Punjab

StateCommission

FA/8/2014

New India Insurance Company Limited - Complainant(s)

Versus

Ruchika Nagpal - Opp.Party(s)

Nitin Gupta

13 Mar 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 8 of 2014

                                                           

                                     Date of institution:  3.1.2014 

                             Date of Decision: 13.3.2015

 

New Indian Assurance Company Limited, Branch Office, First Floor, Guru Nanak Furniture House, GT Road, Mandi Gurdaspur, Punjab, through its Senior Branch Manager.

Now represented through the authorized signatory of Chandigarh Regional Office, SCO No. 36-37, Sector 17-A, Chandigarh.

…..Appellant/OP

                                      Versus

Ruchika Nagpal wife of Munishwar Nagpal, resident of Civil Lines, Back Side Bus Stand, Gurdaspur, Punjab.

…..Respondent/Complainant

 

First Appeal against the order dated 28.10.2013 passed by the District Consumer Disputes Redressal Forum, Gurdaspur.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Nitin Gupta, Advocate

          For the respondent :         None.

 

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/opposite party (hereinafter referred as “the OP”) has filed the present appeal against the order dated 28.10.2013 passed by the District Consumer Disputes Redressal Forum, Gurdaspur (hereinafter referred as “the District Forum”) in consumer complaint No.84 dated 21.3.2013 vide which the complaint filed by the respondent/complainant(hereinafter referred as ‘the complainant’) was partly accepted with a direction to the OP to pay interest for the late period quantified to be six months as charged by the financing bank and Rs. 23,000/- spent by the complainant as towing charges and also to pay litigation expenses of Rs. 3,000/-.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the OP on the allegations that the complainant got insured his truck-trolla bearing No. PB-06-L-2957 make 3811 AMW Model 2010 for a sum of Rs. 20 lacs after paying premium of Rs. 38,137/- vide policy No. 3616023110100001216 valid from 2.8.2011 to 1.8.2012. It was further alleged that on 24.10.2011 at 5.30 p.m. said truck-trolla met with an accident in the area of Kurukshetra, State of Haryana. Intimation was given to the branch office of the Op at Shahbad Markanda and Ops had appointed Surveyor, namely, Er. Vinesh Maini for spot survey, who conducted the spot survey and also took some photographs, copy of the DL, RC, Route Permit, Insurance Cover etc. and with the permission of the Op necessary formalities with regard to the lodging of the claim were also completed. The said Trolla was brought to Gurdaspur. The final assessment was made by Vinesh Maini and R.P. Bhasin. There was delay in submitting the final assessment report by Sh. R.P. Bhasin. Before making the final payment of the settled amount of the claim, OP requested the complainant to furnish an affidavit regarding cancellation of the insurance policy. The complainant had not foregone the balance claim. The complainant was entitled to get the payment of Rs. 1,62,389/- alongwith towing charges as Rs. 23,000/-, which was not paid, which amounts to deficiency in services on the part of the Ops. Hence, the complaint with a direction to the Ops to pay a sum of Rs. 2,14,039/- alongwith interest @ 18% p.a. and also pay compensation of Rs. 50,000/- and litigation expenses of Rs. 15,000/-.  

3.                The complaint was contested by the Op, who filed the written reply taking preliminary objections that the complainant had no cause of action to file the complaint; he had suppressed the material fact with regard to execution of discharge voucher as full and final settlement of the claim against the loss to the vehicle without any protest with her free will and also executed an affidavit with the free will, therefore, there was no deficiency in services on the part of the Op and that the complaint was false, frivolous and vexatious to the knowledge of the complaint, therefore, it be dismissed with special costs. On merits, it was submitted that after receiving the intimation of the accident Er. Vinesh Maini, Surveyor and Loss Assessor were appointed. It was denied that the complainant had handed over the driving licence, RC, route permit, insurance cover note and other documents on that date to the Surveyor. It was denied that the Surveyor submitted his report after a gap of 1½ months, rather, the insured submitted his form after 26 days and prevented spot surveyor from submission of his spot survey report. It was denied that the final surveyor took three months to finalize the report or that all the documents were submitted to Surveyor Vinesh Maini or R.P. Bhasin. It was denied that the complainant suffered a loss of Rs. 1,62,389/- on account of payment of interest in his loan account. After the final surveyor submitted the report, the complainant had agreed to settle the claim for a sum of Rs. 6,95,000/- on cash loss basis by executing the consent letter dated 8.2.2012 and she also submitted affidavit dated 30.6.2010 and executed the discharge voucher of full and final settlement of the claim for a sum of Rs. 6,95,000/- and this payment was given to the complainant. After that the complainant was left with no cause of action to file any complaint, therefore, the complaint was without merit and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1/A, insurance policy Ex. C-1, claim intimation letter Ex. C-2, DDR Ex. C-3, statement of account Ex. C-4, claim form Ex. C-5, letter of Op Ex. C-6, verification report of Investigator Exs. C-7, 8, 9, Gagan Recovery Co. Bill Exs. C-10 & 11, letter of OP Ex. C-12, legal notice Ex. C-13, postal receipt Ex. C-14. On the other hand, the opposite party had tendered into evidence affidavit of Arun Kashyap Ex. Op-1, affidavit of RP Bhasin Ex. OP-2, claim intimation letter Ex. Op-3, email Ex. Op-4, motor claim form Ex. Op-5, survey report Ex. Op-6, estimate Ex. Op-7, final Surveyor reports Exs. Op-8 & 9, consent Ex. OP-10, investigator report Ex. Op-11, affidavit Ex. Op-12, Form No. A-25 Ex. Op-14, Salvage loss basis Ex. Op-15, legal notice Ex. Op-16, reply to notice Ex. Op-17.

6.                After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the complaint filed by the complainant was partly allowed as stated above.

7.                None was present on behalf of the respondent but lateron counsel for the respondent submitted the written arguments.

8.                In the appeal, it has been contended by the counsel for the OP that once the respondent/complainant had settled the claim as full and final for a sum of Rs. 6,95,000/- then after that no complaint was maintainable till the complainant proves that the said settlement was outcome of fraud, undue influence, mis-representation or the like. A reference has been made to the document Ex. OP-12 vide which the complainant had executed the affidavit to settle the claim for a sum of Rs. 6,95,000/- on cash loss basis and she had received the amount vide voucher Ex. Op-13 for a sum of Rs. 6,95,000/- as a full and final settlement and on the basis of that intimation was given to the complainant for settlement of his claim for a sum of Rs. 6,95,000/- on cash loss basis. The counsel for the Op has referred to the judgment of the Hon’ble Supreme Court II(1999) CPJ 10 (SC) : 1999(3) RCR (Civil) 634-635 “United India Insurance Versus Ajmer Singh Cotton & General Mills” wherein it was held that in case the consumer has accepted the insurance claim as full and final settlement, claim will be maintainable only if the execution of discharge voucher are alleged and proved to be executed by fraud, undue influence, mis-representation or the like. It was further followed in the latest judgment of the Hon’ble National Commission 2014(1) CPC 24 “Chittiprolu Lokeswara Rao versus United India Insurance Co. Ltd. & Anr.” once the full settlement voucher was executed by the complainant lateron if she was unable to prove that this settlement voucher was got obtained from her under by fraud, undue influence, misrepresentation, coercion, under the compelled circumstances. Therefore, once payment has been received as full and final settlement then no additional demand can be asked for until it is proved on the record that the payment was made under undue influence, misrepresentation, coercion, fraud, under the compelled circumstances by the insurance company. 

10.              So far as delay is concerned, in the same judgment it was observed by the Hon’ble Supreme Court that delay in settlement does not entitle the insured to get any interest.

11.              None was present on behalf of the complainant to contradict these findings and that there was no pleadings on behalf of the complainant that discharge voucher was got executed under any undue influence, fraud, mis-representation or the like. In those circumstances, in case once the complainant had accepted his claim as full and final settlement then the complainant was left with no cause of action to file the complaint, therefore, the order passed by the learned District Forum with regard to payment of interest for six months and towing charges of Rs. 23,000/- was not justified alongwith litigation expenses.

12.              In view of the above, we accept the appeal. The order so passed by the learned District Forum is set-aside. The complaint of the complainant is dismissed by not maintainable as observed above.

13.              The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

14.              The arguments in this appeal were heard on 5.3.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

15.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

March 13, 2015.                                                      (Harcharan Singh Guram)

as                                                                                                Member