DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 55 of 11-02-2013

Decided on 09-09-2013

M/s. Ranjit Transport Co. (Regd.) New, #3038, Guru Kashi Marg, Bathinda, through its Proprietor Rashpal Singh Walia son of Sh. Dalip Singh, resident of Bathinda.

…...Complainant

Versus

1. The New India Assurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Senior Divisional Manager

2. M/s. R P Bhasin & Co., Surveyors & Loss Assessors, Ludhiana, through its Proprietor

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt.Sukhwinder Kaur, Member

For the Complainant : Sh. J.S. Walia, counsel for the complainant.

For the opposite parties : Sh. Vinod Garg, counsel for the opposite party No. 1.

Opposite party No. 2 exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). In brief, the case of the complainant is that he purchased bus bearing registration No. PB-03AA-0711, after getting a loan of Rs. 11.00 Lacs from Sundaram Finance Ltd., and got comprehensively insured the same with opposite party No. 1 through its Rampura Phul Branch vide cover Note No. 512257 and policy No. 36060431110100003631 for the period from 2-12-2011 to 1-12-2012 for the IDV of Rs. 15,00,000/-. The said bus met with an accident on 25-06-2012 in the area of Sangat near Sangat Kanchian (Crossing) with a tractor and on the statement of one Baljeet Singh, case FIR No. 28 dated 26-06-2012 under Section 279/337/427 was registered in this regard. The complainant alleged that said Baljeet Singh of his own got mentioned the name of the driver of the bus as Sukhpal Singh son of unknown resident of Bhokhra, and also got mentioned the number of bus as PB-03A/0711. The police after investigation found that the number of bus has been wrongly written in the Rapat as PB003A-0711 instead of correct No. PB-03AA/0711 and further that the bus was being driven by Rachpal Singh son of Balkar Singh R/o Bhokhra and a DDR No. 22 dated 19-10-2012 was lodged by the police of PS Sangat in this regard. After the accident, some persons assembled at the place of accident and firstly they damaged the bus and then set the same on fire in the presence of Paramjit Singh son of Sukhdev Singh, Manager of the complainant. The police of P.S. Sangat made a report No. 28 dated 26-06-2012 in the daily diary register with regard to the said occurrence and FIR No. 50 dated 21-07-2012 under Sec. 435/149/120B IPC has been registered in PS Sangat on the statement of above said Paramjeet Singh. The complainant got the burnt bus released on sapurdari.

   The complainant lodged the claim with opposite party No. 1. The opposite party No. 1 deputed opposite party No. 2 as surveyor to assess the loss. The opposite party No. 2 inspected the spot as well as damaged bus and all the relevant documents required by opposite party No. 2 were handed over to him. At the time of survey, the opposite party No. 2 disclosed the complainant that the vehicle is a total loss and got the signature of the complainant on blank printed forms. The opposite parties assured the complainant that the claim will be finalized and payment will be made to him within few days. The complainant alleged that the opposite parties caused delay in finalizing his claim. The complainant wrote many letters and sent e-mails to the opposite party No. 1 and its higher officers requesting them to finalize his claim. The opposite parties ultimately conveyed the complainant that there is no person to purchase the salvage and if the complainant agrees to keep the salvage then they can finalize the claim and sought his offer regarding the value of the salvage. The complainant after getting assessed the salvage from the concerned expert person gave an oral offer to the opposite party No. 1 to accept the salvage of Rs. 2,50,000/-, but the opposite party No. 1 without informing him or without getting his consent transferred Rs. 9,59,000/- only in his account through RTGS on 17-01-2013. The complainant came to know this fact on 18-01-2013 and he immediately sent a e-mail to opposite party No. 1 that the said amount is a part payment of the total amount and he has received the same under protest. The complainant on 18-01-2013 sent e-mail to opposite party No.2 to supply copy of survey report which he sent in response to e-mail. The complainant alleged that on perusal of survey report, he came to know that opposite party No. 2 though assessed the salvage value at Rs. 2,50,000/- to Rs. 2,60,000/- with R.C. and other documents, but while deducting the amount of salvage from the total value, he deducted Rs. 5,40,000/- of its own by wrongly mentioning that the salvage value of Rs. 5,40,000/- has been offered by the insured. The complainant further alleged that he never offered the alleged amount being the salvage value at any time. The opposite party No. 2 at the instance of opposite party No. 1 got the signature of the complainant on blank printed forms and misused the same by mentioning that the complainant agrees to accept the salvage at Rs. 5,40,000/- which was neither offered nor consented by the complainant. The complainant further alleged that the opposite party No. 1 has withheld claim of Rs. 2,90,000/- against law and facts and on the basis of forged and fabricated documents. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to pay the balance claim amount of Rs. 2,90,000/- with interest; three months installments paid by him to the financer alongwith compensation and cost.

2. The opposite party No. 1 filed its written statement and admitted that the claim was lodged with it and it deputed M/s. G S Associates for conducting spot surveyor, who conducted the spot survey and submitted spot survey report dated 20-07-2012. The opposite party No. 1 also deputed final surveyor M/s. R P Bhasin & Company who conducted final survey and submitted final survey report dated 26-12-2012. The opposite party No. 1 has denied that the surveyor took signatures of the complainant on any blank papers or printed forms. It has been pleaded that the complainant himself agreed to keep the salvage against value of Rs. 5,40,000/- as the vehicle was on sapurdari and could not be disposed off till the decision of the case and further the complainant himself intended to keep the vehicle with himself after getting the same repaired. The complainant specifically agreed to get the loss settled on net of salvage basis at Rs. 9,59,000/- after adjustment of salvage value of Rs. 5,40,000/- offered by the complainant and Rs. 1,000/- on account of excess clause. The complainant even submitted a duly attested and notarized affidavit dated 16-1-2013 in this regard. The story of the complainant that his signatures were taken on any blank papers or that he did not agree to the salvage of Rs. 5,40,000/- is totally false. The complainant has concealed the fact that the vehicle was earlier set on fire after the accident. Two separate FIRs were registered in the case. The vehicle was taken on sapurdari on 10-10-2012 against the date of loss of 25-6-2012. Preliminary estimate dated 12-10-2012 was submitted on 8-1-2013 and supplementary estimate was submitted on 20-11-2012, accordingly final survey was carried out and payment of Rs. 9,59,000/- was made to the complainant after adjusting salvage of Rs. 5,40,000/- which was specifically agreed to by the complainant by submitting discharge voucher and aforesaid notarized/attested affidavit. The opposite party No. 1 has pleaded that the bus in question was first involved in an accident and later on the same was set on fire. Two separate FIRs were registered involving the bus in question and reports were lodged. One of the report was lodged on 19-10-2012. There was dispute on the factum of driver who was driving the vehicle at the time of occurrence and the same was clarified after lapse of considerable time. Without clarification of driver in question and verification of his driving licence, the claim could not be processed at all as per terms and conditions of the policy. The opposite party No. 1 has further pleaded that the vehicle was financed by Sundram Finance Limited and the complainant submitted N.O.C. from the said financer for release of claim amount in favour of the complainant on 16-01-2013 and payment was processed and made on 16/17-01-2013 itself. The opposite party No. 1 has denied that there was any protest rather the payment was made on the basis of agreement and specific consent of the complainant and the complainant never raised any protest against the payment.

3. Registered notice of the complaint was sent to opposite party No. 2, but despite service of notice, none appeared on his behalf, as such exparte proceedings were taken against opposite party No. 2.

4. There is no dispute regarding the insurance of the bus in question, its claim and payment of Rs. 9,59,000/- being the insurance claim to the complainant. The dispute is regarding the deduction of salvage value which according to the opposite parties has been deducted with the consent of the complainant, but the complainant has denied this fact.

5. The allegation of the complainant is that the opposite party No. 1 without informing the complainant or without his consent transferred Rs. 9,59,000/- being the claim amount in the account of the complainant whereas the opposite party No. 2 after survey, disclosed the complainant that the vehicle is a total loss and he is entitled to total loss amount of Rs. 15.00 Lacs. The learned counsel for the complainant submitted that after perusal of survey report, the complainant came to know that opposite party No. 2 though assessed the salvage at Rs. 2,50,000/- to Rs. 2,60,000/- with RC and other documents and at the instance of opposite party No. 1 has deducted Rs. 5,40,000/- at his own by wrongly mentioning the salvage value at Rs. 5,40,000/-. The learned counsel for the complainant further submitted that opposite party No. 2 while giving assurance of payment of total loss claim, obtained signatures of the complainant on blank printed forms stating that the same were required for finalizing the claim by opposite party No. 1, but before handing over the said signed printed forms, the complainant kept photostat copies of blank signed papers which include consent form, acceptance of the claim, claim form etc., which are Ex. C-12 to Ex. C-14 on the file. The submission of the learned counsel for the complainant is that the opposite party No. 1 at the instance of opposite party No. 1 misused, forged and fabricated the said blank signed printed forms by mentioning that the complainant agreed to accept the salvage at Rs. 5,40,000/-, which was neither offered nor consented by the complainant. The affidavit, which the opposite party No. 1 claims is the consent affidavit, its column No. 4 was taken blank without mentioning the amount. The hand written figures and words in the affidavit are with the hand of same person, who has written the figures and words of the consent Ex. C-16 and Ex. C-17 which were also got signed blank from the complainant.

6. On the other hand, the submission of the learned counsel for opposite party No. 1 is that the opposite party No. 1 paid Rs. 9,59,000/- on the basis of value of salvage offered and agreed to by the complainant. The complainant wants to take undue benefit of value of salvage assessed by the surveyor in survey report Ex. C-11. The complainant actually wanted to keep the vehicle with himself due to certain advantages attached to the same. Since the vehicle was involved in FIR and was on sapurdari, the salvage could neither be disposed off nor handed over to the opposite party no. 1 by the complainant. The learned counsel for opposite party No. 1 further submitted blank forms Ex. C-12 to Ex. C-14 placed on file by the complainant can be obtained from any branch of opposite party No. 1 and used in the manner produced by the complainant. He submitted that Ex. C-15 affidavit is on a stamp paper, duly notarized/attested by an advocate/notary public and the same can ever be attested by any notary public in blank.

7. The complainant has deposed in para No. 12 of his affidavit Ex. C-18 that :-

   “... As a matter of fact the opposite party No. 2 at the instance of opposite party No. 1 got the signatures of the deponent on blank printed forms and the opposite parties misused, forged and fabricated the said blank signed printed forms by mentioning that the deponent agrees to accept the salvage at Rs. 5,40,000/-,which was neither offered nor consented by the deponent. The opposite party-Insurance Co. on an application moved by the complainant has produced copy of the affidavit alleged to be signed by the proprietor of the complainant and from the perusal of the said affidavit and other documents it is evident from column No. 4 of the affidavit that this affidavit was taken blank i.e. without mentioning the amount or alteration/cutting. The handwritten figures and words in the affidavit are in the hand of same person, who has written the figures and words of consent.”

8. The complainant has produced on file Consent, Acceptance and Claim Forms Ex. C-12 to Ex. C-14. A perusal of these documents reveals that these blank documents bear the signature of the complainant. The opposite party No. 1 has taken a plea that complainant himself agreed and gave consent and affidavit for keeping the salvage and accordingly claim was settled after adjusting salvage value of Rs. 5,40,000/-. Ex. C-15 is affidavit of the complainant. The contention of the opposite party No. 1 that the complainant has not signed any blank document and affidavit is not tenable as a perusal of affidavit Ex. C-15 reveals that the whole matter is in typed form whereas the column of the amount has been filled in writing/hand. Moreover, it does not bear the signatures of the complainant which is mandatory in case of any addition/alternation or cutting in the affidavit or other vital document of such type/nature. Further more, if the complainant has himself filled the amount in the said column, while submitting the said affidavit with opposite party No. 1, there is no need for him to leave the column of amount blank and thereafter, after getting the whole matter typed fill the same in writing. Thus, it proves that the consent letter was executed under coercion and affidavit with blank column of amount was obtained by the opposite parties from the complainant by giving false assurance of reimbursement of his full claim. In this view of the matter, the support can be sought from the law laid down by the Hon'ble National Commission, New Delhi, in the case titled The New India Assurance Company Ltd., Vs. R.B. Traders, Maranda and Anr 2013 (2) CPR 698 (NC), wherein it has been held that :-

   “...Discharge voucher though signed as 'full and final' may not be treated as final if consumer can satisfy court that it was obtained through undue influence fraud or misrepresentation.

   Important Point – Discharge voucher may not be treated as final if it was obtained through undue influence, fraud or misrepresentation.”

   It has been observed in para No. 11 in the said judgement :-

   “15. Now coming to the affidavit on which whole case of the Insurance Company rests. From a perusal of affidavit, Annexure C-46, it is open to the naked eye that there is tampering in it, because something has been written in hand in it, there is white fluid put over some portion of it. This is duly notarized on 31-5-2006. Annexure C-47 is the photostat copy of affidavit in which there is no interpolation. This appears to be a carbon copy of Annexure OP-1. Where was the need for something being added/interpolated in hand and on some part of Annexure C-46 white fluid being put, learned counsel for respondent No. l could not satisfy us. In these circumstances, we have no hesitation in coming to the conclusion that no advantage can be taken by the respondent No. 1 from the affidavit.”

   The Hon'ble National Commission while deciding the aforesaid case has taken support of the law laid down by the Hon'ble Supreme Court in the case titled United India Insurance Company Vs. Ajmer Singh Cotton & General mills (1999) 6S89/CC400 wherein it was observed :-

   “The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.”

9. The final surveyor R P Bhasin & Company in his final survey report Ex. C-11 has assessed the loss as under :-

   (B) Assessment on total loss basis

   I.D.V. of vehicle Rs. 15,00,000.00

   Less Excess Clause (-)1,000.00

   Rs. 14,99,000.00

   SALVAGE : Salvage may fetch Rs. 2,50,000/- to 2,60,000/- only (Say Rs. 2,55,000/- with R.C. and other documents and Rs. 1,95,000/- to Rs. 2,05,000/- only (say Rs. 2,00,000/- only) without R.C. & other documents if disposed off immediately on tenders.”

10. The other pleas i.e. regarding driving licence and two FIRs lodged by the complainant, taken by the opposite party No. 1 is of no consequence as the part of the claim has already been paid to the complainant. The legal objection taken by the opposite party No. 1 that complainant is not consumer as the bus in question was being run for commercial purposes is not tenable as the insurance is a contract between the parties to indemnify the loss and insurer cannot deny the claim on such pleas.

11. Thus, keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered opinion that in the case in hand it cannot be said that consent and affidavit was signed by the complainant with his free will and consent as the same have been got signed by the opposite parties when they were blank. Hence, the complainant has not consented and agreed to the salvage value to the tune of Rs. 5,40,000/-. It is a matter of common knowledge that when the surveyor himself has assessed the value of salvage as detailed above, then how it can be believed that insured can be agreed for more deduction. Hence, the deduction of salvage value can be made as assessed by the surveyor i.e. Salvage may fetch Rs. 2,50,000/- to 2,60,000/- only (Say Rs. 2,55,000/- with R.C. and other documents meaning thereby Rs. 2,55,000/-.

12. With utmost regard and humility to the authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts.

13. In view of what has been discussed, this complaint is dismissed qua opposite party No. 2 and accepted with cost and compensation of Rs. 10,000/- against opposite party No. 1 The opposite party No. 1 is directed to pay to the complainant Rs. 2,85,000/- being the difference of salvage value with interest @ 9 % P.A. w.e.f. 26-09-2012 (The date calculated on expiry of three months from the date of accident, a period required for processing the claim in an effective manner in normal course). The opposite party No. 1 will also pay interest @6% P.A. w.e.f. 26-09-2012 till realization on the claim amount of Rs. 9,59,000/- which has already been paid to the complainant.

    The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which an amount of Rs. 2,85,000/- plus interest will yield further interest @ 9% P.A. till realization.

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

    Pronounced in open Forum

    09-09-2013 (Vikramjit Kaur Soni)

    President

     

    (Amarjeet Paul)

    Member

     

     

    (Sukhwinder Kaur)

    Member