JUDGMENT 9.11.2010 Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 28.10.2009 passed by District Consumer Forum-I, U.T. Chandigarh whereby his complaint bearing No.815/2009 was dismissed. 2. In nutshell, the facts as set out in the complaint are that the complainant got his Mitsubishi Pajero GLX vehicle bearing Registration No.HR-14A-2421 insured with the OP insurance company for the period from 8.2.2007 to 7.2.2008 at the Insured Declared Value of Rs.14,07,200/-. Unfortunately on 17.10.2007, when the vehicle was being driven by Shri Vikram Jolly, due to the slippery road near Garkhal it skidded off the road and fell down due to which it suffered extensive damage. The matter was reported to the police and DDR of even date was registered at Police Chowki, Garkhal, District Solan (HP). Subsequently the vehicle was declared to be complete loss and, therefore, claim of Rs.14,07,200/- was lodged with the insurance Company. However, an amount of Rs.7,44,000/- was received on 21.5.2008 and another amount of Rs.5,05,000/- was received as salvage value thus totaling Rs.12,50,000/- but the balance amount of Rs.1,57,200/- was not paid despite service of legal notice dated 10.4.2009. Hence, alleging deficiency in service on the part of OP complainant filed complaint before the District Forum. 3. On the other hand, the stand of OP insurance company before the District Forum was that the surveyor as per his report dated 4.12.2007 assessed the sum of Rs.7,44,000/- ‘on net of salvage basis’ and the complainant also agreed to retain the salvage worth Rs.5,05,000/-. It was pleaded that the total amount of Rs.12,50,000/- was retained by the complainant as full and final settlement of claim. There was no averment in the complaint that the consent was obtained by the OP under any coercion or influence. The complainant had himself agreed for the said amount of Rs.12,50,000/- as full and final settlement of his claim and now after receiving the same, he cannot take up the issue which has already been settled. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer was made for dismissal of the complaint. 4. The District Consumer Forum after going through the evidence and hearing the counsel for parties came to the conclusion that as complainant had voluntarily agreed for a specific amount of compensation without any hassle, so there was no merit in his complaint and dismissed the same. Still dissatisfied, complainant has come up in this appeal. 5. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of appellant/complainant is that the consent had been obtained by the Insurance company by misrepresentation of facts and by concealment of material facts with regard to the ‘total net repair cost’ assessed being more than the Insured Declared Value and once the consent had been taken, the surveyor report had accordingly been prepared causing loss to the complainant and therefore such consent having been taken by misrepresentation of facts by keeping him in dark could not come in the way of complainant for being entitled to the total amount of IDV. Further, the Learned District Forum did not consider as to how on 13.11.2007 (the date of consent) the insurance company could come to the conclusion that the ‘salvage value’ of the said vehicle was Rs.5,05,000/- when the surveyor report was admittedly prepared on 4.12.2007. The premium was paid for the insured value of vehicle which after taking into account all relevant facts was fixed at Rs.14,07,200/- and as such complainant was entitled to fixed insured declared value as per the terms and conditions of the policy. She further submitted that as per terms and conditions of the policy, the Insured’s Declared Value cannot be changed during the currency of the policy and therefore, respondent insurance company is not permitted/allowed to reduce the IDV from Rs.14,07,200/- to Rs.12,50,000/- To buttress her arguments, learned counsel for complainant made reference to the surveyor report dated 4.12.2007 wherein the loss caused to the vehicle of the complainant had been assessed to be Rs.14,49,074/-. She then made reference to the policy issued by the insurer wherein the vehicle shown to have been insured at Rs.14,07,200/-. Not only that, learned counsel for complainant has also made reference to the replication filed before the District Forum wherein it has been categorically pleaded that the consent with regard to full and final settlement of the claim was obtained under misrepresentation, inasmuch as the claim is shown to have been settled on 13.11.2007 whereas the surveyor report assessing the damage to the vehicle was prepared later on i.e. on 4.12.2007. In support of her above arguments, she placed reliance upon the following judgments ; (i) Dharmendra Goel Vs Oriental Insurance Co. Ltd. 2008 CTJ 917(Supreme Court) (ii)UIIC Vs Harchand Rai 2004 Vol.(8)SCC-643 (iii)Oriental Insurance Co.Ltd. & Ors.Vs Govt. Tool Room and Training Centre 2008(1)CPC 495 6. Faced with this situation, we have no option but to hold that the insurer infact had obtained the consent of the complainant regarding full and final settlement of the complainant even prior to the assessment of actual loss by its own surveyor. In this view of the matter, the consent obtained from the complainant by the insurer cannot be held to be genuine. Thus, same cannot be acted upon. The surveyor had assessed loss to the vehicle to be Rs.14,49,074/- whereas Insured Declared Value was Rs.14,07,200/- ,so complainant is held entitled for the same amount of Rs.14,07,200/ being Insured Declared Value of the vehicle. 7. On the other hand, Mr.Gupta, learned counsel for respondent Insurance company by relying upon ‘United India Insurance Company Ltd. Vs Kantika Colour Lab & Ors 2010(3)RCR (civil) 478 submitted that complainant is not entitled to the Insured Declared Value in case actual loss suffered by him is lesser than that of insured value as the amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured. In fact the facts as stated in the cited authority are contrary to the facts in hand, as discussed above, therefore, no benefit can be derived from the observations made therein by their lordships of the Apex court. 8. In view of foregoing discussion, this appeal is accepted with costs of Rs.5000/- and consequently impugned order is set aside and complaint is accepted in the following terms; (i) Respondent insurance company is directed to indemnify the complainant to the extent of Insured’s Declared Value of the vehicle in question which is Rs.14,07,200/- and after adjusting the amount of Rs.12,50,000/- already paid to the complainant, it shall pay Rs.1,57,200/-. (ii) The said amount of Rs.1,57,200/- + Rs.5000/- as costs shall be paid within thirty days from the receipt of copy of the order, failing which respondent insurance company shall be liable to pay penal interest @ 12% p.a from the date of appeal i.e 8.2.2010 till actual realization. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
