Coram: Mohd. Anwar Alam, President

             Vikram Kumar Dabas, Member

             Manju Bala Sharma, Member

ORDER               Date:  3  November 2016

Manju Bala Sharma, Member

          Instant complaint has been filed by the complainant on 19-05-2015 stating therein that vehicle of complainant i.e. Toyata Fortuner vide registration no.  DL – 10-CE-4607 was insured with the OP vide policy no. 271500/31/2014/1653 for the period from 13-06-13 to 12-06-14 for a sum of Rs. 60238/- (Sixty Thousand Two Hundred Thirty Eight).  On 14-04-14 the above said vehicle met with an accident and Rs. 2,09,569/- (Two Lacs Nine Thousand Five Hundred Sixty Nine only) was paid by the complainant towards the cost of its repair to the Service Centre on 02-05-2014 and     complainant filed the claim for the above said amount with the OP.  Complainant received a sum of Rs. 1,90,000/- (One Lac Ninety Thousand only) from OP towards the claim.  Dissatisfied with the above said amount complainant contacted the office of OP and wrote a letter on 02-07-2014 but of no avail.  Pleading deficiency in service on the part of OP the complainant prayed that the OP be directed to pay sum of Rs. 19,569/- (Nine Thousand Five Hundred Sixty Nine) along with interest at the rate of 18% P.A. Rs. 1,00,000/- (One Lac Only) as compensation and Rs. 30,000/- (Thirty Thousand) as litigation charges. 

Notice was issued to OP.  OP filed its reply and admitted the factum of insurance of the vehicle and its accident and further stated that on the basis of the assessment made by the surveyor the claim of the complainant was settled for Rs. 1,90,000/- (One Lac Ninety Thousand) in full and final settlement of his claim.  Rest of the allegations contained in the complaint have been denied by the OP.

In replication complainant reiterated the facts stated in the complaint.  Both the parties have filed evidence by way of affidavit in support of their case.  Complainant has not been appearing since 21/01/2016 and has not filed written arguments despite several opportunities granted to him.  Hence we have heard learned counsel for the OP appearing and gone through the documents filed by the parties. 

Complainant has claimed a sum of Rs. 2,09,569/- (Two Lac Nine Thousand Five Hundred Sixty Nine) towards the cost of repair of the  vehicle in question against which a sum of Rs. 1,90,000/- (One Lac Ninety Thousand) has been received by the complainant.    In reply to this the OP has stated that claim of the complainant was settled for Rs. 1,90,000/- (One Lac Ninety Thousand) on the basis of the report submitted by the surveyor.  Counsel for the OP has further argued that the report of the surveyor is final and if the complainant is not satisfied with the amount as assessed by the surveyor then he can approach the civil court for claiming the balance amount for this.  He relied upon the judgements of the Hon. National Commission in Oriental  Insurance Company Limited V/s Bachhu Debnath  III 1997 C.P.J. 60 (N.C.) in which it was held that the State Commission could not ignore the report of the surveyor and should have acted upon it.  He has also referred to Amrendra Misra and Another Vs. New India Assurance Company Ltd., & Others (Revision Petition No. 3289 of 2003) in which it was held that:

‘’….  We are not inclined to award any sum over and above the amount as recommended by the surveyor for we have to keep certain facts in mind.  The person running a workshop would like to inflate the cost of such repairs in their own interest and in inclination of the insured in making an attempt to convert the vehicle as good as totally new vehicle…’’   

He has further relied upon the judgment of the Hon National Commission in Shyam Prakash Sharma Vs New India Assurance Co. Ltd., decided on 28/05/06 in which it has been held as under :

‘’… The only question which requires consideration is whether the complainant is entitled to recover the sum of Rs. 32,345/- instead of Rs. 19,868/- paid by the insurance company.

In our view, the order passed by the state commission cannot be said to be in any way erroneous because the State Commission has passed the impugned order on the basis of the loss assessed by the surveyor.  After taking into consideration various items which required repairs, the surveyor has assessed the loss at Rs. 19,143/- (Nineteen Thousand One Hundred Forty Three).  It is also to be stated that while assessing the loss, the surveyor has rejected certain claims on the ground that those claims were not admissible.  In our view, it would be difficult to arrive at a conclusion that the surveyor has committed any mistake in assessing the loss…’’.

Neither complainant nor counsel for the complainant has been appearing since 21-01-2016.   In the light of the judgement cited by the learned counsel for the OP we are of the considered opinion that Surveyor repot is an important document and the same cannot be denied without any cogent and convincing proof contrary to it.        

It is further argued by the counsel for the OP that the complainant accepted a sum of Rs. 1,90,000/- (One Lac Ninety Thousand) in full and final settlement of its claim and having accepted the aforesaid amount the complainant is now estopped  from making any further claim from the OP.

In this case the accident has taken place on 14-04-2014 and claim was submitted to the OP on 02/05/2014.   Neither the complainant nor the OP has mentioned the date on which claim of Rs. 1,90,000/-  was paid to the complainant.  Further complainant has placed on record the copy of the letter dated 17/05/2013 sent to the OP asking the OP for deduction of Rs. 19,569/- (Nineteen Thousand Five Hundred Sixty Nine only).  From the perusal of the letter it is clear that the claim of Rs. 1,90,000/- (One Lac Ninety Thousand only) was paid to the complainant before 17/05/2014.   Instant complainant has been filed by the complainant i.e. 19/05/2014 i.e. after one year of the receiving of the claim.  The time taken by the complainant in filing the complaint in this Forum has not been explained and it seems to be an afterthought.   Counsel for the OP has relied on the judgment of Hon. National Commission in Oriental Insurance Co. Ltd. & ANR. Vs. Mohan Lal ORS, in revision petition 30/06/2014 in which it has been held that:-

‘’Having accepted the aforesaid amount in full and final settlement of its claim, the complainant is now precluded from claiming any further amount from the Insurance Company since the aforesaid acceptance constitutes a valid agreement between the parties as regards the claim which the complainant had lodged with the Insurance Company.’’      

In view of the above discussion the complainant has failed to prove deficiency in service in the part of OP.    Hence the complaint is dismissed.  There is no order at this cost.   File be consigned   to Record Room. 

Announced on this   03/11/2016