DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH ======== Consumer Complaint No | : | 318 of 2012 | Date of Institution | : | 23.05.2012 | Date of Decision | : | 15.11.2012 |
Pepsu Road Transport Corporation, Chandigarh Depot, through its General Manager. …..Complainant V E R S U S 1. The Oriental Insurance Company Limited, Divisional Office 2, SCO No.48-49, Sector 17-A, Chandigarh-160017. 2. The Oriental Insurance Company Limited, Registered and Head Office, A-25/27, Asaf Ali Road, New Delhi-110002 through the Chief Managing Director/Authorised Representative. ……Opposite Parties QUORUM: P.L.AHUJA PRESIDENT RAJINDER SINGH GILL MEMBER DR.(MRS) MADANJIT KAUR SAHOTA MEMBER Argued by: Sh.Balwinder Singh, Counsel for the complainant. Sh.J.P.Nahar, Counsel for the OPs. PER P.L.AHUJA, PRESIDENT 1. Pepsu Road Transport Corporation, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against the Oriental Insurance Company Limited & Anr. - Opposite Parties (hereinafter called the OPs), alleging that it is the owner of passenger bus registration No.PB-11-AL-3933, Engine No. 80C62658272, Chassis No.410292HRZ015991 which was meant to be used as a public carriage. The said bus was insured with OPs vide Certificate-cum-Policy No.231200/31/2010/703, copy of which is Annexure C-3. The insurance was effective from 23.5.2009 to midnight of 22.5.2010 for a sum of Rs.28,74,000/- with other benefits. The complainant had paid a total premium of Rs.54,956/-. It has been contended that on 21.4.2010 the said bus was going to Jalandhar and near Rama Mandi one vehicle came from opposite side and collided with the bus, which resulted into breakage of front wind screen. The headlights and bumper were also broken. On being reported, a representative of M/s M.L.Mehta & Co., Surveyor and Loss Assessor conducted the final survey of the bus at M/s Amar Coach Builders, Jalandhar on 24.4.2010. The final survey report was released by him, according to which, the net estimate was to the tune of Rs.65,065/- and the net loss assessed was to the tune of Rs.27,739.69. A copy of the final survey report dated 6.5.2010 is at Annexure C-6. The copies of estimate and the bills are at Annexure C-7 and Annexure C-8. The complainant submitted the Motor Claim Form duly filled and signed to OP No.1 and the copy of the same is Annexure C-9. It has been alleged that surprisingly the OPs did not pay the full claim of the complainant and paid only an amount of Rs.35,164/- out of which Rs.27,739/- vide cheque No.527141 dated 15.7.2010 and again an amount of Rs.7425/- vide cheque No.551128 dated 18.8.2010, after deducting Rs.1500/- as salvage. The photocopies of the cheques are Annexure C-10 and C-11. The complainant has alleged that it is entitled to be paid the full amount for the items mentioned in the letter No.2505 dated 8.9.2010 sent to OP No.1. It has been averred that a perusal of the claims made and paid in the similar circumstances would bear testimony to the fact that full amount claimed has been paid whereas in the present case, the full amount has not been paid which exhibits the arbitrariness of the Surveyor and Loss Assessor appointed by the OPs and the OPs have blindly acted upon the recommendation of their own surveyor and loss assessor. The complainant had requested OP No.1 personally through his representatives and telephonically a number of times to reconsider its claim and to pay the amount which was paid less. The complainant also sent letter and reminder, copies of which are Annexure C-12 and C-13. The complainant has alleged that the OPs have failed to discharge their lawful duty which tantamounts to deficiency in service and unfair trade practice. The complainant has made a prayer for a direction to OPs No.1 and 2 to pay Rs.10,575/- if not Rs.26,257/- along with interest, apart from making payment of the compensation for mental agony and harassment and litigation expenses. 2. OPs in their written reply have pleaded that the complaint is not maintainable because the complainant is not a consumer as it is engaged in providing road transport services for the passengers for the commercial purposes in the State of Punjab. It has been further stated that the accident occurred on 21.4.2010 and the claim was settled on 18.8.2010 for Rs.35,164/- being full and final settlement of the claim as per the assessment made by the surveyor and as per terms and conditions of the policy and after obtaining valid discharge voucher duly signed and stamped by the complainant. It has been stated that the complainant is a statutory body and thus a Government body and the OP insurance company is a Public Sector Undertaking wholly owned by the Government of India. Since both the complainant and respondents are Government bodies, the complainant should have placed on record the clearance from the High Powered Officers’ Committee. It has been further stated that the assessment made by the surveyor was explained to the complainant. The surveyor has given the item wise assessment and the deductions made were duly explained. The prices of the items were recommended by the surveyor as per the prevailing market price. It has been stated the deduction for depreciation and the cover for headlights, mudguards etc. was in accordance with the terms and conditions of the policy.It has been averred that since the complainant had accepted the payment willingly and without any protest no dispute survives. 3. The parties led evidence in support of their contentions. 4. We have appraised the entire evidence, written arguments of OPs No.1 and 2 and heard the oral arguments of both the learned Counsel for the parties. 5. The complainant has challenged the veracity of the report – Annexure C-6 of M.L.Mehta & Co., Surveyor and Loss Assessor on the ground that the same exhibits the arbitrariness of the Surveyor and Loss Assessor and the OPs blindly acted upon the recommendation of the said Surveyor and Loss Assessor. The learned Counsel for the complainant has drawn our attention to one comparative statement produced at the time of arguments, which shows that in the case of vehicle No.9651, the estimated amount of front wind screen was Rs.20,500/- and the assessed amount was also Rs.20,500/-. In vehicle No.3933 the front wind screen’s estimated amount was Rs.20,500/- but no amount was assessed against that. In vehicle No.9651 the assessed amount of front wind screen was Rs.18,500/-. In vehicles No.3931 and 3933 again the assessed amount for front wind screen was Rs.18,500/-. Similarly in case of PU Sealant in vehicle No.9651 the estimated amount was Rs.6,000/- and the assessed amount was also Rs.6,000/-. In vehicle No.9651 the estimated amount and assessed amount of PU Sealant was Rs.500/-. In vehicle No.3933 the estimated amount for this item was Rs.10,800/- but the assessed amount was Rs.2500/-. In vehicle No.9651 the estimated amount for this item was Rs.5500/- and the assessed amount was Rs.3500/-. In vehicle No.3931 the estimated amount of this item was Rs.6500/- and the assessed amount was Rs.2500/-. In vehicle No.3933 the estimated amount of this item was Rs.5500/- and the assessed amount was Rs.2500/-. The learned Counsel for the complainant has urged that in this case also the amount relating to front wind screen was assessed as Rs.18,500/- against the estimated amount of Rs.20,500/-. Against PU Sealant the estimated amount was Rs.5500/-but only an amount of Rs.2500/- was assessed. Similarly the estimated amount of the remaining items was reduced due to the arbitrariness on the part of OPs. The learned Counsel for the complainant has urged that the complainant had sent one letter dated 8.9.2010 – Annexure C-12 and a reminder dated 14.10.2010 intimating that a sum of Rs.10,575/- had been paid less by the insurance company. The company was asked to re-examine the case and make payment of the amount, which was paid less but no payment was made. The learned Counsel for the complainant has vehemently argued that the circumstances on record clearly exhibit deficiency in service on the part of OPs. 6. We have carefully considered the above arguments. As far as the contention of the OPs that the complainant is engaged in providing road transport services for the passengers for the commercial purposes in the State of Punjab, therefore, the complainant is not a consumer is concerned, it is pertinent that the buses of PRTC – complainant were insured by the OPs knowing-fully well that the complainant is engaged in providing road transport services for the passengers for the commercial purposes. Apart from that the complainant did not get its buses insured for any commercial purpose but for indemnification of the loss in case of accident. Thus, the complainant is a consumer within the meaning of 2(1)(d)(ii) of the Consumer Protection Act, 1986. 7. Adverting to the question whether the amount assessed by the Surveyor & Loss Assessor is lesser and the complainant is entitled to get back the balance amount as per the estimate given by Amar Coach Builders at Annexure C-7, it is significant to note that the OPs issued cheques worth Rs.27,739/- dated 15.7.2010 and Rs.7425/- dated 18.8.2010, copies of which are Annexure C-10 and C-11 towards full and final settlement of the claim, as per assessment made by the surveyor. The copies of Discharge Voucher – Annexure R-2 and R-2A show that the General Manager of the complainant voluntarily gave discharge receipt to the OPs in full and final settlement of all its claims present or future arising directly/indirectly in respect of the said loss/accident. He also subrogated all his rights and remedies to the company in respect of the above loss/damages. The affidavit of Mr.M.L.Mehta, Proprietor of M/s M.L.Mehta & Co., Surveyors & Loss Assessors, shows that the assessment was made by him after inspection of the vehicle as to the extent of damages and after discussion with the repairers. The estimate submitted for repair of the damaged vehicle was discussed with the repairer and the assessment was accordingly made in the survey report dated 6.5.2010. The assessment of loss was arrived at Rs.35,164/- after adjustment of depreciation on parts replaced, depreciation as per provisions of IMT-23 and the excess clause as per policy terms and conditions. The prices of the parts were allowed as per prevailing market rates at that time. The affidavit of Mr.N.K.Banga, Senior Divisional Manager of the OPs also shows that the complainant had accepted the payment of claim willingly and without any protest. The complainant is an organization of the State Government manned by the well educated and competent officers and the discharge voucher has been signed by the complainant voluntarily, without coercion, with full knowledge as to what the complainant was signing. Significantly the complainant has nowhere taken this plea that the signatures of its General Manager were obtained by the OPs by coercion or misrepresentation. 8. The learned Counsel for the OPs has drawn our attention to United India Insurance Vs. Ajmer Singh Cotton & General Mills and Ors. II(1999) CPJ 10 (SC), wherein, it was held as under :- “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 act that such discharge voucher or receipt had been obtained from him 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, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. “ In a subsequent ruling National Insurance Company Limited Vs. Sehtia Shoes II(2008) CPJ 16(SC), the Hon’ble Supreme Court has relied upon the law laid down in Ajmer Singh Cotton & General Mills & Ors case (supra) and found that in the case in hand the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like and in the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The learned Counsel for the Ops have also drawn our attention to Torrent Cables Ltd. Vs. New India Assurance Co. Ltd., First Appeal No.257 of 2011 decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 13.7.2012, wherein, it was found that the complainant had accepted the disputed amount towards the full and final settlement and his complaint was not maintainable. 9. In the instant case also the circumstances show that the complainant executed the discharge voucher voluntarily and on account of its free will. There is absolutely no averment in the complaint that the OPs played a fraud, undue influence or misrepresentation and the agreement to accept a particular amount was on account of coercion. There is nothing on record to show that the complainant was compelled by the OPs at any stage to settle the claim for lesser amount then the claim made by it. Consequently, we are of the opinion that the complaint at this stage is devoid of any merit. In view of the above legal position the arguments of the learned Counsel for the complainant in respect of arbitrary assessment of amount by the Surveyor and Loss Assessor do not carry any weight. 10. In view of the above discussion, we do not find any merit in the complaint and the same is dismissed leaving the parties to bear their own costs. 11. The certified copies of this order be sent to the parties free of charge. The file be consigned.
| | MR. RAJINDER SINGH GILL, MEMBER | HONABLE MR. P.L. Ahuja, PRESIDENT | DR. MRS MADANJIT KAUR SAHOTA, MEMBER | |
