Punjab

Ludhiana

CC/15/483

Kkulldeep Singh - Complainant(s)

Versus

National Ins.Co.ltd - Opp.Party(s)

Narinder Chhibba adv.

21 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 483 of 14.08.2015

Date of Decision          :   21.10.2016

 

Kuldeep Singh son of Kartar Singh resident of H.No.B-31/7110, Guru Arjan Dev Nagar, Gali No.4-1/2 Near Samrala Chowk, Ludhiana.

….. Complainant

Versus 

National Insurance Company Limited, through its Branch Manager, Kochar Market, Model Gram, Ludhiana.

..…Opposite party

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.S.S.Sekhon, Advocate

For OP                           :       Sh.M.S.Jassal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased insurance policy from Op bearing No.404000/31/12/6300004562 on payment of premium qua Truck bearing registration No.HR-37-A-2842. Theft of the said truck took place and that is why, FIR No.70 dated 27.4.2013 was got registered at P.S.Division No.6, Industrial Area A, Ludhiana against unknown persons qua commission of offence punishable under section 379 IPC. Claim was lodged with OP qua theft of the vehicle, but OP paid Rs.4,19,000/-. The truck was insured for Rs.4,45,000/- and that is why, amount of Rs.4,19,000/- was accepted under protest because the settled claim amount was short. By pleading deficiency in service on the part of Op, prayer made for directing OP to pay the balance insurance claim amount of Rs.26,000/- and damages of Rs.24,000/- with pendentelite and future interest @10% per annum.  

2.                In written statement filed by Op, it is pleaded interalia as if complaint barred in view of section 26 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’); complainant is estopped by his own act and conduct from filing the present complaint and nothing is due towards OP out of the claim amount. Admittedly, the policy in question was purchased with validity period w.e.f.8.1.2013 to 7.1.2014 and thereafter, OP received letter dated 25.3.2013 from the complainant on 20.2.2014 to the effect that the insured truck has been stolen in the night of 23.3.2013 from the front of his transport premises situate in plot No.143. On submission of claim along with documents from the complainant, the same was got processed by OP by deputing Sh.R.S.Ahluwalia, Investigator to investigate the matter. Said investigator after visiting the spot, prepared his report dated 25.9.2013 under his signatures and submitted the same. Thereafter, after going through the submitted documents and verifying the same, OP appointed Er.Harsh Kumar Laroiya, Mechanical Engineer, Surveyor and Loss Assessor, who surveyed the open market for valuation of the stolen truck and visited the site of supplier dealers for finding that truck of the same model available in the market for Rs.4,20,000/-. That surveyor visited the insured premises and the insured consented for settlement of claim for Rs.4,20,000/-. Complainant also submitted the consent letter/acceptance letter dated 28.10.2014 for acknowledging Rs.4,20,000/- in full and final settlement of the claim after deducting Rs.1000/- towards the excess clause of the policy. A sum of Rs.4,19,000/- paid to the complainant in full and final settlement of the claim. Complainant submitted letter dated 1.4.2015 to S.H.O.Police Station No.6, Ludhiana to the effect that as claim has been given to him and as such, he has no objection, in case, the information is given to National Insurance Company, Divisional Office No.III, Kochar Market, Model Gram, Ludhiana, qua clue of the stolen truck. Rather, the complainant further submitted that insurance company is now the owner. Complainant submitted letter of subrogation and special power of attorney, both attested by Sh.Rajinder Singh, Notary Public on 26.5.2015. Ownership of the insured truck No.HR-37-A-2842 was transferred in the name of National Insurance Company Limited and as such, now the National Insurance Company Limited is the owner of the truck in question. The complainant never objected qua transfer of the ownership of the insured truck in the name of OP. It is claimed that now nothing is due against the OP and present complaint being false and frivolous, filed for getting more money from the OP with malafide intention. Each and every other averment of the complaint denied by claiming that the complainant has suppressed the material facts, due to which, the complaint merits dismissal with costs.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C8 and thereafter, complainant closed the evidence on 12.4.2016.

4.                On the other hand, counsel for OP tendered in evidence affidavit Ex.RA1 of Sh.P.S.Makkar, Deputy Manager, D.O.No.III of National Insurance Company Limited, Kochar Market, Ludhiana along with documents Ex.R1 to Ex.R11 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                Undisputedly, the vehicle in question (as stood stolen) was insured by the complainant with OP through certificate of insurance-cum-policy schedule Ex.C4=Ex.R1 for period from 8.1.2013 to 7.1.2014. Copy of FIR Ex.C3 along with statement of complainant recorded under section 154 of Cr.P.C., Ex.C2 and report of Adampata Ex.C1 establishes that the insured truck was stolen and that is why the complainant lodged the claim qua theft by submitting the intimation through Ex.R2 to Manager of OP concerned. Sh.R.S.Ahluwalia was appointed as surveyor-cum-loss assessor, who submitted his report Ex.R3 and later on Er.Harsh Kumar Laroiya, Investigator was also appointed for assessing the valuation and he submitted his report Ex.R4 to the effect that open market valuation of the stolen truck is approximately at Rs.4,20,000/-. This report Ex.R4 submitted by the aforesaid Er.Harsh Kumar Laroiya after visiting the insured premises and after lengthy discussion. This Er.Harsh Kumar Laroiya obtained consent letter/acceptance letter Ex.R5 from the complainant on 28.10.2014. This consent letter/acceptance letter Ex.R5 is signed by the complainant for acknowledging that he agreed to accept Rs.4,20,000/- in full and final settlement of his claim qua the stolen truck bearing registration No.HR-37-A-2842. This consent letter/acceptance letter Ex.R5 submitted by the complainant without protest because no note in that respect recorded on Ex.R5. Submissions advanced by the counsel for the complainant has no force that this consent letter/acceptance letter Ex.R5 was got signed from the complainant in circumstance that the complainant raised the protest. If the complainant really would have raised the protest at that time, when he signed the consent letter/acceptance letter Ex.R5, then he would have recorded the note in that respect or would have sent letter of protest to the OP, but no such letter of protest produced on record by the complainant and as such, certainly submissions advanced by Sh.M.S.Jassal, Advocate has force that actually the complainant voluntarily agreed to receive Rs.4,20,000/- as compensation in full and final settlement of the claim.

7.                No allegation of fraud or undue influence etc., levelled against the OP in the complaint or in affidavit Ex.CA of complainant in matter of obtaining signature of complainant on Ex.R5. So, complainant has not put forth a case of fraud or forgery or undue influence in getting consent letter/acceptance letter Ex.R5 signed from him.

7.                Report Ex.R6 thereafter was submitted by the officials of OP to the effect that they have recommended payment of Rs.4,19,000/- to the complainant because though loss assessed at Rs.4,20,000/-, but in view of excess clause of Rs.1000/- endorsed on Ex.R1=Ex.R4, deductions of Rs.1000/- liable to be made from the assessed amount. That recommendation put forth through report Ex.R6 certainly is in order by keeping in view the compulsory excess clause of Rs.1000/- endorsed on Ex.R1 itself.

8.                Letter Ex.R7 sent by the complainant under his signature                  on 1.4.2015, to the D.T.O.Jind(Haryana) for claiming that he received the claim amount of the insured truck in question from the insurance company and as such, the insured vehicle may be transferred in the name of National Insurance Company Limited, Kochar Market, Model Gram, Division No.III, Ludhiana. Through, prayer clause of Ex.R7, the complainant prayed to D.T.O.Jind(Haryana) for transferring the RC of the insured vehicle in the name of insurance company. If really the complainant would have not satisfied with the received amount of Rs.4,19,000/-, then he would not have submitted application dated 1.4.2015 for transferring the truck in question in the name of insurance company. However, that has been done by the complainant himself. This complaint was filed on 14.8.2015 i.e. after 4 months of issue of letter Ex.R7 to D.T.O.Jind(Haryana) and as such, it is obvious that complainant after submission of letter of subrogation Ex.R8 and  power of attorney Ex.R9 and receipt of claim amount of Rs.4,19,000/-,               has filed this complaint for harassing OP. Even if words “UP” recorded underneath the signature of complainant on consent letter/acceptance letter Ex.R11, then they do not reflect that this signature put forth by the complainant under protest because if complainant would have put his signature under protest on Ex.R11 or Ex.R9, then he would not have sent the letter Ex.R7 to D.T.O.Jind(Haryana) for calling upon him to transfer the insured vehicle in the name   of insurance company. So, story regarding signature of the complainant on the consent letter under protest is story of making put forth for extracting more money from OP. Meaning of words“UP” endorsed underneath Ex.R11 or Ex.R9 not made known by the complainant to OP at the time of signing of the documents Ex.R11 and Ex.R9.

9.                On the basis of letter Ex.R7 written by the complainant to D.T.O.Jind(Haryana), the insured vehicle has already been transferred in the name of insurance company on 22.5.2015 is a fact borne from certificate Ex.R10 obtained from the Registration Authority, Jind. So, transfer of the stolen insured vehicle took place in the name of OP  about 2 ½ months prior to the filing of the present complaint and that reflects that the complainant after acquiescing in the settlement of claim for Rs.4,19,000/-, filed this complaint subsequently by concocting a story. Facts and circumstances referred above in detail leans in favour of only conclusion that complainant accepted the claim amount of Rs.4,19,000/- in full and final settlement of the claim and that is why, he executed the above referred documents voluntarily. Circumstances can’t tell lie, albeit person may and as such, in view of false story put forth by the complainant for harassing the OP, complaint merits dismissal with costs of Rs.2000/-, which will go in District Consumer Welfare Fund after recovery.

10.              In case, the complainant got encashed the cheque sent by the insurance company in full and final settlement of the claim qua insured truck without protest and plea of coercion or fraud or undue influence not taken, then complainant ceased to be a consumer. 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 lays 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. In the case before us also, as the complainant voluntarily signed the consent letter/acceptance letter Ex.R5 and even wrote letter Ex.R7 to D.T.O.Jind(Haryana) for transferring the RC of the stolen vehicle in the name of OP by acknowledging having received the claimed insurance amount in full and final settlement of the claim and as such, in view of non raising of plea qua fraud, coercion and undue influence, certainly complainant ceased to be a consumer at least 2 ½ months before filing of the complaint.

11.              Therefore, as a sequel of the above discussion, the complaint dismissed with costs of Rs.2000/-(Rupees Two Thousand only) imposed on complainant. These costs will be deposited in District Consumer Welfare Fund after recovery by the office. Copies of order be supplied to the parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:21.10.2016

Gurpreet Sharma.