BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.353 of 2014

Date of Instt. 14.10.2014

Date of Decision :19.05.2015

Amarjit Singh son of Raghbir Singh R/o Village Gobind Nagar, PO Kali Pahari, PS Jamuria, Asansol District Bardwan (West Bengal).

..........Complainant

Versus

1. National Insurance Company Limited, having its registered office at 3, Middleton, Kolkata through its Chairman and also 6-A, Shambu Chatterjee Street, Kolkata.

2. National Insurance Company Limited, having its branch office at B.M.C, GT Road, Jalandhar through its Branch Manager.

.........Opposite parties

Complaint Under Section 12 & 13 of the Consumer Protection Act,1986.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Akhilesh Vyas Adv., counsel for complainant.

Sh.J.L.Naagar Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 and 13 of the Consumer Protection Act, 1986, against the opposite parties on the averments that the complainant is registered owner of the truck TATA G0110 bearing registration No.NL01-G-9326, Chasis No.MAT 466412D08406 and engine No.B5, 91003111063117760. The vehicle is hypothecated with UCO Bank and financed by Duli Chand Finance and Leasing Limited. The complainant got his vehicle insured from the opposite parties having policy No.154300-31-11-6300001722 for the period from 16.5.2011 to 15.5.2012 for insured value of Rs.20,02,600/- against requisite premium of Rs.38,511/- including tax of Rs.3967/- having total premium of Rs.42,478/-. On 30.11.2011, the complainant was coming from Kolkata to Amritsar and while he was on the way, he took a halt at Jalandhar alongwith his conductor. Some unknown persons came to the conductor and by misrepresenting him being friends of the complainant, took the vehicle from the custody of the conductor and the vehicle was stolen by them. In this regard, FIR No.190 dated 2.12.2011 was lodged with Police Station-B- Division, Jalandhar. The complainant immediately informed the insurance company i.e opposite party and Duli Chand Finance & Leasing Company. Further on 1.12.2011, even Duli Chand Finance and Leasing Company had issued a letter to the divisional manager of the opposite party to register the claim for the theft of the truck of the complainant. After lodging the claim, the opposite party handed over the case for investigation to M/s S.A. Investigating & Consulting Agency, Abrol Nagar, Pathankot. The investigating agency gave an observation that the original key was broken and the complainant was advised to prove the status of the queries via mail. That reply was submitted by the complainant to opposite party residing these observations which clearly mentioned that original key was broken, he got prepared duplicate key from the market. Subsequently, financier submitted the original key to the opposite party. The complainant further went to the office of the opposite party many a times for the reasons that his claim will be satisfied and the full amount of claim would be remitted to him but vide letter dated 30.10.2013, the opposite party submitted a letter to UCO Bank from whom the vehicle was hypothecated regarding the settlement of motor theft claim account of the complainant stating that the claim is ready for payment for amount of Rs.15,00,450/- towards full and final settlement. The insurance policy was issued inserting endorsements for hypothecation in the name of the UCO Bank and hire and purchase agreement in the name of Duli Chand Finance & Leasing Ltd. As per stipulation of the above endorsement, in case of total loss claim, payment to be made directly to the hypothecator/lessor and not to the registered owner of the vehicle. The complainant being registered owner of the vehicle also gave his NOC on the face of the pre-payment voucher. Duli Chand Finance & Leasing Limited also singed the said voucher and requested to pay them entire amount of settled claim in their bank account. As the policy was issued endorsing bank's name alongwith Duli Chand Finance & Leasing Ltd, it was stated by the opposite party that the cheque can not be issued on the name of the Duli Chand Finance & Leasing Limited till receipt of written confirmation towards the said payment to Duli Chand Finance & Leasing Ltd. Accordingly, UCO Bank replied to the said letter vide letter dated 7.11.2013. The complainant requested the opposite party to release the full amount of the claim i.e insured value of the vehicle of Rs.20,02,600/-. The opposite party released the sum of Rs.15,00,450/- only in favour of the said bank to the credit of Duli Chand Finance & Leasing Ltd instead of the whole claim amount of Rs.20,02,600/-. Ultimately, the complainant filed a complaint before Hon'ble State Commission, Chandigarh on 6.6.2014 vide complaint No.91 of 2014 claiming the claim amount of Rs.20,02,600/-, whereby it was made clear in that complaint that the amount of Rs.15,00,450/- has been paid to bank. In view of release of the said amount, as the claim amount was reduced to Rs.5,02,450/-, thereafter on the instructions of complainant upon the statement of the counsel, the said complaint was withdrawn from the Hon'ble State Commission, Chandigarh without prejudice to right for the complainant to approach the District Forum with a fresh complaint for the balance claim amount. On such like averments, the complainant has prayed for directing the opposite party insurance company to pay him the balance claim amount Rs.5,02,150/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply, inter-alia, pleading that the complainant previously has filed a complaint before Hon'ble State Commission, Chandigarh, on 6.6.2014 regarding the theft of the vehicle truck bearing registration No.NL-01G-9326. Whereas, simultaneously the claim case of the complainant which was pending with the opposite parties which was got settled fully and finally by the opposite parties. The final payment was made to the complainant as per the inter-se arrangement between the complainant with his financier vide the direct transfer of the claim amount having been paid to the financier M/s Duli Chand Financing & Leasing Ltd, Kolkata, vide transferring the amount of Rs.15,00,450/- in the bank account No.19670500354117 & IFSC Code:- UCBA0001967 settling the claim finally against a full and final receipt signed by the complainant. It is also noteworthy that the complainant has also completed the other formalities required to be completed in this regard by the complainant such as signing and handing over the agreement/letter of subrogation, handing over of the registration certificate and getting the same transferred in the name of the opposite parties, keys of the insured vehicle which was insured vehicle in question. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered into evidence affidavits Ex.CW1/A & Ex.CW1/B alongwith copies of documents Ex.C1 to Ex.C11 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.O1 alongwith copies of documents Ex.O2 and Ex.O3 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. It is not disputed that the insured truck of the complainant was stolen and he lodged the claim with the opposite party insurance company and opposite party insurance company paid Rs.15,00,450/- in the bank account of the financier namely M/s Duli Chand Finance & Leasing Ltd. The complainant has filed the present complaint claiming the remaining insured amount of Rs.5,02,150/-. Counsel for the opposite party contended that complainant has received the above said amount in full and final settlement of his claim and as such he is estopped from filing the present complaint and claiming any other amount. We have carefully considered the above contention advanced by learned counsel for the opposite party. The opposite parties have produced agreement Ex.O2 which is duly signed by Amarjit Singh complainant and financier of the truck i.e M/s Duli Chand Finance & Leasing Ltd. In this agreement it is, inter-alia, mentioned that the insurer has fully indemnified the insured or the financier in the theft of the motor vehicle by payment of Rs.15,00,450/- under the policy of motor insurance/cover note. The opposite parties have also produced document/receipt Ex.O3 which is signed by Amarjit Singh complainant as well as above said financier. Above the signature of Amarjit Singh complainant it is specifically endorsed that he has no objection to issue claim amount cheque in favour of M/s Duli Chand Finance & Leasing Ltd. In this document it is further mentioned that "received from National Insurance Company Limited through its policy issuing office the sum of Rs.15,00,450/- in full and final settlement of their claim in respect of the total loss of their vehicle". So it means that complainant alongwith his financier had received the above said amount in full and final settlement of his claim under the policy in question. Once the insured has received the amount in full and final settlement of his claim, he is estopped from claiming any other amount unless it is shown that his consent was obtained by force or fraud or coercion. There is no evidence on record to prove these facts. Counsel for the complainant contended that above said agreement is forged and fabricated one. There is no evidence on record to come to this conclusion. Since, the complainant/his financier had already received the above said amount in full and final settlement of his claim, as such, he is not entitled to the remaining amount claimed in the present complaint. In Jess Ram Khushi Ram Pvt. Ltd. & Anr. Versus National Insurance Co. Ltd. & ors. 11 (2014) CPJ 280 (NC), the Hon'ble National Commission in somewhat similar circumstances has recently held as under:-

"The counsel for petitioner admitted that due to the pressure of the market creditors, the very existence of the petitioners was in danger the complainant had accepted the amount under compelling circumstances. He further contended that, complainant had protested and the "Protest Letter" by way of legal notice was sent to OP two days later. Also, the complainant approached District Forum on 05.12.2005 i.e. less than a period of one month from the date of receipt of the last payment on 09.11.2005, hence, filing of complaint can also be considered as a protest against, so called full and final settlement. Therefore, it was not a voluntary acceptance of claim and final settlement.

We do not find any force in such argument. Sending a legal notice, filing complaint before District Forum are the legal steps taken by the complainant. It is not as such a protest.

We are unable to substantiate as to why the complainant signed the settlement voucher, blindly? He has signed the discharge voucher for full and final settlement in October, 2005, received the amount by three cheques and the last payment was made on 09.11.2005. Thereafter, on 11.11.2005, he has sent a notice to OPs. Hence it is clear that the complainant was not vigilant and prudent enough, he is responsible for his wrongs, and woke up from sleep on 11.11.2005 after i.e. one month after signing document in October, 2005.

He would have in his handwriting written about protest on the same voucher or returned back the cheques to the OPs. He would have not deposited the cheques issued by the OP. Hence we are of the considered view that the complainant being an owner of his private company and he must have signed the consent letter with full knowledge after going through the contents mentioned therein and therefore, question of any pressure tactics by the opposite party upon the complainant does not arise.

In Swan Energy Limited Versus New India Assurance Co. Ltd. 2012 (1) CLT 247, the Hon'ble National Commission has cited with the approval authority of Hon'ble Supreme Court by observing as under:-

"The counsel for the opposite party, New India Assurance Co. also drew our attention to the decision of Hon'ble Supreme Court in (2000) 10 SCC 334, New India Assurance Co. Ltd. Vs. Sri Venkata Padmavathi R&B Rice Mill. In this case, the facts of the case were that rice mill stock of the complainant had suffered severe damage due to cyclone and heavy rain. One of the Surveyors appointed by the Assurance Company assessed the loss Rs.23.30 Lakh and the other Surveyors assessed it at Rs.5,25 Lakh. The assurance Company, therefore, appointed third Surveyor, who assessed loss at Rs.14.80. The complainant reportedly agreed to accept Rs.14.16 Lakh in full and final settlement, but later approach the National Commission seeking full amount of Rs.23.30 Lakh. This was allowed by the National Commission, but the order was set aside by the Hon'ble Apex Court. It was observed that:-

"Where assured agrees to accept a certain amount in full and final settlement of his claim, held, such an assured is bound by his commitment. In particular where there are no allegations before any Forum that the agreement was vitiated by fraud or undue influence-National Consumer Disputes Redressal Commission erred in allowing respondent Mill's claim for an amount higher than the payment amount agreed between respondent and appellant insurance company."

7. The ratio of the above cited authorities is applicable on the facts of the present case. Since, the complainant has already received the above said claim amount in full and final settlement of his claim, as such, he can not claim the remaining amount and is bound by the commitment given to the insurance company regarding the receipt of Rs.15,00,450/- in full and final settlement of the claim.

8. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

19.05.2015 Member Member President