Punjab

StateCommission

A/11/817

Bharat Mill store - Complainant(s)

Versus

NIC - Opp.Party(s)

L.S Sidhu

20 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No. 817 of 2011

 

                                                Date of Institution: 24.05.2011.

                                                Date of Decision:           20.02.2015.

 

M/s Bharat Mill Store through its proprietor Surinder Kumar S/o Janakk Ram resident of Ward no.14, Nagal Colony, Mansa, Tehsil Mansa.

 

                                                     …..Appellant/complainant.

Versus

 

National Insurance Company Limited through its Branch Manager, National Insurance Company, Gaushala Road, Mansa Tehsil and District Mansa.

                                                     ….Respondent/opposite party

 

First Appeal against order dated 28.04.2011 passed by the District Consumer Disputes Redressal Forum, Mansa.

Quorum:-

 

     Shri J. S. Klar, Presiding Judicial Member.

             Shri Vinod Kumar Gupta, Member.     

 

Present:-

 

     For the appellant                   :     Sh. Harinder Kumar, Advocate

For the respondent      :     Sh. P.S. Bedi, Advocate.

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

              The appellant (complainant in the complaint) has directed this appeal against the respondent (opposite party in the complaint) challenging the order dated 28.04.2011 passed by the District Consumer Disputes Redressal Forum Mansa (in short, “the District Forum”), vide which, the complaint of the complainant was dismissed.

2.           The complainant has filed this complainant under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the opposite party on the averments that it purchased Mahindra Bolero pickup jeep, vide registration no.PB-31H-9101 and insured it from the OP for the period from 14.01.2010 to 15.01.2011, vide policy no.401004/31/09/6300002420 by paying the premium. That unfortunately, above insured vehicle of the complainant met with an accident on 18.12.2010 with Trala no.PB-13J-2892. Police report no.27 dated 21.12.2010 was lodged at police station about this accident. That the above referred insured vehicle of the complainant suffered excessive damage in above smash up. Due intimation was given of this accident by complainant to the OP and surveyor was appointed by the Op to assess the loss to the vehicle. The estimate of the loss was assessed as Rs.67,650/- by the surveyor at the instance of the OP. The complainant repaired its vehicle and lodged the insurance claim by submitting the bill and the requisite forms. OP sent cheque no.775026 dated 03.03.2011 for Rs.32,500/- to the complainant, whereas the complainant suffered loss of Rs.67,500/-. The OP has not given the adequate insurance claim to the complainant. No reason has been assigned by the OP for issuing the meager amount of claim of Rs.32,500/- only. The complainant has, thus, filed this complaint directing the OP to release the remaining amount of Rs.35,150/- along with interest @12% p.a. along with Rs.20,000/- as compensation and Rs.10,000/- as costs of litigation.
3.           Upon notice, the opposite party appeared and filed written reply to this complaint and contested it by raising legal objections that complaint is not maintainable in the present Forum. That complaint has been filed on the basis of doctored grounds with malafide intention. That the insurance claim of the complainant has been settled for Rs.32,500/- and cheque no.775026 dated 03.03.2011 was issued, which has been accepted by the complainant. That the surveyor Rakesh K Gupta, an expert in assessment of the losses, has assessed the loss of the vehicle after making the survey thereof. It was alleged that complainant is not the consumer of the OP. On merits, OP admitted that the vehicle was insured with it. That surveyor was appointed, who looked into the loss of the vehicle and assessed the loss of Rs.32,500/-, which was issued to complainant, vide cheque no.775026 dated 03.03.2011. OP prayed for dismissal of complaint of the complainant.
4.           The complainant tendered in evidence copy of cheque no.775026 dated 03.03.2011 along with documents Ex.C-2 to
   C-10 and his affidavit Ex.C-11 and closed the evidence. As against it, the OP tendered in evidence copy of letter dated 02.02.2011 Ex.OP-1 along with other documents Ex.OP-2 to OP-7 and closed the evidence.  On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant, by virtue of order dated 28.04.2011. Dissatisfied with the order of District Forum, the complainant now appellant has preferred this appeal against the same.
5.           We have heard learned counsel for the parties and also examined the record of the case. The submission of the complainant now appellant in this appeal is that they actual loss suffered is of Rs.67,650/- of the insured vehicle by means of the accident, whereas the OP settled the claim for meager amount of Rs.32,500/- only. It was submitted that amount of Rs.35,150/- of remaining loss has not been disbursed to him by the OP besides the fact that it intimated about this accident to the Police and report No.27 dated 21.12.2010 was registered by lodging the claim with the OP. We find that the core point of controversy between the parties, is as to whether the complainant suffered total loss of Rs.67,650/- and OP settled the claim Rs.32,500/- only and remaining amount has not been settled or paid by the OP. We have to look into the evidence on the record to determine the controversy in this case. Ex.C-1 is photocopy of cheque dated 03.03.2011 sent by the OP to the complainant for Rs.32,500/-. This point is un-disputed that complainant received the amount of Rs.32,500/- by virtue of cheque sent by the OP dated 03.03.2011 as claim amount. The complainant relied upon document Ex.C-2 to C-7 on the record that he spent the amount on the denting painting and repair of the vehicle, as detailed therein. The copy of motor claim form Ex.R-9 submitted by the complainant and copy of insurance policy Ex.C-10 and affidavit of Surinder Kumar complainant is Ex.C-11.
6.           The OP relied upon Ex.OP-1, the verification of driving licence no.5177 of Gurdeep Singh S/o Tara Singh, which was found to be genuine on verification, Ex.OP-2 is the report of the surveyor Er. Rakesh K Gupta, assessing the loss of vehicle and actual net loss assessed of Rs.37,067/-. The affidavit of Er. Rakesh K Gupta insurance surveyor to prove this survey report is on the record. Ex.OP-4 is consent letter, Ex.OP-5 is the affidavit of S.C. Goel, Branch Manager of OP, Ex.OP-6 is the final survey report on the record and Ex.OP-7 is the copy of insurance policy.
7.           From critical appraisal of above referred documents on the record and the pleadings of the parties, we find that the vehicle of the complainant was insured with the OP. The vehicle met with an accident and due intimation was given to the police and to the OP. Er. Rakesh K Gupta was appointed by the OP to assess the loss. The surveyor is appointed under the Indian Insurance Act and the appointment of surveyor is statutory. The surveyor assessed the loss in his report Ex.OP-2 and proved it by affidavit Ex.OP-3 on the record. It is settled principle of law that the report of the surveyor carries weightage unless there is strong rebutting evidence on the record to the contrary. The report of the surveyor carries weightage in our opinion, vide OP-2 coupled with affidavit Ex.OP-3. To rebut this report, the complainant relied upon the copy of bills of Sirsa denting painting works Ex.C-3 of Rs.57,450/-, Ex.C-6 and C-7 are the estimate, Ex.C-4 is the cash memo, Ex.C-5 is retail invoice of Rs.3550/-. We find that there is no affidavit of Sirsa Denting Painting Works proprietor to substantiate it on the record. Even original documents have not been placed on record. Only copies thereof have been placed on record by the complainant. We are unable to rely upon it to rebut the report of the surveyor Ex.OP-2 on the record. We find that the report of surveyor carries weightage because there is no contrary evidence on the record led by the complainant to refute it. The report of surveyor is not proved to be wrong by the complainant. Consequently, we place reliance on the report of surveyor Ex.OP-2 on the record, which is supported by his affidavit Ex.OP-3 on the record. The complainant received the cheque of Rs.32,500/- as full and final settlement of the claim. The complainant has not returned this cheque to the OP under protest, due to inadequate insurance claim. The acceptance of cheque by the complainant is tantamount to this fact that it amounts to final settlement between the parties. Mere dispatch voucher would not be able to rebut it. The complainant has not proved it on the record that he returned this cheque un-encashed to the OP. The District Forum has, thus, correctly found no substance in the complaint of the complaint and rightly dismissed it. We do not find any other ground on the record to dis-agree with the order of the District Forum in this appeal.
8.           In the light of our above discussions, we find no merit in this appeal and the same is hereby dismissed.
9.           Arguments in this appeal were heard on 18.02.2015 and the order was reserved. Now the order be communicated to the parties.        The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

February 20, 2015.                                                             

(MM)