Tamil Nadu

North Chennai

160/2012

C.Shanmugam, - Complainant(s)

Versus

The Manager, Bajaj Allianz, - Opp.Party(s)

B.Srinivasan

19 Aug 2016

ORDER

                                                                      Complaint presented on:  20.06.2012

                                                                Order pronounced on:  19.08.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,     MEMBER II

 

FRIDAY THE 19^th   DAY OF AUGUST 2016

 

C.C.NO.160/2012

 

 

 

C.Shanmugam,

S/o.N.Chinnasamy,

No.7, Subbarayan 2^nd Street,

Nammalwarpet, Chennai – 600 012.

 

                                                                                    ..... Complainant

 

..Vs..

The  Manager,

Bajaj Allianz,

Prince Tower, 25-26, College Road,

Nungambakam, Chennai – 600 006.

 

 

	.....Opposite Party

Date of complaint                                 : 23.07.2012

Counsel for Complainant                      : M/s.B.Srinivasan

Counsel for opposite party                       : M/s.M.B.Gopalan

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant purchased a Maruti Swift VDI Car from the CARS India and he insured the said car with the Opposite Party. On 28.11.2012 while the Complainant was driving the car in Kolathur, due to the heavy rain, the rain water seeped inside the car and the engine failed to work. Immediately, the Complainant informed the CARS India   and they towed the car to their service station around 4.15.p.m.  The said CARS India has tie up with the Opposite Party. The Manager of the CARS India   informed that the Insurance Company will pay the charges for the car and they also informed about the accident to the Opposite Party. The Opposite Party surveyor inspected the car and they also sent mail to the Complainant on 02.12.2011 regarding the confirmation of Insurance claim and again on 08.12.2011. The Manager of the CARS India   informed the Complainant on 04.01.2012 that the Complainant has to pay a sum of Rs.95,000/- as service cum repair charges for his car and also informed that the Opposite Party refused to sanction the said amount.  The car failed to function because of the natural calamities and it is unfortunate that the Opposite Party refused to sanction the amount. The Complainant sent legal notice dated 08.01.2012 demanding the claim amount of Rs.95,000/- and the Opposite Party did not reply for the same. However the Opposite Party sent a letter dated 01.02.2012 enclosing a cheque for a sum of Rs.16,396/- towards spare parts and labour charges. The Complainant received the said amount with objection and did not accept the Opposite Party approved claim amount as full and final. Hence the Opposite Party committed fault and therefore the Complainant filed this Complaint claiming balance bill amount of Rs.72,212/- with compensation for mental  agony and cost of the Complaint.

2. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The Complainant had insured his Maruti Swift vehicle TN 05 Y 1350 with the Opposite Party under policy No.OG-12-1501-1801-00002442. The cover was provided as per terms and conditions of the Motor Policy and any claim is subject to such terms. The Opposite Party has no liability for any repairs but only towards damage caused by specified perils as stated in the policy, subject to the exclusions, conditions and other terms stipulated in the policy. The Complainant intimated a claim for repairs to the vehicle following breakdown on 28.11.2011 due to alleged water entry. The Opposite Party appointed Surveyor  M/s.K.P.Balakrishnan and Associates for inspection of the vehicle had worked out the repairs attributable to at Rs.16,396/- which had been offered to the Complainant on 01.02.2012 in full and final settlement. The Opposite Party had made it clear that acceptance of the cheque would be in full and final settlement. The payment thus offered was received by the Complainant without protest and appropriated. As such the claim stood fully and finally settled. While so, the subsequent notice/dispute etc. are unsustainable after such full and final settlement. The assessment by the surveyor was approved by the Opposite Party towards the admissible cost of repairs as per terms of the policy and settled in full. The Opposite Party submits that the settlement made by them was a fair and reasonable calculation of the loss to the extent admissible under the policy. There is no negligence or Deficiency in Service on the part of the Opposite Party. The Complaint is only an abuse of the Consumer Protection Act and therefore prays to dismiss the Complaint.

 

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT NO :1

          It is an admitted fact that the Complainant  is the owner of the Maruti Swift VDI vehicle TN05Y1350 and Ex.A1 is copy of the registration certificate of the said the car and the same was insured with the Opposite Party for the period 19.05.2011 to 18.05.2012 under Ex.A2 is the insurance copy issued by the Opposite Party to the Complainant and the said car failed to function on 28.11.2011 due to heavy rain  and on the information of Complainant the CARS India   taken the vehicle  for service and they raised Ex.A4 bill for service cum repair charges nearly for a sum of Rs.95,000/-  and the Complainant also made a claim with the Opposite Party for the said amount and however the Opposite Party sanctioned only a sum of Rs.16,396/- towards spare parts and labour charges  and sent the said amount  by way of cheque through Ex.A5 letter dater 01.02.2012 and the Complainant also encashed the said cheque.

          5. The contention of the Complainant is that he had received the cheque with subject to objection and he did not accept the said amount as full and final settlement and therefore he is entitled for the balance bill amount of Rs.72,212/- form the Opposite Party and for the same this Complaint is filed by him.

          6. The Opposite Party contended that the cheque sent for a sum of Rs.16,396/- towards full and final settlement and having accepted that amount the Complainant cannot claim further and in support of the contention he relied an order of the National Commission reported in II (2013) CPJ 364 (NC) (HARYANA STATE CO-OPERATIVE SUPPLY & MARKETING FEDERATION LTD. VS. IFFCO TOKIO GENERAL IINSURANCE COMPANY LTD. ANR.) and therefore prays to dismiss the complaint.

          7. The National Commission in the above referred order in para 5 held as follows:

          It is not in dispute that the petitioner received the demand draft dated 05.02.2009 for Rs.4,72,263 along with a covering letter dated 19.02.2009 from the respondents. Contents of the letter in question which have been reproduced by the State Commission in its impugned order have not been denied by the petitioner. It is specifically written in its letter that the Opposite Parties were enclosing the demand draft in question towards full and final settlement of the claim of the petitioner and for this purpose they had also attached a discharge voucher which the petitioner was requested to sign and send back to the respondents as acknowledgement towards full and final settlement. Admittedly, the petitioner encashed the demand draft in question although they did not sign and send back the discharge voucher in question. Here, if we accept the contention of the learned counsel, the petitioner should not have encashed the demand draft in case the offer of full and final settlement was not acceptable to them and they should have written back to the respondents about the inadequacy of the offer. Rather than writing back and expressing their protest, the petitioner chose to deposit the demand draft and yet later on send their protest against the amount. In view of this, the petitioner by its own conduct forfeited its right to plead that it did not accept the offer in full and final settlement of its claim against the Opposite Party.

The above referred National Commission order squarely applies to the fact of the case in hand. The Complainant pleaded in the Complaint that he received the cheque amount with objection and did not accept the same as full and final. No documents filed by the Complainant to establish that the Complainant received the cheque sent under Ex.A5 with objection. On the other hand in Ex.A5 letter it has been categorically stated that the enclosed cheque towards full and final settlement. Further he had also enchased the cheque. Absolutely no proof filed by the Complainant to accept that he had encashed the cheque only on protest made to the Opposite Party. Therefore without any protest the Complainant received and encashed the cheque of the Opposite Party establishes that he had encashed the same only towards full and final settlement as written in Ex.A5 letter and after accepting towards full and final settlement, the Complainant is not at all entitled for the balance amount claimed by him in the Complaint and in view of the same and as held by the National Commission, we hold that the Opposite Party has not committed any Deficiency in Service.

8. POINT NO :2

          Since the Opposite Party has not committed any deficiency in service, the Complainant is not entitled for any relief in this Complaint and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 19^th day of August 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 19.05.2008                   Form of Certificate of Registration

Ex.A2 dated 23.04.2011                   Insurance Copy

Ex.A3 dated 08.01.2012                   Legal Notice with acknowledgement

Ex.A4 dated 11.01.2012                   Bill for service-cum-repair charges given by

                                                C.A.R.S. India

 

Ex.A5 dated 01.02.2012                   Letter from Bajaj Allianz enclosing Cheque

                                                No.797412

 

Ex.A6 dated 23.02.2012                   Legal Notice with acknowledgement                      

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY :

Ex.B1 dated NIL                     Policy

Ex.B2 dated 15.11.2012                   Survey Report

Ex.B3 dated 08.02.2012                   Surveyor’s Clarification

 

MEMBER – II                                                               PRESIDENT