Haryana

Ambala

CC/154/2017

Mahesh Garg - Complainant(s)

Versus

Pearl Food Kanav Motors Pvt Ltd - Opp.Party(s)

Sarvjeet Singh

23 Jul 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 154 of 2017

                                                          Date of Institution         : 24.05.2017

                                                          Date of decision   :  23.07.2018

 

Mahesh Garg son of Sh.Amrit Lal Gupta resident of 207-A Saraswati Nagar Near Hanuman Nagar, Ambala City.

……. Complainant.

Vs.

 

1.Pearl Ford @ Kanav Motors  Pvt.Ltd. through its Managing Director, Ambala-Jagadhari Road, Village Tepla, Ambala Cantt-133001.

 

2.United India  Insurance Company Limited through its Divisional Manager, Division Office Karnal, Durga Bhawani Tample, GT Karnal Road, Near Bus Stand Karnal, Haryana.

                                                                             …….Opposite Parties.

 

Before:        Sh. D.N.Arora, President.

                   Sh.Pushpender Kumar, Member.

                  

Present:       Sh. Saravjeet Singh, counsel for complainant.

                   Sh.Keshav Sharma, counsel for OP No.1.                                                  Sh.R.K.Vig, counsel for OP No.2.

                  

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant is owner of Ford Fiesta, bearing registration No. HR-01-AC-0445 which was insured with Op No.2 vide cover note no.435681 dated 01.03.2012 and the said car met with an accident on 30.05.2012 in District Ludhiana. The policy in question was purchased through Op No.1.  On 31.05.2012 the complainant brought his damaged car to the workshop of Op No.1 for necessary repairs and it was intimated to him that the claim with regard to accidental damage has been lodged with Op No.2 and the employee of Op No.1 also got signed some claim form. It was told to complainant that the car would be delivered within45 days after carrying out the necessary repairs and the cost there of would be borne by Op No.2.  After one week when the complainant visited the Op No.1 to know the status then he came to know the car in question has even not been inspected. He kept on visiting the OP No.1 to know the progress regarding repair but every time found that the repair work was lagging far behind the scheduled time. The Op No.1 kept putting off the repair on one pretext or the other on the pleading of unavailability of spare parts and skilled mechanics, dentures and painters etc. on 04.10.2012 the complainant visited to take the test driver of the car where bill for Rs.2,82,799/- was to be paid by him as the Op No.2 had refused to cash less facility. OP No.1 also not provided with the bill. The complainant paid Rs.50,000/- to the OP No.1 and received the bill. Thereafter the complainant visited the Op No.2 at karnal and told about cash less facility could not be given due to third party claim arising out of the accident in which the car of the complainant was involved. The complainant visited OP No.2 from 05.10.2012 to 25.10.2012 number of times but the Op No.2 despite the full knowledge that no third party claim was pending or was likely to arise did not issue the cheque of claim amount in the name of Op No.1. on 25.10.2012 the official of Op No.2 telephonically intimated the OP No.1 to release the car on the payment by the complainant of the amount in excess of claim. The OP No.2 assessed the claim of Rs.1,24,800/- to be paid directly by Op No.1. The complainant enquired about the same from Op No.2 where it was intimated to him that the spare parts worth Rs.80,000/- changed and charged for the by the Op No.1 in the bill dated 04.10.2012 were not included in the estimate supplied by the Op No.1 to the OP No.2 and the price of some spare parts were sharp increase and it was the duty of the OP No.1 to notify such increase in prices to the surveyor / official of Op No.2 but it had failed to do so. The complainant has suffered a loss to the tune of Rs.15,000/- on account of increase of price. On 25.10.2012 when after getting all the clearances from Op No.2 regarding payment of claim, the complainant visited the OP No.1 for taking the delivery but the car was not started. The employee of OP No.1 told that part named PCM got replacement being damaged in accident and the cost thereof was around 40,000 rupees.  The complainant had left with no option but to pay the cost of PCM and got the delivery of car on 26.11.2012 by paying the remaining amount of final bill dated 20.10.2012 Rs.108490 vide another receipt dated 26.11.2012.  The act and conduct of the OPs clearly amounts to deficiency in service and unfair trade practice on their part.  In evidence the complainant has tendered affidavit Annexure CW1/A and documents Annexure C1 to Annexure C10.

2.                On notice Ops appeared and filed their separate replies. Op No.1 in its reply has taken preliminary objections such as cause of action, maintainability and jurisdiction etc.  The vehicle was liable to be repaired as per terms and conditions of the policy. The car was made available to the complainant as soon as the same was made ready to the entire satisfaction of the complainant but the complainant has filed the complaint and the insurance company was liable for the refund of the amount. There is no deficiency in service what to talk about unfair on the part of the OP in an manner. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

3.                OP No.3 in its reply has submitted that the vehicle in question was damaged in Ludhiana and the DDR No.15 dated 31.05.2012 was recorded in the area of Ludhiana, therefore, this Forum has no jurisdiction to file the present complaint. The complainant himself has executed Satisfaction Discharge Voucher which solves the issue finally for all times. The policy was issued by Karnal Office and the coverage was subject to terms and conditions of the policy. The terms and conditions of the policy was binding upon the parties. The complainant in his claim form submitted that one Sandeep Sharma had suffered injuries and admitted in DMC, Ludhiana so the Op No.2 took all steps to verify the same and certain queries were raised on it regarding cashless facility and thereafter approved the claim of the vehicle and released the amount of Rs.1,24,800/- directly  and the complainant has also executed satisfaction voucher in this regard. There is no deficiency in service and unfair trade practice on the part of Op No.2 as amount of Rs.1,24,800/- was duly assessed by the surveyor. The surveyor had prepared the report and he also in his report nowhere mentioned that PCM part of the vehicle was got damaged. The complainant had demanded the same without any justification and whatever due assessed as per policy was paid to him by the insurance company and the insurance company cannot go beyond the insurance policy. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA/1, Annexure RB/1, Annexure RA, Annexure RB and documents Annexure R1 to Annexure R4, Annexure R1 to Annexure R8.

4.                We have heard learned counsel for the parties and carefully gone through the case file.

5.                          It is admitted fact that the vehicle in question was insured with the OP No.2 for the period 02.03.2012 to 01.03.2013. It is also not disputed that vehicle in question met with an accident on 30.05.2012 during the subsistence of the policy in question and the complainant informed the OPs for accident and surveyor has assessed the loss of Rs.1,28,809/- and finally he assessed the loss as Rs.1,24,309/- after re-inspection of the vehicle. The complainant has executed discharge voucher Annexure R7 wherein the complainant has mentioned that I, Mahesh Garg owner of the vehicle Regd NO.HR01AC-0445 hereby declare that I have no objection if any claim settlement cheque is paid favour of my repairer M/s Kanav Motors Pvt. Ltd.  Thereafter, Said amount has been paid by the OP No.2 to the OP No.1 directly in the account of Op No.1. As per legal proposition, when the complainant has already accepted the amount to be paid to the Op No.1 assessed by the Surveyor without any protest, the complainant cannot agitate now this matter before this Forum and he has also signed on the discharge voucher as per Annexure R7.    On this point  reliance can be taken from case law titled as National Insurance Co. Vs. Boghara Polyfab Pvt. Ltd.(2009) 1 SCC 267, wherein Hon’ble Supreme Court has held as under:-

“25.   Where one of the parties to the contract issues a full and final discharge voucher (or no-dues certificate, as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim, that amounts to discharge of the contract by acceptance of performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect of any claim.”

6.                In the case in hand, the complainant has not been able to produce any evidence to show that there was misrepresentation, fraud or coercion on the part of the Insurance Company in paying the amount to the Op No.1 i.e. repairer of the vehicle of the complainant rather, the amount was released OP No.1 with free consent. Moreover, there is nothing on the case file to brush aside the report made by the surveyor. The Hon’ble National Consumer Disputes Redressal Commission New Delhi in a case H.C.Saxena Versus New India Assurance Co. & Anr. 2012 (1) CPC 632  has held that “ Report of surveyor is an important document prepared under the legal provisions and should not be brushed aside without reasons.” The Hon’ble National Commission in case titled as D.N. Badoni Versus Oriental Insurance Co. Ltd. 2012 (1) CPC 528 again has held that “The Surveyor report should not be ignored in which the amount of claim has rightly been determined.” The above-said law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is fully applicable to the present case as in the present case, the Surveyor had assessed the loss of the vehicle in question and same was accepted by the complainant without any protest by executing discharge voucher Annexure R7.

7.                In view of the above-said factual position and legal proposition, we are of the view that there is no merit in the complaint and as such, the complaint stands dismissed with no order as to costs. Copy of this order be supplied to the parties. File be consigned to record after due compliance.

Announced on : 23.07.2018                                 (D.N. ARORA)

                                                                                       President

 

    

     (PUSHPENDER KUMAR)

                                                                                            Member