State Consumer Disputes Redressal Commission
Raj Rani vs National Insurance Company Limited on 3 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.521 of 2009
Date of Institution : 15.04.2009
Date of decision : 03.05.2012
Raj Rani wife of Krishan Kumar, resident of 49, Bank Colony, Moga, District
Moga.
...Appellant
Versus
National Insurance Company Limited through its Manager, Head Office / Regd.
Office, 3, Middleton Street, Post Box No.9229, Kolkatta- 700071
...Respondents
First Appeal against the order dated 17.3.2009 of
the District Consumer Disputes Redressal Forum,
Moga.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President.
Sh.Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh.B.S.Bhalla, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT VERSION OF THE APPELLANT
The appellant was the owner of car Hyundai Verna bearing registration No.PB-29H-0303. It was insured with the respondents for the period from 31.12.2007 to 30.12.2008.
2. It was further pleaded that on 5.7.2008 the said car bearing RC No.PB- 29H-0303 met with an accident. It was totally damaged. Information was given to the respondents. As per the instructions of the respondents, the vehicle was got repaired from Godawari Motors Pvt. Ltd. and the appellant had spent an amount of Rs.1,53,626/-. The insurance claim was lodged with the respondents.
3. It was further pleaded that the respondents vide cheque dated 9.9.2008 made the payment of Rs.91,225/- to the appellant. A sum of Rs.62,401/- was still outstanding. Hence the complaint for recovery of balance insurance amount of Rs.62401/-. Compensation, interest and costs were also prayed. First Appeal No.521 of 2009 2 VERSION OF THE RESPONDENTS
4. The respondents filed written reply. The factual position was admitted that the car was owned by the appellant, it was insured with the respondents and it had met with an accident. It was also admitted that the insurance claim was lodged.
5. It was further pleaded that the respondents had made the payment of Rs.91,225/- to the appellant vide cheque dated 9.9.2008 as per the consent given by the appellant in full and final settlement of her claim. There was no deficiency in service on the part of the respondents. Dismissal of the complaint was prayed.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
6. Parties produced the affidavits / documents in support of their respective versions.
7. The learned District Consumer Disputes Redressal Forum, Moga (in short "District Forum") dismissed the complaint vide impugned judgment dated 17.3.2009.
8. Hence the appeal.
DISCUSSION:
9. Submission of learned counsel for the appellant was that the appeal be accepted, the impugned judgment dated 17.3.2009 be set aside and the respondents be directed to pay the balance insurance claim with compensation, interest and costs.
10. Record has been perused. Submissions have been considered.
11. Admittedly the appellant was the owner of Hyundai Verna car bearing RC No.PB-29H-0303. Copy of RC has been proved as Ex.A2.
12. It was insured with the respondents for the period from 31.12.2007 to 30.12.2008 for an amount of Rs.7,22,000/- and the copy of insurance policy has been proved as Ex.A3. It is also proved that the vehicle had met with an accident. Intimation was given to the respondents. The respondents had appointed the surveyor. The surveyor had assessed the loss. The report of surveyor dated 12.7.2008 has been proved as Ex.R4 and the report dated First Appeal No.521 of 2009 3 26.7.2008 has been proved as Ex.R5. The report of the surveyor dated 19.8.2008 has also been proved as Ex.R6. As per report dated 19.8.2008 Ex.R6, net loss was assessed as Rs.91,842.82. The appellant had given the consent dated 17.8.2008 Ex.R9 that amount of Rs.91,642/- be paid to her minus Rs.500/- as excess clause in full and final settlement of her claim. The respondents had made the payment of Rs.91,225/- vide cheque dated 9.9.2008. It is admitted by the appellant.
13. The appellant has nowhere pleaded in the complaint if the amount of Rs.91,225/- was accepted by her under undue influence or by misrepresentation or under pressure or because of her financial compulsion.
14. Reference may be made to the judgment of Hon'ble Supreme Court reported as "United India Insurance v. Ajmer Singh Cotton & General Mills and Ors." II(1999)CPJ10 (SC) in which it was held by the Hon'ble Supreme Court as under:-
"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 First Appeal No.521 of 2009 4 appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier."
15. It was also held by the Hon'ble Supreme Court in para No.5 as under:-
"In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution underfraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints."
16. This question of law was also considered by the Hon'ble National Commission in the judgment reported as "AMIRALI A. MUKADAM v. UNITED INDIA INSURANCE CO. LTD." IV(2007) CPJ 234 (NC) in which it was held by the Hon'ble National Commission that if after executing the discharge voucher the complainant/consumer lodges a protest with the Insurance Company within a reasonable time, the consumer would have the right to lodge the claim for the insurance amount.
17. The matter again came up for consideration before the Hon'ble Supreme Court in the judgment reported as "National Insurance Co. Ltd. v. Sehtia Shoes" II(2008)CPJ 16 (SC). It was held by the Hon'ble Supreme Court that it has to be determined on the facts of each case whether the amount was accepted by the claimant voluntarily and without any protest or if it was accepted by him under fraud, undue influence, misrepresentation or the like. In case the amount was accepted voluntarily and without protest then the claimant would not have any right to lodge a claim again before the District Forum but if the claimant proves that discharge voucher was got executed by him/her under fraud/undue influence/misrepresentation etc. then the claimant would be entitled to succeed.
18. It was held by this Commission in the judgment dated 14.12.2007 passed in First Appeal No.1258 of 2001 "Sudarshan Kumar v. M/s United India Insurance Co. Ltd." that where the payment is received by the claimant in full First Appeal No.521 of 2009 5 and final settlement voluntarily and without any protest, the claimant would be barred from filing the complaint. It was observed as under:-
"12. On the other hand, in Bashir Ahmad Rangrez and brothers' case (supra) Hon'ble High Court of Jammu & Kashmir held that after the execution of the discharge voucher towards full and final settlement of all claims against the appellants, no further claim can be raised before the Commission nor the later has the competence to award the same. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "P.K. Ramaiah and Company v. Chairman & Managing Director, National Thermal Power Corpn." 1994 Supp (3) SCC 126, "Nathani Steels Ltd. v. Associated Constructions" 1995 Supp (3) SCC 324 and "Salima Jabeen v. National Insurance Co. Ltd." 1998 SLJ 357.
13. It was held by the Hon'ble Delhi High Court in the judgment "DOUBLE DOT FINANCE LIMITED v. GOYAL MG GASES LIMITED AND ANR." (2005-3) PLR 5 (Delhi) that if amicable settlements are set aside on flimsy grounds, no party would enter into compromise. It was held in para 14 as under:-
"If such pleas are sustained, the sanctity and purpose of 'amicable settlements' between the parties would stand totally eroded. Amicable resolution of disputes and negotiated settlement is 'public policy of India'. Section 89 of the Code of Civil Procedure, Arbitration and Conciliation Act, 1996 as well as Legal Services Authorities Act, 1995 call upon the Courts to encourage settlement of legal disputes through negotiations between the parties. If amicable settlements are discarded and rejected on flimsy pleas, the parties would be wary of entering into negotiated settlements and making payments thereunder as a shrewd party after entering into a negotiated settlement, may pocket the amount received under it and thereafter challenge the First Appeal No.521 of 2009 6 settlement and reagitate the dispute causing immeasurable loss and harassment to the party making payment thereunder. This tendency has to be checked and such litigants discouraged by the Courts. It would be in consonance with public policy of India."
14. Even the Hon'ble National Commission in the judgment reported as "Dilip Kumar Wamanrao Daryapurkar v. National Insurance Co. Ltd." 1997 CCJ 1362 was pleased to hold that where the party has filed the complaint after accepting the full and final payment of his claim, the complainant has no right to allege any deficiency on the part of the Insurance Co."
19. In the present case, the appellant has nowhere pleaded if this amount was paid to her under undue influence or under pressure or this amount was accepted by her under compulsion. Rather she had given consent for Rs.91,642
- Rs.500. Therefore, it clearly mean that she had accepted this amount in full and final settlement of her claim. The appellant is, therefore, not entitled to any more amount. There is no illegality in the impugned judgment dated 17.3.2009.
20. There is no merit in the present appeal and same is dismissed.
21. The arguments in this case were heard on 27.4.2012 and the order was reserved. Now parties be communicated about the same.
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Justice S.N.Aggarwal) President (Baldev Singh Sekhon), Member May 03, 2012.
Davinder