Punjab

Ludhiana

CC/19/167

M/s Parkash Goods - Complainant(s)

Versus

National Insurance Company Limited - Opp.Party(s)

Rakesh Sabharwal Adv.

04 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 167 dated 29.03.2019.                                                        Date of decision: 04.10.2023.

 

M/s. Parkash Goods Carrier Pvt. Ltd., Shingaar Palace Building, Samrala Road, Ludhiana through Sh. Karan Kumar Thaman Representative                                                                                                                   ..…Complainant

                                                Versus

1. National Insurance Co. Ltd., BO III, Link Road, Near Cheema Chowk, Ludhiana through Branch Manager.
2. National Insurance Co. Ltd., HUB, Grand Walk Mall, 4^th Floor, Ferozepur Road, Ludhiana through Regional Manager.
3. National Insurance Co. Ltd., Divisional Office No.IV, Kesar Ganj, Ludhiana through its Divisional Manager.                                                                                                                           …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Rakesh Sabherwal, Advocate.

For OPs                          :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                Briefly stated, the facts of the complaint are that the complainant company being a Private Limited company is duly registered under the Companies Act and Sh. Gurcharan Singh is Managing Director of the company. Sh. Karan Kumar Thakan has been authorized by the company vide resolution dated 20.03.2019 to file the present complaint. The complainant stated that it got insured the vehicle bearing registration No.PB-10-GK-1867 from the opposite parties vide policy No.404501/31/17/6300001812 having validity from 22.09.2017 to 21.09.2018. The policy in question was purchased on the assurance of the opposite parties and their officials that they have indemnify the vehicle from any losses/damages and if there is any loss/claim then they will settle within a short span. Unfortunately, on 27.11.2017, the vehicle met with an accident near village Mohanpur, Khanna within three months from the date of purchase. Intimation was given to the opposite parties who deputed Sh. Ankit Kumar, Surveyor to visit at the spot and submit the report. Said surveyor visited the spot survey on 28.11.2017.  The complainant vide letter dated 30.11.2017 informed the opposite parties that the vehicle has been brought to Ludhiana and standing at the workshop of M/s. Uttam Sales & Service, Sherpur Chowk, Ludhiana. The opposite parties deputed Sh. Rajeshwar Nath, Surveyor and Loss Assessor, Jalandhar to submit the survey and assess the loss, who inspected the vehicle at the workshop of M/s. Uttam Sales & Services and M/s. Uttam Sales & Services submitted the estimate amount of Rs.5,70,000/-. Thereafter, on instruction of the surveyor and with consent of the opposite parties, the complainant got repaired the vehicle from M/s. Uttam Sales & Repairs and their sister concern M/s. Uttam Motor Workshop, Ludhiana, who after repairs raised invoice No.2652 dated 01.02.2018 for Rs.26,000/-, invoice No.2653 dated 02.02.2018 for Rs.24,500/- and invoice GST 002071 dated 03.02.2018 for Rs.4,05,774/- i.e. total Rs.4,56,274/-. The complainant paid total amount of Rs.4,56,274/- to M/s. Uttam Sales vide cheque No,.133899 dated 18.12.2017 for Rs.1,00,000/- (advance), cheque No.150158 dated 07.02.2018 for Rs.2,82,867/- and Rs.73,407/- against different receipts.  According to the complainant, it submitted all the requisite documents to the opposite parties through surveyor. The surveyor Sh. Rajeshwar Nath submitted his final survey report which was considered by the opposite parties but the complainant till date has not received his claim and the opposite parties lingered on the matter on one pretext or the other. The complainant sent legal notice dated 22.02.2019 to the opposite parties through his counsel but no reply was received from the opposite parties. Hence this complaint, whereby the complainant has prayed for issuing direction to the opposite parties to pay RS.4,56,274/- along with interest and compensation of Rs.2,00,000/- as well as litigation charges of Rs.22,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; the complainant has no locus standi to file the present complaint; the complainant is estopped by his act and conduct, on the ground of concealment of material facts; the complaint is barred under Section 26 of the Consumer Protection Act etc.  The opposite parties stated that since the competent authority of National Insurance Company Ltd. had duly considered the report of licensed IRDA surveyor and thereafter approved the claim for Rs.99,613/- in full and final settlement of the claim which has duly been paid to the complainant vide invoice No.2162540920 dated 20.3.2019 and paid and credited to the account of the complainant on 21.3.2019 through ECS in account No.10691011000487 UTR No.KKBK190802044285 and accepted by the complainant voluntarily, unconditionally, without any protest and without reserving any right to recover any further amount under claim.

                   The opposite parties further stated that immediately on the receipt of the claim on 28.11.2017 as per intimation letter, it was duly registered, entertained and processed. Er. Ankit Bharat, an IRDA approved and Licensed Surveyor and Loss Assessor, Fire Engineering and Motor, 18-B, Khukharian Colony, Khalsa School Road, Khanna was appointed for the spot survey. The said surveyor had personally visited the site of accident for the site survey of the vehicle in question i.e. Eicher 5016 reported to have met with an accident, took the photographs and other documents and thereafter prepared his preliminary motor survey report (spot survey) dated 07.12.2017 and submitted the same with the respondent National Insurance Co. Ltd. Further, M/s Leo Alex, an IRDA approved and licensed Surveyors, Valuers, Loss Assessors - Motor, Marine and Machinery, 350, Lajpat Nagar, Jalandhar City was appointed as Surveyor and Loss Assessor to assess the loss caused to vehicle No.PB-10-GK- 1867, who personally inspected the vehicle, took the photographs and other documents and thereafter assessed the loss to Rs.1,11,053/- and prepared his report dated 03.03.2018 and submitted the same with respondent insurance company clearly stating that "We recommend the above loss to the underwriters for their consideration as per terms and conditions of the subject insurance policy." The said Surveyor was also appointed for re-inspection of the vehicle after repair who had personally inspected the vehicle after its repair and thereafter prepared his report dated 3.3.2018 and submitted the same with the opposite parties.

                   Er. Harvinder Kumar, Insurance Surveyor and Loss Assessor, 400, Rajeev Gandhi Avenue, Scheme No.2, Hoshiarpur was appointed by the respondents for verification of driving license No.PB-0720110151169 A/c Mr. Paramjit Singh. The said surveyor had moved an application with DTO, Hoshiarpur on 11.06.2018. The office of DTO, Hoshiarpur after due verification of their records had submitted their verification report on the application so moved by Er. Harvinder Kumar. After the receipt of the report of the Licensing Authority/DTO Hoshiarpur, the said surveyor had prepared his report dated 12.06.2018 and submitted the same with the opposite parties.
The opposite parties further averred that  Shri Amar Nath Taneja, Surveyor and Loss Assessor and Investigators, S-27, Vikas Nagar, Pakhowal Road, Ludhiana was appointed to verify the genuineness of the permit of vehicle No.PB-10-GK-1867 a/c M/s Parkash Goods Carriers P. Ltd., Ludhiana. The said surveyor had moved an application with Secretary, RTA, Ludhiana on 08.06.2018 for verification of the permit. The Secretary, Regional Transport Authority, Ludhiana after due verification of their records had submitted their report on the application moved by the said surveyor. After the receipt of the report of the Secretary, Regional Transport Authority, Ludhiana the said surveyor had prepared his report dated 15.06.2018 and submitted the same with the opposite parties. Further, Shri Amar Nath Taneja, Surveyor and Loss Assessor and Investigators, S-27, Vikas Nagar, Pakhowal Road, Ludhiana was appointed to verify the genuineness of the registration certificate of vehicle No.PB-10-GK-1867 a/c M/s Parkash Goods Carriers P. Ltd., Ludhiana. The said surveyor had moved an application with Secretary, RTA, Ludhiana on 08.06.2018 for verification of the registration certificate. The Secretary, Regional Transport Authority, Ludhiana after due verification of their records had submitted their report on the application so moved by the said surveyor. After the receipt of the report of the Secretary, Regional Transport Authority, Ludhiana the said surveyor had prepared his report dated 16.6.2018 and submitted the same with the opposite parties.

                    The opposite parties further stated that after the receipt of the report of Er. Ankit Bharat dated 7.12.2017; M/s Leo Alex dated 03.03.2018 under the signatures of Mr. Rajeshwar Nath; Er. Harvinder Singh dated 12.06.2018 and Shri Amar Nath Taneja dated 15.06.2018 and 16.06.2018 and after scrutinizing the documents placed in the claim file and after due application of the mind by their officials, the complainant was called upon to furnish the documents and information required for processing of the claim vide their letter dated 04.07.2018 followed with reminder dated 17.08.2018, which is reproduced as under:-

• Claim form is not signed by you.
• You have submitted receipts of payment of Rs.73407/- whereas the bills are of Rs.456274/-. Receipts of full payment made by you are required.
• Time of accident in spot intimation/claim form is 27.11.2017 at 9.30 p.m. but in final claim intimation time of accident mentioned 27.11.2017 at 10.30 p.m. Please give reasons of this variation.
• Consent for settlement of claim on repair basis as assessed by surveyor i.e. repair allowed instead of replacement of cabin.
• GST No. of firm, if any required.
• Copy of MOU of Firm (Insured) required.

 

                   After the receipt of the aforesaid letters, the complainant vide its letter dated 31.08.2018 had sent unsatisfactory reply to the queries so raised vide aforesaid letters and as such the claim file of the complainant was closed as no claim on account of non- submission of documents and clarification as sought for vide letter dated 04.07.2018 and 17.08.2018 presuming that the complainant is not interested in the claim. The opposite parties further stated they replied the legal notice dated 22.02.2019  through Sh. Mandeep Sharma, Advocate. On the constant request and reminders sent by the complainant, the competent authority of the company had duly considered the report of the surveyor and thereafter, the claim of the complainant was settled and paid vide invoice No.2162540920 dated 20.03.2019 for Rs.99,613/- through ECS in account No.10691011000487 UTR No.KKBK190802044285, which was accepted by the complainant in full and final settlement of the claim without any protest, voluntarily, unconditionally and without reserving any right to recover any further amount under the claim.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, Sh. Karan Kumar Thaman, Manager of the complainant tendered his affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of resolution, Ex. C2 is the copy of memorandum of article association, Ex. C3 is the copy of registration certificate of the company, Ex. C4 is the copy of insurance cover note, Ex. C5 is the copy of RC of the vehicle, Ex. C6 is the copy of letter of dated 30.11.2017 of the complainant, Ex. C7 is the copy of estimate, Ex. C8 to Ex. C10 are the copies of invoices, Ex. C11, Ex. C12 are the copies of receipts of payment, Ex. C13 is the copy of legal notice, Ex. C14 to Ex. C16 are the postal receipts and closed the evidence.

4.                On the other hand, the counsel for the opposite parties tendered affidavit Ex. RA of Sh. Gurbhajan Singh, branch Manager, National Insurance Co. Ltd., Branch Office-III, Cheema Chowk, Ludhiana, Ex. RB of Er. Harinder Singh, Insurance Surveyor and Loss Assessor, Hoshiarpur, Ex. RC is the affidavit of Sh. Amar Nath Taneja, Surveyor and Loss Assessor and Investigators, Ludhiana, Ex. RD of Er. Ankit Bharat, an IRDA approved and Licensed Surveyor and Loss Assessor, Fire Engineering and Motor, Khanna and affidavit Ex. RE of Sh. Rajeshwar Nath of M/s. Leo Alex, an IRDA approved and licensed Surveyors, Valuer, Loss Assessors, Jalandhar  and submitted documents Ex. R1 is the copy of payment report dated 09.10.2019, Ex. R2 is the copy of motor claim, Ex. R3 is the copy of reply dated 20.03.2019 to legal notice of the complainant, Ex. R4 is the cop of insurance claim form, Ex. R5 is the copy of final notice dated 14.09.2018, Ex. R6 is the copy of IInd reminder dated 17.08.2018, Ex. R7 is the copy of letter dated 04.07.2018, Ex. R8 is the copy of letter dated 16.06.2018 of Amar Nath Taneja, Surveyor for verification of RC,  Ex. R9, Ex. R11 is the copy of letter dated 08.06.2018 of Amar Nath Taneja for verification of documents, Ex. R10 is the copy of letter dated 15.06.2018 of Amar Nath Taneja for verification of permit, Ex. R12 is the copy of national permit (goods), Ex. R13 is the copy of goods carriage permit for hire or reward, Ex. R14, Ex. R15 is the copies of letters dated 12.06.2018 and 12.06.2018 of Sh. Harinder Kumar Surveyor for verification of driving licence of Paramjit Singh, Ex. R16 is the copy of driving licence of Paramjit Singh, Ex. R17 is the copy of final motor survey report of Sh. Rajeshwar Nath, of Leo Alex Surveyor, Valuer, Loss Assessors dated 03.03.2018, Ex. R18 is the copy of re-inspection report dated 03.03.2018 of Sh. Rajeshwar Nath of Leo Alex, Surveyors, Ex. R19 is the copy of letter of Sh. Rajeshwar Nath of Leo Alex Surveyor, Ex. R20 to Ex. R27, Ex. R39 to Ex. R41 are the photographs of the vehicle, Ex. R28 is the cancelled cheque, Ex. R29 is the copy of letter dated 30.11.2017 of the complainant, Ex. R30 to Ex. R32 are the copies of repair estimate of Uttam Sales & Services,  Ex. R33 is the copy of intimation letter dated 28.11.2017, Ex. R34 is the copy of RC, Ex. R35 is the copy of settlement, Ex. R36 is the copy of motor accident claim form, Ex. R37 is the copy of preliminary motor survey report dated 07.12.2017 of Er. Ankit Bharat, Surveyor, Ex. R38 is the copy of RC, Ex. R42 is the copy of statement of Paramjit Singh, Ex. R43 is the copy of letter Sh. Rajeshwar Nath of Leo Alex, Surveyor for verification of DL, Ex. R19/2 is the copy of driving licence of Paramjit Singh, Ex. R19/3 is the copy of status of driving licence of Paramjit Singh, Ex. R43 is the copy of letter dated 31.08.2018 of the complainant, Ex. R45 is the copy of Goods carriage permit for hire or reward, Ex. R46 is the copy of national permit (goods), Ex. R47 is the copy of permit checking report, Ex. R48 is the copy of insurance policy, Ex. R49 is the copy of policy terms and conditions and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and affidavit produced on record by both the parties.

6.                The complainant firm is the owner of the vehicle in question having valid coverage, which met with an accident on 27.11.2017 in the area of Village Mohanpur, Khanna within three months from its date of purchase. On receipt of information, process of the claim was initiated by the opposite parties by appointing Er. Ankit Bharat, an IRDA approved and licensed Surveyor and Loss assessor and M/s Leo  Alex, an IRDA approved and licensed surveyor and loss assessor and occurrence was found to be genuine and loss was assessed at Rs.1,11,053/- vide report dated 03.03.2018 Ex. R17. Er. Harvinder Kumar verified the license of the driver vide its report dated 12.06.2018 while Mr. Amar Nath Taneja , Surveyor and Loss Assessor verified the genuineness of permit, RC from the competent authority and submitted its report on 15.06.2018 Ex. R10 and 16.06.2018 Ex. R8. Thereafter, the opposite parties sought an information from the complainant firm vide letter Ex. R7, Ex. R6 and Ex. R5, receipts of payment of billl amounting to Rs.4,56,274/- along with requisite documents etc., but the complainant failed to evoke any satisfactory response though he submitted a letter dated 31.08.2018 Ex. R43 in this regard. The complainant also served a legal notice dated 22.09.2019 Ex. C13. However, during the process, the claim of the complainant was settled and an amount of Rs.99,613/- was made to him through ECS as full and final settlement of the claim. The complainant did not raise any protest or objections with regard to the settlement of the claim. He did not send any letter, objection or written communication by raising an objection with regard to partial settlement of the claim. Although the complainant claimed to have spent and paid an amount of Rs.4,56,274/- to M/s. Uttam Sales and Services, Ludhiana and their sister concern M/s. Uttam Motor Workshop, Ludhiana but the complainant could not prove the payment of entire amount except of Rs.43,407/-. The complainant had the opportunity to point out irregularities and inconsistencies, if any, in the reports of the surveyors but he accepted the reports. Moreover, there is also concealment of the fact in the complaint regarding the acceptance of the amount of Rs.99,613/- as full and final settlement of the claim. It is not the case of the complainant that he was coerced or forced to enter into settlement by the representatives of the opposite parties.

7.                In this regard, reference can be made to IV (2016) CPJ 95 (Punj.) in Birla Sun Life Insurance Company Limited Vs Gurpreet Singh whereby the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh held that the OPs have already paid to the complainant which was accepted and no proof with  regard to acceptance of amount under protest has been placed. Impugned order cannot be sustained.  Reliance can be further made to II (2013) CPJ 586 (NC) in M.L. Kathuria Vs Oriental Insurance Co. Ltd. and another whereby the Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that once party accepts payment as full and final satisfaction without any protest, party cannot put forward claim before Consumer Fora. The complainant had accepted Rs.3,10,000/- while accepting the claim voluntarily and without any coercion exercised upon him as such, no illegality, irregularity or jurisdiction error in impugned order. Further, reliance can be placed in II (2003) CPJ 51 (Uttara.) TATA AIG General Insurance Co. Ltd. Vs Shalini Joshi whereby the Hon’ble Uttrakhand State Consumer Disputes Redressal Commission, Dehradun held that the respondent has never alleged that full and final settlement amount was received under any protest or it was partial payment. When the settlement amount has already been paid much prior to the date of filing of compliant, no cause of action wholly or in part has arisen to file complaint. The respondent has not filed any evidence that the bill was not considered by surveyor in its report. Insured amount has already been paid before the date of filing complaint case. Thus, respondent has not come with clean hands before District Commission and there is no deficiency in service on the part of insurance company.

          So by applying ratio of the above said citations, it is crystal clear that the complainant has concealed the facts regarding acceptance of amount of Rs.99,613/- without raising any protest, as such the complaint is not maintainable and the same is hereby dismissed.

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:04.10.2023.

Gobind Ram.