State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd., vs M/S Satkar Agencies, on 18 April, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA Appeal No. 34/2011 United India Insurance Co. Ltd., Having its Divisional office at Mascarenhas Building, 2nd Floor, Panaji-Goa. Appellant v/s 1. M/s Satkar Agencies, Prop. Krishnakant Govind Borkar (sicne deceased) Businessman, Office/Godown at Azavedo Bldg., 1st Floor, Patto, Panaji-Goa and residing at 204, Kamaxi Prasad, Patto, Panaji-Goa. Represented by his L.Rs 1(a) Subhada Krishnakant Borkar B-3, Amba Kutir, Vijay Baug, Jerbai Wadia Road, Parel Mumbai 400012. 1(b) Vipul Krishnakant Borkar, B-3, Amba Kutir, Vijay Baug, Jerbai Wadia Road, Parel Mumbai 400012. 1(c) Sonali Santosh Shewale, Shalini Madhukar Patil Chawl, Room No.1, Borla Gowandi Gaon, Gowandi (East) Mumbai 400 088. 1(d) Santosh Baban Shewale, Shalini Madhukar Patil Chawl, Room No.1, Borla Gowandi Gaon, Gowandi (East) Mumbai 400 088. 2. The Goa Urban Co-op Bank Ltd., (Mala Branch) Mala, Panaji-Goa. 3. Mr. Shripati R. Vaidya, C/o Hindu Pharmacy, Opposite Municipal Garden, Panaji-Goa. 4. Mr. Shivnath Amonkar, C/o Chandu Medical Stores, Market, Panaji-Goa. Respondents Appellant/Opposite Party No.1 represented by Advocate Shri E. Afonso. Respondents 1(a) to 1(b) represented by Advocate. Shri L. Halankar. Respondents Nos. 2 to 4 ex-parte. Coram: Shri Justice N.A. Britto, President Shri Jagdish Prabhudessai, Member ORDER
Dated:18/04/2012 [Per Justice Shri N.A. Britto, President]
1. This appeal is filed by the opposite party no.1 in Consumer Complaint no.97/2001 and is directed against order dated 20/10/2011 of the Ld. District Forum, North Goa at Porvorim.
2. The parties hereto shall hereinafter be referred to in the names as they appear in the cause title of the said complaint.
3. Some facts are required to be stated to dispose off this appeal.
4. The complainant (since deceased and now represented by his legal representatives, respondents nos. 1(a) to 1(d) herein) was running his business in the name and style of M/s Satkar Agencies as a tenant in the building belonging to Shri E. Azavedo. The complainant had his office and godown in the said premises. The complainant on or about 15/05/1993 availed of a Cash Credit Facility upto a limit of Rupees One lakh from the Bank (respondent No.2, herein) with respondent Nos. 3 and 4 standing as his sureties for the repayment of the said amount.
5. The complainant on or about 25.02.1994 insured with the Opposite Party No.1, the pharmaceutical goods for a sum of Rs.2.50,000/-. As on 22/10/1994 a sum of Rs.84,802.43 was due and payable by the complainant to the said Bank.
6. According to the complainant, on the midnight of 22.10.1994, the office-cum-godown of the complainant in the said premises was broken open by the landlord, the said Shri E. Azavedo by cutting the locks and the stock was set on fire.
The complainant lodged a complaint with the Panjim Police Station but the said complaint, vide communication dated 01/11/1994, was treated as of civil nature. The complainant informed the Manager of the Insurer, the opposite party no.1, by letter dated 04/11/1994 informing that his office/godown was sealed by the Court and also about the said incident of 22/10/1994. A claim form was given by opposite party no.1 to the complainant but the same was lodged by the complainant with opposite party no.1 on 05/01/1995 for a claim of Rs.1,86,002.00.
7. The opposite party no.1 informed the complainant by letter dated 10/02/1995 that the opposite party no.1 had not received the copy of the FIR. The opposite party no.1 required a copy of the FIR lodged by the complainant with a view to satisfy itself about the claim of the complainant for malicious damage. The complainant eventually had to approach the High Court in a Writ Petition and the High Court vide its order dated 23/02/1995 directed the Panjim Police Station to register the FIR.
8. Accordingly, a FIR was registered on 03/06/1995 (or is it on 03/06/1997?). The opposite party no.1 thereafter made an offer for settlement on 12/08/1995. In fact the complainant himself was requesting the Bank, the opposite party no.2, to prevail upon the insurer, the opposite party no.1, to settle the claim of the complainant as the proceeds of settlement could be utilized to settle the loan liability to the Bank, opposite party no.2 . Accordingly, the complainant and the Bank settled the complainants claim on 10/08/1999 (there appears to be a mistake as regard the date) for a sum of Rs.1,13,000/- and signed a discharge voucher. The said amount of Rs.1,13,000/- was credited to the account of the complainant on 13/08/1999 and as on 30/01/1996, as per the award passed by the Arbitrator against the complainant, a sum of Rs.1,17,309.03 was due and payable by the complainant to the said bank.
9. The complainant filed the complaint on or about 09/08/2001 claiming compensation of Rs.1,24,902.40 from opposite party no.1 with interest at the rate charged by opposite party no.2 from 04/11/1994 till payment or in the alternative to direct opposite party no.1 to make good the injury caused to the complainant by directing to clear the entire liability of the complainant and opposite party no.3 and 4 to opposite party no.2 and compensation of Rs.50,000/- for hardship , mental stress, etc.
10. The Ld. District Forum found that there was inordinate delay in settling the claim from June 1997 to August 1999 and they proceeded to grant the said amount claimed by the complainant against opposite party no.1 in the sum of Rs.1,24,902.40 with interest at 19% from the date the cash credit was availed by the complainant till actual payment plus compensation of Rs.50,000/- on account of financial loss, mental tension and Rs.20,000/- as cost of the litigation.
11. Shri E. Afonso, Ld. Advocate appearing on behalf of Opposite Party No.1, has firstly submitted that the complaint ought not to have been entertained, as the complainant and the said Bank had accepted the sum of Rs.1.13 lakhs on 10.08.1999 by way of full and final settlement and in this context Ld. Adv.
has placed reliance on the decisions of the National Commission in the case of K.R. Rajashekar v/s New India Assurance Co. Ltd., (2010) STPL(CL) 2024 NC and Ajay Verma v/s United India Insurance Co. Ltd., 2011 STPL(CL)765 NC.
12. We are inclined to accept the said submission of the Ld. Advocate. Opposite party no.1 through its Assistant Manager in her evidence had stated as follows:-
The opposite party no.1 assessed the loss of stocks and the stocks register maintained by the Goa Urban Co-operative Bank and settled the claim in full and final settlement in the sum of Rs.1.13 lakhs. The proceeds of the claim were paid to the Goa Urban Co-operative Bank as the said stocks were hypothecated to the said bank. The complainant and the bank have issued a discharge voucher in full and final discharge of the claim
13. Copy of the voucher was produced by Shri Afonso for our perusal and the same is taken on record. The case of the complainant in this regard was that while accepting the cheque the complainant had tried to mention that the same was being accepted under protest but the Manager of opposite party no.1 stopped the complainant and informed him that in that case the claim of the complainant could not be settled, and left with no other alternative, the complainant accepted the cheque of Rs.1.13lakhs drawn in favour of the opposite party no.2 which was adjusted against the loan account with opposite party no.2.
14. It may be noted that the complainant himself had pleaded that he had requested opposite party no.2 to prevail upon opposite party no.1, to settle the claim, the proceeds of which in turn could be utilized to settle the claim liability. A perusal of the said discharge voucher shows that the complainant and the Bank have executed the same by way of full and final discharge of the claim of the complainant. The complainant is a prudent businessman. The claim of the complainant that the Manager of opposite party no.1 told him that in case he made an endorsement that he accepted under protest, his claim could not be settled is only a self serving statement made by the complainant which has not even been supported by the Bank Manager who signed the receipt alongwith the complainant. The said receipt clearly shows that the complainant had settled his claim against opposite party no.1, and that was after complainant had persuaded opposite party no.2 to persuade opposite party no.1 and therefore the complainant could not have reopened the same controversy by way of the present complaint. The claim was settled after the complainant complied with the requirements of letter dated 12/08/1999.
15. The National Commission in K.R. Rajashekar (Supra) referred to the decision of the Apex Court in United India Assurance Co. v/s Aimer Singh and Cotton & General Mitts (1999) CPJ 10 (SC) wherein it was observed as follows:-
A mere execution of 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 by 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.
16. In Ajay Verma (Supra) again reference was made to the case decided by the Supreme Court and further reference was made to National Insurance Company v/s Kulka Rice & and General Mills, 2008 (1) CPC 28 ( Haryana) wherein it was held that once the final settlement of claim was accepted by the complainant without any protest it was not proper for the District Forum to enhance the claim and the order of the District Forum was set aside.
17. As already observed, in the present case, the complainant not only persuaded opposite party no.2 to persuade opposite party no.1 to settle the claim but the complainant as well as opposite party no.2 accepted the payment of Rs.1.13 lakhs by way of full and final discharge of the claim of the complainant, against the opposite party no.1 and the sum which was credited to the account of the complainant with opposite party no.2 . In such a situation, the complainant could not have reopened the controversy by filing the complaint which ought to have been dismissed by the Ld. District Forum.
18. Shri Afonso has next submitted referring to the policy obtained by the complainant that although it was for a sum of Rs.2.5 lakhs what was insured by the complainant was pharmaceutical goods only value of which was assessed by the surveyor appointed by the opposite party, after verifying the purchase bills produced by the complainant for Rs.1.13 lakhs. Ld. Advocate submitted that the furniture was not at all insured and therefore the Ld. District Forum could not have awarded the sum of Rs.1,24,902.40 in favour of the complainant.
19. We find merit in this submission as well. A perusal of the policy shows that only stock of pharmaceutical goods upto the value of Rs.2.5 lakhs was insured by the complainant with opposite party no.1 and although the bank had certified the stock to the extent of at Rs.1.86 lakhs, the opposite partys surveyor had assessed the same at Rs.1,35,460/- upon verification of purchase bills and after deducting the amount of Rs.22,450/- the balance to be paid was rounded off and was assessed at Rs.1.13lakhs only. The complainant was given the offer on 12/08/1999 and was further asked to execute an indemnity bond as per text enclosed and was further given the stock statement of the Bank to be signed and returned to the opposite party no.1 which conditions the complainant must have certainly complied with and this would again show that the complainant had accepted the said offer made by opposite party no. 1 in the sum of Rs.1.13 lakhs willingly in as much as the compensation payable could not have been more than Rs.1.13 lakhs that being the amount of loss of the stock of the pharmaceutical goods insured with the opposite party no. 1. It is therefore obvious, that any claim to be decreed, if at all, could not have been of greater value than the value of the stock which was existing on the date when the complainants premises were broken open and the goods in question were set on fire.
20. In the above view of the matter, we do not propose to consider the other submissions made. The complainant having accepted the sum of Rs.1.13 lakhs by way of full and final settlement of his claim against the opposite party no.1 and having credited the same to his account with opposite party no. 2, the complainant could not have maintained the complaint and the complaint ought to have been dismissed by the Ld. District Forum on that ground alone.
21. In the light of the above, the appeal deserves to succeed. The impugned order is hereby set aside and the complaint is hereby dismissed.
Considering the facts, there will be no order as to costs.
[Jagdish Prabhudessai] [Justice N.A. Britto] Member President