SAKET MUKKAR vs CHIEF GENERAL MANAGER

The complainant, Saket Mukkar has filed this revision petition under Section 21(b) of the Consumer Protection Act, 1986, challenging the order dated 12.12.2013, passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred as ''State Commission''), vide which, while dismissing Appeal No.888 of 2013, filed by the complainant, the order passed by the District Consumer Disputes Redressal Forum on 8.10.2013, allowing Consumer Complaint No.30 of 2012, was upheld.

The factual matrix of the case states that the complainant/petitioner, Saket Mukkar insured his Mahindra vehicle, bearing registration No.HR-66-6906 with the opposite party (OP), Reliance General Insurance Company for the period from 10.3.2011 to 9.3.2012. The said vehicle met with an accident on 7.6.2011, while going from Narnaul to Nangal Chaudhary and an intimation about the accident was given to the insurance company, which appointed a surveyor to assess the loss. The vehicle was taken to an authorized Mahindra Service Centre, Sri Mohan Motors at Narnaul. It is stated by the complainant that the vehicle was inspected by the surveyor at the said workshop and the surveyor assured him that all expenses incurred at the workshop shall be paid by the insurance company. The vehicle remained at the workshop for repairs from 7.6.2011 to 19.6.2011. After the repairs, Sri Mohan Motors, Narnaul raised a bill of Rs.1,01,027/- and the said amount was paid by the complainant. However, despite contacting the surveyor and the OP insurance company many times, the bill was not paid for a long time. Ultimately, after a long delay, a cheque of Rs.55,378/- dated 29.9.2011 drawn on HDFC Bank was received by the complainant from the OP company. As per the complainant, he sent e-mail to the insurance company, expressing his dissatisfaction with the services given by them. He also sent a legal notice to the OP insurance company, but there was no response from them. The complainant filed the consumer complaint in question, seeking directions to the insurance company for payment of remaining sum of Rs.46,649/- with interest @ 18% per annum and compensation of Rs.1 lakh on account of harassment and Rs.35,000/- as litigation charges.

The complaint was resisted by the OP insurance company by filing a written reply before the District Forum, in which they stated that they had already made payment of Rs.55,378/- in accordance with the report submitted by the surveyor. The OP company stated that the report of the surveyor could not be brushed aside lightly. There was no deficiency in service on their part and it was wrong to say that the surveyor had given any assurance to the complainant for making payment of the full amount.

The District Forum after taking into account the averments made by the parties, concluded that the OP had failed to produce the report of the surveyor in support of their contentions. Moreover, they had not led any evidence in their support, despite availing several opportunities. The District Consumer Forum partly allowed the complaint and directed the OP to pay a further sum of Rs.10,000/- to the complainant within 45 days of their order, failing which the OP will be liable to pay interest @ 9% per annum on the said amount. Being aggrieved against the said order, the complainant challenged the same by way of appeal before the State Commission, seeking enhancement of the compensation, but the said appeal having been dismissed, vide impugned order dated 12.12.2013, the complainant has filed the present revision petition, seeking payment of balance sum of Rs.46,649/- with interest @ 18% p.a. and a sum of Rs.1 lakh as compensation for mental harassment and litigation charges of Rs.1.35 lakhs for proceedings before the consumer fora at various levels.

During hearing, the learned counsel for the complainant/petitioner argued that the OP insurance company had not filed the report of the surveyor and also did not tender any evidence despite several opportunities, having been given to them and the District Forum had to close their evidence by order. They did not send any reply to the legal notice either. On the other hand, the complainant had filed the original bill issued by Sri Mohan Motors for an amount of Rs.1,01,027/- in support of his claim and that the said amount had been paid to the repairing workshop.

Per contra, the learned counsel for the OP insurance company stated that the cheque of Rs.55,378/- sent by the insurance company to the complainant had been accepted by him as full and final settlement. There was, therefore, no justification for filing the consumer complaint in question and the same should be dismissed.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The main thrust of arguments taken on behalf of the OP insurance company is that the amount of Rs.55,378/-, paid on the basis of the report of the surveyor was accepted by the complainant as full and final settlement of the claim. A perusal of the written arguments filed by them before the District Forum indicates, however, that the OP insurance company did not state

anywhere that the amount of Rs.55,378/- had been accepted by the complainant as full and final settlement. Moreover, the OP-insurance company has not placed on record a copy of any discharge voucher etc., in support of their contention that the payment was made as full and final settlement. A perusal of the order of the District Forum indicates that the OP insurance company did not file any evidence in support of their contention before them, despite being given several opportunities. A copy of the surveor''sreport has not been filed by the OP. It is also clear that the reply to the legal notice sent by the complainant was not submitted by the OP insurance company. Moreover, it is also made out that the orders passed by the District Forum have not been challenged by the OP insurance company by way of appeal, meaning thereby that the amount allowed by the State Commission was accepted by the insurance company. On the other hand, the complainant has produced the bill issued by the repairing workshop, indicating that an amount of Rs.1,01,027/- was spent on the repair of the vehicle in question. In the absence of anything to the contrary, therefore, it is borne out that the complainant cannot be deprived payment of the said amount.

During hearing before me, the learned counsel for the petitioner has drawn attention to an order passed by the Hon''ble Supreme Court in United India Insurance Company Ltd. vs. Ajmer Singh Cotton and General Mills and others, 1999 (6) SCC 400, in which it has been stated as follows: "The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like."

While arguing, the learned counsel for the petitioner stated that mere execution of discharge voucher would not always deprive the consumer from preferring complaint with respect to the deficiency in service on the part of the OPs. However, in the said judgment, it is also stated that the complainant should be able to prove that the discharge voucher or receipt was obtained from him under such circumstances, which could be termed as fraudulent or in the exercise of undue influence or by misrepresentation. In the present case, there is no such averment that the discharge voucher was got signed by fraudulent means or by undue influence or misrepresentation and hence, the judgment quoted by the complainant does not help him at all. However, looking at the totality of the circumstances when the insurance company failed to challenge the order of the District Forum or to produce any evidence in their favour including the report of the surveyor, it shall not be desirable to deny the full amount of claim to the complainant/petitioner.

Based on the discussion above, this revision petition is partly allowed and the order passed by the consumer fora below are modified to the extent that the complainant/petitioner shall be entitled for payment of the balance dues of Rs.46,649/-, as demanded by him, alongwith interest @ 9% p.a. from the date of the complaint till realization. Such payment shall be made by the insurance company within a period of 45 days from today, failing which interest @ 12% p.a. shall be payable on the said amount. In addition, a further sum of Rs.20,000/- as compensation against mental harassment and Rs.10,000/- as litigation cost shall be payable to the petitioner, within a period of 45 days from today. The revision petition stands disposed of accordingly.