First Appeal No. 1436 of 2000

30th November, 2011

Petitioner Counsel: Mr. M.M. MAHAJAN

Cases Cited:
Dilip Kumar W. Daryapurkar Vs. National Insurance Co.Ltd., 1997 CCJ 1362 [Para 4]

JUDGMENT

Mr. S.R.KHANZODE, Hon'ble Judicial Member :- This appeal takes an exception to an order dated 27/03/2000, passed in consumer complaint no.32/1999, Hemant Anil Khanvilkar v/s. Branch Manager, New India Assurance Co.Ltd. and another, passed by District Consumer Disputes Redressal Forum, Sindhudurg ('forum' in short).

2. The forum upholding the case of deficiency in service on the part of Insurance company and further holding that the claim sanctioned and paid is an inadequate amount was pleased to grant relief directing the appellant/opponent to pay compensation of '91,076/- along with interest @ 14% p.a. from 19/07/1999. Besides this, compensation of '5000/- towards mental torture and '5000/- as costs were also awarded. Feeling aggrieved thereby, opponent no.1-Branch manager, New India Assurance Co.Ltd. preferred this appeal.

3. At the time of hearing of the appeal, respondent though served and given intimation of the date fixed for hearing, preferred to remain absent. Under the circumstances, we heard the Ld.counsel appearing for the appellant. Insurance claim relates to the accident of the vehicle bearing no.MH-07-2513. Said accident occurred on 14/05/1997. It appears that insurance claim was settled for '83,924/- and even the said amount was paid to and accepted by the respondent/original complainant. Subsequently, the complainant submitted that said compensation awarded is inadequate and, therefore, filed the consumer complaint.

4. It is a case of opponent that the amount of claim which was paid and received by the respondent/complainant was accepted by him as full and final settlement of the claim and, therefore, the consumer complaint would not lie. In the impugned order the forum was pleased to observe that alleged protest letter after once accepted the amount without any protest vide letter dated 02/09/1998 sent by the respondent/complainant to the Insurance company was not tendered in evidence and established and the complainant failed to establish that it was received by the Insurance company. Therefore, case of the Insurance company that the amount or claim sanctioned and paid to the complainant was accepted by him towards the full and final settlement remains undisturbed. Besides this, once the Insurance company settled the insurance claim and paid that amount and even the complainant received the same at the time of receiving the payment without any protest towards the full and final settlement of the insurance claim, no deficiency in service on the part of Insurance company can be inferred or subsist. A useful reference on the point can be made to the decision of National Commission in the matter of Dilip Kumar Wamanrao Daryapurkar v/s. National Insurance Co.Ltd.;. 1997 CCJ 1362.

5. Besides this, deficiency in service for not sanctioning entire claim or otherwise could be alleged only against the Insurance company issuing the policy namely M/s.New India Assurance Co. Ltd. Said Insurance company is not made a party. Its officials namely Branch Manager i.e. appellant or the Divisional Manager (original opponent no.2) are separate, independent and distinct juridic persons than the company itself in view of the provisions of section 2(1)(m) of the Consumer Protection Act, 1986. These officials are not the service providers. Besides that no allegations indicating deficiency in service on their part are made against these officials. Under the circumstances, this complaint cannot be termed as a consumer dispute. Forum entertaining consumer complaint assuming jurisdiction and passing the impugned order, therefore, cannot be supported in the eyes of law.

6. For the reasons stated above, we hold accordingly and pass the following order:-

ORDER

Appeal is allowed.

Impugned order dated 27/03/2000 is set aside.

In the result, consumer complaint stands dismissed.

Parties to bear their own costs.

Copies of the order be furnished to the parties.

Appeal allowed.