DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No.147 of 2015
Date of filing: 14.7.2015 Date of disposal: 13.5.2015
Complainant: Dharam Das Mondal, S/o. Late Badal Mondal, resident of Jote Janki, PO: Topsi, District: Burdwan.
-V E R S U S-
Opposite Party: National Insurance Company Limited, Benachity Branch, Nachan Road, Ajit Banerjee Building, PO: Durgapur – 713 213, District: Burdwan, W.B., represented by the Branch Manager.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party: Ld. Advocate, Animesh Chatterjee.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not settle the entire insurance claim as sought for.
The brief fact of the case of the complainant is that being a owner of a vehicle, which was insured with the Op for the period from 20.11.2014 to 19.11.2015 met with an accident on 25.12.2014 at about 4:30 am on the village road of Manigram, Sagardighi, District. Murshidabad and due to such accident the vehicle got severely damage. The said incident was intimated to the OP on 26.12.2014. During accident the complainant possessed valid documents of the vehicle. Upon receipt of the intimation from the complainant the OP deputed one Surveyor who inspected the damaged vehicle at Jasbinder Shaw Repairing Works, Raniganj where the vehicle was placed for its necessary repairing. Ultimately the said repairing works repaired the vehicle and towards such repairing works the complainant had to incur to the tune of Rs. 5, 25,000=00. After examination of the damaged vehicle the Surveyor assessed the loss to the tune of Rs. 2, 60,774=00. According to the complainant as the OP without showing any lawful reason whimsically deducted the amount of the said bills as produced by him is an example of unfair trade practice of the OP. As per the terms of the insurance policy the OP is liable to pay the entire cost of repairing of the damaged vehicle, but the Op has motivatedly deprived him from his legitimate claim, caused to deficiency in service on the part of the OP. Further case of the complainant is that though the Surveyor has assessed he loss to the tune of Rs. 2, 93,493=00 but the OP has issued the discharge voucher to the tune of Rs. 2, 64,226=00 to him. Being illiterate person has received the said amount putting his signature on the discharge voucher, but when he came to know that the OP paid him a lesser amount then he made several applications to the OP for making payment of the entire amount as incurred by him. But the OP did not bother to give him any reply to the said letters. Accordingly, being aggrieved with the action of the OP the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP for making payment of Rs. 2, 84,226=00 towards the balance amount of the repairing cost, Rs. 1, 60,000=00 for loss of business for four months, Rs. 10,000=00 as compensation due to mental agony.
The petition of complainant has been contested by the OP by filing written version contending that the vehicle of the complainant was insured with the OP under an insurance policy for the period from 20.11.2014 to 19.11.2015 subject to certain terms and conditions, exceptions and limitations as to use and own damage was covered in the said policy subject to terms and conditions. The said vehicle was hypothecated with the financing company. But the financier has not been made a party in the instant complaint and for this reason this complaint is bad for non-joinder of necessary parties for which the complaint is liable to be dismissed. It is stated by the OP in the written version that it received the information from the complainant about the accident on 26.12.2014 and got knowledge that due to such accident the insured vehicle got damage severely. Without making any delay the OP issued claim form to the complainant and requested to submit the same duly filled up to it as early as possible. Thereafter the OP appointed a Surveyor Shri Ashish Kr. Pal for spot survey on 26.12.2014. Thereafter on 31.12.2014 the Op appointed Shri Ashok Kr. Mukhopadhyay as Surveyor and Loss Assessor for assessing the loss in respect of the damaged vehicle due to accident. The said Surveyor surveyed the said vehicle and collected all documents and estimate regarding repairing of the vehicle from the complainant. Upon completion of his survey he submitted his report to the Op on 09.4.2015 assessing the loss to the tune of Rs. 2, 93,493=00 subject to certain terms and conditions of the policy. The OP after considering the report of the said Surveyor and Loss Assessor along with terms and conditions of the policy concerned, the Op calculated the loss to the tune of Rs. 2, 60,744=00 and accordingly the Op on 24.4.2015 sent a discharge voucher for Rs. 2, 60,744=00 to the complainant for the claim and the complainant accepted the said amount by putting his signature on the discharge voucher towards full and final satisfaction of his claim. Thereafter, the OP had made payment of the said amount of Rs. 2, 60,744=00 by issuing an A/c. payee cheque in favour of the complainant, which has been duly received by him without raising any protest. Thereafter on 15.5.2015 the OP received an application for verification of the claim file. After perusing the claim file, Surveyor’s report along with the terms and the conditions of the policy including the consent given by the complainant by putting his signature in the discharge voucher of Rs. 2, 60,744=00 towards full and final satisfaction of the claim, it was found that the claim assessed by this OP is just and proper and there was no illegality or infirmity in it. As the complainant has received the amount with full and final satisfaction, now by filing this complaint he cannot reopen his claim further. According to the OP as there is no negligence, deficiency in rendering service to the complainant, hence this complaint is completely baseless, motivated and malafide one, which is liable to be dismissed.
The complainant has filed evidence on affidavit along with certain documents in support of his contention. The OP has also filed evidence on affidavit along with some documents in support of its contention.
We have carefully perused the record and the documents filed by the parties and heard argument at length advanced by the parties. It is seen by us that admittedly the vehicle of the complainant was under the coverage of an insurance policy for the period from 20.11.2014 to 19.11.2015, the said policy was obtained from the OP, during validity of the insurance policy accident took place on 25.12.2014, due to accident the vehicle got damage, intimation given to the Op on 26.12.2014, Surveyor appointed who submitted his report 09.4.2015 before the OP, Surveyor has assessed the loss to the tune of Rs. 2,93,493=00 subject to certain terms and conditions of the policy, the OP issued discharge voucher upon the complainant on 24.4.2015 for Rs. 2,60,744=00, the complainant received the said voucher and accepted the amount by putting his signature on the same towards full and final satisfaction of his claim, OP issued an A/c. payee cheque for Rs. 2,60,744-=00 which has duly been received by the complainant without making any protest. The allegation of the complainant is that though he had to incur amounting to Rs. 5,25,000=00 towards the repairing cost of the damaged vehicle but the OP paid him only Rs. 2,60,744=00 under the insurance policy. Further allegation of the complainant is that as per the insurance coverage he is entitled to get the entire amount as incurred by him towards expenditure from the OP. The rebuttal case of the OP is that it had settled the claim of the complainant as per the Surveyor’s report and moreover where the complainant had duly received the A/c. payee cheque to the tune of Rs. 2, 60,744=00 towards full and final settlement of his claim by putting signature on the discharge voucher hence, the complainant is estoppels to reopen his claim before this ld. Forum by filing this complaint. According to the OP as this complaint is totally misconceived, liable to be dismissed.
Though the complainant has mentioned in the petition of complaint that that he had to incur a sum of Rs. 5,25,000=00 towards the repairing cost of the damaged vehicle at Jasbinder Shaw Reprising Works, Raniganj but the documents as filed by the complainant do not corroborate the said amount. The OP has made a plea in its written version that as the vehicle is hypothecated with the financer, the said financier has not been made a necessary party to this proceeding and hence the complaint is bad due to no-joinder of necessary party. In this respect we are to say that due to non-joinder or mis-joinder of necessary parties no complaint can be dismissed in view of the landmark judgment of Hon’ble Supreme Court passed in Kunal Saha’s case.
Moreover, the Op did not file any paper and document showing that the financier is entitled to get any amount from this complainant. Therefore, the plea as raised by the OP has no legs to stand upon. It is seen by us that the OP has settled the claim of the complainant as per the Surveyor’s report wherein the Surveyor has assessed the loss to the tune of Rs. 2, 93,493=00 subject to certain terms and conditions of the policy. It is argued by the ld. Counsel for the complainant that in view of the policy the complainant is entitled to get the entire amount as incurred by him, but the OP has paid him a lesser amount in view of the Surveyor’s report, which according to him is an example of deficiency in service of the OP. In this respect we are to mention that there are several judgments passed by the Upper Courts, even by the Hon’ble Supreme Court also wherein Their Lordships have held that the Surveyor’s report being an important piece of evidence, it should be given due weightage. In the instant case the OP has filed the Surveyor’s report. As the Surveyor’s report is an important piece of evidence we have no authority to travel beyond the same if the report has been given in a malafide manner. There is no whisper in the complaint, as well as, in the evidence the Surveyor has submitted his report in a malafide manner and with ulterior motive. Therefore, we cannot bypass the report of the Surveyor. Admittedly, the Op has settled the claim of the complainant as per the Surveyor’s report and hence we have no option to say that such action of the OP suffers from deficiency in service, as well as, unfair trade practice. Further admitted fact is that in view of the Surveyor’s report the Op has issued discharge voucher upon the complainant for a sum of Rs. 2, 60,744=00 towards the insurance claim and the complainant received the same by putting his signature with full and final satisfaction of his claim and later the OP had handed over one A/c. payee cheque for the said sum to the complainant, which was duly received by him. According to the OP upon receipt of the said amount with full and final satisfaction of his claim the complainant cannot reopen his claim through this complaint. In support of its contention the Op has relied on several judgments i.e. 2013 (3) CPR 128 (NC), wherein the Hon’ble NC has held that insured cannot reopen his claim for further relief after full and final settlement of the insurance claim. The OP has relied on the judgment passed by the Hon’ble NC reported in 2013(1) CPR 189 (NC) wherein it has been held that claimant cannot put forward new claim after having signed discharge voucher. In another judgment on which the OP has placed his reliance passed by the Hon’ble NC reported in 2013 (2) CPR 777(NC) wherein it has been held that once party accepts payment as full and final satisfaction without any protest, that party cannot put forward again claim before the District Forum. We have carefully perused the Rulings as relied on by the ld. Counsel for the OP and in our view those Rulings can be applicable in the case in hand because the facts and circumstances of these cases are almost same and identical with the case in hand. In view of the above-mentioned observation we are of the opinion that the complainant has failed to prove his complaint and according to us it is devoid of any merit. Hence, it is
O r d e r e d
that the complaint is dismissed on contest. However, considering the facts and circumstances of the case there is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
