Oriental Insurance Co. ltd, a Government of India
Undertaking, having its registered and Head office at
Oriental House, A-25/27, Asaf Ali Road,New Delhi 110002
And one of its Divisional Offices at Pulin Bhavan, Keating
Road, Shillong-1, represented by its Senior Divisional
Manager,
…Appellant/Opposite Party
-Vs-
Shri Gurmeet Singh, son of Late Dalip Singh,
Upper Lachumiere, Shillong, 793001
…Respondent/Claimant
Date of hearing : 14.9.2013
Date of judgment : 28.09.2013
JUDGMENT & ORDER (CAV)
Per Mr. Justice P K Musahary, President.
This appeal is directed against the judgment and order dated 08.12.2006 passed by the learned District Consumer Disputes Redressal Forum , East Khasi Hills, Shillong (District Forum in short) in Consumer Case No.23/04 directing the appellant/Opposite party (O.P.in short) to pay the balance amount of Rs.29,958/- only towards repairing cost of respondent’s vehicle with interest @10% p.a. from the date of submission of bills on 3.3.2004 till the date of payment plus Rs.10,000/- as compensation towards harassment due to deficiency in service and Rs.5,000/- as cost of litigation, which comes to Rs.44,958/- only in total.
2. We have heard Mr. S.Jindal, learned counsel for the appellant and Mrs. PDB Baruah, learned counsel for the respondents. We have also perused the records of the District Forum as made available to us .
3. In this case, a vehicle, TATA (sumo) bearing registration No.ML-05C-0691 in the name of respondent’s father, which was insured with the appellant’s insurance company, met with an accident on 11.8.2003. The vehicle was sent to Abhishek Motors at Adabari, Guwahati; an authorized dealer, for repair with due intimation and request to the appellant to depute a surveyor. In the meantime, vehicle was repaired and a bill of Rs.2,06,653.00, being the total repairing charges, including cost of spare parts and towing was submitted by the said authorised dealer. The respondent-claimant demanded payment of the said amount. The appellant sent a surveyor Mr. A C Das, who inspected the vehicle and submitted a report dated 5.10.2003 recommending a sum of Rs.1,13,123/- only towards cost of spare parts and labour charges. Against the said amount assessed by the surveyor, the appellant offered to pay Rs.98,700/- only and decided to settle the claim. The respondents initially refused to accept the said offer. Several correspondences were made between the parties. In the meantime, the registered owner of the vehicle, present respondent’s father, died on 12.1.2004. The respondent vide letter dated 31.1.2004 requested the appellant to conduct a re-survey. The re-survey was accordingly done by the same surveyor and report was submitted on 5.4.2004 re-affirming his earlier report.
4. The above facts have emerged undisputed from the pleadings of the parties.
5. In the written statement, particularly in paragraph-2, the appellant as O.P., contended that the offer of settlement at Rs.98,700/- was initially objected to but it was accepted subsequently by the complainant vide his letter dated 23.6.04. It is submitted by the appellant that the complainant received the cheque of Rs. Rs.98,700/-sent by the O.P. without any protest. It is also submitted by the appellant that the claim has been settled finally at Rs.98,700/- and the claim petition has been filed against the appellant as a matter of afterthought which is not tenable under the law. Against the said submission, the respondent-claimant has submitted that the cheque of Rs.98,700/- was received on protest without prejudice to his total claim of Rs.2,06,653/-.
6. We have noted that this issue has been left unaddressed by the learned District Forum. Fairly speaking, if the complainant received the cheque of Rs.98,700/- without protest, it would amount to settlement of the claim at the said amount but if it is found otherwise it must be understood that the claim remained unsettled.
7. The basis on which the O.P. claimed to have settled the claim is Annexure-F letter annexed to the written statement. It is a letter dated 23.6.2004 sent by the claimant addressed to the Branch Manager of the Oriental Insurance Company Ltd. which reads as under:
“To Annexure-‘F’
The Branch Manager,
Oriental Insurance Company
Shillong, Date 23.6.04
Sir,
I have to clear my father’s outstanding loan at the earliest which was taken for repairing of the vehicle ML-05C-0691, I accept the amount of Rs.97,800/- by way of cheque issued in my name.
Yours sincerely,
Sd/ G.Singh
(Gurmeet Singh,)
S/o late Dalip Singh”
8. In the above letter, there is no mention that the amount of Rs.97,800/- was received on protest towards settlement of the total claimed amount. But this letter has to be read with Ext. 14 (money receipt) wherein it is written –“ received under protest a sum of Rs.98,700/- against claim of Tata Sumo vehicle M L 05C-0691” The above letter dated 23.6.2004 and the money receipt are to be read with averments made in paragraph 12 of the complaint petition which reads as under:
“ 12. That the complainant was under pressure from the bank for repayment of the demand loan availed by the complainant’s father for taking delivery of the vehicle. Bank vide letter dated 23.6.04 had demanded the complainant to repay the loan amount at the earliest. The complainant time and again had requested the opposite party to conduct resurvey and pay the entire amount of the claim which was the actual amount paid towards repair of the vehicle. But there was no response from the opposite party. The complainant under tremendous pressure from the bank and as the complainant was facing financial hardship, under compelling circumstances had to receive the party on 23.6.04. The opposite party had send the blank receipt alongwith the cheque of Rs.98,700/-to the claimant on which the claimant signed endorsing under protest. Immediately on receiving the above amount under protest complainant repaid the loan amount to the bank on 26.6.04 for which Bank has issued a letter dated 26.6.04. Complainant had to pay a sum of Rs. 6076/- towards interest for the loan.”
9. In support of the statement on taking of loan from Bank for meeting the expenditure involved in repairing the vehicle, the claimant produced a letter dated 23.6.04 received from Central Bank of India, Shillong Branch (Ext.12-A) whereby the respondent –claimant was reminded to clear the loan amount of Rs.1,42,045/-. The above loan could be cleared on 26.6.04. This could be seen from the “ No dues certificate” dated 21.9.04 (Ext.12-B) issued by the said Bank. For proper appreciation of the matter, the said certificate is quoted below:-
“Ext.12-B
Central Bank of India, GS Road Branch,
Ref- No.BR/SHN BL/DL/0405/124/113 dated 21.9.04.
Date: 28.9.12
Mr. Gurmeet Singh,
GS Road, Shillong.
Ref: No dues certificate for late Dalip Singh,
Sir,
With regard to above, we are to inform you that the loan was taken on 09/12/03 and adjusted by you on 26/06/04. The documents has already released after getting both Principal and interest upto 25/6/04.
Principal = Rs,1,36,000/-
Interest charged = Rs. 6,076/
_________________________________
Total = Rs 1,42,076/-
Yours faithfully,
Sd/ Illegible
For Central Bank of India,
G.S.Road, Shillong”
10. The admitted fact is that the claimant’s father, during his life time, took the loan for repairing the damaged vehicle but he died before the loan could be repaid, leaving the claimant in great financial crisis. There was a great pressure from the bank to clear the loan amount with interest and on the other hand, there was a refusal from the insurance company to pay the entire cost of repair of the vehicle. Faced with such situation, the claimant was under compulsion to receive the amount of Rs.98,700/- as offered by the appellant –insurance company and he had mentioned about the same in his letter dated 28.6.04 (Ext.16) sent to the Branch Manager, Oriental Insurance Company Ltd., through which, he demanded re-survey on the claim. The way in which the claimant was made to accept the said amount of Rs.98,700/- as final settlement of the claim, suggests that the appellant insurance company took advantage of the claimant’s financial hardship. In fact, as a powerful company the appellant is in a position to exploit the said situation for its gain and that is why inspite of the clear mention in Ext.14, that the said sum of Rs.98,700/- was received under protest against the claim, an attempt has been made on its part to impress upon the Forum that the respondent claimant accepted the said amount without protest. We are not at all impressed or persuaded to accept the submissions of the appellant. On the basis of the documents (Exhibits) on record as referred to above, we hold that the respondent-claimant received the amount of Rs.98,700/- under protest to tide over his financial crisis without prejudice to final settlement of his entire claim.
11. The learned District Forum has awarded a sum of Rs.1,28,657.96/- to be paid by the Insurance Company to the Complainant against his claim after application of mind and taking the Surveyors report into consideration. We find no reason to differ. If the amount of Rs.98,700/- paid to the insured is taken into account, the balance comes to (Rs.1,28,657.96 – Rs.98,700/-) =Rs.29,957.96/-, say Rs.29,958/-.
12. We are totally in agreement with the finding/conclusion of the learned District Forum that there is an under assessment of the loss and consequent deficiency in service by O.P. and therefore , we have no hesitation to uphold the impugned order and hold that the appellant is liable to pay the following amounts-
(a) Total balance (as awarded) =Rs . 29,958/-
(b) Interest at the rate of =
10% p.a. on Rs. 29,958/-
w.e.f.three months of
submission of bills i.e.
3.3.04 till date of payment = (to be calculated)
(as awarded)
(c) Compensation towards = Rs.10,000/-
harassment due to
deficiency in service
(as awarded)
(c) cost of litigation at the trial stage
(as awarded) =Rs.5,000/-
(d) cost of litigation at the appellate stage
=Rs.5,000/-
Ordered accordingly. The appellant is directed to pay the above amounts within two months from today to the respondent failing which they shall be liable to pay further interest on the entire amount @12% p.a. till the date of full payment. The impugned order is hereby upheld with additional cost of litigation at the appellate stage as indicated above. Appeal stands dismissed. Send down the records along with copy of this judgment & order. Return the statutory deposit to the Appellant.
