National Consumer Disputes Redressal
M/S. M. K. Enterprises vs National Insurance Company Ltd. & ... on 13 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4014 OF 2011 (Against the Order dated 18/08/2010 in Appeal No. 990/2010 of the State Commission Haryana) 1. M/S. M. K. ENTERPRISES At Shiv nagar, Krishan Pura, Panipat Haryana ...........Petitioner(s) Versus 1. NATIONAL INSURANCE COMPANY LTD. & OTHERS sco nO-337,340 sECTOR-35-b Chandigarh Chandigarh 2. national Ins Company Ltd., through its Sr Divisional Manager, GT Road panipat haryana ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER For the Petitioner : For the Respondent :
Dated : 13 Apr 2015 ORDER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner : Mr. Rakesh Handa, Advocate For the Respondents : Mr. J.P. Nahar, Advocate PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 18.08.2011, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as 'State Commission') in FA No. 990/2010, vide which, while accepting appeal, the order dated 20.05.2010, passed by the District Forum, Panipat, allowing consumer complaint no. 89/2009 was set aside.
2. Briefly stated, the facts are that the present petitioner made consumer complaint no. 89/2009 through its proprietor Mukesh Kumar before the District Forum, Panipat against the respondent/opposite party (OP), the National Insurance Company Limited saying that he had taken a fire insurance policy bearing No. 421500/11/07/3100000003 for ₹3,45,00,000/- for the period 01.04.2007 to 31.03.2008, covering the risk of plant, machinery and accessories in his factory. During the currency of the said policy, a fire took place in the factory premises on 07.11.2007 at about 4:30PM, due to which the complainant suffered loss of machinery, building and stocks. He lodged claim to the tune of ₹_65,89,500/- with the respondent Insurance Company. The respondent appointed M/s. Consolidated Surveyors Private Limited to assess the loss during fire, and following the report of the surveyor, the claim was settled at ₹26,77,748/- and the said amount was also paid to the complainant vide discharge voucher dated 10.07.2008 through cheque drawn on Canara Bank, G.T. Road, Panipat. The amount was duly received by the complainant and the discharge voucher was signed by Mukesh Kumar, proprietor of the complainant. It has been alleged in the complaint that the complainant was not interested to receive the cheque for that amount, but due to threats given by the OP and also due to his financial compulsion, he received the said cheque, being part-payment of the claimed amount "under protest". He signed the voucher after getting an assurance from the OP that the matter was under consideration of the higher authorities and there was likelihood that he may get the rest of the amount within a short span of time. The complainant has stated that the surveyor had assessed the loss as ₹43,04,877/- but the Insurance Company appointed an investigator D.S. Chadha and following his report, the respondent arbitrarily reduced the amount payable to ₹26,77,748/-.
3. The complaint was contested by the respondent Insurance Company by filing a written statement before the District Forum in which they stated that the complainant had accepted the said amount as ' full and final settlement' of the claim, without raising any objection or making any protest. The said amount already stands paid to the complainant and he was not entitled for any further amount. The District Forum after taking into account the evidence of the parties, allowed the complaint and directed the Insurance Company to pay a further sum of ₹16,27,129/- to the complainant with interest @9% p.a. from 3.07.2008 till realisation. The District Forum also allowed a sum of ₹2200/- as cost of litigation. Being aggrieved against this order, the Insurance Company challenged the same before the State Commission by way of FA No. 990 of 2010. The State Commission vide impugned order, accepted the appeal, set aside the order of the District Forum and dismissed the complaint on the ground that the complainant had already received the amount offered by the Insurance Company as full and final settlement of the claim. It is against this order that the present petition has been filed before us.
4. During hearing before us, the learned counsel for the petitioner argued that the Insurance Company had arbitrarily reduced the amount payable to them although the surveyor had assessed the loss as ₹43,04,877/-. The learned counsel has drawn our attention to letter dated 25.07.2008, sent by the petitioner/complainant to the Insurance Company, saying that the petitioner had duly lodged its protest with the insurance company and requested for the release of the amount claimed by them, i.e., ₹69,39,500/-. The learned counsel stated that the complainant was persuaded by the respondents to accept the amount of cheque as they had assured him that further amount could be released to him if he was found entitled to get the same. The respondents also gave him a threat that if he refused to accept the said amount, there was a possibility that he was not given even that amount, in future.
5. The learned counsel for the respondent, however, stated that the discharge voucher had been duly signed by the proprietor of the complainant and their office seal had also been put on the said voucher, meaning thereby that there was no threat or coercion to accept the said amount. The learned counsel argued that there was never any promise on the part of the respondent to pay him more amount. The learned counsel has also drawn our attention to a number of orders passed by the Hon'ble Supreme Court and this Commission, saying that when there was a full and final settlement arrived at between the parties, there was no scope for making any further payment. In particular, the learned counsel has drawn our attention to the following judgments/orders:-
i. "United India Insurance Co. versus Ajmer Singh Cotton & General Mills & Ors." [reported in II (1999) CPJ 10 (SC)] - order dated 12.08.1999 passed by Hon'ble Apex Court in Civil Appeal Nos. 535, 534 and 723 of 1994;
ii. "National Insurance Co. versus Sehtia Shoes" [reported in II (2008) CPJ 16 (SC)] - order dated 26.02.2008 passed by Hon'ble Apex Court in Civil Appeal No. 1602 of 2008;
iii. Order passed by National Commission in "M/s. MJRJ Medichem Surgicals versus National Insurance Company Ltd. & Ors." [RP No. 1927 of 2013 decided on 22.01.2015];
iv. Order passed by National Commission in "Oriental Insurance Company Ltd. versus Mohan Lal & Ors." [RP No. 3061 of 2014 decided on 16.01.2015];
v. Order passed by National Commission in "Anshupati Fibres Pvt. Ltd. versus National Insurance Company Ltd. & Anr." [CC No. 32 of 2007 decided on 14.01.2015];
vi. Order passed by National Commission in "Garg Acrylics Ltd. versus United India Insurance Company Ltd." [CC No. 36 of 2014 decided on 16.12.2014];
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. The main issue for consideration before us is whether there was 'full and final settlement' arrived at between the complainant and the OP Insurance Company and whether there was any element of threat or coercion etc. on the part of the OP Insurance Company, which forced the complainant to accept the said amount.
9. The case of the respondents is that following the report made by the surveyor and investigator, they settled the claim of complainant at ₹26,77,748/-. The claim discharge voucher for a sum of ₹26,77,748/- had been duly signed by the proprietor of the petitioner and a revenue stamp and office seal had also been put on the said voucher. There is not an iota of evidence to show that the said money was accepted by the complainant under any threat or coercion of any kind. The petitioner has tried to show that subsequently, they had written a letter on 25.07.2008, lodging their protest with the Insurance Company, but the letter does not help them at all, because there is no evidence that they had raised any voice or lodged any protest at the time of accepting the said amount. The petitioners have also taken the plea that they accepted the said amount due to their financial compulsion but that does not mean that the Insurance Company forced them to accept the said amount. It is evident, therefore, that once the matter had been duly settled between the parties and the amount offered by the Insurance Company was accepted by the complainant, there is no cause of action to agitate the matter further.
10. We are supported in this view in the order passed by the Hon'ble Supreme Court and duly relied upon by the State Commission in United India Insurance Co. versus Ajmer Singh Cotton & General Mills & Ors. (supra), in which it has been held that unless the element of fraud, misrepresentation or coercion was proved, the claimant was not entitled to further relief. A similar view has been expressed by the Hon'ble Supreme Court in the case of "National Insurance Co. versus Sehtia Shoes" (supra) as well and their previous judgment in "United India Insurance Co. versus Ajmer Singh Cotton & General Mills & Ors." (supra) has been duly relied upon.
11. Further, in a catena of orders recently made by the National Commission, it has been clearly held that mere financial hardship of the complainant does not constitute an element of coercion. In the order dated 14.01.2015 in CC No. 32 of 2007 "Anshupati Fibres Pvt. Ltd. versus National Insurance Company Ltd. & Anr." a view has been taken that " mere financial hardship of the complainant in my view does not constitute coercion as defined in section 16 of the Indian Contract Act." In the same order, it has been stated that consent is a free consent, unless it is obtained by use of coercion, undue influence, fraud or misrepresentation or it is given on account of a mistake subject to the provisions contained in sections 20, 21 and 22 of the Contract Act. After discussing the definition of the coercion, undue influence, fraud, misrepresentation as stated in the Contract Act, it has been brought out that the OPs were not in a position to dominate the will of the complainant company and use that position to obtain an undue influence over the complainant company. The Insurance Company does not stand in a fiduciary relationship, vis-à-vis, the complaint. Section 16(3) of the Contract Act was, therefore, not applicable in such cases. A similar view has been expressed in "Oriental Insurance Company Ltd. versus Mohan Lal & Ors." (supra), as such and it has been stated as under:-
"Having accepted the aforesaid amount in full and final settlement of its claim, the complainant is now precluded from claiming any further amount from the Insurance Company since the aforesaid acceptance constitutes a valid agreement between the parties as regards the claim which the complainant had lodged with the Insurance Company."
12. In another case, RP No. 1927/2013, decided on 22.01.2015, M/s. MJRJ Medichem Surgicals versus National Insurance Company Ltd. & Ors., it has been held as under:-
"18. It is well settled that the provisions of this Act, are not meant for enrichment of the consumer. Once petitioner had received the amount unconditionally, under such circumstances petitioner ceases to be a 'consumer' as per the Act. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment petitioner accepted the amount unconditionally."
13. It has been brought out in the above order that once the complainant had received the amount in question unconditionally, he ceases to be a consumer as per the Act and the privity of contract or relationship of consumer and service provider between the parties came to an end, the moment complainant accepted the amount unconditionally.
14. Based on the discussion above and looking at the entire facts and circumstances of the case, it becomes crystal clear that the State Commission have passed their order after giving due consideration to the material on record and considering the proposition of law enunciated in the orders passed by the Hon'ble Supreme Court and the National Commission from time to time. There is no illegality or irregularity or jurisdictional error in the impugned order which may call for any interference at the revisional stage. The revision petition is, therefore, ordered to be dismissed and the order passed by the State Commission upheld. There shall be no order as to costs.
......................J V.B. GUPTA PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER