(Passed this on 05th May, 2017)
Shri. S.P. Muley, President –
1. This is a complaint regarding deficiency in service against an Insurance company in not settling the claim.
2. The complainant is the owner of truck no. MH-31-CQ-0751. It was insured with the Opposite Party for IDV Rs. 12 lakh for the period from 19/2/2009 to 18/2/2010. Policy document was dispatched sans terms and conditions. On 15/4/2009 the said truck was stolen. The incident was immediately reported to police, but police asked her first to try to search the truck and if not found, offence would be registered. Since the truck could not be traced police registered the offence on 21/4/2009. The incident was also immediately reported to the O.P. and to the financier of the truck. The O.P. deputed a surveyor, who conducted survey and asked her to submit claim form. Accordingly she filed claim form with all papers. But even after assurance and much time the O.P. failed to settle the claim, which is negligence and deficiency in service. Since the financier was pressurising her for repayment, she gave no objection to the financier if the claim amount was paid to the financier on condition that after realizing the due payment, remaining amount of IDV be remitted to her.
3. Surprisingly, thereafter she received a summons from District Court, Nagpur in one Execution matter filed by the financier against her. She therefore approached to Kolkata office of the O.P. and came to know that her claim had already been settled with the financier for Rs. 9,84,685/-. No signature of her was obtained on discharge voucher and without intimation claim was settled. This was unfair trade practice of the O.P. She tried to get explanation from the O.P., but in vain. Since it was not a clean discharge, she is entitled to claim the IDV of the truck. She has thus prayed to direct the O.P. to pay IDV Rs.12 lakh with 24% interest along with compensation and cost to her.
4. The O.P. filed its reply and admitting the policy of the truck, it is denied no terms and conditions were supplied to her with the policy. The incident is not denied, but it is denied that it was immediately reported to police and the O.P. It is admitted that the complainant had given her no objection to the financier for settlement of the claim and accordingly it was settled at Rs.9,84,685/- with clean discharge voucher duly signed by the financier. It has no concern with the execution matter filed against her by the financier. Once she had given NOC for settlement and the claim was settled, no complaint before the forum is tenable. The complaint is also bad for non joinder of the financier and is time barred. Denying all other averments. It is submitted to dismiss the complaint.
5. Having considered the materials on record, as well as oral arguments of both Ld counsels, we record our findings and reasons as under.
FINDINGS AND REASONS
The dispute lies in a narrow compass. Admittedly the complainant had taken loan to purchase the truck and it was hypothecated with the financier. Therefore the financier had the first charge over the claim. After theft of the truck she could not pay loan installments. She has alleged, her financier was, therefore, pressurising her for repayment. It is further stated, the financier had filed a criminal case against her u/s 138 of the Negotiable Instrument Act at Kolkata. She was required to attend that proceeding at Kolkata, which was very troublesome and inconvenient for her. Therefore she had given her consent to give the claim amount to the financier. But the condition was that after payment of principal amount to the financier, remaining amount shall be paid to her. Now all this is her bare statement that a case was filed against her at Kolkata. It is denied by the O.P. No documents in this regard are produced. But it is a fact that she had given consent to her financier to settle the claim with the O.P. It is admitted by the O.P. also. Accordingly the matter was settled and claim amount was paid to her financier. It is the case of the O.P. that she has signed the discharge voucher in full and final settlement of the claim.
6. The grievance of the complainant, however, is that the O.P. settled the matter without giving her intimation and without obtaining her signature on discharge voucher. She has stated that she wrote a letter to the O.P. seeking explanation for the same. But no such letter is placed before us. The counsel for the O.P. has shown a voucher to us in support of his contention. The voucher filed by the O.P. to prove its contention in fact, is not a discharge voucher. It does not bear signature of the complainant. It is, in fact, an acknowledgment of payment received from the O.P. by the financier. Therefore we are unable to accept the contention that the complainant has signed the discharge voucher in full and final settlement of the claim. Ld counsel for the O.P. contended that there is no complaint of undue influence or misrepresentation in obtaining her signature on the discharge voucher. Therefore the forum, now, cannot entertain the complaint because once the claim is settled, the complainant cannot seek difference of amount between the IDV and the claim settlement amount. He relied on United India Insurance Co. Ltd v/s Ajmer Singh Cotton & General Mills [2000 (4) Civil LJ 499]. However, this judgment does not help the O.P. because in that case the discharge vouchers were admittedly executed voluntarily and the complainant had not alleged their execution under fraud, undue influence or the like.
7. Ld counsel for the complainant has also relied on a judgment in New India Assurance Co. Ltd. v/s Sushil Sharma F.A No. 216/2005 (NC) decided on 2/2/2010. In that case facts were slightly different. The complainant had insured the plant and machinery and stock. He had secured term loan from SBI. The policy was in the name of SBI and the name of the complainantś unit was entered as part of the address. In fire, the stock materials and unit got damaged. A claim was filed. After scrutiny, the insurance company paid some amount, which was less than insured amount. The SBI accepted that amount in full and final settlement of the complainantś insurance claim. It was held that such acceptance of payment in full and final settlement of the claim was not of the complainant. The discharge voucher was signed by one of the officials of SBI, without obtaining consent/acceptance of the complainant. In National Insurance Co. Ltd. v/s Hari Chand Revision Pet. No. 271/2009 (NC) decided on 4/1/2012 it was held that the if the claim amount is paid directly to the financier by the insurance company it only shows that it was a good payment but the amount by itself cannot constitute to be in full and final satisfaction of the claim. Same view was taken in United India Insurance Co. Ltd. v/s Md. Abdul Fazal Choudhary 2009 NCJ 137 (NC).
8. Apart from that, the IDV of the truck was Rs.12,00,000/- when the policy was taken. Within two months of taking policy the truck was stolen. So there should not have been too much depreciation in value when it was sold by the O.P. We are therefore surprised that the truck sale proceeds were only Rs.9,84,685/-, which is less by Rs.2,15,315/-. Ld counsel for the complainant argued that once the price of the truck had already been agreed by both the parties at Rs. 12 lakh at the time of issuing policy, the O.P. is bound by the value put on the truck. In support, reliance is placed on The New India Assurance Co. Ltd. v/s Devrajbhai Mepabhai Bhojani Revision Pet. No. 1571/ 2012 (NC) decided on 12/7/2012.
9. Thus after considering the rival contentions on this point, we conclude that since no documentary evidence of discharge voucher with signature of the complainant is produced by the O.P., it cannot be accepted that the payment has been made in full and final settlement of the claim.
10. Another contention of the Ld counsel for the O.P. is that the complaint is barred by time. It is contended, the cause of action arose that is on 15/4/2009 when the truck was stolen and the complaint should have been filed within to years from that date as per Sec 24-A of the Consumer Protection Act. But it was filed on 18/9/2012; 17 months beyond the period of limitation. Reliance is placed on Kandimalla Raghavaiah & Co v/s National Insurance Co. (2009) 7SCC768.
11. From the facts of the case we do not find the complaint time barred. Because as per the complainant the O.P. did not intimate any decision on her claim application. It was only when she received a summons from the civil court in execution proceeding in October 2011 she came to know that the claim was settled with her financier. We have already held the settlement was done without intimation to the complainant and without obtaining her signature on discharge voucher. Such payment directly to the financier is not final discharge of the claim. Since the O.P. failed to intimate the decision on the claim form, cause of action was continued till filing of the complaint. Therefore the complaint is not time barred.
12. The complainant has claimed Rs. 12,00,000/-, which was IDV of the truck. But it must be noted that the O.P. has paid an amount of Rs.9,84,685/- to her financier as per her consent to settle the financierś claim. That means Rs, 2,15,315/- is still blanced out of IDV. It is her own case that after paying to the financier, balance be paid to her. The truck was sold below IDV and since we do not find any justification in not paying the IDV to the complainant, she is entitled to get balance amount Rs. 2,15,315/- from the O.P.
For the reasons stated above we allow the complaint and pass the following order.
ORDER
1. The complaint is partly allowed.
2. The O.P. (National Insurance Company) is directed to pay Rs. 2,15,315/- to the complainant with 9% p.a. interest from the date of complaint.
3. The O.P. is further directed to pay Rs. 10,000/- compensation for mental and physical agony and Rs. 5000/- litigation cost.
4. The order shall be complied within 30 days from
receipt of copy of the order.
5. Copy of the judgment and order shall be given to
both the parties, free of cost.
