Oriental Insurance Co. Ltd. vs SHASHI MOHAN SINGH

THIS appeal by opposite party-appellants is directed against an order dated 16.9.1996 passed by District Forum, Darbhanga, in Complaint Case No. 52 of 1994 whereby the District Forum has directed the opposite party-appellants to pay to the complainant (respondent) Rs. 40,742.71 paise as the balance amount of the insurance claim with interest at the rate of 6% from 13.12.1993 to the date of payment. There is further direction for payment of Rs. 300/- as cost.

IT appears that the complainant-respondent filed a complaint before the District Forum alleging therein that his Maruti Van bearing registration number D.D.V.-7806 which was under insurance cover provided by the opposite party, met an accident on 20.6.1993. Information regarding accident was given to the Branch Manager (opposite party No. 2) of the Oriental Insurance Company on 21.6.1993 with a request to make spot survey. Surveyor Er. R. Lal was deputed by opposite party No. 2 for spot survey of the vehicle and Sri Lal made spot survey on 21.6.1993 and submitted his report to the opposite party No. 2. The damaged vehicle was taken to the garage of M/s. Singh Maruti Care by towing. As per suggestion of the said Surveyor the complainant obtained estimate of the damaged vehicle from M/s. Singh Maruti Care and list and price of spare parts from M/s. Mithila Maruti Centre, Darbhanga and submitted the same to opposite party No. 2 on 22.6.1993. Thereafter Surveyor Sunil Kumar inspected the vehicle on 26.6.1993 in the garage of M/s. Singh Maruti Care. According to direction of the said Surveyor gearbox of engine, steering box, differential, etc. were opened by the mechanic whereupon the said Surveyor directed for preparation of list of internal parts damaged in the accident and accordingly the garage owner prepared the list which, as per direction of the Surveyor, was submitted to opposite party No. 2 with price thereof. The said Surveyor instructed to start repairing, denting and painting of the vehicle and asked the complainant to meet him at his resident at Muzaffarpur for executing agreement and for talks. He (complainant) went to the residence of the Surveyor with a view to execute agreement but the Surveyor directed him to come again for settling commission, etc. in the matter. The said Surveyor even sent letter dated 17.8.1993 directing him (complainant) to meet him at Muzaffarpur. He again met the Surveyor at his residence but the Surveyor avoided to execute the agreement as he did not agree to fulfil his illegal desire. The repairing of the vehicle was completed on 22.9.1993 and he (complainant) informed opposite party No. 2 on 23.9.1993 regarding the same. The vehicle was inspected on 26.9.1993 by Surveyor Sudhir Kumar appointed by opposite party No. 2 and he (complainant) was allowed to use the Van. Further case of the complainant was that he submitted his claim for Rs. 76,170.71 paise to opposite party No. 2 on 5.10.1993 alongwith bills, cash memoes of spare parts, painting, labour charges, etc. Opposite party No. 2 sent a registered letter dated 18.10.1993 to contact the Surveyor and also raised the question of not lodging of F.I.R. for the first time. Finding the attitude of the opposite party and Surveyor to be harassing, he sent a legal notice on 20.10.1993 to the Divisional Manager of Insurance Company at Muzaffarpur with a copy to opposite party No. 2 for settling the claim and the opposite parties sent reply dated 4.11.1993 through their Advocate with misleading and unwarranted allegations. He sent his reply to opposite party No. 2 on 18.1.1993. Thereafter the opposite parties remained silent for sometime and issued a cheque for Rs. 35,428/- on 13.12.1993 which he got encashed and sent a protest letter to opposite party No. 2 for payment of balance amount of Rs. 40,742.71 paise which had been deducted without showing any ground. Due to harassing attitude of the opposite parties, he was put to mental torture. Deduction of the said amount without any basis amounted to deficiency in service. On the allegations aforesaid, the complainant had prayed for a direction for payment of Rs. 40,742.71 paise with interest @ 24% from 13.12.1993 till payment, Rs. 15,000/- as compensation and Rs. 500/- as cost.

The opposite party filed written statement and contested the case before the District Forum. The case of the opposite party was that the claim of the complainant was vexatious and not legally maintainable and the complainant had no locus standi or cause of action to file the case. The claim is barred by law of estoppel. Neither any Sanaha nor F.I.R. regarding the accident had been lodged and hence the alleged accident is doubtful. The Van was not inspected by the M.V.I. of Darbhanga which also makes the accident doubtful. In the month of June there is sufficient daylight at the alleged time (7 p.m.) of accident but the identity and the registration number of the offending tractor has not been disclosed. The insurer or the owner or the driver of the offending tractor is liable to pay damages to the complainant but they have not been impleaded as parties though they are necessary parties. The complainant has been using his Maruti Van for commercial purpose and hence is not a consumer as defined in Section 2(1)(d)(i) of the Consumer Protection Act.

FURTHER case of the opposite party was that the complainant produced cash memoes regarding purchase of articles for repair of the Van and the opposite parties after getting sanction from Divisional Manager, Muzaffarpur, issued loss voucher of Rs. 35,428/- on 3.12.1993 to the complainant by registered post but due to absence of physical presence of the complainant before the office of the opposite parties and after getting back the loss voucher on 13.12.1993 duly signed by the complainant, they hadned over a cheque of Rs. 35,428/- to the complainant on 13.12.1993 itself in full and final settlement of the claim and so there was no deficiency in service on their part. The complainant agreed to accept Rs. 35,428/- only in full and final settlement of claim and accordingly signed the loss voucher on 13.12.1993. No protest was made by the complainant at the time of receiving the cheque of Rs. 35,428/-. Under the circumstances it is not open to the complainant to claim higher amount as compensation. On the aforesaid pleas the opposite parties had prayed for dismissal of the case with cost. Both the parties had filed affidavit in support of their respective cases and the District Forum after considering the same passed the impugned order. The opposite party being aggrieved by the impugned order has preferred this appeal. Now it has to be considered if the impugned order is sustainable in law or not.

IT is not disputed that at the time of accident the Maruti Van of the complainant was under insurance cover provided by the opposite party. IT is also not disputed that the opposite party had settled the claim of the complainant at Rs. 35,428/- and the complainant had accepted the same on 13.12.1993. According to the opposite party, the complainant had accepted the said amount without protest in full and final settlement of his claim. In support of this plea the opposite party has brought on record photocopy of the discharge voucher which undisputedly bears the signature of the complainant. IT shows that the complainant had accepted the said amount in full and final settlement of the claim. On the other hand the complainant in para 23 of his complaint petition has stated that on getting the cheque, he encashed the same and sent a protest letter to the opposite party No. 2 for payment of the balance amount of Rs. 40,742.71 paise. There is nothing in para 23 or in any other para of the complaint petition to show that the complainant had accepted the cheque for the said amount under protest. Rather the protest letter was subsequent to the acceptance and encashment of the cheque. In view of this it was rightly pointed out on behalf of the appellant that the alleged protest letter was an afterthought on the part of the complainant. In para 7 of his rejoinder to the memo of appeal, the complainant-respondent has stated that he was compelled to sign the discharge voucher under duress and coercion. IT may be pointed out that it is not the case of the complainant in his complaint petition that he had been compelled to sign the discharge voucher under duress and coercion and hence by stating to the said effect in his rejoinder to the memo of appeal, the complainant has made out a new case and hence the same can hardly be accepted. The claim of the complainant was for Rs. 76,170.71 paise. The Insurance Company paid him Rs. 35,428/- in full and final settlement of his claim. The complainant instituted the case for the balance amount of Rs. 40,742.71, which, according to him, had been deducted by the opposite party. So the dispute is as to whether the deduction of the said amount of Rs. 40,742.71 from the claim of the complainant by the opposite party while settling the claim was proper in law. This is a matter in respect of which the complainant should seek redress before a Civil Court for proper adjudication after taking evidence. For this view, reliance is placed on a decision of the National Commission reported in I (1992) CPJ 292 (NC)=1992 (1) CPR page 124, Jiyajee Rao Cotton Mills Ltd. v. New India Assurance Co. Ltd. It would not be out of place to mention here that the complainant had admittedly preferred his claim on 5.10.1993 and his claim was settled and cheque of Rs. 35,428/- was given to him on 13.12.1993, i.e., within two months nine days. So there was no deficiency in service on the part of the opposite party. In view of what has been pointed out above the District Forum was not justified in entertaining the complaint petition of the complainant. That being so, the impugned order passed by the District Forum is not sustainable in law. In the result, this appeal is allowed. The impugned order is hereby set aside and the complaint is dismissed. There is, however, no order as to cost. Appeal allowed.