ORDER : P.S. Rana, President 1. Present appeal is filed against order dated 07.12.2018 passed by Learned District Consumer Forum/Commission in consumer complaint No. 60/2017 titled Rajender Pal Gupta v. The New India Assurance Company Ltd. and another. Brief facts of consumer complaint: 2. Complainant filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of vehicle No. HP-33E-0242. It is pleaded that vehicle in question was insured with opposite party No. 1 w.e.f. 13.02.2016 to 12.02.2017. It is further pleaded that premium was also paid to Insurance Company. It is pleaded that on dated 02.08.2016 vehicle in question was on its way back to Ner Chowk Mandi from Kullu and when vehicle reached at Aut Tunnel another vehicle No. HP-49-1848 rammed with insured vehicle with full force and damaged vehicle in question. It is pleaded that Insurance Company did not pay actual damage sustained by complainant and committed deficiency in service. Complainant sought relief to the effect that opposite parties jointly & severally be directed to pay a sum of Rs. 1084786/- (Ten lac eighty four thousand seven hundred eighty six) as O.D. claim of vehicle in question alongwith interest @ 12% per annum from the date of accident till actual payment. In addition complainant sought relief to the effect that opposite parties be directed to pay compensation to complainant to the tune of Rs. 100000/- (One lac). Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party No. 1 pleaded therein that complainant has no cause of action. It is pleaded that Insurance Company has not repudiated claim of complainant and has approved the Insurance claim on net of salvage basis amounting to Rs. 860000/- (Eight lac sixty thousand) as assessed by Surveyor cum Loss Assessor. It is further pleaded that complainant has given voluntarily consent for payment of Rs. 860000/- (Eight lac sixty thousand) as full and final settlement inter se parties subject to cancellation of R.C. of car. It is pleaded that complainant is estopped by his own act and conduct to file present consumer complaint. It is further pleaded that opposite party No. 1 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 4. It is pleaded that complainant is estopped by his own act and conduct to file present consumer complaint. It is further pleaded that opposite party No. 1 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 4. Learned Advocate appearing on behalf of opposite party No. 2 did not file separate version and adopted version filed by opposite party No. 1 vide separate statement recorded on 22.11.2017 by learned DCF/DCC. 5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned DCF/DCC dismissed the consumer complaint filed by complainant. Learned DCF/DCC further ordered that complainant would cancel R.C. of vehicle in question and thereafter cancelled R.C. of vehicle would be handed over by complainant to opposite party No. 1 within 30 days w.e.f. 07.12.2018 against proper receipt. Learned DCF/DCC further ordered that failing which complainant would pay penalty of Rs. 100/- (One hundred) per day from date of execution of affidavit dated 27.10.2016 till handing over of cancelled R.C. of vehicle in question to opposite party No. 1. Feeling aggrieved against order passed by learned DCF/DCC complainant filed present appeal before State Commission. 6. We have heard learned Advocates appearing on behalf of appellant and opposite party No. 1 on merits and we have also perused entire record carefully. 7. Following points arise for determination in present appeal. 1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether complainant is estopped from claiming enhanced amount after accepting Insurance claim as full & final settlement vide documents i.e. signed affidavit annexure-OP-5 dated 27.10.2016. 2. Final order. Findings upon point No. 1 with reasons: 8. Complainant filed affidavit in evidence. There is recital in affidavit that deponent is registered owner of vehicle No. HF-33E-0242. There is recital in affidavit that vehicle in question was insured with opposite party No. 1 w.e.f. 13.02.2016 to 12.02.2017. There is recital in affidavit that on dated 02.08.2016 vehicle in question met with accident and was damaged completely. There is recital in affidavit that accident was informed to Insurance Company. There is recital in affidavit that Insurance Company has deposited a sum of Rs. 860000/- (Eight lac sixty thousand) as O.D claim of vehicle in question which is on lesser side. There is recital in affidavit that IDV of vehicle in question was Rs. There is recital in affidavit that accident was informed to Insurance Company. There is recital in affidavit that Insurance Company has deposited a sum of Rs. 860000/- (Eight lac sixty thousand) as O.D claim of vehicle in question which is on lesser side. There is recital in affidavit that IDV of vehicle in question was Rs. 1084786/- (Ten lac eighty four thousand seven hundred eighty six). There is recital in affidavit that vehicle was totally damaged. State Commission has carefully perused all annexures filed by complainant. 9. Shri B.S. Kapoor filed affidavit on behalf of New India Assurance Company Ltd. in evidence. There is recital in affidavit that Insurance Company appointed Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has assessed loss to the tune of Rs. 860000/- (Eight lac sixty thousand). There is recital in affidavit that Insurance Company has deposited amount to the tune of Rs. 860000/- (Eight lac sixty thousand) as full and final settlement executed inter se parties vide signed affidavit by complainant annexure-OP-5. 10. Insurance company also filed corroborative affidavit of Sh. Mohinder K. Sharma Surveyor cum Loss Assessor in evidence. There is recital in affidavit that deponent conducted survey of vehicle in question. There is recital in affidavit that report submitted by deponent annexure-OP4 be read as an integral part of affidavit. There is recital in affidavit that report submitted by deponent is true and correct. 11. Opposite party No. 2 filed affidavit of Sh. Vinod Rana General Manager Sapna Cars Pvt. Ltd. in evidence. There is recital in affidavit that dispute is inter se complainant and opposite party No. 1. There is recital in affidavit that opposite party No. 2 has no privity to the Insurance policy. There is recital in affidavit that consumer complaint against opposite party No. 2 is manipulated and false complaint. State Commission has carefully perused all annexures filed by opposite parties. 12. Submission of learned Advocate appearing on behalf of complainant that Insurance Company has paid less Insurance claim to the rune of Rs. 860000/- (Eight lac sixty thousand) contrary to IDV of vehicle in question in total loss matter and on this ground appeal filed by complainant be allowed is decided accordingly. It is proved on record that Insurance Company appointed Surveyor cum Loss Assessor registered under Statutory Insurance Act 1938 namely Sh. Mohinder K. Sharma. 860000/- (Eight lac sixty thousand) contrary to IDV of vehicle in question in total loss matter and on this ground appeal filed by complainant be allowed is decided accordingly. It is proved on record that Insurance Company appointed Surveyor cum Loss Assessor registered under Statutory Insurance Act 1938 namely Sh. Mohinder K. Sharma. Surveyor cum Loss Assessor has recommended loss on net of salvage basis consented by insured to the tune of Rs. 860000/- (Eight lac sixty thousand). 13. Complainant did not send any interrogatories to Surveyor cum Loss Assessor namely Sh. Mohinder K. Sharma. It is well settled law that report submitted by Surveyor cum Loss Assessor is substantial piece of evidence and same should be believed for settlement of Insurance claim unless contrary is proved against Surveyor cum Loss Assessor. See 2012 (1) CPJ 420 NC, H.C. Saxena v. New India Assurance Company Ltd. See 2012 (4) CPJ 103 NC, National Insurance Company Ltd. v. Jyothi Tobacco Traders. See 2009 (3) CPJ 194 NC, Nand Kishore Jaisival v. National Insurance Company Ltd. See 2010 (3) CPJ 401 NC, New India Assurance Company Ltd. v. Pushpa Chhabra. See 2010 (1) CPC 696 NC, Champa Lal Verma v. Oriental Insurance Company Ltd. See 2009 (1) CPC 166 NC, Pradeep Kumar v. National Insurance Company Ltd. 14. Insurance Company filed affidavit signed by complainant attested by competent Authority Annexure-OP-5 dated 27.10.2016 placed on record. Complainant has settled amount as full and final settlement claim and complainant has given undertaking by way of signed affidavit that complainant would not press other claim qua own damage of vehicle in question. There is recital in affidavit that complainant has given consent without any fear or pressure. State Commission is of the opinion that in view of affidavit Annexure-OP5 placed on record signed by complainant and attested by competent authority of law complainant is estopped from claiming enhanced Insurance claim by his own act and conduct. 15. It is not the case of complainant that complainant is illiterate rustic villager. On the contrary complainant has signed affidavit Annexure-OP-5 in English language. There is no evidence on record in order to prove that complainant has signed affidavit under coercion or undue influence. On the contrary there is recital in affidavit that complainant has given consent for payment of Rs. 860000/- (Eight lac sixty thousand) as Insurance claim without any fear or pressure. There is no evidence on record in order to prove that complainant has signed affidavit under coercion or undue influence. On the contrary there is recital in affidavit that complainant has given consent for payment of Rs. 860000/- (Eight lac sixty thousand) as Insurance claim without any fear or pressure. State Commission is of the opinion that affidavit given by complainant is binding upon complainant and it is not expedient in the ends of justice to permit complainant to approbate and reprobate at the same time. See 1999 (II) CPJ 10 SC titled United India Insurance Company v. Ajmer Singh Cotton & General Mills and others. See 2019 (II) CPJ 51 NC, K.N. Resourses Pvt. Ltd. v. Oriental Insurance Co. Ltd. and others. See 2015 (III) CPJ 503 NC titled New India Assurance Company Ltd. v. Combined Medical Institute Pvt. Ltd. See 2015 (II) CPJ 473 NC titled Amit Chawla v. Parsvnath development Ltd. 16. Submission of learned Advocate appearing on behalf of complainant that IDV of vehicle in question was Rs. 1084786/- (Ten lac eighty four thousand seven hundred eighty six) and Surveyor cum Loss Assessor has reduced value to the tune of Rs. 860000/- (Eight lac sixty thousand) in a biased manner and on this ground appeal filed by complainant be allowed is decided accordingly. Complainant did not implead Surveyor cum Loss Assessor as co-party in present matter. It is well settled law that Quasi Judicial Authority is not competent to give finding against a person who is not impleaded as co-party in consumer complaint. It is well settled law that no one should be condemned unheard on the concept of "Audi alteram partem". 17. Submission of learned Advocate appearing on behalf of complainant that complainant has signed affidavit annenure-OP-5 as formality and Insurance Company has misused the affidavit and on this ground appeal filed by complainant be allowed is decided accordingly. Complainant has signed affidavit in English language and affidavit has been attested by competent authority of law. Complainant did not file affidavit of person who has attested affidavit signed by complainant. Plea of complainant that he has given affidavit annexure-OP5 only as formality is defeated on the concept of ipse dixit (An assertion made without proof). 18. Complainant has signed affidavit in English language and affidavit has been attested by competent authority of law. Complainant did not file affidavit of person who has attested affidavit signed by complainant. Plea of complainant that he has given affidavit annexure-OP5 only as formality is defeated on the concept of ipse dixit (An assertion made without proof). 18. Submission of learned Advocate appearing on behalf of complainant that value of salvage has not been properly assessed by Surveyor cum Loss Assessor and on this ground appeal filed by complainant be allowed is decided accordingly. Complainant has given signed affidavit dated 27.10.2016 as full and final settlement of claim to the tune of Rs. 860000/- (Eight lac sixty thousand) and amount to the tune of Rs. 860000/- (Eight lac sixty thousand) was deposited by Insurance Company before learned DCF/DCC on dated 30.05.2017 by way of cheque No. 006089. State Commission is of the opinion that after acceptance of Insurance claim as full and final settlement by way of signed affidavit dated 27.10.2016 annexure-OP-5 complainant is estopped from claiming enhanced amount by his own act and conduct in view of ruling cited supra. 19. Submission of learned Advocate appearing on behalf of complainant that order of learned DCF/DCC to the effect that complainant would pay penalty of Rs. 100/- (One hundred) per day from date of execution of affidavit i.e. 27.10.2016 till handing over of cancelled R.C. to opposite party No. 1 warrants interference by State Commission is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice to impose penalty of Rs. 100/- One hundred) per day upon complainant from date of execution of affidavit annexure-OP5 dated 27.10.2016 till handing over of cancelled R.C. to the opposite party No. 1 because there is no recital in full and final settlement annexure-OP-5 that complainant would pay Rs. 100/- (One hundred) per day to Insurance Company from date of signing of affidavit dated 27.10.2016 till handing over of cancelled R.C. to Insurance Company. 20. Submission of learned Advocate appearing on behalf of Insurance Company that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and same does not warrant interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned DCF/DCC partly warrants interference by State Commission relating to order of penalty @ Rs. State Commission is of the opinion that order of learned DCF/DCC partly warrants interference by State Commission relating to order of penalty @ Rs. 100/- (One hundred) per day from date of signing of affidavit dated 27.10.2016 annexure-OP-5 till handing over of cancelled R.C. to opposite party No. 1 in view of concept that appeal before State Commission is continuation of original consumer complaint. State Commission is of the opinion that it is equitable on the principles of natural justice and in the ends of justice to set aside penalty order passed by learned DCF/DCC mentioned in para No. 15 of order. 21. Facts of case laws cited by learned Advocate appearing on behalf of opposite party No. 1 i.e. 2016 (4) CPJ 35 titled Jagdish Kainthla v. Bajaj Allianz General Insurance Company 2015 (3) CPJ 503 titled New India Assurance Company Limited v. Combined Medical Institute Private Limited 2014 (2) CPJ 280 titled Jees Ram Kanshi Ram Pvt. Ltd. v. National Insurance Company Limited and facts of present matter relating to imposition of penalty of Rs. 100/- (One hundred) per day w.e.f. execution of affidavit by complainant dated 27.10.2016 till handing over of cancelled R.C. to Insurance Company are entirely different and distinguishable. Point No. 1 is answered accordingly. Point No. 2: Final Order 22. In view of findings upon point No. 1 above appeal filed by complainant is partly allowed. Order of learned DCF/DCC that complainant would pay penalty of Rs. 100/- (One hundred) per day from date of execution of affidavit dated 27.10.2016 till handing over of cancelled R.C. to Insurance Company is set aside. Other part of order of learned DCF/DCC is affirmed. Affidavit signed by complainant for full and final settlement Annexure-OP-5 dated 27.10.2016 and cheque No. 006089 dated 02.05.2017 submitted by Insurance Company to the tune of Rs. 860000/- (Eight lac sixty thousand) and report of Surveyor cum Loss Assessor namely Sh. Mohinder K. Sharma dated 07.03.2017 Annexure-OP-4 and R.C. of vehicle in question annexure-C-I shall form part and parcel of order. 23. Amount deposited to the tune of Rs. 860000/- (Eight lac sixty thousand) by Insurance Company before learned DCF/DCC shall be released forthwith in favour of complainant alongwith upto date interest by learned DCF/DCC Mandi (H.P) on production of NOC from financier namely Punjab and Sindh Bank Mandi (H.P). 23. Amount deposited to the tune of Rs. 860000/- (Eight lac sixty thousand) by Insurance Company before learned DCF/DCC shall be released forthwith in favour of complainant alongwith upto date interest by learned DCF/DCC Mandi (H.P) on production of NOC from financier namely Punjab and Sindh Bank Mandi (H.P). Failing which O.D claim of vehicle in question will be transmitted to Punjab and Sindh Bank Mandi (H.P) for liquidation of loan amount because vehicle in question was leased with financier i.e. Punjab and Sindh Bank as per R.C. Annexure-C-I. 24. Parties are left to bear their own litigation costs before State Commission. Order of learned DCF/DCC is modified accordingly. Certified copy of order be sent to learned DCF/DCC for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Due to winter vacation of State Commission w.e.f. 11.01.2020 to 23.02.2020 and due to country wide lockdown on account of Corona virus appeal is decided today. Appeal is disposed of; Pending application(s) if any also disposed of.