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Sunday, January 13, 2013

whether the plea of the petitioner/complainant to treat the claim of the petitioner/complainant as a total loss in the light of the report of the second surveyor, Engineer Vinod Kumar Sharma, who was not appointed by the Insurance Company, should be accepted in spite of the petitioner/complainant having accepted the payment of Rs.22,99,000/- as full and final settlement from the respondents/opposite parties.=No doubt, later on the complainant has also filed an applicated dated 12.8.2009, for withdrawal of the above said consent letter dated 3.7.2009 with regard to full and final settlement. In our opinion, in the absence of any cogent evidence, the reasons given for withdrawal of the consent letter is meaningless. Moreover, the OPs have immediately released the claim amount to the complainant after receiving the consent letter, which was duly received by the complainant without any protest. As, in the present case, the OPs have already settled the claim of the complainant as per the surveyor report. Therefore, there is no deficiency in service or unfair trade practice on the part of OPs and the learned District Forum has rightly dismissed the complaint. Therefore, we are of the view that the appeal filed by the complainant against the order passed by the learned District Forum is liable to be dismissed as devoid of merit.


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

REVISION PETITION NO. 2270 OF 2011
[Against the order dated 01.04.2011 in Appeal No. 389/2010 of the
State Consumer Disputes Redressal Commission, U.T. Chandigarh]

M/s Worldwide Immigration Consultancy Services Ltd.
Through its Authorized Representative
Shri Rajiv Bajaj
SCO No. 2415-16, Sector 22-C
Chandigarh                                                …      Petitioner

Versus

1.     M/s Reliance General Insurance Co. Ltd.
(Anil Dhirubhai Ambani Group)
Through its Chairman
SCO No. 212-213, First Floor, Sector-34
Chandigarh

2.     M/s Reliance General Insurance Co. Ltd.
(Anil Dhirubhai Ambani Group)
Through its General Manager
SCO No. 212-213, First Floor, Sector-34
Chandigarh

3.     M/s Reliance General Insurance Co. Ltd.
Through Rajesh Sharma, Sr. Manager
SCO No. 212-213, First Floor, Sector-34
Chandigarh                                        …      Respondents

BEFORE:

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner       :  Mr. Sunil Goyal, Advocate
                                   Mr. Sujit K. Singh, Advocate

For the Respondents  :  Mr. Navneet Kumar, Advocate

Pronounced on :  9th JANUARY, 2013

O R D E R

PER SURESH CHANDRA, MEMBER

        This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 01.04.2011 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (‘State Commission’ for short), by which the State Commission dismissed the appeal filed by the petitioner.  
The petitioner had through his appeal before the State Commission challenged the order dated 31.08.2010 passed by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (‘District Forum’ for short) in Complaint Case No. 1456 of 2009, by which the District Forum had dismissed the complaint of the petitioner.  The orders of the District Forum and the State Commission are placed on record.
2.     Briefly stated, the facts of the case are that the petitioner/complainant had purchased a vehicle BMW X Series X5 3.0 D from M/s Krishna Automobiles, Chandigarh vide invoice dated 29.07.2008 for an amount of Rs.57,95,000/-.  
This vehicle was insured with M/s Reliance General Insurance Co. Ltd., who are the respondents/opposite parties, vide Private Car Policy valid for the period 27.07.2008 till midnight 28.07.2009.  
The Insured Declared Value (IDV) of the vehicle was Rs.55,05,250/-.  
On 18.12.2008, the vehicle met with an accident at Chandigarh and suffered extensive damage, about which an FIR was lodged with the police station and accident was also reported to the office of the respondents/opposite parties.  
On 30.12.2008, the said vehicle was inspected by one Shri Kailash Chandra, Surveyor and Loss Assessor, who assessed the loss and prepared an estimate for repairs.  
As per the report of the surveyor, the damage to the vehicle was assessed at Rs.41,95,457/-. 
According to the petitioner/complainant, the repairs of the said vehicle had crossed 75% of the IDV and hence the vehicle was to be declared as total loss as per terms of the policy.  
However, the respondents/opposite parties refused to declare the said vehicle as total loss case and insisted on getting the repairs of the vehicle done.  
Later on, it appears that another surveyor, namely, Engineer Vinod Kumar Sharma, independently surveyed the vehicle on 12.02.2009 and vide his report dated 12.02.2009 assessed the loss at Rs.41,56,839/-.  
This surveyor also remarked that it would not be much economical to get the vehicle repaired as after the major repairs, the vehicle would not come to its original position.  
It is the case of the petitioner/complainant that despite the later survey report and his repeated requests, the respondents/opposite parties kept on delaying the settlement of the claim and 
paid only Rs.22,99,000/- to the petitioner/complainant as claim amount and 
additional sum of Rs.20,00,000/- was received on sale of the salvage to a third party with the help of the respondents/opposite parties.  
As such, according to the petitioner/complainant, the total amount paid to the petitioner/complainant was Rs.42,99,000/- i.e. 78.08% of the IDV, which is more than 75% of the IDV and, hence, it should have been treated as the case of total loss but since the respondents/opposite parties declined to do so, alleging deficiency in service on their part, the petitioner lodged a complaint before the District Forum, which, as stated above, the District Forum dismissed.  
The appeal filed against this order also came to be dismissed by the State Commission vide its impugned order and in these circumstances the petitioner/complainant has come to the National Commission through the present revision petition.
3.     We have heard Mr. Sunil Goyal, Advocate for the petitioner/complainant and Mr. Navneet Kumar, Advocate for the respondents/opposite parties and perused the record. 
4.     The broad facts of the case are more or less not under dispute.  The only question, which has arisen for our consideration in this case, is as to 
whether the plea of the petitioner/complainant to treat the claim of the petitioner/complainant as a total loss in the light of the report of the second surveyor, Engineer Vinod Kumar Sharma, who was not appointed by the Insurance Company, should be accepted in spite of the petitioner/complainant having accepted the payment of Rs.22,99,000/- as full and final settlement from the respondents/opposite parties.  
Both the Fora below have rejected the case of the petitioner/complainant while dismissing the complaint.  The State Commission while dismissing the appeal of the petitioner/complainant and upholding the order of the District Forum has recorded the following observations in support of the impugned order :-
“10.  The learned counsel for the OPs i.e. M/s Reliance General Insurance Company Limited has argued that the complainant has been compensated fully by the OPs.  As per the terms and conditions, an IRDA approved surveyor was deputed to assess the loss.  As per the report of the surveyor (Annexure R-2), the cash loss value was assessed at Rs.22,99,000/-.  As per this report, the vehicle was very much repairable and was not a case of total loss within the meaning of the policy and for this reason, the OPs requested the complainant to get the vehicle repaired.  Since the complainant was no(t) interested to get his vehicle repaired, therefore, the complainant has opted to settle the claim at cash loss basis and the OPs have settled the claim of the complainant after receiving the unconditional and free consent of the complainant for opting the cash loss and not choosing it to get the vehicle repaired.  Hence, as per the request and consent of the complainant, the cash loss settlement was agreed upon, and the value of the claim was assessed at Rs.22,99,000/-.  This was less than 75% of the IDV, which was duly accepted by the complainant in full and final settlement of the claim.  Further the complainant has also received a sum of Rs.20 lacs as a salvage value, hence the complainant in total has received a sum of Rs.42,99,000/-.  It is further argued that the report of Vinod Kumar Sharma, Surveyor is not admissible as this surveyor is not authorized surveyor of the OPs. It is next argued that the complainant has been fully compensated, hence prayed that the appeal filed by the complainant may kindly be dismissed with the heavy costs.

11.   After going through the facts of the case, even 
we are of the opinion that the report of the surveyor Sh. Vinod Kumar Sharma, placed on record by the complainant is only an estimate for the repair of the vehicle.  
Moreover, this report of Sh. Vinod Kumar Sharma, Surveyor is of no value because he was not appointed as a surveyor by the insurance company for settlement of the claim.  
The report of the authorized surveyor i.e. Sh. Kailash Chandra, who was duly appointed, has been placed on record by the OPs, Annexure R-2 wherein the net claim amount has been shown as Rs.22.99 lacs, which was duly accepted by the complainant as full and final settlement.  It is also clear that the complainant has also received a sum of Rs.20 lacs as salvage and in this respect, a discharge voucher was duly signed by the complainant.  It is an admitted fact that the complainant has issued a consent letter dated 3.7.2009. 
 No doubt, later on the complainant has also filed an applicated dated 12.8.2009, for withdrawal of the above said consent letter dated 3.7.2009 with regard to full and final settlement.  
In our opinion, in the absence of any cogent evidence, the reasons given for withdrawal of the consent letter is meaningless.  
Moreover, the OPs have immediately released the claim amount to the complainant after receiving the consent letter, which was duly received by the complainant without any protest.  
As, in the present case, the OPs have already settled the claim of the complainant as per the surveyor report.  Therefore, there is no deficiency in service or unfair trade practice on the part of OPs and the learned District Forum has rightly dismissed the complaint.  Therefore, we are of the view that the appeal filed by the complainant against the order passed by the learned District Forum is liable to be dismissed as devoid of merit.

5.     We agree with the view taken by the State Commission in the matter.  Besides the fact that the second surveyor was not appointed by the Insurance Company, admittedly the petitioner/complainant had accepted the net claim amount of Rs.22,99,000/- in full and final settlement of his claim and issued a consent letter dated 03.07.2009.  In the absence of any fraud, misrepresentation, undue influence or coercion being used by the Insurance Company to make the petitioner/complainant to sign the discharge voucher, the claim now made by the petitioner/complainant cannot be accepted.  In the given facts and circumstances, the three cases, namely, United India Insurance v. Ajmer Singh Cotton & General Mills & Ors. [II (1999) CPJ 10 (SC)]; Amir Ali A. Mukadam v. United India Insurance Co. Ltd. [IV (2007) CPJ 234 (NC)]; and National Insurance Co. Ltd. v. Boghara Polyfab Private Limited [(2009) 1 SCC 267] cited and relied on by learned counsel for the petitioner/complainant would not provide any comfort to the petitioner/complainant since each case has to be decided on its own merits in the light of the given circumstances. 
6.     Keeping in view the facts and circumstances of this case, we do not see any reason which would justify our interference with the impugned order. The revision petition, therefore,  stands dismissed but with no order as to costs.

……………Sd/-……………….
(K.S. CHAUDHARI, J.)
PRESIDING MEMBER


…………Sd/-…………………
     (SURESH CHANDRA)
MEMBER

Mukesh

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