contract and it is not negligent.
O.P.No.2 further avers that any difference or dispute regarding the quantum of payment, the
Complainant/insured should have referred the matter to the Sole Arbitrator and accordingly, O.P.No.2 averred that this Forum lacks jurisdiction to entertain the case in hand as there is no award by any arbitrator. O.P.No.2 files list of documents with copies thereof, which are Xerox copies of (1) Policy copy with its literature (2) Surveyor’s report dt.12.4.2012 submitted by Er.H.N.Agrawal and (3) NOC of the complainant.
Heard the learned counsels of the contesting parties and carefully have gone through the
complaint petition, written versions, written arguments filed by the complainant and O.P.No.2 and documents filed by the parties and placed on record. O.P.No.2 has filed the Passenger Commercial Package Policy and surveyors assessment report. According to the policy, the depreciation should have been 5% and for some parts like Rubber, Nylon etc. depreciation should be 50%. But there is no mention or any agreement regarding how to quantify the labour charges. As Advocates for both the O.Ps submitted their case fairly, we find two issues before us to decide this case as under:
Whether O.P.No.2 has correctly assessed the damages basing on the survey report submitted by one Er.H.N.Agrawal, final surveyor appointed in this case?
Whether acceptance of payment is under duress?
We have gone thoroughly with the survey report vide No.HNA/12/MAG/12-13 dt.12.4.2012.
Under the heading labour, there are seven items. The bill has been submitted by the complainant from a garage, which charged Rs.81,500/- . But the recommendation of the surveyor is Rs.24,000/- towards labour charges without any proper explanation. So, the said assessment by the surveyor according to us is arbitrary.
The particular for recommendation does not give any idea as to how the assessment has been
done and the assessment according to us is not up to the standard which is expected from an IRDA surveyor and it is arbitrary and purely one sided. Labour charges are very high as the garages are employing skilled labours and charges for skilled labours is very high.
15. We feel that the assessment for spare parts is according to the norms laid down in the policy. The assessment made by the Surveyor on labour charges is one sided and cannot be accepted. Hence we peg the loss at Rs.1,00,000/- (including labour charges and spare parts), which the O.P.No.2 Insurance Company is liable to pay to the complainant. Accordingly, issue No1 is decided in favour of the complainant and against O.P.No.2
16. Regarding the second issue, we are guided by the principle laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.93 of 2008. In para-5 of the order it has been mentioned as under:
………………… In our considered view, the complainant could not have accepted this, much smaller payment voluntarily unless he was in dire financial difficulty due to the losses on account of the fire because of which he was left with no alternative but to accept the much smaller payment in so-called full and final settlement of his claim. This acceptance was thus under duress and hence the complainant was entitled to file a consumer complaint challenging the validity of the assessment. This view is in conformity with the Apex Courts decision in the case of United India Insurance v Ajmer Singh Cotton and General Mills and Others (1999) SCC 400 . …………….
Under such circumstances, we find that the signature of the complainant in this case on the no objection certificate issued by him was under duress. The complainant has come up before this Forum to refute the above no objection to the claim settlement cheque and we hold that the above has been written in duress.
Taking into consideration the facts and circumstances discussed above, and applying the principle laid down by the Hon’ble National Commission referred to above to the present case, we allow the case against O.P.No.2 and exempt the O.P.No.1 from this proceeding as it has no
liability in this case. Accordingly, O.P.No.2 is directed to pay to the complainant Rs.1,00,000/-(minus Rs.35,000/-, which has already been paid by the O.P.No.2 in shape of cheque to O.P.No.1) i.e. in total Rs.65,000/-(Rupees Sixty-five thousand) with interest @ 9(Nine) per cent per annum from the date of issue of the cheque of Rs. 35,000/- till the date of payment.
No order is passed as to compensation or cost.
O.P.No.2 is to comply with this order within a month from the date of order.
