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BEFORE THE HON’BLE CONSUMER DISPUTE REDRESSAL COMMISSION; AT DWARKA;
NEW DELHI
C.C. NO.____OF 2023.
IN THE MATTER OF:-
_____________________ :
COMPLAINANT
VERSUS
__________________ :
OPPOSITE PARTY
D.O.H.:- …….2023
REPLICATION ON BEHALF OF THE COMPLAINANT
TO THE WRITTEN STATEMENT FILED BY THE OPPOSITE PARTY TO THE COMPLAINT.
MOST RESPECTFULLY SHOWETH:-
1.
That the present Replication is
filed on behalf of the Complainant in reply to Written Statement filed by answering
Opposite Party. It is stated that the Opposite Party has made libelous and
slanderous allegations in their written statement against the Complainant and
the Opposite Party reserves the right to initiate the legal action as warranted
under the law against the Opposite Party.
2.
Without prejudice to the foregoing
and without in any manner admitting any of the submissions, contentions and
allegations made in the Written Statement by answering Opposite Party save and except those expressly admitted, the Complainant are
tendering its replication to the written
statement as under:-
REPLY TO THE PRELIMINARY OBJECTIONS:-
1. That the contents of para 1 of the preliminary objections are wrong
and denied. It is denied that the complaint filed is absolutely false,
frivolous and vexatious and is therefore liable to be dismissed with costs.
2. That the contents of para 2 of the preliminary objections are
wrong and denied. It is denied that the complaint was filed is without any
cause of action and hence is liable to be dismissed forthwith.
3. That the contents of para 3 of the preliminary objections are
wrong and denied. It is denied that the complainant being a profit making
undertaking falls outside the purview of the Consumer Protection Act. It is
further denied that the complaint filed is bad in law and liable to be dismissed.
4. That the contents of para 4 of the preliminary objections are wrong
and denied. It is denied that the claim of the complainant stands duly settled.
It is further denied that the complaint as put forth by the complainant is
nothing but a cock and bull story to satiate his ulterior motives.
5. That the contents of para 5 of the preliminary objections are
wrong and denied. It is denied that the discharge voucher dated __________ duly
signed and executed by the complainant and the amount of Rs._________/-
transferred to his account corroborates the full, and final discharge of
complainant's claim as raised under the Marine Inland Specific Voyage policy
bearing No. ________ in the name of ________ valid from ______ till the end of
voyage. It is further denied that no protest of any sort was ever raised by the
complainant while signing of the discharge voucher or till the amount got
transferred in his account. It is further denied that the filing of the present
complaint is an afterthought and a subterfuge. It is further denied that the
complaint was filed is nothing but misuse of law.
6. That the contents of para 6 of the preliminary objections are
wrong and denied. It is denied that the entire calculation was
shared with the complainant before proceeding with the settlement of the claim.
It is further denied that the complainant had voluntarily settled the claim
without any demur, had it been the case of forced settlement complainant was at
liberty to sign/ execute the discharge voucher under protest but the same was
never done by him.
7. That the contents of para 7 of the preliminary objections are
wrong and denied. It is denied that entire calculation and
deductions made in the claim amount was done after getting the survey conducted
in the case by the IRDAI approved surveyor and the same was duly communicated
to the complainant over emails as well. It is further denied that certain
deductions were required to be made on various accounts such as Depreciation,
exclusion of GST and TCS as the insured are eligible to get input credit for
the same, claim of transportation and insurance premium, with GST, Pre-existing
damages upto5% and depreciation of 5% based on age and useful life of vehicle
and most importantly, non-supply of document such as LR. It is further denied
that after all the calculations Net payable amount came to be ________ (__________)
and the same was duly paid to the complainant. Judgment cited in this para is not
applicable to the present case and hence the same is denied.
8. That the contents of para 8 of the preliminary objections are
wrong and denied. It is denied that bald plea of fraud,
coercion, duress is not tenable. It is further denied that the party who
desires to set up this plea should establish the same by prima facie placing
the sufficient material qua the same. It is further denied that the settlement
entered between the complainant and opposite party was absolutely voluntary.
9. That the contents of para 9 of the preliminary objections are
wrong and denied. It is denied that the complainant has not come to this
Hon'ble Forum with clean hands. It is further denied that there is no
deficiency in service on the part of the opposite party as such and the
complainant being absolutely frivolous and devoid of any merit is liable to be
dismissed with costs.
10. That the contents of para 10 of the preliminary objections are
wrong and denied. It is denied that the revised assessment of claim of Rs. ________
was duly communicated by the surveyor to the Complainant vide email dated _________
against which the Complainant willfully and voluntarily gave his approval over
email dated ______.
It is further denied that the vide
email dated _______, the surveyor had categorically assessed the claim amount against
the claimed amount of the Complainant, wherein as stated in para no.7, certain
necessary deductions were made by the surveyor.
11. That the contents of para 11 of the preliminary objections are
wrong and denied. It is denied that the Complainant was made aware to provide
signed and stamped discharge voucher post which the payment of claim would be
released in his favor. It is further denied that the discharge voucher was
signed and stamped on ________ by the Complainant without any protest or any
grievance whatsoever.
12. That the contents of para 12 of the preliminary objections are
wrong and denied. It is denied that subsequent to which the payment of Rs. _________
was made to the account details of the Complainant on __________, as already
admitted in the accompanying consumer complaint.
13. That the contents of para 13 of the preliminary objections are
wrong and denied. It is denied that the Complainant has failed to acknowledge
that the stone crushing machine and parts pertaining to subject consignment
were used machinery items. It is further denied that legitimate deductions were
made by the surveyor towards the claim of the Complainant.
REPLICATION TO THE PARAWISE REPLY:-
1. That the contents of para 1 of the reply are wrong and denied and
those of the corresponding para of the complaint are reiterated as correct. It
is denied that thus complainant herein being a commercial profit making entity
squarely falls outside the purview of Consumer protection Act which is a
beneficial piece of legislation.
2. That the contents of para 2 of the reply are wrong and denied and
those of the corresponding para of the complaint are reiterated as correct. It
is denied that complainant voluntarily entered into settlement with respect to
its claim and had executed a valid discharge voucher qua the same. It is
further denied that no protest was raised or registered at the same of the
execution of the discharge voucher or till the transfer of the amount in its
account. It is further denied that the complaint filed is an afterthought and
subterfuge to mint money.
3. That the contents of para 3 of the reply are matter of record,
hence need no replication and those of the corresponding para of the complaint are
reiterated as correct.
4. That the contents of para 4 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that complainant miserably failed to supply GR/LR as needed by the
opposite party for claim processing. It is further denied that claim processing
requires additional set of documents other than one submitted at the time of
issuance of policy which complainant failed to provide to the opposite party.
5-7. That the contents of paras 5-7 of the reply
are wrong and denied and those of the corresponding paras of the complaint are
reiterated as correct. It is denied that the claim processing is a complete
process which is supposed to go through various stages, inspections and
document scrutiny. It is further denied that final calculation of the claim
amount is arrived at after due scrutiny of the documents and in accordance with
the policy terms and conditions.
8-9. That the contents of paras 8-9 of the reply
are wrong and denied and those of the corresponding paras of the complaint are
reiterated as correct. It is denied that the complaint is miserably failed to
supply the requisite documents such LR, copy of FIR, police report, pre
dispatch inspection, claim bill etc. as needed by the opposite party.
10. That the contents of para 10 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
11. That the contents of para 11 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
12. That the contents of para 12 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that the genuine calculation was shared with the complainant which
further necessitated certain clarification before final claim amount could be
arrived at.
13. That the contents of para 13 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that there was no compulsion on the
14. That the contents of para 14 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that calculation of the claim put forth by the complainant was
absolutely vague and baseless.
15. That the contents of para 15 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that calculation after due scrutiny and representations was shared
with the complainant. It is further denied that there was no compulsion on the
complainant to settle the claim. It is further denied that whatever calculation
transpired from the surveyors end was shared with the complainant openly, as
far as deduction of 25% is concerned, it is submitted that the said deduction
was made in the absence of recovery documents i.e. LR which admittedly has not
been submitted by the Complainant. It is further denied that vide email dated ________,
the surveyor had categorically informed the Complainant that the consignment
transported by him after taking on hire vehicle from __________ was on payment
receipt without LR/GR of Public Carrier and as such no provision of carrier act
can attach to Mr. ________ on the basis of payment receipt. It is further
denied that the e-way bill dated _________ was generated by __________ ___________the
Complainant) and hence, the Complainant was deemed self-carrier (Private
Carrier) of the consignment.
16-18.That the contents of
paras 16-18 of the reply are wrong and denied and those of the corresponding
paras of the complaint are reiterated as correct. It is denied that complainant
was duly asked to provide documents to substantiate its claim, however, it
failed to do so and hence the amount as admissible after making deductions in
the absence of clarifications was conveyed to the complainant. It is further
denied that complainant made multiple statements
19. That the contents of para 19 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that if complainant was not willing to accept the approved claim
amount he could have mentioned his protest or denied the claim altogether. It
is further denied that no protest was raised either on the email dated _______
or on the discharge voucher or until the receipt of the claim amount form the
opposite party. It is further denied that the complaint as filed is an
afterthought, subterfuge, hence is liable to be dismissed with exemplary costs.
20. That the contents of para 20 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that disputing the settlement afterwards is
21. That the contents of para 21 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
22. That the contents of para 22 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that since complainant has voluntarily, without any demur or
protest accepted the insurance claim for Rs_________, it has got no cause of
action to approach the Hon'ble Forum at this stage.
23. That the contents of para 23 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that since complainant has voluntarily, without any demur or
protest accepted the insurance claim for Rs. _________, it has got no cause of
action to approach the Hon'ble Forum at this stage.
24. That the contents of para 24 of the reply are matter of record,
need no replication and those of the corresponding para of the complaint are
reiterated as correct.
25. That the contents of para 25 of the reply are matter of record,
need no replication and those of the corresponding para of the complaint are
reiterated as correct.
26. That the contents of para 26 of the reply are wrong and denied
and those of the corresponding para of the complaint are reiterated as correct.
It is denied that the complainant being a profit making undertaking falls
outside the purview of the Consumer Protection Act. It is further denied that
the complaint being filed is bad in law and liable to be dismissed.
27. That the contents of para 27 of the reply, need no replication
and those of the corresponding para of the complaint are reiterated as correct.
Prayer para of
the written statement are absolutely wrong and specifically denied. The Opposite
party is not entitled to the relief claimed for.
Any allegation made in the
written statement and are not specifically denied herein are absolutely wrong
and specifically denied and its non-specifically denial shall not be taken as
an admission on the part of the complainant.
It is therefore most respectfully prayed that the relief
may kindly be granted in favour of the complainant and against the Opposite
Party as prayed in the main complaint, in the interest of justice, equity and
circumstances of the case.
Pass such further order or
orders as this Hon’ble Commission may deem fit and proper of the facts and
circumstances of the case, in the interest of justice.
It is prayed
accordingly.
DELHI COMPLAINANT
THROUGH
DATED:
_________________
ADVOCATES AND LEGAL CONSULTANTS
________________.,
NEW DELHI-110014
BEFORE THE HON’BLE CONSUMER DISPUTE REDRESSAL COMMISSION; AT DWARKA;
NEW DELHI
C.C. NO.__ OF 2023.
IN THE MATTER OF:-
________________________ : COMPLAINANT
VERSUS
_____________________ : OPPOSITE PARTY
Affidavit
of Mr. _________, Proprietor of M/s. ____________, __________, ____________,
New Delhi-110007, do hereby solemnly affirm and declare as under :-
1. That I am the Complainant in
the captioned case and am therefore, competent to swear this affidavit.
2. That the contents of the
accompanying replication to the reply have been read over and explained to me
in vernacular language and having understood the same I say that the facts
stated therein are true to the best of my knowledge and belief and nothing
material has been concealed therefrom.That the facts as stated above in the
affidavit are true to my knowledge and no part of the same is false and nothing
material has been concealed therefrom.
VERIFICATION :-
Verified at Delhi on this ____, day of August, 2023 that the facts stated
in my above Affidavit are true to my knowledge and no part of the same is false
and nothing material has been concealed therefrom.
DEPONENT
