JUDGEMENT

( Passed this on 30^th  November, 2017)

Shri Shekhar P. Muley, President

01.    This is a complaint of deficiency in service and unfair trade practice against an insurance company and a car dealer in respect of repairs of the vehicle.

02.    The complainant is the owner of Hyundai Verna car bearing No. MH-31-CP-8260. It was insured with the O.P.No.-1 insurance company for I.D.V. Rs.- 5,91,300/- for the period 19/10/2011 to 18/10 2012. During subsistence of the policy, on 20/1/2012 the said car met with an accident. That time her son was driving the car and in a bid to save a stray dog,  who suddenly came in front of the car, the car was dashed against a tree.   The matter was immediately reported to police and to the O.P.No.-1. The O.P.No.-1, instead of sending a surveyor, asked her son to tow the car to the O.P.No.-2, which is an authorized work shop of Hyundai vehicles. It is stated the O.P.No.-2 has a tie up with O.P.No.-1 for cashless repairs. After receipt of estimate of repair expenses amounting to Rs. 9,80,000/- her son submitted the same to O.P.No.-1. He asked the O.P.No.-1 to settle the matter on total loss basis as repair cost was more than I.D.V. He was assured that it would be done. The O.P.No.-1 then deputed Surveyor Patil to survey the car at the work shop and after seeing the estimate he asked the O.P.No.-2 to start repairs. It was told to her son that the car would be repaired under cash less basis and it would be paid by the O.P.No.-1. However the O.P.No.-1 did not pay the expenses to O.P.No.-2. Hence the O.P.No.-2 stopped the work. When her son went to take the car he realized the bills of spare parts were more than value of the car. But he was given assurance that the O.P.No.-1 would bear all expenses. Her son made it clear that he would not pay any amount if expenses exceeded I.D.V. As the car was not delivered even after lapse of 6 months, he visited the O.P.No.-2.  He even paid Rs. 50,000/- for spare parts on the assurance that it would be remitted to him at the time of receipt of payment from O.P.No.-1. 

          The O.P. failed to deliver the car and give proper service. The complainantś son when visited O.P.No.-2   he was given invoice of Rs. 9,80,285/- as part repair of the car and was asked to pay it immediately. On 24/12/2012 she received a letter from O.P.No.-2  that the car was repaired and the bill was Rs. 9,80,285/-.    The surveyor approved the bill of Rs. 4,56,677/- excluding taxes and net payment to be made by her was Rs. 4,73,608/-. Thus it is alleged both the Opposite Parties, hand in gloves, caused loss to her and thereby committed unfair trade practice and deficiency in service. Hence the prayer to direct the Opposite Parties to pay her Rs. 5,91,300/- being I.D.V. of the car with 20% interest along with compensation and cost.

03.    The O.P.No.-1 filed reply and admitted the insurance of the car for said I.D.V. The incident was intimated to it for first time on 2/2/2012 when it was already brought to the work shop. It is denied her son was asked to tow the car to O.P.No.-2.   It is also denied it has tie up with O.P.No.-2 under cashless repairs. Denying the estimate was Rs. 9,80,000/- and cashless repairs, it is stated the surveyor recommended the claim of Rs. 4,42,050/-.   With that understanding that the car would be repaired for the said amount, the claim would be admissible to that extent and accordingly the car was repaired. It is denied the O.P.No.-1 did not pay the amount to O.P.No.-2.  The O.P.No.-2 was asked to submit discharge voucher with her signature.   But the O.P.             No.-2   informed that the complainant would be required to pay balance amount of repairs, but she did not pay it and so discharge voucher could not be submitted.   It is denied she was assured that it would be cashless repairs. With consent of her and O.P.No.-2, recommended repairs were carried out. The O.P.No.-1 has remitted   Rs. 4,42,050/- to O.P.No.-2. The discharge voucher was also signed by her and O.P.No.-2 in token of acknowledgement of having received the claim without protest.    Denying all other adverse allegations it is prayed to dismiss the complaint.

04.    The O.P.No.-2 filed reply and denied most of the averments for want of knowledge. It is stated the car was brought to its work shop and repair order was placed. It is admitted the O.P.No.-2  is authorised service station for cashless repairs under its policies. The total estimate of repairs was Rs. 9,80,000/-. The O.P.No.-1  deputed a surveyor, who after assessing the damages, directed the O.P.No.-2   to repair the car on cashless basis and claim the same from the O.P.No.-1. It is denied the son of the complainant, who was then present, insisted on indemnification of total loss basis since repairs exceeded I.D.V. Since the O.P.No.-1 did not pay the amount, repair work was stopped as it involved huge amount of money and O.P.No.-2 had already incurred substantive amount.    Since spare parts were required to be procured from outside and O.P.No.-1 did not pay, representative of her was requested to deposit at least Rs. 50,000/- to enable it to place order for spare parts. On 12/12/2012 she was given invoice of Rs. 9,80,285/- towards cost of repairs, spare parts and labour. Since the car was repaired the O.P.No.-2  is justified to demand the amount from her. The O.P.No.-1 however, approved only Rs. 4,5,677/- excluding taxes as against total cost. Since the O.P.No.-1 was not ready to pay beyond the approved amount, the complainant is duty bound to pay the balance amount. It has no concern with what transpired between the complainant and O.P.No.-1. The O.P.No.-2  is entitled to get its amount for the repairs. Thus denying the allegations of deficiency in service or unfair trade practice, it is prayed to dismiss the complaint.

05.    Heard the Ld counsels for the complainant, O.P.No.-1 and O.P.No.-2. Perused documents and rejoinder. On that basis our findings are as under for the reasons discussed hereinafter.

FINDINGS  AND  REASONS

06.    As rightly pointed out by the counsel for the O.P.No.-1 all the averments in the complaint are not based on the personal knowledge of the complainant. Because it was her son who was driving the car when the accident occurred and it was he who discussed the matter regarding repairs and cashless repairs etc with the Opposite Parties.  The complainant herself was not in picture anywhere, yet she has affirmed the averments of the complaint. Thus, it is submitted by the Ld. counsel that while examining the case of the complainant this fact needs to be kept in mind.

07.    It is contended by the Ld. counsel for the complainant when the estimate of repairs given was exceeding I.D.V. her son was not ready to get the car repaired and wanted the O.P.No.-1 to pay I.D.V. of the car.   But it was assured to him on behalf of the O.P.           No.-1  that it would be repaired on cashless basis and so the O.P.No.-2 was asked to proceed to repair it. However, the O.P.No.-1 approved only Rs. 4,42,050/-.  The O.P.No.-2 was therefore demanding him to pay balance amount which he was not ready to pay, for he was given assurance of cashless repairs. This is the gist of dispute in the complaint.

08.    It is to be noted that the allegation is not of fraud nor is it alleged that signature on discharge voucher was taken forcibly or by cheating.  Though it is contended that her son never gave consent for repairs when its cost was more than I.D.V., it is however, stated in the complaint he had given consent for repairs when he was given assurance by the surveyor that the O.P.No.-1   would bear the entire expenses. However, the policy does not reveal cashless repair facility. Besides, it is only oral statement of her son that the surveyor assured him that it would be cashless repairs. This averment of the complainant is hardly acceptable as she was not present at that time; In fact, the surveyor had no authority to give such kind of assurance on behalf of an insurance company. It is for the O.P.No.-1 to decide what reimbursement is to be given. The surveyor job is only to assess the loss.  Therefore we find it difficult to accept that her son was given assurance of cashless repairs by the surveyor of the O.P.No.-1.

09.    The O.P.No.-1 has particularly pointed out the discharge voucher signed by the complainant in full and final satisfaction of the claim. It is contended once the discharge voucher is signed by her in full and final satisfaction of the claim, she cannot claim more than that. In this respect the Ld. Counsel for the complainant contended the Opposite Parties cannot take aid of the discharge voucher to deny her legitimate claim. He has relied on some judgments in this respect. Before adverting to the judgments let it be cleared that the complainant has not averred anything in her complaint about the discharge voucher. This is so because initially even the O.P.No.-1 did not aver in reply about discharge voucher.    By amending the reply at later stage this fact was included in the reply.   It may be stated here that when the O.P.No.-1 sought permission to amend the reply to incorporate this fact, the say of the complainant was obtained and it was stated on her behalf that the amount was paid by the O.P.No.-1  to O.P.No.-2  without her consent and knowledge, and so the O.P.No.-1  was asked to produce the discharge voucher. This means the complainant has completely denied having signed the discharge voucher. If the discharge voucher is perused there appears her signature. When she came to know about the voucher she did not deny her signature thereon nor did state anything against it. So it cannot be denied that the discharge voucher was signed by her.

10.    Now, in the judgments cited by her counsel it is held that where the liability and quantum of claim under policy is established, the insurer shall not withhold claim amounts. Execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial forum. The judgments are,

1. Worldfa Exports Pvt. Ltd v/s United India Insurance Co. Arb. P. 459/2015 decided on 11/12/2015 (Delhi H.C.)

2. National Insurance Co. v/s Abhoy Shankar Tewari Rev P. 555/2015 decided on 15/2/2017 (NC)

3. Sangita Jain v/s National Insurance Co. Rev P. 1110/2015 decided on 13/4/2017 (NC)

          In these judgments what is expounded is that when the claimant is entitled to get insurance claim he cannot be denied to seek higher compensation even if he has signed discharge voucher. In the case at hand the complainant is seeking insurance claim above the I.D.V. of the car, which under the terms of policy is not permissible. It is not important to consider what transpired between the her son and the Surveyor regarding cashless repairs, because to that alleged arrangement the complainant was not a party nor is there anything in writing in support of it.

11.     On the other hand the Ld. counsel for the O.P.          No.-1   has also placed reliance on following judgments,

1. Prem Prakash Agarwal v/s National Insurance Co.  III (2007) CPJ 433 (NC)

2. Ankur Surana v/s United India Insurance Co. I (2013) CPJ 440 (NC)

          In the above judgments it is held that when the complainant does not allege execution of discharge voucher was under fraud, undue influence, misrepresentation etc he is not allowed to take about turn after receipt of said amount. In one recent judgment,  The Lala Urban Co. Op Bank Ltd v/s United India Insurance Co. 2015 (3) CLT 8 (NC), also it is held that once the claim amount is accepted in full and final and without any reservation, the complainant is stopped from claiming any further amount from the insurance company.

12.    In another judgments filed by the O.P.No.-1  it is held the surveyor report is a valuable piece of evidence and if no objection is filed against the report it should not be discarded.

1. National Insurance Co. v/s Santosh Kumar IV (2006) CPJ 199 (NC)

2. Deen Dayal Chamoli v/s National Insurance Co. IV (2006) CPJ 86 (NC)

13.    The complainant obviously not satisfied with the surveyor approval of Rs. 4,56,677/- as the expenses were more than that. She therefore wanted the O.P.No.-1 to bear entire expenses under cashless repairs. It is pertinent to note that on 24/12/2012 itself her son had received a letter from the O.P.No.-2  that repair bill was Rs. 9,80,285/- and surveyor approved only Rs. 4,56,677/- and so her liability was Rs. 4,73,608/- after adjusting    Rs. 50,000/- paid by her. Inspite of knowing her liability and amount approved by the surveyor she did not respond to that letter.   She has alleged her son and O.P.No.-2 were pressurized by the surveyor to repair the car even though repair expenses were more than I.D.V. However there is nothing in writing from her side to show she or her son did tell the O.P.No.-2 not to repair the car.    It was expected from her to give in writing to stop the Opposite Parties from repairing the car when she knew expenses were going to exceed I.D.V. and it was not going to be cashless repairs.   Therefore we are not convinced of her story that she was forced to get the car repaired even though the entire expenses were not going to be reimbursed by the O.P.No.-1 .

14.    It is also to be noted that the complainant is seeking the amount of I.D.V. of the car Rs. 5,91,300/- with interest from both the Opposite Parties, besides compensation and cost. In the very first place, her prayer against the O.P.No.-2  is not maintainable. It is not her case that the repairs expenses are not correct or inflated estimate was given by the O.P.No.-2. So when there is no grievance or complaint about the estimate and the car is repaired, the O.P.No.-2  is not supposed to pay her compensation or I.D.V. of the car. Instead, it is entitled to get balance amount from her.

15.    For the reasons stated above we are not satisfied with the complaint and so it is liable to be dismissed. Hence, the following order.

                             ORDER

1. The complaint is dismissed.
2. No order as to cost.
3. Copy of judgment be given to both the parties, free of cost.