NCDRC

NCDRC

RP/2376/2017

VINOD BHARDWAJ - Complainant(s)

Versus

M/S. TATA AIG INSURANCE CO. LTD. & ANR. - Opp.Party(s)

M/S. C.S. RATHOUR & CO.

29 Aug 2017

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 2376 OF 2017
 
(Against the Order dated 25/05/2017 in Appeal No. 922/2013 of the State Commission Delhi)
1. VINOD BHARDWAJ
G-212, LAWYERS CHAMBER BLOCK KARKARDOOMA COURT COMPLEX, KARKARDOOMA,
DELHI-110032
...........Petitioner(s)
Versus 
1. M/S. TATA AIG INSURANCE CO. LTD. & ANR.
THROUGH ITS MANAGER/REGIONAL MANAGER/AR, OFFICE AT LOTUS TOWER 1ST FLOOR, COMMUNITY CENTRE, NEW FRIENDS COLONY,
NEW DELHI
2. M/S. JAI AUTO
(A DIVISION OF J.S.B. AUTO PVT. LTD.) A-39, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, MATHURA ROAD,
NEW DELHI
...........Respondent(s)

BEFORE: 
 HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER

For the Petitioner :
Mr C S Rathour, Advocate
For the Respondent :

Dated : 29 Aug 2017
ORDER

REKHA GUPTA, PRESIDING MEMBER

        The present revision petition has been filed against the judgment dated 25.05.2017 of the Delhi State Consumer Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 922 of 2013.

2.     The brief facts of the case as per the petitioner/ complainant are that the petitioner purchased a Skoda Laura No.DL-9CV-5050 which was insured with respondent/OP-1 for the period from 01.02.2011 to 31.01.2012.  The said car was comprehensively insured on zero depreciation basis.  It was alleged that on 09.09.2011, the petitioner was going to his office at Karkardooma Courts, due to heavy rain there was a traffic jam and water had collected on the road in the under pass near Friends Colony, Shahdara.  That the water level came and the engine of the car suddenly seized.  The petitioner/complainant contacted the helpline of respondent 1/OP-1 and as per their direction he did not try to start the engine.  The car was taken out from the water by pushing it manually and was taken to the workshop of respondent-2/OP-2 by a loading trailer hired from M/s Sita Breakdown Services on payment of Rs.2,800/-.  The petitioner/complainant had also lodged a claim request with respondent no.1/OP-1 vide request No.620375323 on 09.09.2011.  Surveyor, Mr Yameen contacted the petitioner/complainant on mobile and desired to inspect the accidental vehicle, but did not turn up on the said date.   The petitioner/complainant contacted the said surveyor after a day or two. He had assured that the vehicle would be inspected as per his own convenience and presence of petitioner/complainant was not necessary.  On 15.09.2011, the petitioner/complainant contacted respondent-2/OP-2 to enquire if the repair work had started.  The Workshop Manager replied that the requisite approval had not been received from the respondent/OP-1.  The petitioner/complainant even sent an email on the same date to respondent/OP-1 and requested for the start of repair work but nothing was done.  On 19.09.2011, the petitioner/complainant also sent an email to IRDA. The petitioner/complainant also sent a reminder to the respondent/OP-1 on 20.09.2011. On 20.09.2011, Mr Ramnish Tangri, Provincial Associate, falsely stated that he had given the approval for repair of the car as per the policy coverage. He further, informed that the repair for the damage caused to the engine was due to hydrostatic locking and hence, was not allowed.  The respondent/OP-1 did not convey the contents of the inspection report to petitioner/complainant till 20.09.2011.  A false report had been prepared by the officials of respondent/OP-1 without proper inspection of the vehicle in connivance with respondent-2/OP-2 in order to extort money from the petitioner/complainant.  Respondent/OP-1 did not give the approval to repair the engine with malafide intention.  On 24.09.2011, the petitioner/complainant sent a legal notice to respondent/OP-1 for repair of the car.  There was negligence on the part of respondent/OP-1 in not giving the approval for repair of the car.  A bill for Rs.2,05,515/- for repair of the car was raised by respondent-2/OP-2.  Out of which Rs.75,000/- was paid by the petitioner/complainant under protest.  The petitioner/complainant had taken delivery of the car under protest and thereafter a claim was filed before the District Forum seeking direction for payment of a sum of Rs.5.00 lakh for causing mental pain and agony, sum of Rs.5.00 lakh towards the professional loss, Rs.75,000/- which he had paid from his pocket for repairs,  Rs.30,000/- as conveyance charges and Rs.50,000/- towards litigation cost.

3.     Reply was filed by the respondent/OP-1 wherein it was contended that there was no deficiency in service on their part. The claim was received on 09.09.2011 and Mr Ramnish Tangri was appointed as a surveyor.  The surveyor on inspection of the vehicle had assessed the liability of the respondent/OP-1 to the tune of Rs.1,30,515/- which was duly paid to the respondent-2/OP-2. The petitioner/complainant had availed the cashless facility.  It was alleged that a valid discharge voucher with free consent and will was given by him. After inspection by the surveyor, it was found that the engine had seized due to repeated cranking following entry of water therein and the same had resulted in the seizure of engine.  The mere entry of water in the engine was not the cause of damage to the engine and the engine was cranked repeatedly which directly caused the damage.  The petitioner/complainant had not taken proper steps to safeguard the vehicle from loss and the claim for the seizure of the engine was not payable under the policy as per terms and conditions of policy.

4.     Respondent-2/OP-2 also filed written statement wherein challenge to the jurisdiction of the District Forum was made by contending that present complaint was not a consumer dispute.  No cause of action had also arisen against the respondent-2/OP-2.  Respondent-2/OP-2 had to undertake to repair the vehicle and it had to take the bill from the petitioner/ complainant and/or respondent/ OP-1.  The petitioner/ complainant was duty bound to pay the remaining balance amount.  The respondent no. 2 had started the repair work only after obtaining the approval.  Further, it was the jurisdiction of respondent/OP-1 to allow or disallow the claim of the petitioner/complainant.  Respondent-2/OP-2 was not in any way involved with the decision of respondent/OP-1 in dealing with the claim of petitioner/complainant.

5.     The District Consumer Disputes Redressal Forum (East) vide its order dated 06.07.2013 while allowing the complaint passed the following order:

We allow this complaint and direct OP 1 to reimburse to the complainant the amount of Rs.75,000/- which has been paid by the complainant towards the repair of this engine. This is clear from the facts and circumstances of the case that the complainant is harassed and traumatized, his bonafide claim has been denied without any just and reasonable cause. We allow a compensation of Rs.50,000/-. The OP 1 shall also pay interest @ 9% on the amount of Rs.75,000/- from the date of filing of this complaint till it is finally paid. We further award a sum of Rs.10,000/- towards the cost of litigation.

All this amount be paid within 45 days from the date of issue of this order failing which the complainant shall be entitled for 9% interest per annum on the amount of compensation and litigation cost also.”

6.     Aggrieved by the order of the District Forum, the respondent no.1/ opposite part no. 1 filed an appeal before the State Commission. The State Commission vide order dated 25.05.2017 while accepting the appeal and setting aside the impugned order and consequently dismissing the complaint observed as under:

  1. “It is admitted position that the respondent-1/complainant had taken the insurance policy in respect of Skoda Laura No.DL-9CV-5050 on zero depreciation basis.  The damage to the car on 9.9.11 is also not denied by the appellant/OP-1.  The stand of appellant/OP is that the loss assessed by the surveyor appointed by appellant/OP-1 has been paid to the repairer.  The appellant/OP-1 has relied upon discharge voucher dated 16.11.11 in this regard and has submitted that Rs.1,30,515/- was accepted by respondent-1/complainant as full and final satisfaction of his claim.  Further stand of appellant/OP-1 is that by accepting the aforesaid amount, the respondent-1/complainant has discharged the appellant/OP-1 of total liability arising out of the claim.  Respondent-1/complainant has not stated anything about discharge voucher in the complaint.  He has alleged in the complaint that he had paid Rs.75,000/- under protest. In evidence also, the respondent-1/complainant  has stated that the respondent-1/complainant had to make the payment of Rs.75,000/- under protest.  The discharge voucher dated 16.11.2011 is reproduced as under:

“Received from TATA-AIG General Insurance Co. Ltd. the sum of Rs.130515/- (Rupees  One Lakh Thirty Thousand Five Hundred and Fifteen), which I agree to accept in full and final satisfaction and discharge of my/our claim no. 620375323-A upon the company under policy no.0151134862 in respect of claim arising on 09/09/2011.

 The acceptance of the above amount will fully discharge the insurance company of the total liability arising out of the above claim.”

  1. < >

    In the present case, the respondent-1/complainant has not disclosed about signing discharge voucher dated 16.11.11 in the complaint.  Further it is also not his case that discharge voucher was executed under fraud, undue influence or misrepresentation.  As per material on record, it stands established that the respondent-1/complainant had settled the matter with appellant/OP-1 by voluntary signing the discharge voucher dated 16.11.11, as such the complaint filed before District Forum was not maintainable.

  1. In view of above finding, we are not examining other contention of appellant/OP-1 that damage to the engine due to hydrostatic lock was not payable under the terms and conditions of policy.
  2. In view of above discussion, we accept this appeal and set aside the impugned order and consequently dismiss the complaint case No.22/13”.

7.     Hence, the present revision petition.

8.     I have heard the learned counsel for the petitioner. He contended that the discharge voucher had been signed under protest and the State Commission had erroneously passed the order that the petitioner/ complainant had settled the matter with respondent no. 1/ OP no. 1 by voluntarily signing the discharge voucher on 16.11.2011 and as such the complaint before the District Forum was not maintainable. Further, on repeated enquiries, the learned counsel admitted that after signing the discharge voucher, on which admittedly no protest had been recorded, the petitioner/ complainant never took up the matter with respondent no. 1 in writing nor brought to their notice that the said discharge voucher was got signed by OP no. 2 under duress and under protest. He admitted that after signing the discharge voucher and receiving the payment the petitioner had filed the complaint before the District Forum on 24.01.2012. Learned counsel for the petitioner to support his case cited the following three judgments:

  1. M/s Bhukker Electricials vs Oriental Insurance Company – RP No. 329 of 2011 decided on 03.07.2012

  2. M/s Shobika Attire vs New India Assurance Co. Ltd. = (2006) 8 Supreme Court Cases 35; and

  3. United India Insurance vs Ajmer Singh Cotton and General Mills – 1999 (II) CJP 10 SC decided on 12.08.1999

9.     The facts of the case of M/s Shobika Attire are not at all relevant to the case on hand. United India Insurance vs Ajmer Singh Cotton and General Mills has already been discussed in the order of the State Commission.

10.    M/s Bhukker Electricals vs Oriental Insurance Company, the order of the National Commission in fact supports the action of OP no. 1. The said order reads as under:

“8.    A photocopy of the Discharge Receipt signed by the proprietor of the firm, according to which he accepted Rs.1,58,000/- as full and final settlement of his insurance claim has been produced before us. Learned counsel for the petitioner has not been able to show that the petitioner produced any document before the District Forum (or, the State Commission) to demonstrate that he had, soon after signing the Discharge Receipt, protested against the amount of settlement or alleged that he was coerced into signing the said Discharge Receipt. The only statement in the revision petition, totally unsupported by any documents produced before the District Forum, is that the respondent insurance company had played a game of calculated fraud, misrepresentation and under coercion made the petitioner to receive the cheque of Rs.1,58,000/- without settling the entire claim of the petitioner and the said amount was received by the petitioner under protest and without prejudice and only as part claim amount

10. The law settled by the Supreme Court in the above-mentioned cases is summarised in paragraphs 4 and 5 of the Court decision which are reproduced below:

4.     We have heard learned counsel for the parties and perused the record. It is true that the award of interest is not specifically authorised under the Consumer Protection Act, 1986 (hereinafter called, he Act but in view of our judgment in Sovintorg (India) Ltd. vs. State Bank of India we are of the opinion that in appropriate cases the forum and the commissions under the Act are authorised to grant reasonable interest under the facts and circumstances of each case. The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by mis-representation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, (sic, So) where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.

5. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jiyajeerao Cotton Mills Ltd. vs. New India Assurance Co. Ltd. shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint [ Emphasis supplied]

11.    In view of the fact that the petitioner/insured failed to produce any material to show that it ever objected to or protested against the settlement of its insurance claim at Rs.1,58,000/-, there is no alternative but to conclude that it did indeed accept, without any demur, the sum of Rs.1,58,000/- as full and final settlement of the insurance claim.

11.    In the present case also the petitioner insured has failed to produce any material or any evidence to show that he had ever objected or protested against the settlement of the insurance claim at Rs.1,30,550/- nor have been able to show that the discharge voucher was signed under protest or any compulsion or duress on fraud and misrepresentation.

12.    In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986.  Revision petition is, therefore, dismissed with no order as to costs.

 
......................
REKHA GUPTA
PRESIDING MEMBER

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