BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 268 of 2016
Date of Institution : 5.10.2016
Date of Decision : 31.8.2017.
Anita Bansal, aged 57 years, wife of Shri Lalit Kumar Bansal, resident of House No.47, Sector 20, HUDA, Sirsa, District Sirsa.
……Complainant.
Versus.
United India Insurance Co. Ltd., through its Divisional Manager, Divisional Office, City Thana Road, Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SMT. RAJNI GOYAT ………………… MEMBER
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. P.K. Berwal, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite party.
ORDER
The case of the complainant in brief is that car bearing registration No.HR-24N/2021 was insured with the opposite party vide insurance policy No.111985/31/14/01/00000758 in the name of complainant for the period w.e.f. 25.7.2014 to 24.7.2015 for the value of Rs.2,80,000/-. On 10.10.2014, the aforesaid insured vehicle of the complainant met with an accident and due intimation in this regard was given to the opposite party whereupon op appointed its surveyor and loss assessor. The Surveyor and loss assessor of the op inspected the accidental vehicle and gave his report of total loss. Thereafter, the op took consent from the complainant for settlement of her claim at Rs.2,50,000/- for early payment of the claim, which was taken in January, 2015 but the op did not make payment of claim amount. That in June, 2015, the op asked the complainant to submit consent letter duly attested by Notary, which was submitted by the complainant on 22.6.2015, wherein it was agreed to the settlement of Rs.2,50,000/- with wreckage value of the vehicle to the tune of Rs.35,000/-. But no claim was paid instead the op had given letter dated 7.8.2015 to get the registration certificate of the vehicle cancelled. This was after thought action of op to delay the payment. It is further averred that reply to the letter dated 7.8.2015 was given by the complainant through her counsel vide letter dated 25.9.2015, wherein it was informed to the op that RC of the vehicle is with the Court at Rohtak and till the final decision of the case, the RC of the vehicle cannot be cancelled and it is not any hurdle in passing total loss claim of the insured car. That thereafter vide letter dated 2.4.2015, the op was again requested to make payment of the claim amount. It was assured to the op that the complainant shall be fully responsible to ensure that the RC of the vehicle is not misused in any case, but the op has on its own deposited Rs.1,59,000/- in the account of complainant which is far less than settled in January, 2015. Moreover, carriage charges of the vehicle which was agreed by op has also not been paid to the complainant. That in view of the facts narrated above, the complainant is legally as well as factually entitled to get the remaining claim amount of Rs.91,000/- and carriage charges and since the op has willfully withheld the payment of aforesaid amount of Rs.91,000/-, so the complainant is also entitled to interest at the rate of 12% per annum from the date of accident till realization. The complainant approached the op and requested for payment of the aforesaid due amounts and interest but the op did not pay any heed and has refused to do so a week back. Hence, this complaint.
2. On notice, opposite party appeared and filed written statement taking preliminary objections that complaint is not maintainable in the present form and that complainant is estopped by her own act and conduct to file the present complaint as she herself insisted the surveyor, company for settlement on total loss bass, rather than getting the vehicle repaired and in this regard the matter was settled on net of salvage basis without R.C by the company, as per notary attested consent letter given by complainant on 22.6.2015, resultantly vide letter dated 23.7.2015, complainant was asked to get the RC of the vehicle No.HR24-N/2021 cancelled from the registering authority as per policy matter, term and conditions of the policy, insurance norms, guidelines, so to enable the company to pay the claim as per consent, but as complainant was unable to get the RC cancelled, resultantly claim was settled after processing the same again with RC basis and as per contention of complainant, considering the market value of the vehicle and deducting the wreck/salvage value with RC there from and applying excess clause, Rs.1,59,000/- were paid to the complainant after sending the reply vide registered letter dated 30.8.2016 to the letter dated 8.7.2016 received by complainant from the complainant. It is further submitted that complainant has concealed true and material facts from the Forum regarding her discussion with Surveyor Mr. Raj Kumar Khetarpal in respect of claim of her damaged vehicle No.HR-24N/2021 by admitting the value of car in notary attested letter dated 22.6.2015 to the tune of Rs.2,50,000/-, resultantly after deduction of wreck value of Rs.35,000/- and Rs.1,000/- on account of excess clause, without RC for Rs.2,14,000/- was agreed to be settled by the complainant as per her sweet will and market scenario without any pressure, coercion, influence of the company but claim could not be settled as complainant failed to get the RC cancelled, resultantly after deducting the wreck/ salvage value of damaged vehicle with RC to the tune of Rs.90,000/- as reported by Mr. Ajay Kumar Ahuja, Surveyor & Loss Assessor, Gurgaon vide his reference No.477 dated 8.12.2015 and after deducting Rs.1000/- on account of excess clause, the amount of Rs.1,59,000/- has been paid by company and received by complainant on 4.5.2016. It is further submitted that op company has paid an amount of Rs.1,59,000/- to the complainant on net of salvage basis with RC after processing the claim again as complainant was not able to get the RC cancelled and now after receipt of Rs.1,59,000/-, the amount which has been settled, complainant has again come with the grievances, which has no legs to stand upon, so now third and last option left with the company to offer the complainant to get her car repaired and submit the bills and vehicle for re-inspection by the surveyor and company will make the payment to the complainant as per the assessment(Rs.2,17,000/- less Rs.1,59,000/-) made by the surveyor, the competent technical person and independent surveyor appointed by IRDA, so complainant should get the car repaired, as decision for declaring the car on total loss was taken by the surveyor on request and insisting of complainant. It is further submitted that complainant has got no cause of action to file the present complaint and that carry charges can never exceed Rs.1500/- as per policy. On merits, the pleas taken in the preliminary objections are reiterated and contents of complaint are also denied.
3. The complainant produced her affidavit Ex.C1 and copies of documents Ex.C2 to Ex.C15. On the other hand, op produced affidavit Ex.R1 and documents Ex.R2 to Ex.R11.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. Learned counsel for complainant has contended that it is proved case of the complainant that the vehicle of the complainant car bearing registration No.HR-24N/2021 was duly insured with the opposite party for the insured value of Rs.2,80,000/- for period 25.7.2014 to 24.7.2015, The car met with accident on 10.10.2014 and was fully damaged. Claim was lodged and at the request of Surveyor of company, claim was settled at Rs.2,50,000/- and consent letter was given by complainant, but, however, opposite party in a very cunning manner deposited a sum of Rs.1,59,000/- in the account of complainant and did not pay balance amount of Rs.91,000/- for which op was liable to pay as per terms and conditions of the policy.
6. On the other hand, learned counsel for opposite party has strongly contended that it is a settled principle of law that once the claimant settle claim and received payment of claim in full and final settlement of claim, the complainant cannot re-agitate the claim thereafter as in the present case complainant had settled her claim at Rs.1,59,000/- which was paid to the complainant and now nothing is due against opposite party and the complaint of the complainant is liable to be dismissed. Learned counsel for opposite party has relied upon judgments reported as 2017 (2) CPR 501 titled as Punjab National Bank & Anr. Vs. M/s Jayanti Computer Systems (NC) and 2016 (1) CPJ 18 titled as Ram Sarup Makkar vs. NIC (Hon’ble State Commission Panchkula).
7. We have considered the rival contentions of the parties and have gone through the record as well as judgments relied upon by learned counsel for opposite party. The perusal of record reveals that it is undisputed fact of the parties that the vehicle No.Hr24N/2021 was insured with the opposite party for the period 25.7.2014 to 24.7.2015 with insured value of Rs.2,80,000/-. It is also undisputed fact that vehicle met with accident on 10.10.2014 and vehicle was fully damaged. Claim was lodged which was processed and Sh. Raj Kumar Khetarpal, Surveyor and Loss Assessor was appointed to inspect the vehicle and verify the loss.
8. The perusal of the evidence further reveal that after thorough inspection and verification of loss, Sh. Raj Kumar Khetarpal, Surveyor of the opposite party submitted his report Ex.R3 to the op and observed that the possibility of settlement on net of salvage value basis was explored and the market value of salvage was found out from different repairers/ commission agents. On enquiry the salvage value of said car without R.C. was quoted as Rs.35,000/-. Hence further discussions were held with the insured. The insured agreed to keep said vehicle and gave his consent to accept sum of Rs.2,50,000/- Less Rs.35,000/- (salvage value) =Rs.2,15,000/- Less Rs.1000 (excess) =Rs.2,14,000/- on net of salvage value basis settlement. Hence, it is recommended to the underwriters to settle the claim under its net of salvage value basis settlement for Rs.2,15000/- less Rs.1000 (excess) = Rs.2,14,000/- as full and final settlement of claim with complete cancellation of insurance policy, registration certificate and completion of all other requisite formalities required under the terms and conditions of the policy and also the liability being accepted in terms of policy, since this mode of settlement is most economical.
9. The perusal of the evidence of the opposite party further reveals that while acting upon the recommendation and the report of the aforesaid surveyor, the opposite party settled the claim of the complainant to the tune of Rs.2,50,000/- and a consent of the complainant was also obtained by opposite party which is Ex.R4. The Surveyor has also furnished his affidavit Ex.R2 by which he has proved his report Ex.R3. The perusal of the surveyor report further reveal that surveyor had recommended Rs.2,14,000/- as settled amount after deducting the value of salvage to the extent of Rs.35,000/- and Rs.1000/- as excess clause. But, however, it appears from the evidence of the opposite party that op has only paid Rs.1,59,000/- to the complainant due to reason best known to the company. Though, it is an admitted fact on record that till date complainant has not deposited a certificate of the registering authority of the vehicle qua cancellation of the registration certificate of the vehicle which was a condition for settlement of the claim but at the same time the opposite party cannot take a free hand by denying the genuine claim of the complainant even by ignoring the report of its own surveyor. So it appears from the record that opposite party has acted arbitrarily and illegally while denying the remaining claim of the complainant which clearly amounts to deficiency of service on the part of opposite party. Though learned counsel for opposite party has relied upon certain judgments but those judgments are not of help to the plea of opposite party as facts of the quoted judgments are quite different from the present case as in the present case, the claim of the complainant was settled at Rs.2,50,000/- and consent letter was obtained qua this amount but later on only Rs.1,59,000/- was paid rather same was deposited in the account of the complainant without explaining the reason for not making the balance payment.
10. In view of our above discussion, we allow the present complaint and direct the opposite party to make balance payment of Rs.90,000/- to the complainant subject to furnishing of salvage with certificate of cancellation of registration certificate or in case the complainant does not hand over the salvage of the vehicle and only surrenders the cancellation of RC certificate, in that situation, opposite party shall be liable to make payment of Rs.55,000/- to the complainant. This order should be complied with by the opposite party within a period of two months from the date of receipt of copy of this order, failing which opposite party will be liable to pay interest @9% per annum from the date of settlement of claim till actual realization. We also direct the opposite party to further pay a sum of Rs.7000/- as composite compensation and cost of litigation to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:31.8.2017. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
