Punjab

Ludhiana

CC/14/819

Gurmeet Vadiyala - Complainant(s)

Versus

M/s Reliance General Ins.Co.Ltd - Opp.Party(s)

Harminder Singh

12 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 819 of 01.12.2014 Date of Decision            :   12.05.2016

 

Gurmat Vadiyala Jatha Randhawa (Which is a registered trust in the name of Khalsa Charitable Trust (Regd.), Gurmat Vadiyala Jatha Randhawa), village Atewal, Chandigarh Road, Near Gurudwara Jyoti Saroop, District Fatehgarh Sahib through its Trustee Sh.Gurpreet Singh Randhawa.

….. Complainant

Versus 

1.M/s Reliance General Insurance Co. Ltd., having its regd.Office at 19, Reliance Centre, Walchand Hirachand Marg, Ballard Estate, Mumabi.

Corporate Office:570, Naigaum Cross Road, Next to Royal Industrial Estate, Wadala (W), Mumbai.

2.M/s Reliance General Insurance Co.Ltd., having its branch office at Feroze Gandhi Market, Ludhiana.

..…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant                    :        Sh.Harmohinder Singh, Advocate

For OPs                        :        Sh.G.S.Kalyan, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) filed by complainant, a registered Trust by claiming that Mr.Gurpreet Singh Randhawa, the trustee has been authorized vide resolution dated 15.10.2014 to file and prosecute the complaint. Complainant claimed itself to be the owner of Ford Endeavour vehicle bearing registration No.PB-10-CW-3535. This vehicle was insured with OPs vide policy No.113000066188 for the period from 5.11.2012 to 4.11.2013. This vehicle met with an accident on 24.9.2013 at the time, when it was driven by Sh.Gurpreet Singh s/o Sh.Hari Singh(representative of complainant) for coming back from Sector 104, Mohali to Fatehgarh Sahib. Suddenly, left side of this vehicle struck in a pit on the road, due to which, engine of the vehicle stood ceased. Left side of vehicle was drowned in the water. The pit could not be seen by the driver, due to water contained in the same. Claim was lodged by the complainant on 24.9.2013 with OPs and the same was registered vide No.2131116147 dated 25.9.2013. Thereafter, a surveyor for assessing the loss was appointed and he after inspecting the vehicle took the photographs. Complainant was called upon to get the estimate of repair work prepared. At the asking of surveyor, complainant called upon Saluja Ford Pvt.Ltd., Showroom-cum-workshop at C-43, Industrial Area, Phase-III, SAS Nagar, Mohali to submit the estimate of loss. Said Saluja Ford Pvt. Ltd. estimated the loss at Rs.4,02,242/-. Ops asked the complainant to get the vehicle repaired from M/s Saluja Ford and that is why, a sum of Rs.1 lac was paid through cheque No.000002 drawn at HDFC Bank, Jyoti Swaroop Chowk, Sirhind, but balance amount of Rs.2,34,236/- was paid in cash vide receipt No.FIABD01830RE dated 31.10.2013. An invoice qua the paid amount of Rs.3,24,236/- for repair was submitted with Ops, but out of that an amount of Rs.57,790/- alone paid to the complainant by transferring the said amount to account No.650710100000001 of complainant with Bank of India on 19.11.2013. At the time of payment of Rs.57,790/- to the complainant, Ops assured that balance amount of Rs.2,76,446/- will be paid to the complainant at the earliest. Thereafter, complainant contacted OPs several times for requesting them to make the payment of balance amount of Rs.2,76,446/-, but to no effect. Registered notice dated 25.4.2014 was served through counsel on OPs, but despite that reply not submitted and nor payment made and that is why, by pleading deficiency in service, this complaint filed for seeking payment of Rs.2,76,446/- along with interest @18% per annum. Compensation of Rs.3 lac on account of mental tension and harassment even sought.

2.                          In written statement filed by the OPs, it is pleaded interalia as if the complaint is not maintainable for want of cause of action; complainant is not a consumer because he was using his vehicle for commercial purpose; there is no deficiency in service on the part of Ops at any stage because the claim after being registered, entertained and processed had already been settled by paying full and final claim amount to the complainant. Issuance of the policy admitted subject to the terms and conditions of the policy. It is claimed that surveyor was deputed for assessing the loss of the vehicle No.PB-10-CW-3535 and he submitted the detailed report. After receipt of that report, officials of OPs applied their mind by keeping in view the terms and conditions of the policy and they settled and paid the settled amount to the complainant in full and final satisfaction of the claim. Complainant also put his signatures on the claim discharge and satisfaction voucher. Other averments of the complaint denied.

3.                Complainant to prove his case tendered his affidavit Ex.CA along with documents Ex.C1 to Ex.C15 and then closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Amit Chawla, Manager and even tendered documents Ex.R1 to Ex.R14 and thereafter, closed the evidence.

5.                          Written arguments submitted by Ops, but not by the complainant. Oral arguments were addressed. Records gone through minutely. 

6.                Though, it is contended by counsel for the OPs that complainant is not a consumer because he has been using the vehicle in question for commercial purpose, but in fact the same is not the position because the vehicle in question used by Khalsa Charitable Trust Gurmat Vidalaya Jatha Randhawa, the registered society. Certificate of Registration Ex.C2 along with Memorandum of Association Ex.C3 and copy of registration certificate of the vehicle Ex.C4 and  of copy of insurance policy Ex.C5 are produced on record. Ex.C1 is   authorization letter issued by Khalsa Charitable Trust in favour of Mr.Gurpreet Singh Randhawa. From perusal of all these documents, it is made out that the vehicle in question has been used by Khalsa Charitable Trust for its own purpose and as such, certainly, it is not used for commercial purpose. Even policy cover note Ex.C5=Ex.R10 does not discloses the use of the vehicle for commercial purpose.

7.                Ex.C6=Ex.R7 is copy of Claim Form, whereas, Ex.C7 contains the survey details. In fact, Ex.C7 is the report of surveyor and same is also produced on record as Ex.R1 by the Ops. The details of loss are mentioned in this report and as such, it is contended that plea not available to the OPs that claim not maintainable. In fact the plea taken by the OPs is that full and final settlement amount has been paid. Even if the final settled amount not mentioned in written statement, but despite that the produced documentary evidence has to be taken into consideration for finding as to whether the amount finally settled and paid genuinely or not? Undisputedly, the vehicle in question was driven by complainant Gurpreet Singh Randhawa at the time of accident that occurred on 24.9.2013. Left side of the vehicle struck in a pit on the road, due to which, engine was ceased due to drowning of left side of the vehicle in the water is the claim of the complainant. Same facts are incorporated in claim form Ex.R7=Ex.C6 also and as such, it is contended that claim of the complainant is fully sustainable.

8.                It is contended that Ex.R8 was produced by the Ops in pursuance of the application dated 21.5.2015 filed by the complainant. Columns of Ex.R8 were left blank at the time, when it was got signed from the complainant and as such, Ex.R8 is alleged to be not duly executed.  Not  only  Ex.R8, but also            Ex.R9 bears the signatures of Gurpreet Singh, who is the authorized representative of complainant as revealed by Ex.C1. The survey report Ex.C7 has been produced by the complainant himself and as such, contents of the same to be taken as correct, particularly when those are not disputed by the OPs. Certainly, the surveyor is not bound by the estimates submitted by the workshop for carrying on works and as such, the estimate details Ex.C8=Ex.R12 and Ex.R13 or the contents of invoice Ex.C9 not to be taken as actual amount claimable by the complainant. The vehicle in question insured with declared value (IDV) at Rs.11,50,000/- is a fact borne from the contents of Ex.C5 as well as Ex.R14. Premium was accepted on such declared value by the Ops. However, invoice for the carried out repair work is of Rs.3,34,236/-, of which, Rs.1 lac paid through cheque Ex.C10 of date 4.10.2013 to Saluja Motors Pvt. Ltd and balance amount of Rs.2,34,236/- paid in cash as reflected by Customer Receipts Ex.C11 and Ex.C12 of 27.11.2013 and 26.11.2013 and as such, it is contended that complainant entitled for this loss amount of Rs.3,34,236/-. These invoices are also produced on record as Ex.R2 to Ex.R6 by the Ops. Even if this amount has been paid by the complainant, but despite that the survey report Ex.C7 shows that amount of Rs.34,943.96P assessed as price of the parts and labour computation, but Rs.24,989.41P assessed as depreciation computation. Depreciation of the paint material even was assessed by the surveyor through para no.2.5.3. The surveyor’s computations are given in Para 2.5.1 to 2.5.3 of his report Ex.C7. Similarly, total loss assessment through Para 2.5.4 done by the surveyor through report Ex.C7 at Rs.57,790.37P. The same facts are even reflected in Para No.2.6.4 under the head “Assessment Summary” in report Ex.C7. As the surveyor assessed the loss at Rs.57,790.37P and as such, if despite bills of Rs.3,34,236/-, Ops released Rs.57,790/- on execution of Satisfaction voucher Ex.R8 and discharge voucher Ex.R9, then the same done by keeping in view the amounts payable as assessed by the surveyor. So, submissions of counsel for the complainant has no force that Ops bound to pay Rs.3,34,236/- to the complainant, due to which, complainant would have not accepted Rs.57,790/- while executing the satisfaction voucher Ex.R8 and discharge voucher Ex.R9. It is not whim and fancy of complainant, which is to prevail in assessing the payable loss amount. Rather, the surveyor to take into consideration the depreciation value and other factors also and that was done by the surveyor while submitting report Ex.C7 by assessing the loss and payable amount of Rs.57,790/- and as such, if that amount accepted by the complainant through Ex.R8 and Ex.R9, then certainly satisfaction of claim recorded by the complainant after acceptance of this amount by keeping in view the terms of the report of surveyor. These vouchers Ex.R8 and Ex.R9 were executed on 31.10.2013 each, but present complaint was filed on 1.12.2014 i.e. after 1 year and 1 month of acceptance of the settled amount. This amount of Rs.57,790/- accepted by Sh.Gurpreet Singh, the representative of complainant, was credited in the account of complainant with Bank of India, Sahnewal Branch on 19.11.2013 itself is a fact borne from the copy of statement of account produced by the complainant as Ex.C13 himself. By keeping in view the contents of Ex.C13, it is obvious that this complaint filed after 1 year of acceptance of that amount through saving bank account.

9.                Even in para no.4 of the complaint, it is admitted that amount of Rs.57,790/- transferred to the account of the complainant directly on 19.11.2013. Though, as per para no.4 of the complaint, at the time of making this payment, assurance was given for paying the balance amount of Rs.2,76,446/-, but that plea is not acceptable because if really such assurance would have been given, then the complainant would not have accepted the amount of Rs.57,790/-. Beside the dates of several contacts by the complainant to respondents not given in the complaint and as such, allegations in this respect remain vague. It is not at all pleaded in the complaint that discharge voucher Ex.R9 or the satisfaction voucher Ex.R8 were got signed from the representative of complainant by playing fraud or by exercising  undue  influence.  Rather, amount of Rs.57,790/- accepted as the final amount in view of the report of the surveyor, particularly when the vehicle in question manufactured in July, 2010 as borne from Ex.C4, but accident in question took place on 24.9.2013. Due to lapse of period of 3 years from the date of manufacture to the date of accident, the valuation of the vehicle bound to diminish and as such, if deduction on account of depreciation made by the surveyor   in his report Ex.C7, then the same is in consonance with the terms and conditions of the contract of insurance. It is not at all shown by the complainant that deduction on account of depreciation made in violation of terms and conditions of the insurance cover note. In order to prove that discharge voucher got signed under coercion or by exercise of undue influence or by mis-representation or by playing fraud, complainant must lead acceptable evidence is the ratio of case titled as Swan Energy Limited vs. New India Assurance Co.Ltd.-2012(1)CLT-247(N.C.). Allegations of giving assurance of paying the balance amount not borne from any material placed on record except self suffered statement of Gurpreet Singh Randhawa through affidavit Ex.CA. Name of person who gave such assurance and date of contact by the complainant to Ops not specified either in the complaint or in the affidavit and as such, allegations in this respect remain vague. Which official was contacted by the complainant qua that also contents of complaint and affidavit Ex.CA are absolutely silent and as such, these allegations of assurance being vague cannot be believed at all. Rather, the complainant kept mum for 1 year after the transfer of worked out payable amount of Rs.57,790/- in its saving account and that fact lead to the only inference as if settled amount accept voluntarily by keeping in view the details of the report of the surveyor.

10.              Catena of cases supports the proposition that when the complainant receives the settled amount by getting the cheque encashed or otherwise, then that settlement has to be respected, particularly when allegations of coercion or fraud or undue influence not specifically pleaded and nor proved by convincing evidence. As complainant of this case has not levelled allegations of mis-representation or fraud or of cheating or of forgery or of fraud or of exercise of undue influence or of use of coercion in matter of getting Ex.R8 and Ex.R9 signed and as such, amount of Rs.57,790/- actually was accepted by the representative of the complainant in full and final settlement of insurance claim qua the accident in question. 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 and as such, in view of acceptance of the full and final settlement amount of Rs.57,790/-, complainant ceased to be a consumer, due to which, this complaint is not maintainable.

11.              Benefit from the ratio of case titled as Oriental Insurance Co.Ltd. vs. Matbar Singh-2004(2)CPJ-6(Uttarakhand State Consumer Disputes Redressal Commission, Dehradun) cannot be availed by the counsel for the complainant because in the reported case, cheque sent for settlement of the claim was returned by the complainant, which itself reflect as if complainant did not agree for full and final settlement of the claim. That is not the position in the case before us as discussed above. Likewise, benefit from ratio of case titled as United India Insurance Co.Ltd. vs. M/s Asa Singh Cotton Factory-2000(1)BCR-44(S.C.) cannot be availed by the counsel for the complainant because in this reported case also, it has been held that complaint will be maintainable only if the execution  of  the  discharge  voucher  alleged and proved to be due to playing of fraud or exercise of undue influence or by way of mis-representation or like that. If such plea not raised then dismissal of complaint will be justified as per ratio of this case. Same has been held by us in view of the discussion held above and as such, complaint being not maintainable merits dismissal.

12.              It is not the case of the complainant that he was in severe financial hardship while executing discharge voucher Ex.R9 and satisfaction voucher Ex.R8 and as such, element of coercion or of being under undue influence and mis-representation was not there and that is why the complainant kept silent      for 1 year. In similar circumstance, it has been held in case titled as M/s Kundan Rice Mills Limited vs. United India Insurance Co.Ltd.-2015(3)CLT-451 that consumer complaint will not be maintainable after execution of the discharge voucher in full and final settlement of insurance claim.

13.              Therefore, as a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be made available to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                                      (Babita)                            (G.K.Dhir)

                             Member                             President

Announced in Open Forum

Dated:12.05.2016

Gurpreet Sharma.