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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
M/s. Ashwin Auto Services – Complainant
versus
Bajaj Allianz Insurance
Co. Ltd. and Ors. – Opp. Parties
Consumer Case No.2743 of 2017
Decided on 1.8.2022
Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services - Insurance – Fire Accident - Repudiation of Claim –Complicated questions of fact – If the Complaint can be adjudicated by the National Commission - It cannot be denied that Fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act - Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved – Thus National Commission is competent to adjudicate the Complaint filed for deficiency in service. [Paras 9,10]
Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services - Insurance – Fire Accident - Repudiation of Claim – Arbitration Clause – Specific Law - Complaint is barred due to Arbitration Clause in the Insurance Policy - It is settled law that the remedy under the Consumer Protection Act is an additional remedy and is not curtailed due to any specific law – Thus an Arbitration clause on the agreement does not bar the jurisdiction of the Consumer to entertain the Complaint. [Para 12]
Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] - Services - Insurance – Fire Accident - Repudiation of Claim – Protest of Non-acceptance - Whether repudiation of Claim is justified - The protest of non-acceptance must be conveyed before the cheque is encashed. After signing the discharge voucher and accepting the amount in full and final settlement, the Complainant is not permitted to raise the plea that the amount was accepted under protest. In the instant case the discharge voucher was executed and the Complainant had not alleged any fraud, undue influence, misrepresentation or the like, though, the Complainant alleged that the discharge voucher was signed under coercion. The Complainant had not produced any evidence oral or documentary to prove that there was any coercion on the part of the Opposite Party – Compliant dismissed. [Para 15]
ORDER
The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.
2. The Complainant is running a business of sales and service of two wheelers motor vehicles along with sale of spares, accessories and allied articles at Nandurbar District under the name and style ‘M/s Ashwin Auto Services’ since 1996. Opposite Party No.1 is Insurance Company and Opposite Party No.2 is the Surveyor. On 14.07.2015, the Complainant purchased “Motor Dealer Package Insurance Policy”, from Opposite Party No.1, vide Policy No.OG-16-2003-4095-00000005, for a sum of Rs.4.44 crores, valid from 14.07.2016 to 13.07.2016.
3. The case of the Complainant is that on 15.03.2016 at around 02:30 am, fire broke out in the premises of the Complainant, causing damage of new vehicles, spare parts, furniture etc. The Complainant informed the Police, Fire Department, and Opposite Party No.1. Opposite Party No.1 deputed Opposite Party No.3/Mr. Parvinder Kumar Bhatia as Surveyor and Loss Assessor, who visited the place of the incident on 18.03.2016. The Surveyor instructed the Complainant not to remove the debris until the process is complete. Debris remained scattered for 292 days, as a result the Complainant suffered loss of business of Rs.1,91,096/- per month as per last income tax return. The total loss of business incurred by the Complainant was Rs.19,10,957/-. The Surveyor sought several documents from the Complainant, vide letter dated 18.03.2016. The Complainant informed the Surveyor that all the records including accounts books, purchase order, bills, etc. were lost and burnt in the fire. This fact was also mentioned in the Panchnama dated 15.03.2016 prepared by Mr. Yadhav Bhadane, Investigating Officer, Nandurbar City Police Station. The Complainant, however, provided all the documents which were available with him. The Surveyor submitted his report dated 18.08.2016. The Opposite Party, however, did not provide the Survey Report to the Complainant. The Complainant received an email from the Surveyor stating that the loss caused to the Complainant was of Rs.71.48 Lakhs against spares only. The assessment of building, damaged vehicles, workshop equipment, furniture and fixtures, interiors, cash in showroom were not considered, though these items were insured under the Policy purchased by the Complainant. The Complainant did not accept the amount as they suffered loss to the tune of Rs.2,75,00,000/-. The Surveyor did not consider accessories and spare parts in List C amounting to Rs.40,57,486/-. The Insurance Company offered compensation of Rs.37,53,635.67/- to the Complainant, which was accepted by the Complainant under coercion as they were in financial constraint. Alleging deficiency in service on the part of the Opposite Parties, the Complainant filed the instant Complaint with the following prayer:—
“(a) Damages of worth Rs.2,75,00,000/- (Rs.Two Crores Seventy Five Lakhs) may be allowed and recovered from Opponents jointly & severally.
(b) Fine of Rs.50,00,000/- (Rs.Fifty Lakhs) for harrassments (physical, mental & financial) to applicant from Opponents jointly & severally may be granted.
(c) Expenses for communication to Opponents by applicants worth Rs.1,00,000/- (Rs.One Lakh) may be allowed from Opponents jointly & severally.
(d) Loss of Business- The Complainant had suffered loss for his 292 days (approx. 10 months) income. The Complainant earning income from business was worth of Rs.1,91,096 (Rs.One Lakh Ninety One Thousand and Ninety Six only) per month as per his last Income Tax Return filed. So the total lost incurred for these ten months is Rs.19,10,957/- (Rs.Nineteen Lakhs Ten Thousand Nine Hundred Fifty Seven). This much amount kindly be awarded to Complaint from the Opponents jointly & severally.
(e) Cost of the case Rs.3,00,000/- (Rs.Three Lakhs) may be allowed from Opponents jointly & severally.
(f) Cos
(1) Specific Law - It is settled law that the remedy under the Consumer Protection Act is an additional remedy and is not curtailed due to any specific law.(2) Arbitration clause - Arbitration clause....
The court upheld the view that a discharge voucher does not preclude subsequent claims under the Consumer Protection Act if evidence of coercion is absent.
The court established that a consumer can claim under the Consumer Protection Act for insurance disputes, even with commercial intent, emphasizing assessment fairness by the appointed Surveyor.
Insurance companies must provide substantial proof when denying claims; unjust repudiation leads to enforceable obligations to pay agreed amounts.
Assessment - The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor.
IMPORATNT POINT Appointment of Surveyor – Insured can also appoint a Surveyor or loss accessor.
Assessment of Damage - In the absence of any concrete evidence to justify the assessment of the damage on account of the fire on the premises of the complainant to be valued differently from that cla....
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