DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 79 of 17-02-2010

Decided on : 30-09-2010

Dev Raj S/o Gurdas Rai, Prop. M/s. D.R. Chemicals, Goniana Mandi, District Bathinda now deceased through his L.Rs :

1. Smt. Santosh Devi widow

2. Dhiraj Pal – son

3. Sushil Kumar – son

4. Pankaj Kumar - son

.... Complainants

Versus

1. The New India Assurance Company Limited through its Divisional Manager, Divisional Office, The Mall, Bathinda

2. The New India Assurance Co. Ltd., Branch Office, Malout, District Mukatsar through its Branch Manager

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Ish Kumar counsel for the complainants.

For the Opposite parties : Sh. Vinod Garg, counsel for the

opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The complainant Dev Raj was the owner of truck No. HR-38B/3296 and he got the said truck comprehensively insured with opposite party No. 2 for a sum of Rs. 2,00,000/- vide Cover Note No. 297939 effective from 10-03-2009 to 09-03-2010. The said truck met with an accident on 04-06-2009 near Tohana and intimation to this effect was given to the opposite parties. The opposite parties appointed spot surveyor to assess the loss. The surveyor of the opposite parties obtained the signatures of deceased Dev Raj on various blank printed forms at the instance of the opposite parties and gave assurance regarding reimbursement of loss by the opposite parties. After the consent of the surveyor of the opposite parties, the complainant got his vehicle repaired and an amount of Rs. 1,38,500/- was spent by him. The opposite party No. 1 deputed M/s. G S Associates, Surveyor & Loss Assessors, Bathinda, for final survey. The said surveyor conducted final survey and he also obtained the signatures of the complainant on blank printed forms and took photographs of the vehicle and all the original bills and relevant claim papers etc., from the complainant for forwarding the same to the opposite parties. The opposite parties sent a cheque of Rs. 39,600/- on 17-09-2009 to the complainant without assigning any reason for withholding the remaining claim amount of about Rs. 1,00,000/-. The complainants alleged that they have been running from pillar to post to get the claim but to no effect. Hence, this complaint.

2. The opposite parties filed written reply and took legal objections that the complainant is estopped from raising any objection at this stage especially after getting the payment in full and final settlement. The complainant executed a consent letter to receive the assessed loss as full and final payment of claim. For this, they took support of law laid down in 2008(2) CLT 299 and AIR 1999 3027 (SC) and 2007 (3) CLT 479 (NC). It has been submitted that on receiving intimation of loss from the complainant, they deputed Er. Sanjay Kumar Jain to conduct spot survey. He conducted spot survey on 06-06-2009 and submitted his report dated 13-06-2009. The opposite parties denied that surveyor obtained signatures of complainant on any blank form or any assurance was given for reimbursement of entire loss. It has also been denied that complainant spent Rs. 1,38,500/- on repair of the vehicle. The bills were of unauthorised repairers and not from any authorised service/repair stations. The opposite parties pleaded that they deputed M/s. G S Associates to conduct final survey who conducted final survey on 08-06-2009 and assessed the loss vide report dated 12-08-2009 to the tune of Rs. 39,935/- . The vehicle in question was of manufacturing year 1997 whereas the accident has taken place in 2009 i.e. after more than 12 years and depreciation has been charged as per terms and conditions of the policy and IMT. The salvage value was assessed at Rs. 300/-. They have already made the payment as per assessed loss and the complainant accepted the same as full and final payment. It has been pleaded that the Surveyors are the best persons to assess the loss and survey report has to be accepted unless there are cogent reasons for the same. In this regard, they took support of law laid down in 2009(3) CLT 417, 2007(3) CLT 359 (NC), 2001 (2) CLT 55 (NC) and 2007(1) CLT 112 (NC).

3. Parties have led evidence in support of their pleadings.

4. Arguments heard and written submissions submitted by the parties perused.

5. During the pendency of the complaint Dev Raj, complainant died on 15-07-2010 and on moving application by aforesaid Legal Heirs of deceased Dev Raj, they were impleaded as party to the complaint vide order 30-08-2010 of this Forum.

6. The learned counsel for the complainant submitted that his vehicle was comprehensively insured with opposite party No. 1 but no terms and conditions were supplied to him by the opposite parties. The opposite parties have issued the aforesaid policy to indemnify the insured with all losses, if occurred, to the insured truck in any accident. As no terms and conditions were supplied by the opposite parties to the complainant, those terms and conditions are not binding upon him. He further submitted that aforesaid truck met with an accident on 04-06-2009 and intimation in this respect was given to the opposite parties who deputed their surveyor for spot survey. He took the signatures of the complainant on various blank papers and printed form without disclosing the contents and further assured that the loss of the complainant would be reimbursed by the opposite parties. After consent of the said surveyor, the complainant got his aforesaid truck repaired and an amount of Rs. 1,38,500/- was spent by him. The opposite parties deputed their final surveyor who submitted his report dated 12-08-2009 who inspected the vehicle on 08-06-2009. The learned counsel for the complainant further submitted that no criteria has been mentioned for not allowing the genuine claim, rate of parts, labour charges and for making the deduction of the assessed value.

7. On the other hand, the learned counsel for the opposite parties have submitted that the manufacturing year of the vehicle in question is 1997. The accident has occurred on 04-06-2009 i.e. after more than ten years. The depreciation of 50% is to be charged on all parts as per terms and conditions of the policy and IMT. According to the survey report, the loss was assessed at Rs. 39,335/- with salvage value of Rs. 300/- vide survey report Ex. R-4 which is duly supported by affidavit of the surveyor Ex. R-2. Accordingly, the payment has been made to the complainant. The opposite parties have led a Catina of judgements of the Hon'ble Supreme Court and Hon'ble National Commission to support their version that the surveyor are the best persons to assess the loss. Survey report has to be accepted unless there are cogent reason for the same. The learned counsel for the opposite parties further submitted that bills produced by the complainant are unauthentic and of un-authorised repairers. The learned counsel for the opposite parties further submitted that consent letter is given by the complainant who had accepted the assessment of Rs. 39,935/- and executed Ex. R-5 accepting the assessment as full and final settlement of his claim. For this, the opposite parties have taken support from the law laid down by the Hon'ble Supreme Court and National Commission in the cases cited as 2008(2) CLT page 299 (SC), AIR 1999 page 3027 (SC) and 2007 (3) CLT page 479 (NC). He argued that once the insured executes discharge voucher accepting the assessed loss as full and final settlement, he is estopped from raising any objection, unless he proves that the consent letter was executed under force, coercion, fraud etc.,

8. It is admitted fact of both the parties that complainant has received a cheque of Rs. 39,600/-. The complainant has produced on file Estimates of different repairers Ex. C-8 to Ex. C-18 , which show that complainant has spent an amount of Rs. 1,38,500/- whereas the assessment given by the surveyor is Rs. 39,935/-. A perusal of page No. 4 of survey report Ex. R-4 reveals that in the assessment details, the surveyor has mentioned N.A. against some of the parts and allowed Rs. 5370/- as cost of parts and after depreciation of 50% the amount of parts became payable only Rs. 2685/- . The surveyor has not mentioned any reason for not allowing some of the parts as per estimate of the complainant. The final suveyor has not allowed the cost of Fr. W/s glass by mentioning the same to be not damaged whereas spot surveyor of the opposite parties vide his report Ex. R-10 has clearly mentioned “Front w/s glass broken.” The complainant has spent an amount of Rs. 18,350/- on the parts and 50% depreciation keeping in view the model of vehicle, is to be applied on the said amount. Thus, the amount payable on account of cost of parts comes to Rs. 9175/-. Further the final surveyor has allowed labour charges only Rs. 38,250/- as against the amount of Rs. 1,38,500/- spent by the complainant. The final surveyor has not mentioned any reason in his survey report for reducing the amount of labour charges to such an extent. However, the opposite parties have produced on file affidavit Ex. R-2 of Er. Gurjinder Singh, C/o. G S Associates, the final surveyor, but he has mentioned nothing in this regard that on what basis he has reduced the amount to such an extent. On the other hand, the complainant has submitted affidavit Ex. C-3 of Sh. Jagjeet Singh Prop. M/s. Dashmesh Truck Body Maker, Bathinda, wherein said Jagjeet Singh has deposed in para No. 4 of his affidvait that he has charged Rs. 77,500/- on account of labour charges on account of repair of the vehicle in question and receipt in this regard has also been issued. Thus, this Forum is of the view that complainant is entitled to labour charges to the tune of Rs. 77,500/-. Further the surveyor has allowed towing charges amounting to Rs. 2500/- against receipt of Rs. 8500/- as mentioned by the surveyor in his report. No cogent and convincing reason has been given by the surveyor to deduct this amount whereas the complainant has produced on file receipt of towing charges Ex. C-13 to prove that he has paid Rs. 8500/- as towing charges. Hence, he is entitled to Rs. 8500/- as towing charges. The survey report is not the last and final word. In this view of the matter, we get support from the observations of the Hon'ble Supreme Court in Civil Appeal No. 3253 of 2002 case titled New India Assurance Co. Ltd., Vs. Pradeep Kumar decided on 9^th April, 2009, it has been observed that

   “Although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”

9. The opposite parties have submitted that complainant is estopped from raising any objection, unless he proves that the consent letter was executed under force, coercion, fraud etc., and in this regard they have taken support of catina of judgements. The complainant has alleged in this complaint as well as in his affidavit that the surveyor of the opposite parties have obtained his signatures on some blank forms etc., and this version of the complainant seems to be true as the final surveyor has inspected the vehicle on 08-06-2010 and the Consent Letter Ex. R-5 has also been got signed on 08-06-2009. A perusal of Consent letter reveals that it was obtained by the surveyor and not by the opposite parties after submission of final survey report by surveyor. Thus, the consent letter was executed under coercion which was obtained by the surveyor from the complainant by giving false assurance of reimbursement of his full claim. The support can be sought from the law laid down by the Hon'ble National Commission, New Delhi, in the case titled 2008(1) CPJ 267 (NC) wherein it has been held :-

   “Consumer Protection Act, 1986 – Section 21- Insurance – Full and Final settlement of claim – Concept of coercive bargaining – Discharge voucher signed under compulsion – wrong practice followed by Insurance Company in not paying single pie without having discharge voucher – Mere execution of discharge voucher and acceptance of insurance claim, not estop insured from making further claim”

10. In view of above discussion, the complainant is entitled to Rs. 55,575/- more i.e. Rs. 9175/- cost of parts plus Rs. 77500/- being labour charges plus Rs. 8,500/- as towing charges minus Rs. 39,600/- already received by the complainant on account of said loss. Hence, this complaint is accepted with Rs 2,000/- as cost and Rs. 5,000/-as compensation. The opposite parties are directed to pay Rs. 55,575/- plus Rs.7,000/- as cost and compensation for mental harassment, to the complainants in equal share. The compliance of this order be made by the opposite parties jointly severally, within 30 days from the date of receipt of copy of this order.

     

     

     

     

11. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

30-09-2010 (Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member