Punjab

Ludhiana

CC/15/240

Balwinder Singh - Complainant(s)

Versus

oriental Ins.Co.Ltd - Opp.Party(s)

Naveen Gupta Adv.

15 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 240 of 09.04.2015

Date of Decision            :   15.07.2016

 

Balwinder Singh s/o Gurdial Singh r/o Village Khattra Chuharan, District Ludhiana. 

….. Complainant

                                                         Versus

The Oriental Insurance Company Limited, Branch Office Number 3, Madhok Complex, Ferozepur Road, Ludhiana, through its Branch Manager.

Alternative Address:-

Service Claim Hub at Branch Office Number 5, Cheema Chowk, Ludhiana.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Naveen Gupta, Advocate   

For OP                           :        Sh.B.S.Rampal, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant for availing services of Motor Vehicle Insurance policy of private car package qua vehicle No.PB-10-DU-9317, paid premium of amount of Rs.8765/-. This vehicle is meant for personal use of the complainant. The car was insured vide cover note No.CHD-D-440758 dated 18.11.2014 with validity period from 18.11.2014 to 17.11.2015. In cover note No.CHD-D440758 dated 18.11.2014, it is clearly mentioned that this car was previously insured with Oriental Insurance Company Limited, CBO 5, Ludhiana vide cover note No.70309 with expiry date 20.08.2014. The car was insured for sum of Rs.4,80,000/- through policy No.233406/31/2015/11053. OP was to ensure that car in question insured for the period from 18.11.2014 to 17.11.2015 after finding that the complainant is entitled to NCB(No Claim Bonus).                   OP verified the entitlement of the complainant regarding NCB and thereafter, issued the cover note in question. No proposal form was obtained by OP from the complainant at the time of issue of the insurance policy in question with validity period from 18.11.2014 to 17.11.2015. Complainant just received two pages of insurance policy, which were without the terms and conditions of the policy. Terms and conditions of the policy were neither sent to the complainant and nor explained to him by OP, despite the fact that stamp qua the attachment of the terms and conditions with the policy was put up on the supplied documents. The vehicle in question met with an accident on 26.12.2014 at about 7:30 PM near Rarra Sahib, Ludhiana at the time, when there was thick fog and suddenly a stray animal appeared in front of the car. That animal could not be noticed in the dense fog and the car hit against the said animal. Due to impact of the accident, head of the driver hit into the front windshield of the car. Even the car stood damaged. Intimation regarding this accident was supplied to the OP immediately. After submission of the claim along with documents, OP appointed Sh.Rajesh Bhatia as surveyor. The said surveyor inspected the car, took the estimate of repairs and after conducting of survey, prepared the report. As per that report of the surveyor, OP may consider to settle the claim to the tune of Rs.81,475.35P against the original estimated loss of Rs.1,33,830.02P. Claim of the complainant was not processed for a long time, despite repeated verbal and written requests. However, OP sent email dated 12.2.2015 for disclosing that the competent authority of OP has approved the OD claim for Rs.44,368/- on compromise(repair) basis, but subject to deposit of NCB and completion of all the usual formalities. Complainant with a view to avoid the repudiation of claim, got deposited Rs.2366/- with the insurance company, being    the amount of NCB. After receipt of advance premium of Rs.2366/-, the claim was settled for Rs.44,368/- on compromise(repair) basis without obtaining consent of the complainant. Complainant accepted Rs.44,368/- as part payment of the claim from OP. For getting delivery of the vehicle, the complainant even paid the amount of Rs.43,250/- to the repairers i.e. Dada Motors in cash through receipt dated 14.02.2015. Complainant never agreed for settlement of the claim on compromise basis even after paying the NCB premium amount of Rs.2366/-. As the entire premium has been paid and as such, OP bound to settle the claim in toto and not on compromise basis. Negligence was on the part of officials of OP at the time of issue of cover note in question dated 18.11.2014 by not accepting NCB from the complainant. Reference of previous cover               note No.70309 with validity from 21.8.2013 to 20.8.2014 also exist on the cover note dated 18.11.2014 and as such, Op cannot take the benefit of their own negligence in causing loss to the complainant. Affidavit was obtained by the OP from the complainant for settlement of the claim on substandard basis i.e.75% of the total claim amount under undue influence and pressure of threat of repudiation of claim to the complainant. It is claimed that surveyor wrongly assessed the loss suffered by the complainant in his survey report because reason for deductions of the assessed loss to Rs. 81,475.35P from the original estimate of Rs.1,33,830.02P, has not been assigned. Besides, deduction for depreciation, excess clause and salvage amount even made resulting in double deduction for estimate of loss. The survey report further shows as if the complainant has not been allowed any amount for certain parts. The deduction alleged to be made in arbitrarily and illegal manner without assigning reason. Though, surveyor admitted that all the parts were replaced on account of accidental loss, but he intentionally and willfully not allowed the value of certain parts in toto. Surveyor after admitting that labour charges amount for the accidental job is Rs.30,000/-, allowed only Rs.16,409.47P. It is claimed         that there can never be any deduction in the labour charges amount. It is claimed that the complainant entitled to full amount of Rs.87,618/-, being the amount paid for repair of car less the amount of Rs.44,368/- paid by OP. Compromise cannot be unilateral and as such, challenge given to the compromise for settlement of the claim by pleading deficiency in service. Complainant claims that he is entitled to less paid amount of Rs.43,250/- along with compensation for mental harassment of Rs.50,000/- and litigation expenses of Rs.10,000/-. Payment of above referred amounts of compensation for mental             harassment and litigation expenses sought with interest @12% p.a. from the date of loss namely 26.12.2014 till payment.

2.                In written statement filed by OP, it is pleaded interalia as if the present complaint is not maintainable in the present form; complainant has not approached this Forum with clean hands; complainant is estopped by his act and conduct from filing this complaint; complaint bad for non-joinder and mis-joinder of necessary parties and there is no deficiency in service on the part of OP. Besides, it is claimed that the complainant is not a consumer as defined under the Consumer Protection Act. Complainant had already received Rs.44,368/- in full and final settlement of his claim by executing the satisfactory voucher in favour of the OP and as such, complaint is not maintainable. The complainant had authorized the OP to release the claim payment amount of Rs.44,368/- directly to the repairer M/s Dada Motors in full and final satisfaction of the entire claim under the policy and thereafter, said payment released in favour of M/s Dada Motors. After receiving the full settled amount without protest or reserving right to recover the balance amount, the present complaint is not maintainable because complainant ceased to be a consumer. Terms and conditions of policy are binding and nothing can be added or subtracted thereto. Admittedly, surveyor was appointed after receipt of intimation and he submitted his report after conduct of survey. Issue of policy in question not denied. However, it is claimed that the complainant admitted his mistake in claiming NCB. After admitting such mistake, the complainant deposited NCB for giving authorization to the competent authority to settle the claim at 75% of the amount as per the terms and conditions of the policy and that is why Rs.44,368/- released in favour of the complainant and he accepted the same by executing a due discharge voucher. It is denied that OP got complete particulars of the policy, claim lodged(if any)and status of the claim or the other particulars, with respect to the earlier policy. Each and every other averment of the complaint denied by praying for dismissal of complaint.

 

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C7 and thereafter, counsel for complainant closed the evidence.

4.                On the other hand, counsel for OP tendered in evidence affidavit Ex.RA of Sh.Dinesh Grover, Branch Manager of OP along with documents Ex.R1 to Ex.R7 and then closed the evidence.

5.                Written arguments on behalf of complainant submitted, but not by the Op. Oral arguments of counsel for the parties heard and records gone through carefully.

6.                Ex.C1, Ex.C2 as well as Ex.R1 and Ex.R2 are the documents produced by the parties to prove that the policy in question was purchased by the complainant for insuring the vehicle in question bearing registration No.PB-10-DU-9317 for the period from 18.11.2014 to 13.11.2015 by paying the premium of Rs.8765/-. This premium amount of Rs.8765/- collected by OP after giving general discount of Rs.6892/- @45%, but of NCB @25%. So, certainly at the time of issue of the policy in question, complainant claimed no claim bonus @25%. That no claim bonus always is provided in case, claim with respect to the insured vehicle not got from the insurer in the previous year. So, the policy in question issued under the impression as if the vehicle in question either did not met with an accident earlier or the claim with respect to the vehicle in question in the previous year was not got from the insurer.

7.                Admittedly, after lodging of the claim qua the accident in question dated 26.12.2014, Sh.Rajesh Bhatia, surveyor was appointed and he submitted his report, copy of which has been produced on record as Ex.C3 by the complainant, but as Ex.R5 by Op. Proceedings before this Forum are summary in nature and as such, report Ex.C3=Ex.R5 relied upon by both the parties liable to be taken into consideration even without proof. So, in case, affidavit of Sh.Rajesh Bhatia not got submitted by the OP, despite that contents of report Ex.C3=Ex.R5 liable to be taken into consideration for finding as to whether the alleged deficiency in service exist or not.

8.                It is the case of complainant that his affidavit Ex.R3 was obtained under pressure. That pressure in the mind of the complainant was that in case, he did not submit the affidavit, then claim may be repudiated. That conception of the repudiation of claim is of mind of the complainant himself. Section 15 of the Indian Contract Act, 1872 defines coercion as the act of committing or threatening to commit any act forbidden by the Indian Penal Code or the unlawful detaining or threatening to detain any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Name of the official who administered the threat to the complainant qua repudiation of the claim not disclosed by the complainant and as such allegations qua administration of the threat of repudiation of the claim virtually are vague allegations. Op company to act through its officials or representative in matter of arrival of   settlement. So, if really the threat of repudiation of  claim would have been administered to the complainant, then the complainant would have known the name of that representative or official or employee of OP. Non disclosure of such name of person administering threat itself enough to reasonably hold that allegations of threat are vague, particularly when affidavit Ex.R3 qua expression of an agreement for acceptance of 75% claim amount from the insurer got attested by the complainant from Notary Public of Ludhiana himself. This affidavit Ex.R3 got attested by the complainant from Notary Public after purchase of Stamp from Stamp Vender of Ludhiana is a fact borne from perusal of Ex.R3 itself. There is nothing on record to suggest as to who accompanied the complainant at the time of purchase of the stamp papers of ExR3 or of attestation of Ex.R3 from the Notary Public. Being so, it has to be held that the complainant failed to prove as to on whose threat he got affidavit Ex.R3 executed and attested. The alleged administered threat was not with intention of causing the complainant to enter into an agreement because there was no unlawful detention of property or threat to detain the property in unlawful manner. In this case, obligation was on complainant also to disclose the particulars of previous got insured amount. Complainant failed to disclose those particulars and as such virtually the policy in question was obtained by the complainant by suppressing the material facts. As and when NCB(No Claim Bonus) is claimed by the insured, then such claim put forth by disclosing as if earlier claim amount not received from the insurer. Whether or not earlier insurance amount received with respect to accidental damage qua that facts bound to be within the knowledge of the complainant. In view of knowledge of these facts of the complainant, it was his duty to disclose accurately the position with regard to receipt or non receipt of the insurance claim amount earlier to obtaining of policy Ex.C1. That facts were not disclosed by the complainant and that is why NCB @25% allowed and as such, the complainant virtually levelling allegations of coercion and undue influence just for hiding his own wrong of non disclosure of true facts. Moreover, the administered threat does not fall in any of the category mentioned in Section 15 of The Indian Contract Act, 1872 and as such, allegations of coercion not proved as per requirement of Section 15 of The Indian Contract Act, 1872.

9.                The officials of OP were not to get individual benefit by pressurizing the complainant to settle the insurance claim and as such, it is not a case in which the person in a position to dominate will of the complainant obtained unfair advantage over the complainant in matter of arrival of settlement of claim on execution of discharge voucher Ex.R4 by the complainant. As the unfair advantage was not to be obtained by the officials of OP with execution of discharge voucher/satisfaction note Ex.R4 by the complainant and as such, it is not a case of exercise of undue influence defined under Section 16 of The Indian Contract Act, 1872.

10.              Complainant in para no.2 of his affidavit Ex.R3 specifically claimed to have received no claim bonus in respect of insurance of vehicle in question wrongly and that is why he agreed for return back of NCB to insurance company.It was in pursuance of this undertaking contained in Ex.R3 that Rs.2366/- was deposited by the complainant subsequently through receipt Ex.C5 for getting the settled amount of Rs.44,368/- by executing the discharge voucher/satisfaction note Ex.R4 and as such, virtually benefit got by the complainant with execution of document Ex.R4. In case, really the threat of repudiation of claim was to be given pragmatic shape by the officials of OP, then they easily could have repudiated the entire claim due to wrong furnishing of the information qua not receiving insurance amount earlier with respect to the vehicle in question. That has not been done by the OP. Rather, OP took lenient view in matter of payment of full and final amount of Rs.44,368/- after acceptance of no claim bonus of Rs.2366/- and as such, the same enough to disclose as if OP or its officials instead of legally repudiating the claim, allowed the claim as per settlement arrived at by the complainant on execution of Ex.R3 and Ex.R4. If really the complainant would have accepted Rs.44,368/- as part payment of the insured amount, then complainant would have recorded a note in that respect on Ex.R4. No such note recorded by the complainant on Ex.R4. Rather, the complainant after accepting the settled amount of Rs.44,368/-, duly executed the discharge voucher/satisfaction note Ex.R4. So, facts and circumstances of the case itself speak that document Ex.R4 was voluntarily executed by the complainant in full and final settlement of his claim qua loss/damage of the insured vehicle.

11.              As  per law laid down in cases Kanta Mathur vs. National Insurance Company   Ltd-I(2015)CPJ-151(N.C.); Vijay Stationers vs. United India Insurance   Co.Ltd.-I(2013)CPJ-637(N.C.); Haryana State Co-Operative Supply &   Marketing Federation Ltd. vs. Iffco Tokio General Insurance Company  Limited and another-II(2013)CPJ-364(N.C.); M.L.Kathuria vs. Oriental Insurance co.Ltd. and another-II(2013)CPJ-586(N.C.); A.P.Jos vs.  ICICI Lombard General Insurance Company Limited-II(2013)CPJ-386  (N.C.); Yogesh Kumar Sharma(Dr.) vs. National Insurance Company Limited-II(2013)CPJ-178(N.C.); Ravindra Spinners Ltd. vs. National Insurance Company Limited and another-III(2013)CPJ-539(N.C.); Nirmal Singh vs. Oriental Insurance Company Limited-IV(2012)CPJ-641(N.C.) and Rajendra Panigrahy vs. Oriental Insurance Company Limited and another-II(2010)CPJ-589(Orissa State Consumer Disputes Redressal Commission, Cuttack), when complainant got encashed the cheque sent by the insurance company in full and final settlement of claim qua insurance without protest and allegation of coercion or fraud or undue influence not proved, then complainant ceased to be a consumer after acceptance of the settled amount. Ratio of all these cases is fully applicable to the facts of the present case, particularly when allegations of coercion or of fraud or of undue influence not proved at all. Even in case of United India Insurance vs. Ajmer Singh Cotton & General Mills-2000(1)BCR-44(S.C.), it has been held by the Hon’ble Apex Court of Country that claim for insurance amount will be maintainable only if the execution of discharge voucher alleged and proved to be the result of fraud, undue influence, mis-representation or  like that. However, in case allegations of fraud, undue influence, misrepresentation or like that not proved, then execution of discharge voucher for acceptance of insurance claim amount in full and final settlement of claim, to be taken as voluntary execution. In case before us, allegations of fraud, coercion or undue influence not proved and as such, discharge voucher Ex.R4 to be taken as voluntarily executed by the complainant for getting benefit of his own wrong of suppression of material facts qua non claiming of earlier insurance amount. In case of Oriental Insurance Co.Ltd. vs. Matbar Singh-2004(2)CPJ-6(Uttarakhand State Consumer Disputes Redressal Commission, Dehradun), cheque was returned by the complainant and that is why it was held that discharge voucher for acceptance of the settlement of the claim was not virtually accepted by the complainant. However, in case before us, amount in question received by the complainant after due execution of discharge voucher Ex.R4 in full and final settlement of his claim and as such, benefit from the ratio of above cited cases is not available to the complainant.

12.              Certainly, the report of surveyor appointed by the insurance company for assessing the loss not to be taken as final word. Rather in case the report of surveyor shown to be biased and arbitrary, then the said report liable to be discarded. In holding this view, we are fortified by law laid down in cases New India Assurance Co.Ltd. vs. Dr.M.M.Krishan-II(2011)CPJ-301(N.C.); United India Insurance Company Limited vs. N.T.Babu-III(2014)CPJ-108(N.C.); Umesh Chandra Saha vs. National Insurance Co.Ltd.-III(2011)CPJ-102(N.C.) and New India Assurance Co.Ltd. vs. Pradeep Kumar-IV(2009(CPJ-46(S.C.). Report of surveyor if unreliable, only then the same has to be discarded virtually is the crux of the ratio of above cited cases and the same has been reiterated by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in case titled as New India Assurance Company Limited vs. Paramjeet Kaur-III(2014)CPJ-230. In view of ratio of all these cases, it is vehemently contended by counsel for the complainant that surveyor wrongly assessed the loss suffered by the complainant in survey report without assigning any reason for the assessed deductions. After assessing the original estimated loss of Rs.1,33,830.02P, an amount of Rs.81,475.35P assessed illegally is the contention of counsel for the complainant. It is claimed that deductions on account of depreciation, excess clause and salvage amount as well as on labour charges are illegal. Those submissions advanced by counsel for the complainant has no force because after going through the policy cover note Ex.C1=Ex.R1, it is made out that the insured vehicle was manufactured in 2012, which means that insured vehicle was of 2012 model. However, accident in question took place on 26.12.2014 at about 7:30 P.M. is a fact borne from the report Ex.R5 of the surveyor. Within span of 2 years, the valuation of the vehicle bound to diminish on account of depreciation of the parts of the vehicle. Limit of liability in respect of the accident is as per the provisions of Motor Vehicles Act, 1988 is a fact borne from perusal of document Ex.R2=Ex.C2. Besides, perusal of page no.2 of Ex.C2=Ex.R2 reveals that insurance under the policy is subject to the conditions, clauses, warranties and exclusions, which are available on company’s website or on demand from the policy issuing office. Complainant failed to show as to when he put forth demand for the terms and conditions of the policy. As the terms and conditions of the policy available from the company’s website and complainant himself did not demand copy of those terms and conditions from the policy issuing office and as such, virtually the complainant himself remained at fault in not producing the terms and conditions of the policy. OPs equally are at fault in not producing the terms and conditions of the policy. However, as the terms and conditions of the policy available on demand or on the website of the company as per endorsement on Ex.C2=Ex.R2 and as such, it does not lie in the mouth of the complainant that due to non supply of terms and conditions of the policy, he is not aware of the terms thereof. If the plea of the complainant accepted that he is not aware of the terms and conditions of the policy, then how the complainant can claim that deductions on account of salvage or towards the labour charges are unwarranted. As complainant himself claiming bias or arbitrariness with respect to the report Ex.R7=Ex.C3 and as such, complainant must prove  that deductions are            in violation of the terms and conditions of the policy. Complainant has failed to bring to notice of this Forum the said illegality and as such, allegations of bias  of illegal deductions not proved. Rather, by accepting the report        Ex.R7=Ex.C3, it is made out that after due deductions of charges of spare parts or of metal, plastic/rubber and glass objects, due amount assessed by the surveyor. The surveyor has assessed the less depreciation @50% on 25% on painting parts, but @50% on parts of mirror etc. Those deductions not shown to be in violation of the terms and conditions of the policy, particularly when the vehicle in question was two years old at the time of accident.                  Assessed amount comes to Rs.60,127.78P, even though the estimated amount is more than double of the same. As the report of surveyor Ex.R7=Ex.C3 is appropriate and as such, keeping in view, the net payable amount assessed at Rs.60,124.78P by the surveyor. Complainant remained at gain by accepting Rs.44,368/- in full and final settlement of his claim, particularly when he himself agreed to get the amount at 75% of the assessed amount as revealed by para no. 3 of affidavit Ex.R3. So, complainant after acceptance of this amount on execution of discharge voucher Ex.R4 ceased to be a consumer of OP and as such, this complaint is not maintainable, particularly when the complainant himself did not reserve right of recovery and nor accepted the amount under protest. Rather, Rs.43,250/- paid to Dada Motors through Ex.R6. So, this shows that amount of Rs.44,368/- is an excess of the amount paid for repair to Dada Motors through Ex.R6. Replacement of the parts took place for keeping the accidental vehicle running and as such allowed depreciation through survey report Ex.C3=Ex.R5 is appropriate. Ex.C5 is the document produced by the complainant himself to show that he deposited no claim bonus for an amount of Rs.2366/- on demand by OP, so that the claim of the complainant may be settled on production of affidavit Ex.R3. As insurance company/OP could have repudiated the claim due to furnishing of wrong information, but it choose not to do so and rather settled the claim amount, which was accepted by the complainant by execution of Ex.R4 and as such, certainly this complaint is not maintainable.

13.              Therefore, as a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules. 

 

14.                        File be indexed and consigned to record room.

                                                            

                      (Babita)                                     (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:15.07.2016

Gurpreet Sharma.