BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint case No.162 of 2017.
Date of Instt.: 13.07.2017. Date of Decision: 12.04.2018.
M/s K.P.Petro through Ajay Bansal son of Pawan Kumar Bansal Age 28 years, R/o Model Town K-5, Fatehabad, Tehsil & District Fatehabad.
..Complainant.
Versus
1.National Insurance Company Limited through its Branch Manager, G.T.Road, Fatehabad above Union Bank of India, Distt.Fatehabad.
..Opposite Party/Respondent.
Complaint U/S 12 of the CP Act,1986
Before: Sh.Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.Devender Kaswan, Advocate for complainant. Sh.Virender Jakhar, Advocate for opposite party.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the opposite party (hereinafter to be referred as OP) with the averments that he took an insurance policy for safety of his vehicle i.e. Tata LPT 1613 Tanker Regd.No.HR-62-8606 vide policy No.420701/31/16/6300002024 from OP on 16.10.2016 for a sum insured of Rs.14,29,000/-. The said insurance was valid up-to 15.10.2017 and a premium of Rs.36,997/- was paid by the complainant to the OP for the said policy.
2. It is further submitted that the vehicle was totally damaged on 01.12.2016 on account of an accident which occurred near village Sacha Khera within the jurisdiction of Police Station Narwana, Distt. Jind and an FIR No.304 of 03.12.2016 was lodged in Police Station Narwana (Sadar). Thereafter a claim was submitted by the complainant with the OP regarding the above said insurance and a surveyor was appointed by the OP. The surveyor after inspection of the vehicle declared a total loss in the vehicle in question and as such the complainant is entitled for full claim of the damaged vehicle on the basis of IDV of Rs.14,29,000/-. However only an amount of Rs.7,39,326/- was credited by the OP in the account of the complainant on 13.04.2017 on the basis of IDV of Rs.11,87,496/-. The value of the salvage was fixed as Rs.4,50,000/- and the wreck was kept by the complainant. Thereafter the complainant enquired about the remaining amount of Rs.2,39,674/- then the OP assured that the remaining amount will be transferred into his account within 15 days. Thereafter the complainant visited OP and the matter was kept pending on one account or the other and finally refused to give the remaining amount of Rs.2,39,674/- on the ground that the claim has been settled.
3. It is further submitted that the OP has illegally refused to give the remaining amount of Rs.2,39,674/- and the OP is bound to make the payment of above said amount against his liability up-to Rs.14,29,000/-. The above said act on the part of OP amounts to deficiency and unfair trade practice in rendering service to him. The complainant further prayed that the present complaint may be accepted and the Op may kindly be directed for making payment of Rs.2,39,674/- along-with interest, compensation and litigation charges. Hence, the present complaint.
4. On being served, the opposite parties appeared through its counsel and resisted the claim of the complainant by filing reply to the complaint wherein several preliminary objections such as maintainability, estoppal, concealment of material facts and cause of action etc. have been taken.
5. In reply on merits, it is submitted that after receipt of intimation of loss the OP deputed Sh.Dayaram Gupta, an independent Surveyor and loss assessor to assess the loss in the present matter. During the process it was revealed that the insured wrongly assumed IDV of the vehicle in question as Rs.14,29,000/-. However this value was not correct as per schedule of age wise depreciation for fixing IDV for purposes of total loss as provided in the terms and conditions of the insurance policy. It is further submitted that the vehicle in question was purchased on 11.10.2015 and the insurance was renewed on 16.10.2016. It means that the age of truck in question was more than one year on the date of insurance and as such 20% depreciation was applicable for fixing its IDV. Therefore the IDV was corrected as Rs.11,87,496/- with mutual consent of the insured/ complainant and the insurer. Thereafter the surveyor assessed the loss on total loss basis as on net of salvage basis with R.C. as Rs.7,37,496/-. The wrack / salvage value was fixed as Rs.4,50,000/- and the wrack was kept by the complainant.
6. It is further submitted that assessed amount of Rs.7,35,996/- has already been credited in his bank account and the same has been received by him without any protest. The complainant also signed a consent letter dated 02.01.2017 and thereafter gave an affidavit dated 30.01.2017 accepting the sum of Rs.7,35,996/-. Now after five months from the date of accepting the said amount the present complaint has been filed by the complainant only out of greed and with mala-fide intention. It is further submitted that the claim of the complainant has been settled as per policy’s terms and conditions and as agreed by the complainant by giving his consent regarding full and final settlement and accepted the amount without any protest. Therefore the present complaint is without any merits and the same is liable to be dismissed.
7. The learned counsel for the complainant tendered in evidence affidavit of Ajay Kumar Bansal- complainant as Annexure C-1 and the document as Annexure-A and closed the evidence. On the other hand, the learned counsel for the OP tendered in evidence affidavit of Sh.Suresh Kumar Chaudhary, Senior Branch Manager as Annexure RW1/A alongwith documents as Annexures R-1 & R-2 and closed the evidence of OP.
8. The learned counsel for the complainant in his arguments reiterated the averments made in the complaint and further contended that the insurance policy of the vehicle in question was issued on 16.10.2016 and IDV of the vehicle was Rs.14,29,000/- and the OP received premium of Rs.36,997/- on the above said amount of Rs.14,29,000/-. Since it was a case of total damage as such the complainant was entitled to receive full claim of Rs.14,29,000/- covered under the abovesaid policy which was effective from 16.10.2016 to 15.10.2017. However the OP reduced the IDV from Rs.14,29,000/- to Rs.11,87,496/-. Since the OP received premium on the amount of Rs.14,29,000/- as such the act of the OP in reducing the IDV from Rs.14,29,000/- to Rs.11,87,496/- is illegal, unfair, irregular and in violation of the terms and conditions of the policy. It is further contended by the learned counsel that the OP by using undue influence, coercive methods, and financial pressure upon the complainant obtained his consent for receiving reduced amount. Moreover there is no provision of consent under the Insurance Act. It amounts to unfair trade practice on the part of OP. The consent cannot be used by OP to restrain the complainant for seeking higher compensation. The OP has also violated the circular issued by the IRDA dated 24.09.2015.
9. The learned counsel further contended that 20% depreciation must be on the current price of the vehicle i.e. at the time of renewal of the policy and not on the price on which it was purchased. The learned counsel also contended that the consent was obtained by the OP from the complainant prior to the submission of the Surveyor report.
10. In support of his case the learned counsel relied upon the judgment rendered by Hon’ble High Court of Delhi in case titled as Worldfa Exports Pvt. Ltd. Vs. United India Insurance Company Ltd. decided on 11.12.2015 (ARB.P.459 of 2015). The learned counsel also placed reliance on the judgments cited as 1(2013) CPJ 10A (NC), 2003(1) CPJ Page 128 (Delhi State Commission), 2011(4) CPJ Page 186 (NC), 2008(4) R.C.R.(Civil) Page 108 (SC). The learned counsel also relied upon the circular dated 24.09.2015 issued by the IRDA wherein the IRDA directed the insurance companies not to use the discharge vouchers as a means of estoppal against the insured to seek higher compensation before any judicial forum.
11. The learned counsel further prayed that the present complaint be accepted and the OP be directed for making payment of remaining amount of Rs.2,39,674/- to the complainant alongwith interest and compensation.
12. The learned counsel for the OP rebutted the arguments advanced by learned counsel for the complainant and reiterated the submissions made in the written statement filed by the OP. It is further contended that IDV of the vehicle in question was wrongly assumed by the insured as Rs.14,29,000/-. The above-said fact came into the notice of the Surveyor during the process of assessment of the loss in the vehicle in question caused on account of accident. The learned counsel further contended that the vehicle in question was purchased on 11.10.2015 and insurance was issued on 16.10.2016 i.e. after expiry of one year from the date of purchase of the vehicle and as such 20% depreciation was applicable for fixing the IDV of the said vehicle. Therefore the IDV of the said vehicle was corrected as Rs.11,87,496/- with the consent of the insured. The value of the salvage was assessed as Rs.4,50,000/- and the remaining amount of Rs.7,35,996/- was paid to the complainant in his bank account. The said amount has been received by the complainant without any protest. The learned counsel also contended that a consent letter dated 02.01.2017 was signed by the complainant and an affidavit dated 30.01.2017 was voluntarily given by the complainant regarding acceptance of Rs.7,35,996/-. The complainant even did not lodge any protest after acceptance of above said amount and the present complaint has been filed by the complainant after a lapse of about 5 months. Insurance claim has been paid to the complainant perfectly as per his entitlement and there is no deficiency on the part of OP in rendering service to the complainant.
13. The learned counsel for the OP in support of his case relied upon the judgment dated 30.08.2017 titled as K P Singh Vs. National Insurance Company Ltd., rendered by the National Commission and the judgment titled as M/s Swastic Petro Chemical(I) Pvt.Ltd. Vs. Oriental Insurance Company decided by National Commission on 16.08.2016. The learned counsel also placed reliance on the judgments cited as 11(2014) CPJ 692 (NC), 111 (2015) CPJ 503 (NC) and 1(2015) CPJ 628 (NC).
14. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant as set out in the complaint that he took insurance policy for his vehicle i.e. Tata LPT 1613 Tanker from the OP on 16.10.2016 for a sum insured of Rs.14,29,000/- and the premium of Rs.36,997/- was paid by him and the insurance was valid up-to 15.10.2017. The insured vehicle met with an accident on 01.12.2016 and the Surveyor after inspection of the vehicle assessed total loss of the vehicle on account of accident. Therefore the complainant was entitled for full claim of the vehicle amounting to Rs.14,29,000/-. The value of the salvage of the vehicle was assessed Rs.4,50,000/- and the same was kept by the complainant therefore he was entitled for remaining amount keeping in view the IDV as Rs.14,29,000/-. However the OP only made a payment of Rs.7,39,326/- in the account of complaint and the remaining amount of Rs.2,39,674/- has not been paid. It is further the case of the complainant that he was assured by OP that remaining amount shall be paid to him within a few days but inspite of many visits made by him the remaining amount has not been paid to him and the OP finally refused for making payment on the ground that the claim has been settled. The OP has illegally refused to make payment of the above said remaining amount.
15. As per complaint it is not the case of the complainant that the amount of Rs.7,39,326/- was received by him under any protest. It is also not the case of the complainant that the consent was given by him under any undue influence, duress or on account of any financial difficulties. Whereas from perusal of the documents placed on record it is revealed that vide Annexure R-2 the complainant has given consent for a claim approved for Rs.11,87,496/-, keeping the salvage of the vehicle with him and for receiving a payment of Rs.7,35,996/-. A perusal of Annexure R-3 further reveals that the complainant has given an affidavit dated 30.01.2017 wherein the complainant has submitted that after mutual discussion and negotiation he has voluntarily accepted full and final settlement of his claim and has agreed to accept the sum of Rs.7,35,996/-. Moreover Mrs.Teenu wife of complainant vide Annexure R-4 has given her consent for full and final payment on 02.01.2017. A perusal of the above said document very clearly reveals that the above said amount of Rs.7,39,326/- has been accepted by the complainant without any protest and by giving a consent. There is no evidence on the file to prove that the above said amount was accepted by him under any protest or his consent has been obtained by the Op by using undue influence, coercive methods, by fraud or mis-representation. It is also not the case of the complainant that consent was given on account of financial difficulties or mistake. From perusal of record it also revealed that the case of the complainant for insurance claim has been settled by the Op within a reasonable period of about 5 months from the date of accident and there is no delay in settling the claim. The judgments relied upon by the learned counsel for the complainant are not applicable in the case in hand as the facts of those judgments are different and distinguishable from the facts of the present case.
16. In view of the aforesaid facts and circumstances it is very clear that the amount of Rs.7,39,326/- was accepted by the complainant voluntarily in full and final settlement of the claim that is why no protest was lodged by the complainant either while receiving the said amount or even soon thereafter. Having accepted the payments without any protest the complainant is estopped from claiming any further amount from the insurer. Therefore the complainant has failed to prove deficiency or unfair trade practice on the part of Op and as such present complaint is accordingly dismissed with no order as to costs. Copy of this order be supplied to both the parties free of cost as provided in the rules. File be consigned after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.12.04.2018
(Raghbir Singh)
President
(M.K.Khurana) District Consumer Disputes
Member Redressal Fourm,Fatehabad
