BY - SRI ASISH DEB, PRESIDENT
Brief facts leading to this complaint are that the complainant is the registered owner of vehicle being No. WB 29B-2593 being Engine No. GHG4L57204 and Chassis No. MA1XG2GHKG2M76721.The complainant took an insurance policy of against the said vehicle from the Opposite Party being policy No. 150305311710008547 for the period from 19.01.2018 to midnight 18.01.2019. Unfortunately the said vehicle met an accident on 10.08.2018 at about 8:30pm at near Ranisagar under P.S. Nandakumar and for which the said vehicle got badly damaged. The Complainant informed the matter of said incident over telephone to the Opposite Party, on the date of accident and at the time of said accident Barun Kumar Samanta S/O Ananta Kumar Samanta of Vill. & P.O. Srirampur, P.S. Tamluk Dist. Purba Medinipur was the Driver who had valid license to drive the said vehicle. According to the advice of Opposite Party the said vehicle was repaired at a garage near Tamluk and the total cost of repair was Rs. 1,83,347/-.The Complainant demanded the said cost of repair by deposit of all bills from the Opposite Party. However, the Opposite Party intentionally without taking any permission from the Complainant has deposited Rs. 68,380/- to Complainant’s Bank A/C on 14.09.2018. After knowing about the said deposit the Complainant demanded rest of bill amount, but the op did not give any reply or deposit the balance amount of Rs. 1,14,967/-.In circumstances ,the Opposite Party has done deficiency in insurance service for which the Complainant has been suffering from mental agony. The cause of action of this case has arisen on and from 10.08.2018. Hence, the complainant has prayed for: rest bill amount of Rs. 1,14,967/-along with 10% interest from 10.08.2018 till realization; compensation of Rs. 50,000/- for mental agony and to pay litigation cost of Rs. 10,000/-,
The op has resisted the complaint by filing written version thereof stating interalia that the instant complaint is not maintainable in its present form and in law. The instant case is barred by the provisions of estoppels, waiver and acquiescence. The complainant cannot get any benefit for any breach of specific terms and conditions of the Insurance Policy as issued by this O.P. The complainant –insured acceded to such assessment and signed the same on acceptance on 25.08.2018 when the assessed total loss for such repairing arrived at Rs. 60,126.00/- and after adding the taxes of Rs. 8,254.00/- the total loss was amounting to Rs. 68,380.00/-. The insured accepted said assessment of Rs. 68,380.00/- and on accepting this amount with full and final settlement, the Insured-complainant signed the voucher of the Insurance Co. on ‘Full and Final’ Settlement without any protest on 12.09.2018
Points for determination are:
- Is the case maintainable in its present form and in law?
- Are the Complainants entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused the affidavit of the complainant, written version, evidence of both parties and alongwith receipts and other documents.
Having regards had to the facts and circumstances of the case it is evident that the complainant being insured and the op being insurer the case is maintainable in its present form and in law.
It has been contended by the Ld Advocate for the complainant that the op has wrongfully denied and deprived of complainant’s legitimate rest amount of the bill arose out of repair of the insured vehicle causing deficiency of service ; so the complainant is entitled to the reliefs from op as a bonafide consumer. In support of his contentions the Ld. Advocate cited the decision of the case United India Insurance company Ltd. Vs S. Jaganath Singh of the Hon’ble NCDRC reported in 2009(3) CPR 186 (NC).
Per Contra, the Ld. Advocate for the op has vehemently contended that the Complainant had settled the claim in full and final settlement and signed the voucher to this effect. According to him it was a free consent and it is binding on both the parties. There is no averment in the complainant that the said discharge voucher was signed by the complainant under any undue force, coercion or pressure. As such he has prayed for dismissal of the complaint.
Now, on careful reading of the complaint, it appears that there is no averment in the complaint that the said discharge voucher was signed by the complainant under any undue force, coercion or pressure. In reply to the questionnaire no-11 by the OP the complainant has admitted that he did not demand the rest amount of the bill in question from the op before initiating the instant complaint. It is also not the case of the complainant that his claim was ever repudiated by the op. It further appears from the documents filed by the complainant that all the bills were submitted to the op on 05.09.2018 and he agreed to receive the sum of Rs.68,380/ from the op on 12.09.2018 but he did not register his grievances any where then to the effect that he was misguided or misrepresented by the op or his any man. The decision of the case United India Insurance company Ltd. Vs S. Jaganath Singh of the Hon’ble NCDRC reported in 2009(3) CPR 186 (NC) as cited by Ld. Adv. For the Complainant is not applicable in this case as the facts and circumstances are different in the instant case from that of the cited case. In the said cited case the insured had written a protest letter to Insurance Company immediately on receiving the cheque for an amount settled by the insurance Company ,however, in the instant case the complainant did not write any protest letter to the insurance Company immediately or at any time before lodging this case. Moreover, the assessment and survey made by the surveyor is well within the knowledge of the complainant. The provisions of law emerges that consent shall be deemed to be free consent and binding on the parties to contract unless the person to the contract shows that he had signed it under coercion , undue influence ,fraud ,misrepresentation, mistake or duress. The burden is upon the complainant to prove such facts and lead evidence. Mere bald allegations are not sufficient in this regard even. The insured has to place the material before this commission. This issue has been considered by the Hon’ble NCDRC in the case of Indian Acrylics Ltd. Vs National Insurance Co Ltd and Ors. reported in 2019(4) CPR 83(NC) as cited by the Ld Advocate for the op , wherein it has been held that full and final settlement between the parties constitute a binding contract unless it is shown that it was influenced by force, coercion and undue influence.
From the bundle facts we do not find any cause of action to lodge the complaint against the op. we find that there is substance in the contentions put forth by the Ld Advocate for the op. There is no deficiency of service on the part of the op. The complainant is not entitled to get any relief as prayed for
Thus both the points are decided accordingly.
Hence, it is
O R D E R E D
That the CC/515 of 2018 be and the same is dismissed on contest, however without any cost.
Let copy of the judgment be supplied to all the parties free of cost.
