Per Justice Sham Sunder , President This appeal is directed against the order dated 10.03.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint of the complainant(now appellant) and directed OP No.1(respondent No.1) as under ; “OP-1 is directed to pay to the complainant Rs.4,37,131/- alongwith interest @6% p.a. since 11.08.2010. The OP-1 is also directed to pay Rs.5,000/- as compensation alongwith Rs.5,000/- as costs of litigation. The order shall be complied with by the OP-1 within 30 days from the date of receipt of copy of this order, failing which, OP-1 would be liable to pay the aforesaid amount of Rs.4,37,131/- to the complainant alongwith penal interest @18% p.a. since 11.08.2010 till the payment is actually made to the complainant besides payment of compensation and litigation costs” The complaint against OP No.2 was, however, dismissed. 2. The facts, in brief, are that the complainant got insured his Swift VDI car, bearing Registration No.HR-24-L-5701, with the OPs, for the period from 11.4.2009 to 10.4.2010, for the insured declared value of Rs.4,84,631/-. The said car met with an accident on 22.6.2009 at Sirsa. The matter was reported to the OPs, and they deputed a surveyor-cum- loss assessor. The car was financed by the State Bank of India, Sirsa. Since the OPs, and their surveyor, were duly convinced about the total loss of the vehicle, therefore, on their advice, the complainant got the vehicle transferred in the name of the OPs, and the hypothecation was removed. It was further stated that despite complying with all the instructions of the OPs, they failed to settle the claim. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him. 3. The OPs, in their written reply, did not dispute the factual matrix. It was stated that, on receipt of intimation regarding the accident, the OPs deputed a surveyor, who after doing the survey, assessed the loss to the tune of Rs.4,50,500/-, less Rs.500/- as excess clause. It was further stated that the claim was settled, but the complainant did not provide the ‘No Objection Certificate’ and, therefore, the OPs sent letters dated 19.7.2010 and 4.8.2010 to the State Bank of India, Sirsa, for supplying the same. It was further stated that the NOC was received by the OP on 11.8.2010 and immediately a cheque in the sum of Rs.4,37,131/- was prepared on 13.8.2010. It was further stated that the cheque was for the lesser amount, because when the salvage was inspected, stepany tyre and one front tyre with rims of the vehicle, in question, were found to be missing. It was further stated that, as such, an amount of Rs.12,869/- was deducted from the settled amount of Rs.4,50,000/-. It was further stated that the cheque of Rs.4,37,131/- was offered to the complainant, in the Lok Adalat held on 3.9.2010, but he refused to accept the same. It was further stated that there was no deficiency, in rendering service, on the part of the OPs, nor did they indulge into unfair trade practice. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum passed the order, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, against the inadequacy of the amount of indemnification, as also of compensation, the instant appeal, was filed by the appellant/complainant. 7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 8. The Counsel for the appellant, submitted that since within two months from the date, the car in question, was got insured with OP No.1, it met with an accident, as such, the appellant/complainant was entitled to the amount of Rs.4,84,631/-, the insured declared value, for which the same was got insured. He further submitted that when the loss was assessed at Rs.4,50,500/- minus Rs.500/- on account of excess clause , it is not clear, as to how, the OPs came to the conclusion that the complainant was only entitled to a sum of Rs.4,37,131/-. He further submitted that even if, it is assumed, that a consent was given by the complainant, by way of an affidavit, for receipt of an amount of Rs.4,50,500/- against the insured declared value of Rs.4,84,631/-, that was only under protest. He further submitted that, thus, the appellant/complainant was entitled to the full insured declared value of the car, in question, alongwith compensation. He further submitted that the order of the District Forum is liable to be modified to this extent. 9. On the other hand, the Counsel for respondent No.1, submitted that, as soon as the intimation with regard to the accident was given by the complainant, a surveyor-cum-loss assessor was appointed, who gave his report that the amount was payable on total loss basis, to the extent of Rs.4,50,000/-. He further submitted that the wreck value was to the tune of Rs.2,20,000/-. He further submitted that the complainant submitted affidavit, copy whereof is R4, vide which he gave his consent for receipt of Rs.4,50,000/-. He further submitted that, at the time of filing of affidavit R4, no protest was raised by the complainant that it was obtained by OP No.1 under coercion or pressure or by playing fraud upon him. He further submitted that, thereafter, when the inspection of the salvage was made by the surveyor on 30.6.2010, it was found that the stepney tyre and one front tyre with rims were found missing and, as such, a sum of Rs. 12,869/- was deducted therefrom. He further submitted that, as such, the complainant could not claim the insured declared value of the car, in question, and enhancement of compensation. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the evidence and record of the case, in our considered opinion, the appeal is liable to be partly accepted, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum, that the complainant got insured his Swift VDI Car, with respondent Nos.1 & 2, for the period from 11.4.2009 to 10.4.2010 for the insured declared value of Rs.4,84,631/-, on payment of premium. There is hardly any dispute, about the factum, that the car, in question, met with an accident on 22.6.2009. The surveyor was appointed, on receipt of intimation by OP No.1, who gave report annexure R1 that the complainant was entitled to a sum of Rs.4,50,000/- on total loss basis. Such a report must have been given by the surveyor, after due inspection of the salvage. The latter report of the surveyor dated 30.6.10 that on inspection of the vehicle, stepney tyre and one front tyre with rims were found missing, therefore, did not have any significance or value. It was, on the basis of the report of the surveyor annexure R1, that the complainant gave his affidavit, copy whereof is R4, consenting to the receipt of Rs.4,50,000/-. The complainant did not make mention of this affidavit in the complaint, though the execution thereof, was duly proved by Sh.Raj Kapoor, Sr. Divisional Manager, through his affidavit, by way of evidence, on behalf of the OPs. No plea was taken by the complainant, in the complaint, that such an affidavit was obtained from him, under coercion, pressure or by playing fraud upon him. It is not disputed that once a discharge voucher is given by the insured, or an affidavit is sworn by him, giving his consent to receive a particular amount, he is not estopped from claiming further amount, provided he proves that such a consent was obtained, under coercion or by putting pressure or playing fraud upon him. In United India Insurance Co. Ltd. Vs Ajmer Singh Cotton and General Mills& Ors. II(1999)CPJ 10(SC), it was held as under ; “The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the Commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the. insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the Insurance Companies notwithstanding the insurance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the Insurance Companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.” 11. The principle of law, laid down, in the aforesaid case, by the Apex Court, is fully applicable to the facts of the instant case. Since no plea was raised by the complainant, in the complaint, nor any evidence was produced by him, to the effect, that his consent by way of affidavit, copy whereof is R4, was obtained under coercion, pressure or by playing fraud upon him, he cannot wriggle out of the same. According to the affidavit, complainant gave a consent for receipt of Rs.4,50,000/- against the insured declared value of Rs.4,84,631/-. Since, subsequent report of the surveyor dated 30.6.2010, has been held insignificant and invalid, the District Forum fell into an error, in deducting Rs.12,869/- from Rs.4,50,000/-, which was consented to be received by the complainant. It is, therefore, held that the complainant was entitled to a sum of Rs.4,50,000/-, instead of Rs.4,37,131/-, awarded by the District Forum on account of the total loss of the vehicle. The findings of the District Forum, to this extent, are liable to be modified. 12. The next question, that arises for consideration, is, as to whether, the appellant is entitled to enhancement of compensation. It may be stated here, that only meagre compensation in the sum of Rs.5000/- was awarded to the complainant by the District Forum, despite total loss of the vehicle and assessment of the same to the tune of Rs.4,50,000/-. The same was not paid by OP No.1, to the complainant immediately. The complainant suffered physical harassment and mental agony for a sufficiently long period. Under these circumstances, the complainant should have been granted compensation, at least, in the sum of Rs.20,000/-. The findings of the District Forum, to this extent, are liable to be modified. 13. The appellant in para No.5(iv) of the grounds of appeal, stated that he has already received a sum of Rs.4,37,131/-, being part payment from OP No.1, without prejudice to his right. The amount, which has already been received by the appellant, shall however, be deducted from the amount, now awarded by this Commission. 14. For the reasons recorded above, the appeal is partly accepted with costs, quantified at Rs.5000/-. The impugned order is modified, in the following manner ; (i) OP No.1 shall pay Rs.4,50,000/- instead of Rs.4,37,131/- awarded by the District Forum, being the amount of total loss of the vehicle in the accident, as consented to by him. (ii)OP No.1 shall also pay compensation in the sum of Rs.20,000/- instead of Rs.5000/-, awarded by the District Forum. (iii)The difference, of the aforesaid amounts, shall be paid by OP No.1/respondent NO.1, within a period of 30 days, from the date of receipt of a copy of the order, failing which, it shall be liable to pay the same with interest @ 18% p.a from 11.8.10 till the payment is actually made. (iv) The remaining directions given by the District Forum shall remain unaltered. 15. Certified Copies of this order be sent to the parties, free of charge. 16. The file be consigned to Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
