State Consumer Disputes Redressal Commission
The New India Insurance Co.Ltd. vs Upendra Singh on 4 October, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/614
Instituted on : 28.07.2018
The New India Assurance Company Limited,
Through : Manager, Branch Office
Near Sattigudi Chowk,
Raigarh (C.G.). .... Appellant/Insurer (O.P.)
Vs.
Upendra Singh, Aged 52 years,
S/o Late Devnandan Singh,
R/o : Village : Kaidimuda, Raigarh,
Tehsil and District Raigarh (C.G.). ... Respondent /Insured/Complainant.
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Shobhit Mishra, Advocate for the appellant (O.P.).
Shri Suryakant Sharma, Advocate for the respondent (complainant).
ORDER
DATED : 04/OCTOBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 25.05.2018, passed by District Consumer Disputes Redressal Forum, Raigarh (C.G.) (henceforth "District Forum") in Complaint Case No.138/2016. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed the O.P. as under :-
(a) The O.P. will pay the remaining amount of Rs.7,52,500/- (Rupees Seven Lakh Fifty Two Thousand Five Hundred) to the complainant within period of one month.
// 2 //
(b) The O.P. will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony and Rs.2,000/- (Rupees Two Thousand) towards cost of litigation, to the complainant within period of one month.
(c) The O.P. will pay the decretal amount within one month, otherwise interest @ 9% p.a. will be payable on the decretal amount from the date of filing of the complaint i.e. 27.10.2016 till realization.
2. Briefly stated, the facts of the complaint of the complainant are, that the complainant is registered owner of vehicle Bus bearing registration No.B.R.26- G-0614. The complainant had obtained the permit in the name of Badan Bus Service and the above bus was running as Passenger Carrying Vehicle and was running from Raigarh (C.G.) to Sasaram (Bihar) and Sasaram (Bihar) to Raigarh (C.G.). The above vehicle was insured with the O.P. (Insurance Company) for the period from 22.01.2014 to 21.01.2015 under insurance policy No.3010000840. The Insured Declared Value of the vehicle was fixed Rs.22,00,000/-. As per the terms and conditions of the insurance policy, if during the period of subsistence of the insurance policy, any damage is caused to the insured vehicle, then the O.P. will pay entire compensation to the complainant. The above vehicle was being driven by the driver Kamleshwar Yadav, who was possessing valid and effective driving licence from Raigarh to Sasaram and Sasaram to Raigarh. On 28.09.2014, the driver Kamleshwar Yadav was driving the vehicle in question and was going from Raigarh to Sasaram, while the vehicle reached to Village Nawadih from Vishrampur at 9.30 A.M., the upper portion of the vehicle came into contact of the electric wire and the vehicle came into contact of the current, // 3 // due to which the bus caught fire. In the incident many passengers sustained injuries. Due to burning of the bus, the bus was completely damaged. The incident was reported to Police Station, Vishrampur, District Palamoo and Police Station, Vishrampur recorded Crime No.101/2014. The complainant also immediately gave intimation regarding the incident to the O.P. The O.P. sent the Surveyor to the spot, who conducted Spot Survey The Surveyor found that the vehicle of the complainant is completely damaged. After the incident, the complainant for obtaining the Insured Declared Value (IDV) of Rs.22,00,000/- submitted claim form before the O.P. on 11.10.2014. The O.P. found the claim of the complainant genuine and accepted the claim of the complainant and provided the claim amount of Rs.14,47,500/- on 20.06.2016. The above amount was received by the complainant under protest and in this regard the complainant submitted a written objection on 25.07.2016 before the O.P. Out of Rs.22,00,000/- the O.P. had only paid a sum of Rs.14,47,500/- to the complainant and did not pay remaining amount Rs.7,52,500/-. The complainant several times contacted to the O.P. but the O.P. did not give proper response and did not pay the remaining amount, due to which the complainant suffered financial loss and mental agony. By not paying the remaining claim amount, the O.P. committed deficiency in service The complainant sent registered notice to the O.P. on 27.08.2016 which was received by the advocate of the O.P. and he sent reply on 27.09.2016 in which the O.P. denied to pay the above amount. Hence, the complainant filed the instant complaint and prayed for granting reliefs, as mentioned in relief clause of the complaint.
// 4 //
3. The O.P. has filed its written statement and averred that mere by issuance of the insurance policy, the insured person is not entitled to get the compensation. The insurance policy is issued on the basis of terms and condition and it is necessary for the insured person to comply with the terms and conditions of the insurance policy. The alleged incident was not occurred. The complainant has not immediately given the intimation regarding the alleged incident to the O.P. After making payment of Rs.7,52,500/- by the O.P. to the complainant, the complainant is not entitled to get any amount from the O.P. According to the terms and conditions of the insurance policy the total payable amount for the damages to the vehicle was assessed to the tune of Rs.14,47,500/-, information regarding which was given to the complainant. After giving consent by the complainant to accept the above amount, the above amount was paid to the complainant. The O.P. did not commit any deficiency in service. The complainant did not personally contact to the office of the O.P. and did not ask for making payment of the remaining amount. The complainant did not submit any letter in writing before the O.P. demanding the remaining amount. The complainant is not entitle to get IDV Rs.22,00,000/-. The complainant was running the bus in the other route than for the route for which permit was sanction and in the roof of the bus, the motor cycle was keep. The changed rout was narrow and above the road the electric wire was crossing, but the driver had ignored the same and was running the bus, due to which the motor cycle kept in the bus came into contact of the electric wire due to which 5 passenger died and many passengers sustained. The accident occurred because the driver of the bus was driving the bus negligently. The // 5 // O.P. requested the Surveyor RBS Insurance Surveyor and Loss Assessor Private Limited to assess the loss and to submit their report. The Managing Director of the above Company, Shri Rambahadur Singh conducted the inspection of the vehicle and submitted his report before the O.P. on 16.01.2016 in which it is mentioned that a sum of Rs.24,03,875/- was spent in the repairing of the vehicle and the liability of Rs.19,97,500/- was assessed on total loss basis. It is also shown that a sum of Rs.2,01,000/- has been deducted towards salvage. On the basis of the consent of the complainant and without cancelling the R.C., the O.P. paid a sum of Rs.14,47,500/- which is 75% of the admissible claim and for receiving the said amount, the complainant gave bank account particulars to the O.P. The complainant received a sum of Rs.14,47,500/- from the O.P. in full and final satisfaction of his claim and he executed discharge voucher in this regard on 21.07.2016. The complaint is liable to be dismissed with cost.
4. The complainant has filed documents. Document NO.1 is First Information Report, document No.2 is letter sent by the complainant to the O.P., document No.3 is acknowledgement and registered notice dated 27.08.2016 sent by Shri J.S. Thakur, Advocate on behalf of the complainant to the O.P., document No.4 is reply dated 27.09.2016 sent by Shri A.M. Rabra, Advocate, document No.5 is Certificate of Registration, Certificate of Fitness,, permit, receipt, countersignature of permit, permit.
5. The O.P. has filed documents. Document No.1 is First Information Report, document No.2 is statement of witness Ajay Ram, document No.3 is Revised Motor (Final) Survey Report dated 06.01.2016 of R.B.S. Insurance // 6 // Surveyors and Loss Assessors Pvt. Ltd., document No.4 is letter sent by Badan Bus Service to the O.P., letter dated 01.07.2016 sent by Deputy Manager, Regional Office of the O.P. to Divisional Manager, Raigarh D.O., Discharge Voucher dated 21.07.2016 executed by the complainant.
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. to pay the amounts to the complainant, as mentioned in para 1 of this order.
7. In the instant case, the appellant (complainant) has filed an application under Order 41 Rule 27 CPC and sought permission to file at the appellate stage as additional evidence which are copy of First Information Report dated 28.09.2014, statement of witness Ajay Ram, recorded by the Police, letter sent by the complainant to the O.P., approval of the Regional Office for settlement of claim of the complainant dated 01.07.2016, discharge voucher executed by the complainant on 21.07.2016, Observation Report dated 06.06.2016 of Shri Utkarsh Shingwekar, application of the O.P. dated 14.12.2017 along with affidavit of Pratap Kerketta, Administrative Officer of the O.P. and order sheet dated 29.01.2018, passed by the District Forum.
8. We have heard learned counsel for both the parties on the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC and have also perused the documents sought to be filed by the appellant (O.P.) at the appellate stage as additional evidence.
// 7 //
9. So far as the First Information Report, Statement of Ajay Ram, Revised Motor (Final) Survey Report dated 06.01.2016 of RBS Insurance Surveyor & Loss Assessor Pvt. Ltd., letter sent by the complainant to the O.P., approval letter dated 01.07.2016 sent by the Deputy Manager, Regional Office, The New India Assurance Co. Ltd., Raipur to Mr. H.K. Bhalla, Divisional Manager, Raigarh D.O. and Discharge Voucher dated 21.07.2016, sought to be filed by the appellant (O.P.) as additional evidence are concerned, the same have already been filed by the appellant (O.P.) before the District Forum. Besides above documents, the appellant (O.P.) has filed copy of Observation Report dated 06.06.2016 of Shri Utkarsh Shingwekar, Surveyor and Loss Assessor, application dated 14.12.2017 filed by appellant (O.P.) along with affidavit of Pratap Kerketta, Administrative Officer of the appellant (O.P.) before the District Forum, list of documents and the order sheet dated 29.01.2018 of the District Forum, for taking the same as additional evidence at appellate stage. If the above documents are taken on record as additional evidence at appellate stage, no prejudice would be caused to the respondent (complainant). Therefore, the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC, is allowed and the above documents are taken on record as additional evidence at appellate stage.
10. So far as merit is concerned, Shri Shobit Mishra, learned counsel appearing for the appellant (O.P.) has argued that the appellant (O.P.) appointed M/s R.B.S. Insurance Surveyors and Loss Assessors Pvt. Ltd., who assessed the loss to the tune of Rs.19,97,500/- after deducting salvage value and policy excess, and the above amount of Rs.14,47,500/- was received by the // 8 // respondent (complainant) without making any protest. The respondent (complainant) had executed discharge voucher on 21.07.2016. The Surveyor assessed the net loss after deducting Salvage Value and Policy Excess, to the tune of Rs.19,97,500/-. The respondent (complainant) has violated terms and conditions of the insurance policy, therefore, the respondent (complainant) is entitled for getting compensation on non-standard basis which comes to Rs.14,47,500/-, which was duly received by the respondent (complainant), therefore, the respondent (complainant), is not entitled to get further amount from the appellant (O.P.), but learned District Forum did not consider the above aspect and directed the appellant (O.P.) to pay the remaining amount of Rs.7,52,500/- to the respondent (complainant) and also awarded compensation for mental agony, which is erroneous and is liable to be set aside. The appeal filed by the appellant (O.P.) may be allowed. He placed reliance on Shiv Villas Resorts Pvt. Ltd. Vs. United India Insurance Co. Ltd., I (2018) CPJ 184 (NC).
11. Shri Suryakant Sharma, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum.
12. We have heard learned counsel appearing for both the parties and have also perused record of the District Forum as well as the impugned order passed by the District Forum. "
13. The appellant (O.P.) has filed copy of First Information Report and Statement of Ajay Ram. In the Statement of Ajay Ram, it is mentioned thus :-
"esjk uke vt; jke mez 26 o'kZ firk x.ks"kjke xzke&uk;k Hkkstiqj Fkkuk MqejkWo ftyk culj ¼fcgkj½ gS A vkt fnukad 28-09-2014 dks le; djhc 11-00 cts fnu esa // 9 // izk0Lok0 dsUnz foJkeiqj esa vki foJkeiqj Fkkuk ds cM+k ckcw ds le{k viuk C;kt nsrk gWw] fd vkt gh eSa viuh iRuh eqUuh nsoh] csVk vtqZu jke ¼mez- 04 o'kZ½ NksVk csVk jktk ¼mez ,d o'kZ½ llqj lqjs"k jke ,oa vU; fj"rsnkj jkds"knkl] lklk& eukst jke] ,oa vU; fj"rsnkj jkds"knkl] jke vkSrkj nkl] d`'.k nkl ,oa vU; ;kf=;ksa ds lkFk onu uked cl la- BR-26G.0614 ij x<+ok ls lokj gksdj vius ?kj tk jgs Fks ,ao yxHkx 9+-30 cts fnu esa cl T;ksa fg ukoMhg xkWo esa igqWph dh vpkud cl ds NRk ds mij ls Hk;adj pj&PkjkgV ,oa rM+&rM+kgV dh vkokt gqbZ] cl esa vpkud fctyh dk dSjsUV vk x;k ftl dkj.k esjh iRuh] csVk vtqZu rFkk vU; dbZ ;k=h dSjsUV dh pisV esa vkdj cl ds vUnj tyus yxs vkSj cl ds vUnj gh dksgjke ep xbZ eSus viuh iRuh vkSj cPpk dks cpkus dk iz;kl fd;k ysfdu eq>s Hkh dSjsUV dk >Vdk yx x;k vkSj ?kk;y gks x;k rc eSa vius NksVk cPpk jktk ¼mez 1o'kZ½ dks ysdj cl ls dqn x;k ns[krs gh ns[krs cl /kw&/kw dj tyus yxh vkSj cl dk pkyd ,oa dUMDVj cl NksM+dj vk;s ,oa cl ds vnj Qals ;kf=;ksa dks cl ls f[kpdj ckgj fd;s A lkFk gh esjh iRuh] esjk csVk rFkk vU; rhu yksxksa dks cl ls f[kpdj ckgj fudkys rks ns[kk x;k fd esjh iRuh ,oa cPpk ds lkFk vU; rhu O;fDr dh Hkh >qylus ls e`R;q gks pqdh gS rFkk vU; dbZ O;fDr Hkh ?kk;y gks pqds gS A ?kk;yksa dk bZykt essjs lkFk gh foJkeiqj vLirky esa py jgk gS A cl dUMDVj ,oa pkyd cl ds mij eksVj lkbZfdy yknk x;k Fkk] tks fctyh ds rkj ls LiZ"k dj x;k ftlls cl esa fctyh dk dSjsUV vk x;k A lkFk gh irk pyk dh cl dk ijehV oh-eksM+ ls bVdks tkus okyh :V ls u gksdj oh- eksM+ ls iM+ok gksrs gq, vkSjaxkokn tkus okys :V dk gS A esjk nkok gS fd ;g Hkh'k.k gknlk cl pkyd ,oa dUMDVj }kjk lqj{kk fu;eksa dh vogsyuk djus ,oa cl ekfyd }kjk [krjukd ,oa ldjs :V ls fcuk ijehV ds euekuh iwoZd cl dk ifjpkyu djus dkj.k ?kVh gS] ftlesa esjh iRuh ,oa cPpk lfgr 05 ¼ikap½ yksxksa dh tku pyh xbZ rFkk dbZ ;k=h ?kk;y gks x;k gS A ;gh esjk C;ku gS] ftls i<+okdj lwu o le> fy;k rFkk lgh fy[kk ikdj vius lEcfU?k jkds"k nkl rFkk llqj lqjs"kjke ds le{k fu"kku cuk fn;k A"
14. Looking to the Statement of Ajay Ram, it appears that the motor cycles which were loaded in the bus in question and the motor cycles came into contact with electric wire.
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15. Shri Utkarsh Shingwekar, Surveyor and Loss Assessor, in his Observation Report dated 06.06.2016 has observed that he conducted spot survey. In the above report, it is mentioned that " On inspection, it is clear that the lying motorcycle on top of the bus carrier shall further increase the height by say 1.5 FT. Thus, the total height shall be 14 Ft. which is much lower than the standard minimum height of a power transmission line. Hence, under normal condition there cannot be an entangling of the motorcycle and transmission line." Shri Utkarsh Shingwekar, has opined that "The cause of loss is purely unfortunate / accidental in nature and not due to any fault of the insured. Further there has not been any change in the subject matter of the Insured Bus, due to construction of sleeper coach."
16. In the instant case, the appellant (O.P.) has filed photocopy of the Discharge Voucher executed by the respondent (complainant). The same was not denied by the respondent (complainant), but the respondent (complainant) has simply pleaded that he received the amount under protest and the consent of the respondent (complainant) was not obtained by the appellant (O.P.). The appellant sent a printed form for getting signature of the respondent (complainant) and merely signing the documents, it is not sufficient to hold that the respondent (complainant) has executed discharge voucher in favour of the appellant (O.P.) in his free will.
17. In Section 14, 15, 16, 17 & 18 of The Indian Contract Act, 1872 "Free Consent" "Coercion", "Undue Influence", "Fraud" and "Misrepresentation""respectively have been defined. Section 14, 15, 16, 17 & 18 of The Indian Contract Act, 1872, run thus :-
// 11 // "Section 14. "Free Consent" defined .-
Consent is said to be free when it is not caused by -
(1) coercion, as defined in Sec, 15, or (2) undue influence, as defined in Sec. 16, or (3) fraud, as defined in Sec. 17, or (4) misrepresentative, as defined in Sec. 18, or (5) mistake, subject to the provisions of Secs. 20, 21 and 22.
Consent is said to be so caused when it would not have been given by for the existence of such coercion, undue influence, fraud, misrepresentation or mistake. Section 15. "Coercion" defined. -
"Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Explanation : It is immaterial whether the Indian Penal Code (45 of 1860), is or is not in force in the place where the coercion is employed.
Section 16 "Undue influence" defined.- (1) A contract is said to be induced by "undue influence"' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another -
(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental bodily distress.
(3) Where a person who is in position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not // 12 // induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of Sec. 111 of the Indian Evidence Act, 1872 (1 of 1872).
Section 17 "Fraud" defined - "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract -
(1) the suggestion, as a fact of that which is not true, by one who does not believe it to be true ;
(2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent. Explanation. - Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech. Section 18 "Misrepresentation" defined - "Misrepresentation means and includes -
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though the believes it to be true ; (2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any cone claiming under him by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
18. From the above, it is made out that the consent given by a person would be deemed to be a free consent and would be binding upon the parties to the // 13 // contract, unless it can be show that it was obtained by exercise of coercion, undue influence, fraud, misrepresentation, etc., as defined in Sections 15 to 18 or by mistake subject to provisions of Sections 20 to 22 of the Indian Contract Act.
19. In Shiv Villas Resorts Pvt. Ltd. Vs. United India Insurance Co. Ltd. (Supra), Hon'ble National Commission, has observed :-
"Consumer Protection Act, 1986 - Sections 2(1)(g), 21(a)(ii) - Insurance - Fire accident - Surveyor appointed - Loss assessed - Full and final settlement
- Discharge voucher signed without protest - Further claim repudiated - Alleged deficiency in service - State Commission dismissed complaint - Hence appeal - Complainant has not raised any objection against surveyor's report even in the appeal - Insurance Company already paid according to loss assessed by Surveyor - Voucher was discharged as full and final settlement under policy - Insurance Company justified in settling claim as per loss assessed by surveyor.
20. In the case of United India Insurance Company Limited Vs. Ajmer Singh Cotton & General Mills, II (1999) CPJ 10 (SC), Hon'ble Supreme Court observed that "the mere execution of discharge voucher would not always deprive consumer from preferring claim with respect to deficiency in service or consequential benefits arising out of the amount paid in default of 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, mis-representation, under influence or the like, coercive bargaining // 14 // compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, 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. The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier."
21. In the case of Subhash Malhotra vs. United India Insurance Company Ltd. III (2014) CPJ 123 (NC), Hon'ble National Commission has observed thus :-
"27. Though, he has alleged that the discharge voucher was signed under undue influence and coercive bargaining, but he has not filed any evidence to support the same. Discharge voucher was sent to him by Registered Post and he signed the same and sent it back. He has also encashed the cheque of Rs.1,91,162/- sent to him. Thereafter the District Forum granted further relief of Rs.1,98,205.16 (after deducting Rs.1,91,162 already paid) from the total awarded amount of Rs.3,69,367.97. He has also been awarded interest due on the full amount at 12%. Admittedly, the Insurance Company has also paid the same and which has been received by the petitioner. The orders of the both the Fora below are very well-reasoned and have death with the report of the surveyor in detail. The petitioner has failed to make out any case for further increase in the compensation amount.
22. In the case of Suresh Kumar S.S. vs. Iffco-Tokio General Insurance Co. Ltd. & Anr., II (2014) CPJ 69 (NC), Hon'ble National Commission has observed thus :-
"6..................
// 15 // "4........ Since the opposite party had made the said proposal with an unreasonable condition by which it is offered to release the claim settlement amount through DD in favour of M/s. Mini Muthoottu a Private money lending company, the complainant had objected to the releasing of the settled claim amount through M/s. Mini Muthoottu and demanded to release the amount through a nationalized Bank and expresses his willingness to accept the proposed offer of settlement for an amount of Rs.4,56,661. Since M/s Mini Muthoottu has nothing to do with the contract of insurance between this complainant and IFFCO- TOKIO General Insurance Company Ltd., this complainant had conveyed his objection and dissent to the said proposal through a reply letter dated 4.12.2009 sent to the opposite party Insurance Company, but signified his consent to the proposed offer of settlement of the claim for an amount of Rs.4,56,661 (Four lakh fifty-six thousand six hundred and sixty-one only) and demanded to release the amount through DD to be drawn in a nationalized bank preferably to this complainants account No.20013616040 in the State Bank of India, Kottayam, Thirunakkara Branch."
23. In the case of Chittiprolu Lokeswara Rao vs. United India Insurance Co. Ltd. & Anr. I (2014) CPJ 39 (NC), Hon'ble National Commission has observed thus :-
"9...........We agree with the principle laid down in aforesaid judgment, but in the case in hand, we do not find any circumstances providing fraud, undue influence, mis-representation etc. on the part of OP. Letter dated 10.5.2010, appears to be in the handwriting of complainant himself and no protest was made till encashment of cheques. In such circumstances, aforesaid citation does not help to the petitioner. He has also placed reliance on decision of this Commission in R.P. No.4275 of 2007 decided on 11.1.2008 in which it was held as under :-
"5. The complainant has submitted in his complaint that after 7 days of receipt of Rs.3,45,968, the complainant had approached the Insurance Company (O.P.1) and demanded the balance // 16 // amount which was declined and he was asked to approach O.P.2. He further submitted that since the entire stock was burnt and because of financial crisis and heavy loss of interest, the complainant was constrained to sign on the discharge voucher, which was in a printed format. Therefore, he had no option but to file a complaint for the balance amount. This, we feel is an act of coercive bargaining indulged in by the Insurance Company. A distressed insured person, who has lost all mans of earning his livelihood in a catastrophic fire, has no other choice but to accept any amount as an initial payment in the first instance."
10. Facts of aforesaid case are different from the facts of case in hand. In the aforesaid case printed discharge voucher was signed by the complainant under compelling circumstances and the complainant approached Insurance Co. just after 7 days of receipt of payment whereas in the present case, complainant as given letter in his own handwriting and notice has been given after 50 days of letter dated 10.5.2010 for final settlement."
24. In the case of M.L. Spinners Pvt. Ltd. vs. United India Insurance Company Limited, II (2014) CPJ 692 (NC), it is observed by Hon'ble National Commission thus :-
"12. In Bhagwati Prasad Pawan Kumar v. Union of India, II (2007) CLT 293 (SC) = III (2006) ACC 1 (SC)=IV (2006) SLT 771 = (2006) 5 Supreme Court Cases 311, Apex Court has observed :-
"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 // 17 // 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 7.4.1993. 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 non-acceptance must be conveyed before the cheques are encashed. If the 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 disclose 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."
25. In Natraj Handlooms Pvt. Ltd. vs. New India Assurance Co. Ltd. II (2015) CPJ 214 (NC), Hon'ble National Commission has observed thus :-
// 18 // "8. .....................
No case of coercion is made out by the complainant company, since there is no allegation of committing, or threatening to commit, any act forbidden by the Indian Penal Code or unlawful detaining, or threatening to detain any property, to the prejudice of complainant, with intention of causing the complainant to enter into any settlement.
Mere financial hardship of the complainant, in our view does not constitute 'coercion' as defined in Section 16 of the Indian Contract Act. Nothing prevented the complainant company from approaching this Commission instead of entering into a settlement with the Insurance Company and in such a complaint the company could have sought an interim relief based upon the preliminary report of the Surveyor. Such a course, however, was not adopted and the complainant company chose to settle the claim for a substantial amount of Rs.65,40,926.
9. The only reason given by the complainant company for giving consent to the settlement of the claim for Rs.65,87,847 is that it was in financial difficulty on account of the losses sustained in the fire and the wedding of the daughter of its Managing Director was to take place in December, 2008. However, the complainant has not produced its account books and balance sheets to prove that the complainant company was in financial difficulties at the time the consent letter dated 24.11.2008 was given by it to the Insurance Company. In the absence of the requisite documentary evidence it is not possible to accept the claim of the complainant company that it was in financial difficulty at the relevant time and, therefore, had no option but to give the aforesaid consent. Had the complainant company submitted its balance sheets including the list of its assets and liabilities at the relevant time only then this Commission could have known whether it was really in a financial difficulty at the time the letter dated 24.11.2008 was given by it to the Insurance Company, or not. No explanation has been given by the complainant company for not producing the aforesaid documentary evidence before this Commission. Therefore, an adverse inference needs to be drawn against the complainant company that had the account books, audited balance sheets, etc., of the complainant company been // 19 // produced, before this Commission, the same would not have supported the case as set out in the complaint."
26. The respondent (complainant) has pleaded that the appellant (O.P.) has only paid a sum of Rs.14,47,500/- to the respondent (complainant) on 20.06.2016, whereas he is entitled for Rs.22,00,000/-. The respondent (complainant) sent written objection to the appellant (O.P.) on 25.07.2016 claiming total amount of Rs.22,00,000/-, even then the appellant (O.P.) has not paid the remaining amount of Rs.7,52,500/- to the respondent (complainant). The Discharge Voucher was executed by the respondent (complainant) on 21.07.2016 and letter document No.2 was sent by the respondent (complainant) to the appellant (O.P.) on 23.01.2015. After sending the above letter, the respondent (complainant) has received the amount of Rs.14,47,500/- from the appellant (O.P.). Thereafter, the respondent (complainant) has not sent any protest letter to the appellant (O.P.). Even in the Discharge Voucher, the respondent (complainant) has not mentioned that he received the amount under protest. Therefore, we are of the firm view that the respondent (complainant) had voluntarily accepted a sum of Rs.14,47,500/- from the appellant (O.P.) in full and final satisfaction of his claim, hence, the respondent (complainant) has stopped from claiming any further amount from the appellant (O.P.) in respect of the claim in question.
27. The respondent (complainant) has received the amount of Rs.14,47,500/- from the appellant (O.P.) in full and final satisfaction of his claim. The respondent (complainant) has not been able to prove that he had signed the // 20 // discharge voucher, under undue influence or coercion. The respondent (complainant) has not filed copy of any letter to prove that he received the amount under protest. Therefore, the respondent (complainant) is not entitled for the remaining amount from the appellant (O.P). The impugned order passed by the District Forum, is erroneous and is liable to be set aside.
28. Hence, the appeal filed by the appellant (O.P.), is allowed and the impugned order dated 25.05.2018, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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