This is a discussion on The Branch Manager, Oriental Insurance Company Ltd., Branch Office, Shimla within the Judgments forums, part of the General Discussions category; H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Appeal No. 518/2007. Date of Decision 13.8.2009. In the matter of: Sh. Rama ...
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.
Appeal No. 518/2007.
Date of Decision 13.8.2009.
In the matter of:
Sh. Rama Nand Thakur S/o Sh. Sunder Ram
R/o V:PO Ghanahatti, Tehsil & Distt. Shimla,
HP GPA holder of Sh. Karam Chand S/o Sh. Sunder Ram.
… … Appellant.
The Branch Manager, Oriental Insurance Company Ltd.,
Branch Office, Shimla Kothi No.4, Anup Petrol Pump,
Kaithu Shimla 171 003, Tehsil and District Shimla, HP.
… … Respondent.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
Hon’ble Mr. Chander Shekher Sharma, Member.
Whether approved for reporting?
For the Appellant.: Mr. Swaran Sharma, Advocate vice
Mr. Peeyush Verma, Advocate.
For the Respondent.: Mr. Narinder Sharma, Advocate.
O R D E R
Justice Arun Kumar Goel (Retd.), President, (Oral).
Heard learned counsel for the parties.
2. Admitted facts giving rise to this appeal are, that vehicle bearing registration No. HP-11-3866 was insured under a valid policy of insurance on 27.7.2003 when it met with accident at Kingal near Rampur. As a result of this accident, damage was caused to this vehicle. FIR No. 51/2003 regarding accident was registered at Police Station, Kumarsain as per Annexure AC-I. It appears that when claim was lodged by the appellant vide Annexure AC-III, respondent-Insurance Company called upon him to provide an attested copy of the permit, as well as cash memos and repair bills. Needful was done and copies of the bills are there on record as Annexure AC-III starting from page 37 to page 55 on the complaint file. At page 35 details of the bills are given. Total amount spent as per this Annexure AC-III by the appellant on the repair of the vehicle in question worked out to Rs. 1,23,115/-.
3. Respondent-Insurance Company offered a sum of Rs. 39,121/-, it is clear from Annexure R-2, that this receipt was executed by the appellant, “under protest.” This Annexure could not be disputed on behalf of the respondent. Thereafter the amount was offered vide letter dated 24.2.2004 Annexure AC-V alongwith this, Discharge Voucher Annexure AC-VI, duly filled in was sent for return after its due execution by the appellant. He did the needful by registered letter which is at page 69 and is also marked as Annexure C-VI. Amongst other things he has mentioned in this letter, that he had already issued the receipt for Rs. 39,121/-. Later receipt Annexure AC-VI is signed by the appellant also, “under protest.”
4. In the aforesaid background appellant sent a legal notice Annexure AC-VII by registered post to the respondent, but without any result, save and except that it was duly replied to on behalf of the latter.
5. Since, appellant was not satisfied with the amount paid to him by the respondent, he filed complaint No. 148/2005 before the District Forum below. When put to notice stand of the respondent was, that the amount in question, i.e. 38,971/- was paid by it, was in full and final settlement of the claim of the appellant, as such complaint was not maintainable. Therefore, complaint was liable to be dismissed. District Forum below after taking note of the entire material before it, dismissed the complaint, hence this appeal by the appellant.
6. In the aforesaid background, it has to be determined as to whether this is a case of full and final settlement after receipt of the amount in question by the appellant or not. If the answer is in the affirmative, then this appeal has to be dismissed, otherwise consequence is obvious.
7. Annexure AC-IV clearly establishes, that it was executed under protest by the appellant. At this stage there were two courses open to the respondent, either not to have paid the amount or to have paid the same. Instead of following any of these two courses, respondents vide its letter dated 24.2.2004 sent a duly filled in receipt for execution by the appellant. Copy of this duly executed receipt is Annexure AC-VI. It was accompanied by its forwarding letter which amongst other things, speaks of previous receipt. Strangely enough, there is no basis placed on record by the Insurance Company as to how it came to the conclusion regarding amount payable by it to the appellant. Reason for making this observation is, that it has chosen to withhold the report of the surveyor. And in any case the grounds/basis for discarding the bills submitted by the appellant totalling Rs. 1,23,115/- are not spelt out by the respondent. There is no material, muchless evidence produced by the respondent-insurer to rebut this part of the documentary evidence produced by the appellant.
8. Faced with this situation, Mr. Narinder Sharma learned counsel for the respondent forcefully urged, that after having pocketed the sum of Rs. 38,971/- appellant was precluded from maintaining the present appeal. Regarding Annexure AC-IV, Mr. Sharma urged that it lost its significance when subsequent receipt Annexure AC-VI was issued by the appellant to his client. The matter is not that simple. Reason being that both receipts are executed under protest, i.e. Annexure AC-IV for Rs. 39,121/-, as also Annexure AC-VI dated 10th March, 2004, when Rs. 38,971/- was received, below his signatures “under protest” is clearly written. Once this conclusion is arrived at, and surveyor’s report having not been placed on record, the decision of this appeal need not detain us. Mr. Sharma on behalf of the respondent could not dispute Annexures C-IV & C-VI, both having been executed, “under protest.”
9. We have already held that there is no rebuttal of the bills of repair etc. submitted by the appellant. In these circumstances, we are of the view that the appellant is entitled to the amount that he actually spent for getting the vehicle repaired in the sum of Rs. 1,23,115/-. Ordered accordingly.
10. No other point is urged.
In view of the aforesaid discussion this appeal is allowed and as a result, it is held that the appellant is entitled to the sum of Rs. 84,144/-, (i.e. Rs. 1,23,115/- only minus Rs. 38,971/- that he has already received.) Appeal is allowed subject to this modification in the order of the District Forum Shimla passed in Consumer Complaint No. 148/2005 on 21.8.2007. Prayer of learned counsel for the appellant to allow interest and cost is rejected.
Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
August 13, 2009. ( Justice Arun Kumar Goel ) (Retd.)
( Chander Shekher Sharma )