STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

Date of Institution: 01.12.2017

Date of final hearing: 20.07.2023

Date of pronouncement: 04.09.2023

First Appeal No.1547 of 2017

IN THE MATTER OF:-

Manjeet S/o Sh. Hari Singh, R/o Vill. Zahidpur, P.O. Bhurthala, Tehsil Kosli, Distt. Rewari, (Hr.).                                                     ....Appellant

Versus

1. Manager, Harsh Auto Care Pvt. Ltd., Delhi Road, near Madhu Sudan Public School, Rewari, Tehsil and Distt. Rewari, Hr.
2. Manager, Bharti AXA General Insurance Co. Ltd., Regd. Office Ist floor, Frnce Icon Survey No.28, Dodinkundi, Office: Outer Ring Road, Bangluru, Karnatka- 560037.
3. MD, Hundai Motor India Pvt. Ltd., H.O. 5, Commercial Centre, Jasola Vihar, Delhi-110025.
4. Sanjeet Kumar, Surveyor, c/o Bharti AXA General Insurance Co. Ltd., Regd. Office Ist floor, Frnce Icon Survey No.28, Dodinkundi, Office: Outer Ring Road, Bangluru, Karnatka-560037.
5.  

CORAM:             Naresh Katyal, Judicial Member

Argued by:-       Sh. S.K. Yadav, counsel for the appellant.

                             None for respondent No.1.

Sh. Sachin Ohri, counsel for respondent No. 2.

Sh. Vineet Mittal, counsel for respondent No.3.

Presence of respondent No. 4 already dispensed with vide order dated 25.06.2018.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

          There is a delay of 13 days in filing of this appeal, as per office report. Though, there is no separate application filed, for seeking condonation of this period of delay, on behalf of appellant; instead, in memorandum of appeal, it is pleaded (in Para No.6) that appeal is within limitation, yet in the interest of justice and in furtherance to cardinal principles of law laid down in catena of judgments that cause of party to lis should be heard and decided on merits, therefore, delay of 13 days, occasioned in filing of this appeal as per office report, stand condoned.

2.      Challenge in this appeal No.1547 of 2017 has been invited by unsuccessful complainant-Manjeet, to the legality of order dated 25.10.2017 passed by District Consumer Disputes Redressal Forum-Rewari (In short “District Consumer Commission”) in complaint case No.133 of 2014 vide which his complaint has been dismissed.

3.      Complainant has alleged that he purchased Grand I-10 sports car bearing No. HR-43B-2685 on 05.10.2013 from OP No.1. It was got insured from OP No. 2. On 04.01.2014, this car had met with road accident and was damaged. OPs No. 1 and 2 were informed. Complainant by toeing the damaged vehicle through crane, brought it at the office of OP No.1. Chamber of vehicle was badly damaged. In his presence; mechanic of OP No.1 poured oil in the engine and started the vehicle; kept it as such for 10 minutes and inspected. Thereafter complainant was told that engine is fine, only chamber is required to be replaced. For this, demand for parts would be made and after two days the vehicle will be handed over to him by fitting new chamber. After two days, complainant was told that engine has ceased and block too has been broken and company has been apprised through mail. On receiving reply engine would be affixed on warranty, as guarantee is within warranty period.  However, after one week, complainant was asked to deposit Rs. 50,000/- on saying that amount would be refunded afterwards. Thereafter, some other mechanic checked the vehicle and while starting it, he ceased its engine. OP No.1 appointed surveyor for the vehicle, who found that loss to the tune of Rs.13,896/- in vehicle. Surveyor had not added damaged parts of vehicle by conniving with OP No.1. It is pleaded that surveyor told complainant that the accidental vehicle has been damaged by act of omission and commission of mechanic of Harsh Hyundai (OP No.1), so in this regard; there is no responsibility of insurance company towards claim/compensation. It is pleaded that complainant again deposited Rs.73,730/-  with OP No. 1 on 30.01.2014, on its demand, while handing over the vehicle to it. OP No. 2 had returned Rs.13,896/- to complainant by saying that this amount is meant for his insured vehicle. Complainant served legal notice through his counsel. He has alleged ‘cheating’ towards him by OPs and also alleged deficiency in service and unfair trade practice of OPs. He has claimed Rs.1,23,630/- with interest, by filing complaint, besides claiming Rs.1.00 lacs for alleged physical, mental and financial loss.

4.      Upon notice, OPs raised contest. In defence taken by OP No. 1; it is pleaded that complaint is not maintainable. Complainant is estopped by his act and conduct. Complaint is mala fide and filed by suppressing true and material facts, with ulterior motive. It is admitted that complainant purchased car from OP No. 1 on 05.10.2013. It is pleaded as incorrect that car was got insured by OP No.1. It is pleaded that there was problem with engine of the car. Chamber has been damaged in the accident which requires replacement.  Due to accident, chamber was badly damaged and oil started leaking, then and there, but complainant without observing leakage, went on driving vehicle continuously which resulted in ceasing of engine due to non-availability of oil in chamber. Delay in delivering car was due to acts of complainant, who first tried to take advantage of his own wrong by persuading OP No.1 to replace the engine. It is pleaded as incorrect that surveyor has given estimate of expenses as Rs.13,896/- and surveyor, in collusion with OP No. 1 has failed to assess real damage. It is pleaded as incorrect that surveyor ever told complainant that car has been damaged due to any wrongful act and omission on the part of mechanic of OP No.1. Inter alia on above pleas; dismissal of complaint has been prayed.

5.      OP No.2-insurer, in its separate defence has pleaded that there is no deficiency on its part. Complainant has not registered/lodged any claim regarding policy No. HAX/S9614590 with OP No.2. It is pleaded that OP No. 2 did not appoint any surveyor in the alleged claim for surveyor’s report and assessing loss. In this regard, it is pleaded that complainant has averred in para No. 4 “surveyor appointed by OP No.1”. So as per plea, insurer has no knowledge of loss/damaged valuation of car.

6.      OP No. 3 pleaded that there is no cause of action against Hyundai Motor India Limited as not even a single allegation is made out against it. It is pleaded that Op No.; 3 operates with all its dealer, on principal to principal basis and errors/omission, if any, at the time of retailing or servicing of car is sole responsibility of concerned dealer. Liability of OP No. 3, being manufacturer of Hyundai cars, is limited and extends to its warranty obligations alone. Accidental repair work can be done on chargeable basis alone either under insurance or on cash payment basis. Alleged dispute of partial settlement of claim is between complainant and insurance company and OP No. 3 being manufacturer, has no role in that dispute.

7.      OP No. 4 -Surveyor of Bhart AXA General Insurance Company, in defence has asserted that: as per his assessment; loss amounted to Rs.12,429/- only. Insurance Company has paid the assessment amount to complainant and thus, there is no deficiency in service on his part.

8.      Parties to this lis led evidence, oral as well as documentary.

9.      On subjectively analyzing the same; learned District Consumer Commission-Rewari vide order dated 25.10.2017 has dismissed the complaint thereby giving rise to filing of this appeal by complainant.

10.    Learned counsel for parties have been heard at length. With their able assistance; record too has been perused. 

11.    On behalf of complainant/appellant, it is contended that car in question of appellant was insured comprehensively with OP No.2, so OPs are liable to pay the claim of insured amount to appellant. Appellant requested for refund of Rs.1,23,630/- and in this regard also served legal notice dated 22.02.2014. It is urged that learned District Consumer Commission has not considered the statement of witness namely Mahinder Singh S/o Rohtash, who at one point of time was a mechanic, working with OP No. 1. He deposed that Block of car was broken due to professional negligence of mechanic of OP No.1. To stimulate this contention; learned counsel has urged that surveyor in his report dated 06.01.2014 has mentioned that Block of the vehicle has not broken and engine has not ceased and he assessed loss of Rs.12,429/-. On these pleas, learned counsel has urged that complainant is entitled to full repair charges from OP No.1.

12.    Per contra, on behalf of respondents No. 2-insurer; it is urged that once complainant has accepted Rs.12,429/- (Discharge Voucher Ex.R-3) towards full and final satisfaction and discharge of his claim and there appears his (complainant’s) signature on discharge voucher, then, he cannot claim any further amount, by filing complaint/appeal. Learned counsel has pressed duly sworn affidavit Ex.DW1/1 of Ms. Shivali Sharma-Assistant Manager of OP No.2, who has deposed that company has appointed surveyor namely M/s IAR Surveyors and Loss Assessors Pvt. Ltd.

13.    Learned counsel for respondent No. 3 has urged that no relief has been claimed against manufacturer/respondent No.3.

14.    Ex.CW-1/B is the receipt issued by OP No.1 on 22.01.2014 vide which Rs.50,000/- has been received from complainant. Ex.CW-1/C is credit invoice dated 30.01.2014 issued by OP No. 1 and addressed to OP No.2/insurer. As per this document; Rs.1,37,526/- is total payable amount. This document also reflects that Rs.50,000/- was paid on 22.01.2014 (receipt Ex.CW-1/B), Rs.13,896/- has been indemnified by insurer and Rs.73,630/- paid by complainant. These three payments (Rs.50,000/- + Rs.13,896/- +Rs.73,630/-) would collectively make it the grand total amount as Rs.1,37,526/-. Meaning thereby, complainant has parted with Rs.1,23,630/- in total from his pocket.

15.    Insurance Company, on the basis of stand taken by OP No.4 (its surveyor) and on the basis of duly sworn affidavit of Shivali Sharma-its Assistant Manager has laid stress upon documents Ex.R-1 to Ex.R-3 and proved that complainant has accepted Rs.12,429/- towards full and final satisfaction and discharge of his claim. Document (Ex.R-3) also bears signature of complainant. At legal pedestal, under implication of law, it is held that complainant has exercised his sole domain and wisdom while putting his hand on document on document Ex.R-3 and receiving amount of Rs.12,429/-. There is no element of any force, coercion, undue influence on complainant, as his complaint sans such quality plea. This circumstance would obviously foreclose the claim of complainant to claim full repair amount of Rs.1,23,630/-. While observing so, this Commission gains strength from ratio of law laid down by Hon’ble National Consumer Disputes Redressal Commission, in case titled as “M/s Pankaj Trading Company and others versus National Insurance Company Ltd.” (4 connected Revision Petitions No. 2771 to 2774 of 2017, decided on 19.02.2020), wherein it has been held that complainant/consumer is estopped from claiming any further amount after executing discharge voucher and accepting the amount in full and final settlement of claim.

16.    Hon’ble Apex court in case titled as “New India Assurance Co. Ltd. versus Sri Venkata Padmavathi R and B Rise Mill” (2000) 10SCC page 324 has held that: “unless it is contended and proved that full and final settlement of the claim has been obtained under fraud, coercion or undue influence, such a settlement is binding upon the parties”. The Hon’ble Supreme Court has held as under:-

“6. There is no dispute between the parties that the respondent has agreed to accept Rs.14.16 lakhs in full and final settlement of their claim. That being so, they are bound by their commitment, particularly, as there is no allegation anywhere before the Commission or before us that the agreement was vitiated by fraud, coercion or undue influence.”

                   Again Hon’ble Apex Court in case titled as “National Insurance Company Ltd. versus Sehtia Shoes” (2008) 5SCC page 400 has held that “Filing of a complaint is, therefore, not barred; but it has to be proved that agreement to accept a particular amount was on account of coercion. In the instant case, this relevant factor has not been considered specifically by the District Forum, State Commission and the National Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by the appellant. There is no dispute that the discharge voucher had been signed by the respondent. There has to be an adjudication as to whether the discharge voucher was signed voluntarily or under coercion”.

17.    In the present case, it is visible from discharge voucher Ex. R-3 that complainant has signed it, voluntarily. It is proved for the reason that there are no specific and express allegations of force, coercion, undue influence, misrepresentation on the part of complainant in his complaint. Mere plea taken by complainant in his complaint in Para No. 7 thereof that he has been defrauded by OPs will not stimulate his cause in any manner even remotely. Plea of fraud, coercion, undue influence and misrepresentation has to be proved specifically, beyond shadow of doubt, like a criminal charge, even in matters of civil nature.

18.    There is another aspect of controversy involved in this appeal. OP No. 4, in his capacity as surveyor of OP No. 2 has pleaded in his written version that surveyor report and assessment of surveyor is Ex.R-1. Now, in the light of this averment; Ex.R-1 looked at. It runs in three pages. At Page 3 thereof, it is visible that Rs.12,429/- has been worked out as “final claim”. This document Ex.R-1 has been made by M/s IAR Surveyors and Loss Assessors Pvt. Ltd. and has been signed by its authorized signatory. It is dated 03.02.2014 and addressed to OP No.2/insurer. On this basis there is plea by OP No. 4 in its written version that this amount (Rs.12,429/-) has been paid by OP No. 2 to complainant. Alike is the deposition on oath by Op No.2’s Assistant Manager-Shivali Sharma through her duly sworn affidavit Ex.DW-1/1. Hon’ble Apex Court in case titled as “Sri Venkateswara Syndiate Vs. Oriental Insurance Company Ltd. and another” (2009) 8SCC Page 507 has given due importance to the report of the licensed surveyor. It has held in Para 31 & 32 of its judgment in following terms:-

“31.    The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

32.     There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report.”

19.    This being the position there is absolutely no ground to discard the case of OP No. 4 and of OP No.2 in present appeal, on whimsical submissions of counsel for complainant. Complainant has laid stress one affidavit (Ex.CW-2/A) of Mahender Singh S/o Rohtash, who has stated on solemn affirmation that engine of car had been ceased and its Block had been broken due negligence of mechanic of workshop. There is no formidable and acceptable base to fasten any liability on OP No.1, merely on phraseology of above affidavit, which palpably has been created only to sub-serve the cause of complainant. Who is that mechanic, who did this wrong on the ill-fated car of complainant is missing from the recital of affidavit Ex.CW2/A of Mahender Singh. Consequently, text of affidavit Ex.CW-2/A  of Mahender Singh is bereft of credence.

20.    For the reasons recorded above, this Commission does not find any manifest error, legal or factual, in the conclusion drawn by learned District Consumer Commission. Impugned Order dated 25.10.2017 is the outcome of meticulous appreciation of facts and evidence by District Consumer Commission-Rewari. Complainant has rightly been non-suited. Impugned order dated 25.10.2017 is affirmed and maintained. Present appeal, being devoid of merits, is hereby dismissed.

21.    Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

22.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

23.    File be consigned to record room.

Date of pronouncement: 04^th September, 2023

                                                                                    Naresh Katyal       

                                                                                   Judicial Member

                                                                                   Addl. Bench-II