National Consumer Disputes Redressal
M/S Vijay Stationers vs United India Insurance Co. Ltd. on 20 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 3954 of 2012 (From the order dated 17.03.2012 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 215 of 2012) M/s Vijay Stationers, Proprietor Shri Vijay Raj Kumar Manwani G 796, D Ward, Kolhapur Through Shri Vasdev Lalwani, Advocate Petitioner (s) C 2, Takshshila Apartments I P Extension, Delhi 110 092 versus Divisional Manager United India Insurance Co. Ltd. Station Road, Near Congress Bhavan Respondent(s) E Ward, Kolhapur, Maharashtra BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Vasdev Lalwani, Advocate Pronounced on 20th February 2013 ORDER
REKHA GUPTA The present revision petition has been filed against the order dated 17th March 2012 in Appeal no. A/12/215 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, the State Commission), whereby the State Commission had dismissed the appeal of the petitioner for enhancement of the amount paid to him by the Insurance Company.
2. The complainant has a retail and wholesale business of stationery in the name of M/s Vijay Stationers of which he is the owner and proprietor. It is situated in a property taken on leave and license basis. He had taken insurance of property/ building to the sum insured of Rs.3,50,000/- stock contained in the building insured for Rs.23 lakh and furniture insured for Rs.1,70,000/- for which the Insurance Company has issued a policy no. 160500/48/05/34/00002780 for the period 21.01.2006 to 19.01.2007 from the United India Insurance Co. Ltd.
3. The complainant stated that there was a fire in his shop on 15th October 2006. In the said fire, entire building and stock contained in it was totally damaged. The total insurance claim was made for Rs.28,20,000/- but the insurance company sanctioned only an amount of Rs.21,30,000/- which was the loss assessed by the appointed surveyor. This amount was deposited in the account of the complainant in the Subhadra Area Bank, Branch Kolhapur on 15.11.2007. Thereafter on 10.12.2007 he wrote to a letter to the Insurance Company that the amount paid is not acceptable to him and asked the Insurance Company to pay the difference of Rs.6,90,000/- along with 18% interest on the entire claim amount.
4. The respondent insurance company stated that a surveyor was appointed. The surveyor assessed the loss at Rs.21,30,000/-. The complainant accepted the same as full and final settlement of the claim and as such there was no deficiency in service on their part. In support of its say, they have filed the Survey Report and final discharge voucher signed by the complainant.
5. The District Forum after considering all the facts of the case came to the conclusions that the case laws/precedents filed by the complainant in his consumer complaint were not applicable to the said complaint and therefore, the three complaints of the complainant were dismissed.
6. The State Commission after considering the facts, as revealed from the documents and came to the conclusion that undisputedly, the Insurance Company sanctioned the claim of Rs.21,30,000/- towards the full and final settlement and the amount was deposited in the account of the complainant, once he accepted the same. Complainant tried to submit that he has not accepted the amount towards full and final settlement of the claim and filed a consumer complaint. In this background, no deficiency of service on the part of the Insurance Company could be alleged or said to have been established. Besides that there was no evidence adduced on behalf of the complainant to establish his total claim was of Rs.28,20,000/-. For all these reasons the State Commission found that dismissal of consumer complaint by the District Forum could not be faulted with and that the appeal was devoid of any substance. Hence, the appeal was not admitted and was rejected.
7. Hence, this revision petition.
8. We have heard the learned counsel for the petitioner and have also gone through the record. The counsel for the petitioner has filed the discharge certificate. It is evident from the reading of the discharge certificate that nowhere has any protest been recorded while accepting the payment. The facts remains that the amount had been deposited in his account on 15.11.2007. However, he sent a letter of protest only on 10.12.2007.
9. Learned counsel for the petitioner has cited two judgements of this Commission in support of his contention. Oriental Insurance Company Ltd., and Anr., vs Girdhari Lal Tulshiramji Joshi (1998 CCJ 210) is not relevant in this case. In this case the amount claimed had been settled by the opposite party on the basis of averages and that the said policy was for a total loss and hence, the grant of partial claim was taken as deficiency in service.
10. In the case of Nand Kishore Jaiswal vs National Insurance Co. Ltd., [III (2009) CPJ 194 (NC) ] no valid reasons have been given for reducing the assessment made by the surveyor. In the instant case, based on the remarks of the Surveyor on the Ownership of the Building the Insurance Company had disallowed the claim of the builder stating that the petitioner did not have any insurable interest in the said building. Therefore, the claim for the damage of loss to the building was not payable.
11. Law on this subject has been clearly laid down by Honble Supreme Court of India in Ajmer Singh Cotton and General Mills (supra). Honble Court has observed:
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. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. There mere execution of discharge voucher and acceptance of the insurance would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.
In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentations or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints.
12. In Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 Supreme Court Cases 311, Apex Court has held;
18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 74.1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the offeree was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case discloses that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the offeree had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act.
13. The petitioner has stated that to avoid any further loss of income and closure of business he had accepted the cheque and encashed the same. There is nothing on record to show that the cheque was accepted and encashed under protest. It is also a fact that he wrote to the insurance company for the balance amount after almost 3 weeks.
14. In the present case there is nothing on record to show that the petitioner was compelled by the respondent at any stage to settle the claim at a lesser amount than the claim made by him. There is also not an iota of evidence on record to show any coercion on the part of the respondent that he compelled the petitioner to settle the claim at a lesser amount. Once the petitioner had received the amount unconditionally, then he ceases to be a Consumer as per the Act. The privity of contract of consumer and service provider between the parties, if any, came to an end, the moment the petitioner accepted the amount unconditionally.
15. Thus, there is no merit in the present revision petition and the same is accordingly, dismissed with cost of Rs.5,000/-. Cost be deposited by way of demand draft in the name of Consumer Welfare Fund as per Rule 10 A of the Consumer Protection Rule, 1987 within four weeks.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish