Haryana

Karnal

CC/601/2021

Arun Gaba - Complainant(s)

Versus

Royal Sundaram General Insurance Company Limited - Opp.Party(s)

Balwan Singh Dhaunchak

11 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 601 of 2021

                                                        Date of instt.26.10.2021

                                                        Date of Decision:11.10.2023

 

Arun Gaba age 38 years son of Shri Ashok Kumar, resident of house no.43, extension Chaman Garden, Railway Road, Karnal

 

                                               …….Complainant.

                                              Versus

 

Royal Sundaram General Insurance Co. Ltd. SCO-82, 1^st and 2^nd floor, Sector-40C, Chandigarh.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Balwan Singh, counsel for complainant.

                    Shri A.K. Vohra, counsel for the OP.

 

                    (Jaswant Singh, president)

ORDER:  

 

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019, against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of BMW car no.HR 26AW-2345 Model 520D/2009 which was insured with OP, vide policy no.VPB0053550000100, valid from 16.11.2018 to 15.11.2019 with the Insured Declared Value (IDV) of Rs.21,72,469/-. On 04.03.2019 at about 10.30 p.m. the said car of complainant met with an accident on Kunjpura Road when he was coming from Kunjpura to Karnal, then on the way a truck coming behind got hit in the rear and then the car went out of control and in the meantime the car was also hit in the rear of ahead going truck and thus the car got damaged badly. The complainant shifted the car to the workshop and lodged the claim with the OP. OP appointed Shri Pankaj Rohilla Surveyor from Sonepat for the assessment of loss. Complainant completed all the claim formalities with the surveyor. Surveyor inspected the actual car, verified all the documents and was very much satisfied with the loss and submitted the survey report with the OP and settled the claim on total loss basis with the cancellation of Registration because the assessed loss was beyond 75% of IDV.

2.             It is further averred that OP appointed the investigation with a view to know the facts of accident. Complainant again completed all the claim documents with the investigator and gives all the clarifications relating to the claim. Investigator also satisfied with the loss and accordingly submitted his report. OP approved the claim as per policy condition no.3, replacement of the vehicle with another one vide letter dated 11.06.2019. OP failed to prove the car of same make and model to the complainant and then took the consent of Rs.15,00,000/- by violating the policy terms and conditions and threatened the complainant to reject the claim and hence complainant gave the consent to the OP because he was in need of money. But OP did not pay the claim to the complainant and repudiated the same, vide letter dated 06.11.2019 on the false and frivolous ground. Then, complainant filed the complaint no.CHD-G-2021-0015 in the Insurance Ombudsman Chandigarh, Insurance Ombudsman passed the award in favour of the complainant on 30.09.2020 for Rs.15,00,000/- as per the consent and instructed the OP to make the payment within 30 days. Complainant completed all the formalities as per the decision of Insurance Ombudsman. After repeated requests and complaints, OP make the payment on dated 23.02.2021, vide cheque no.043902 of Rs.14,98,000/- through HDFC Bank Ltd.

3.             It is further averred that the IDV of the vehicle is Rs.21,75,469/- and hence as per policy conditions the said amount is payable to the complainant. In the cases of total loss, Ministry of Finance Government of India has directed to the Iffco Tokio General Insurance Co. Ltd. in the case of Mohit Dahiya vide mail dated 09.08.2017 that the claim should be settled on IDV basis. Complainant hires the services of Shri Vinesh Maini an independent IRDA approved Automobile Engineer surveyor for the valuation of scrape & for expert opinion. As per survey report and as per policy terms and conditions an amount of Rs.20,73,469/- is payable after deducting the salvage and policy clause from the IDV. Salvage value of the scrape is Rs.1.00 lac with the cancellation of RC. Keeping in view all the facts and circumstances that the claim under the policy is payable is Rs.20,73,469/- instead of Rs.14,98,000/-. Complainant requested the OP so many times to pay the remaining amount but OP did not pay any heed to the request of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

4.             On notice, OP appeared and filed its written version, raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was duly processed, considered on merits and it is not payable as the same was repudiated , vide speaking letter dated 06.11.2019 regarding the loss sustained in an accident by B.M.W car bearing registration no.HR-26W-2345 on the ground that there has been a misrepresentation of documents submitted by the complainant regarding purchase of the vehicle in question. It is further pleaded that the complainant is sixth owner of the vehicle in question. The said vehicle was purchased by the complainant on 27.10.2018 from one Mr. Amit Ahuja but the policy for the time period of 16.11.2018 to 01.11.2019 was taken in the name of the said Amit Ahuja for an IDV of Rs.21,75,469/-. The complainant with malafide intention had obtained the said policy in the name of previous owner by taking higher IDV while the said vehicle had been purchased by him before the inception of the policy. Further, complainant got the said policy endorsed in his name after almost three months of the inception of the policy. The said act was done to obtain undue benefits from the contract of insurance, which is against the very spirit and principles of a contract of insurance. The said vehicle was met with an accident on 04.03.2019. The IDV of the said vehicle had been exaggerated by the complainant to obtain illegal benefits by defeating the principles of insurance. Hence, an independent investigator was appointed by the OP who in his report had observed that the complainant had purchased the vehicle for Rs.7,00,000/- to Rs.7,25,000/- for which payment through bank had been made and the remaining had been claimed to be in cash by the complainant and hence there was no proof with regard to the same which could be furnished as claimed by the complainant. Also the statement of Mr. Amit Ahuja had been collected who had stated that the said vehicle had been sold by him for Rs.7.25 lakhs only and the said amount had been received by him via bank transfer. He had further stated that the said vehicle had been sold through one Mr. Gagan Kohli who had received a commission of Rs.10,000/-. The investigator in his report had observed that said Gagan Kohli had connections with the motor insurance fraud which is being carried out in certain parts of the State of Haryana and Uttar Pradesh. The OP had also sought technical opinion from an independent IRDAI licensed surveyor Mr. Raj Kumar Nagpal as to the damages caused to the insured vehicle. The independent surveyor after looking at the photos of the damaged vehicle and the narration of the accident observed that the damages did not match with the cause of accident as narrated in the claim form.  It creates doubts regarding the claim like inspite of such a heavy accident vide which total loss reported but no injury to driver occurred, so the alleged accident does not match with the loss. The complainant with malafide intentions misrepresented the facts and approached the Hon’ble Ombudsman Office and the IRDAI, vide separate complaints to harass the OP.  It is further pleaded that complainant has approached the Insurance Ombudsman’s office at Chandigarh and the said court after hearing the contentions of both parties at length passed an award on 30.09.2020 thereby directing the OP to pay an amount of Rs.14,98,000/- to the complainant within 30 days of the award being full and final settlement of claim. The OP honoured the award of Insurance Ombudsman and paid a sum of Rs.14,98,000/- being full and final payment though complainant has played fraud with the OP by fixing the IDV of the car in question at a very higher side with malafide intention. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of DDR dated 10.04.2019 Ex.C2, copy of repudiation letter dated 11.06.2019 Ex.C3, copy of  letter dated 06.11.2019 Ex.C4, copy of proceedings and award of Insurance Ombudsman dated 30.09.2020 Ex.C5, copy of letter dated 25.02.2021 for payment of Rs.14,98,000/- Ex.C6, cop of email dated 09.08.2017 in Mohit Dahiya case Ex.C7, copy of valuation report of damaged car Ex.C8, copy of PAN card and Aadhar card of Arun Kumar Ex.C9 and closed the evidence on 13.05.2022 by suffering separate statement.

7.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Purshottam Singal Ex.OP1/A, affidavit of Pankaj Rohilla, Surveyor and Loss Assessor Ex.OP2/A, copy of survey report Ex.O1, copy of certificate of insurance Ex.O2, copy of DDR Ex.O3, copy of surveyor report dated 15.10.2019 Ex.O4, copy of repudiation letter dated 11.06.2019 Ex.O5, cop of order of Insurance Ombudsman Ex.O6, copy of letter dated 25.02.2021 Ex.O7, copy of cheque Ex.O8 and closed the evidence on 24.04.2023 by suffering separate statement.

8.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that the complainant got insured his BMW car with OP. On 04.03.2019 the said car met with an accident and badly damaged. The complainant shifted the car to the workshop and lodged the claim with the OP. OP appointed Surveyor for the assessment of loss and the surveyor has submitted his report with the OP and as per his report loss was beyond 75% of IDV. The claim of the complainant has been settled for Rs.15,00,000/- as full and final settlement  but OP did not pay the claim and repudiated the same on the false and frivolous ground. Complainant filed the complaint in the Insurance Ombudsman Chandigarh, Insurance Ombudsman passed the award in favour of the complainant on 30.09.2020 for Rs.15,00,000/-.  OP make the payment on 23.02.2021 of Rs.14,98,000/-. The IDV of the vehicle is Rs.21,75,469/-, the claim under the policy is payable is Rs.20,73,469/- instead of Rs.14,98,000/-. Complainant requested the OP so many times to pay the remaining amount but OP did not pay the same and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that claim of the complainant has been repudiated on the ground of misrepresentation of documents.  The complainant had filed a complaint before the Insurance Ombudsman Chandigarh and said Insurance Ombudsman passed an award on 30.09.2020 and in compliance of the order, OP paid Rs.14,98,000/- to the complainant  being full and final settlement of claim. Complainant has filed the present complaint on the false ground and only to extort money from the OP and prayed for dismissal of the complaint.

11.           Admittedly, the vehicle in question was damaged during the subsistence of the insurance policy.  It is also admitted that complainant had given the consent of Rs.15,00,000/- as full and final settlement of the claim with the OP. It is also admitted that the claim was lodged with the OP. It is also admitted that as per order passed by Insurance Ombudsman, Chandigarh, an amount of Rs.14,98,000/- has already been paid to the complainant.

12.           As per version of the OP, as per order passed by Insurance Ombudsman Chandigarh, OP paid Rs.14,98,000/- to the complainant  being full and final settlement of the claim and in this regard OP has issued a letter Ex.C6/O7 dated 25.02.2021 to the complainant. Complainant has accepted the said amount as full and final settlement of his claim. The said consent letter has been denied by the complainant on the excuse that he was in need of money, so he had given the said consent letter. The excuse taken by the complainant is not a sufficient ground for filing the complaint for remaining claim amount.

13.            It is well settled proposition of law that where one of the parties to contract issues full and final settlement voucher confirming that he has received the payment in full and final settlement of all claims and he has no outstanding claim, that amounts to discharge of contract by acceptance of performance and the party issuing discharge voucher/ certificate cannot thereafter made any fresh claim or revive any settled claim. In this regard, we are fortified with the observations of the following judgments:-

 National Insurance Company Versus Boghana Poly Pvt. Ltd. 2009(1) SCC 267; New India Assurance Co. Ltd. Vs. Genus Power Infrastructure Ltd. 2015 AIR SCW 67; Andhra Fabrics Pvt. Ltd. Vs. United India Insurance company Ltd. 2015(2) CPR 482 (N.C.); A.P.Jos Versus ICICI Lombard General Insurance Company Ltd. 2013(2) CPC 391 (N.C.) and Shri Ram General Insurance company Ltd. Versus Bhag Singh of Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in first appeal no.288 of 2016. In all the judgments, Hon’ble Courts held that when the insured accepted the payment in full and final settlement of the claim, he cannot make any fresh claim or revive the settled claim.

14.           Keeping in view that the ratio of the law laid down in the aforesaid judgments, facts and circumstance of the case, we found no merits in the present complaint.

15.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 11.10.2023

                                                                President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

                  (Vineet Kaushik)      

                      Member