BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA



Complaint No:139 of 2008

Date of Institution:08.10.2008

Date of Service:05.11.2008

Date of Decision:17.03.2009



Raj Rani (aged 56 years) wife of Krishan Kumar, resident of 49, Bank Colony, Moga, Distt.Moga.

…… Complainant.



Versus



1. National Insurance Company Limited through its Manager, Head Office/ Regd.Office, 3, Middleton Street, Post Box No.9229, Kolkatta-700071.

2. National Insurance Company Limited through its Divisional Manager, Divisional Office, G.T.Road, Moga, Distt.Moga.



……Opposite Parties



Complaint Under Section 12 of the

Consumer Protection Act, 1986.



Present: Sh.Jaswinder Singh/Gurmail Singh, Adv.counsel for the complainant.

Sh.Ajay Gulati, Adv.counsel for the OPs.



Quorum: Sh.J.S.Chawla,President

Sh.J.S.Mallah, Member.



(J.S.Chawla, President)

Smt.Raj Rani complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against National Insurance Company Limited through its Manager, Head Office/ Regd.Office, 3, Middleton Street, Post Box No.9229, Kolkatta-700071 (herein-after referred to as ‘Insurance Company’) and another-opposite parties directing them to pay Rs.62401/- on account of balance insurance claim alongwith compensation of Rs.30000/- for causing mental tension, harassment and agony or any other relief to which this Forum may deem fit be granted.

2. Briefly stated, Smt.Raj Rani complainant is owner of Hyundai Verna car bearing registration no.PB-29H-0303. That the said vehicle was got insured from the OPs-Insurance Company vide policy no.401700/31/ 76100002481 valid upto 30.12.2008. That on 05.07.2008 said vehicle met with an accident and was fully damaged. That the complainant immediately informed the OPs-Insurance Company in this regard and thereafter lodged her claim after completing all the formalities as per their directions. That as per the instructions of the OPs-Insurance Company, the complainant got the said vehicle repaired from Godawari Motors Pvt.Ltd. and incurred Rs.153626/-. That in lieu of this, the OPs-Insurance Company issued her cheque no.776234 dated 9.9.2008 for Rs.91225/- which she received under protest. That the OPs-Insurance Company assured the complainant to pay the remaining amount of Rs.62401/- within short period. That the complainant had approached the OPs-Insurance Company time and again, but they willfully and intentionally ignored her and finally refused to pay the remaining claim amount. That the aforesaid act and conduct of the OPs-Insurance Company has caused great mental tension, harassment and agony for which she has claimed Rs.30000/- as compensation. Hence the present complaint.

3. Notice of the complaint was given to the OP-Insurance Company who appeared through Sh.Ajay Gulati Advocate and filed their written reply contesting the same. They took up preliminary objections that the complaint is not maintainable; that there is no deficiency in service on their part; that the claim of the complainant was promptly entertained and after verification as per the assessment of the loss, the claim has been paid vide cheque dated 9.9.2008 for Rs.91225/- after obtaining the consent from the complainant; that the complainant is estopped by her act and conduct from filing the present complaint and that the complainant wants to make profit out of the insurance policy under the pressure of present false and frivolous complaint. On merits, it was averred that on receiving the information regarding accident in question, the OPs-Insurance Company immediately appointed M/s.UPS Sachdeva & Company, Ludhiana as surveyor who investigated the matter and assessed the loss. Earlier on 10.7.2008 Mr.Harsh Mohan Markan was appointed as spot surveyor who submitted his report dated 26.7.2008. M/s.UPS Sachdeva & Company also submitted its interim survey report dated 12.7.2008 mentioning that both head lights and battery of the vehicle were found missing. As per its final survey report dated 19.8.2008, the net assessed loss was found to be Rs.91142.82. It was further averred that almost entire claim has been accepted by the OPs-Insurance Company except the items which were found missing by their surveyor at the time of making assessment of the loss. That as per the consent of the complainant, a cheque for Rs.91225/- dated 9.9.2008 was paid to her. So there was no deficiency in service on the part of the OPs-Insurance Company. All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant is false and frivolous and same be dismissed with costs.

4. In order to prove her case, the complainant tendered in evidence her affidavit Ex.A1, copy of RC Ex.A2, copy of policy Ex.A3, copy of receipt Ex.A4, copy of cheque Ex.A5, copies of bills Ex.A6 to Ex.A10, copy of estimate Ex.A11, copy of certificate Ex.A12 and closed her evidence.

5. To rebut the evidence of the complainant, the OPs-Insurance Company tendered affidavit Ex.R1 of Sh.S.L.Rikhi, Sr.Divisional Manager, affidavit Ex.R2 of Sh.Upender Pal Singh Sachdeva, copy of intimation letter Ex.R3, copy of surveyor report Ex.R4, copy of spot report Ex.R5, copy of final survey report Ex.R6, copy of re-inspection report Ex.R7, copy of policy Ex.R8, copy of acceptance Ex.R9 and closed their evidence.

6. We have heard the arguments of Sh.Jaswinder Singh ld. counsel for the complainant and Sh.Ajay Gulati ld. counsel for the OPs-Insurance Company and have also gone through the written arguments submitted by the OPs-Insurance Company and very carefully perused the evidence on the file.

7. Sh.Jaswinder Singh ld.counsel for the complainant has mainly argued that the OP-Insurance Company has committed deficiency in service by making payment of Rs.91225/- instead of Rs.153626/- spent by her for repair of her car.

8. On the other hand, Sh.Ajay Gulati ld.counsel for the OPs-Insurance Company has mainly argued that Raj Rani complainant had agreed to accept Rs.91642/- as full and final settlement of her claim vide acceptance letter dated 17.8.2008 Ex.R9 and thus, she is estopped by her act and conduct from filing the present complaint. He has relied upon the ruling of the Hon’ble National Commission, New Delhi 1996(1) CLT page 491 titled as New India assurance Company Vs. Achhar Kumar Garg. This contention of the ld.counsel for the OPs-Insuance Company has full force. Admittedly, Raj Rani complainant vide acceptance letter dated 17.8.2009 Ex.R9 had agreed to receive Rs.91642/- in full and final settlement of her claim with regard to the accident of her car no.PB-29H-0303. When the complainant had agreed to accept the aforesaid amount in full and final settlement of her claim then she is estopped by her act and conduct to say that the OPs-Insurance Company has failed to pay Rs.153626/- spent by her on the repair of her car.

9. Moreover, the report of the surveyor M/s.UPS Sachdeva & Company, Ludhiana Ex.R6 shows that they have assessed the loss to the extent of Rs.91142.82. In their remarks column, it has been mentioned as under:-

“1. At the time of our surveyor, both head lights and battery were found missing. Moreover, the spot surveyor’s has also not mentioned any damage to battery and head lights. During our various visits, the insured or repairer also did not show us damaged items. Hence, disallowed.

2. The wheel rim has been disallowed as the damaged wheel was of allow, which is not a regular part of the vehicle. As the manufacturer company attached ordinary wheel rim of the car.”



10. Thus, the aforesaid report Ex.R6 of the surveyor shows that before assessment, the complainant had removed the certain expensive parts of the car in order to get higher claim from the OPs-Insurance Company. He has filed the present false and frivolous claim in order to get the exaggerated claim. Therefore, the OPs-Insurance Company has rightly made the payment of Rs.91642/- to the complainant after her acceptance in full and final settlement of her claim as well as relying upon the report Ex.R6 of the surveyor. Hence, the OPs-Insurance Company has not committed any deficiency in service while making the payment of Rs.91642/- to the complainant. On this point, it has been held by Hon’ble National Commission, New Delhi in supra authority to the following effect:-

“Apart from it, the complainant had received a sum of Rs.210000/- in full and final settlement against discharge receipts. The counsel for the insurance company is right in his submission that the complainant heaving settled the claim in full and final settlement after giving consent letter and also accepting the amount after executing the discharge voucher without any protest or remarks is estopped from raising any further claim. This Commission has already taken the view that where once the claim is paid and received in full and final settlement, there is no deficiency in service and no relief can be granted under the provisions of Consumer Protection Act, 1986.”



Similar view was held in 1994(1) CLT page 281 titled as M/s.Jain Jewellers Vs. Oriental Insurance Co.Ltd. and others, 1994(1) CLT page 291 titled as M/s.Ajmer Singh Cotton & Gen.Mills Vs. Br.Mgr.United United India Insurance Company & Others and 1999 JRC 444 titled as New India Assurance Co.Ltd. Vs. A.Raja cited by ld.counsel for the OPs-Insurance Company. On the other hand, the ruling 2004(1) CPC page 634 titled as National Insurance Company Ltd. and Others Vs. Kaba Enterprises cited by ld.counsel for the complainant does not apply to the facts of the present case and is quite distinguishable.

11. In view of our above discussion, we hold that the complainant has failed to prove any deficiency in service on the part of the OPs-Insurance Company in making the payment of Rs.91225/- to her in full and final settlement of her claim.

12. To prove the aforesaid contention, the OPs-Insurance Company has produced affidavit Ex.R1 of Sh.S.L.Rikhi Sr.Divisional Manager, Ex.R2 of Sh.Upender Pal Singh Sachdeva, copy of intimation letter Ex.R3, copy of surveyor report Ex.R4, copy of spot report Ex.R5, copy of final survey report Ex.R6, copy of re-inspection report Ex.R7, copy of policy Ex.R8, copy of acceptance Ex.R9 and we believe and rely upon the same. On the other hand, no reliance could be placed on the affidavit of complainant Ex.A1 and documents Ex.A2 to Ex.A12 and we discard the same.

13. Ld.counsel for the parties did not urge or argue any other point before us.

14. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.



(J.S.Mallah) (J.S.Chawla)

Member President



Announced in Open Forum.

Dated:17.03.2009.