National Consumer Disputes Redressal
Dr. Yogesh Kumar Sharma vs National Insurance Company Limited on 12 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4108 OF 2010 alongwith I.A. No. 01/2010 (For Condonation of Delay) I.A. No.02 of 2010 (For Exemption) (From the order dated 7.5.2010 in Appeal No.1271/2004 of the State Commission, Haryana, Panchkula) Dr. Yogesh Kumar Sharma Dental Surgeon, General Hospital Jind, R/o 263, Housing Board, Jind Petitioner Versus National Insurance Company Limited Regional Office II, SCO 337-340, Sector 35-B, Chandigarh Through Ms. Vijay Kumari, Admn Officer ..Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. JUSTICE K.S. CHAUDHARI, MEMBER For the Petitioner : Mr. R.K. Sharma, Advocate with Mr. Yogesh Chhabra, Advocate For the Respondent : Mr. S.K. Ray, Advocate Pronounced on: 12th February, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed against order dated 7.5.2010, passed by State Consumer Disputes Redressal Commission, Haryana (for short, State Commission). Alongwith it, an application seeking condonation of delay of 36 days has been filed, though as per Office noting there is delay of 50 days in filing the petition.
2. Admitted facts are that petitioner/complainant got insured his Maruti Car with respondent /opposite party for the period from 08.02.1997 to 07.02.1998 for a sum of Rs.2,25,000/-. During the period of Insurance, petitioners vehicle met with an accident near Pehowa on 08.05.1997. FIR was lodged with the Police. Necessary intimation was given to the respondent, upon which Sh. F.C. Jain, surveyor was appointed who conducted the spot survey of the vehicle in question on 12.5.1997 and submitted his report to the respondent on 19.5.1997. Thereafter, vehicle in question was again surveyed by M/s. Esquire Technocreate Mohali who also submitted his report in June, 1997. Thereafter, claim of petitioner was settled at Rs.2,08,000/- as full and final settlement and petitioner gave his consent on 10.12.2007, provided that a cheque of this amount be given to him within 30 days. Thereafter, on 31.3.1998 petitioner made a request to the respondent to pay the amount of claim to the tune of Rs.2,25,000/-. However, respondent did not pay any heed to the request of the petitioner. By filing complaint before the District Forum, petitioner sought direction to the respondent to pay him a sum of Rs.2,25,000/- on account of loss of car alongwith interest and other charges etc. on the ground that respondent had wrongly retained the aforesaid amount which it was bound to pay within 30 days from the date of the consent.
3. On the other hand, plea taken by the respondent was that petitioner had agreed for full and final settlement against total loss for a sum of Rs.2,08,000/-
subject to verification of the driving licence. After verification of the same by Shri K.R. Arora, investigator, respondent recommended the claim for Rs.2,08,000/- on 18.2.1998 subject to deposit of the salvage and transfer of registration in respondents name. The registration was transferred on 9.3.1998 and salvage was deposited on 26.3.1998. Thereafter, respondent issued the cheque of the said amount to the petitioner which was accepted by him in full and final settlement, without any protest on 3.6.1998. Denying any kind of deficiency in service it was prayed that complaint merit dismissal.
4. District Forum, vide its order dated 31.3.2004, allowed the complaint of petitioner and directed the respondent to pay the balance amount of Rs.17,000/- alongwith interest @ 9% per annum from 1.9.1997, till realization and further directed to pay interest @ 9% per annum on the sum of Rs.2,08,000/- from 1.9.1997 to 3.6.1998. In addition, it awarded Rs.2,000/- as litigation expenses.
5. Being aggrieved by the order of District Forum, respondent filed appeal before the State Commission, which set aside the order of District Forum.
6. Hence, this revision petition.
7. Respondent has filed reply to this revision also.
8. We have heard the learned counsel for the parties and have gone through the record.
9. As far as application for condonation of delay is concerned, no cogent reason at all has been mentioned as apparent from the relevant averments which states;
3. That it is pertinent to mention here that the petitioner has left his address in the month of May, 2010 and after Honble Commission reserved the order and after that a family known to him is staying at the above noted address and the petitioner has shifted to a new better accommodation at 1272, Urban Estate, Jind, Haryana which is at a distance from Housing Board Colony and on his visit to his previous address on 15.7.2010, the petitioner came to know of passing such an order and therefore there is delay of about 36 days in filing the present revision petition from the date of knowledge of the petitioner.
10. As per petitioners case he shifted to a new residence. There is nothing on record to show that he ever informed about his new address to the District Forum or State Commission. It was the duty of the petitioner to have got his new address recorded in the record of the fora below. Since, petitioner himself was negligent, thus there is no sufficient cause to condone the delay.
11. On merits, it is contended by learned counsel for the petitioner that petitioner accepted a sum of Rs.2,08,000/- under protest, as he was persuaded by the respondent to accept the same.
12. On the other hand, it has been contested by learned counsel for the respondent that petitioner accepted the sum of Rs.2,08,000/- without any protest. In support, learned counsel for petitioner has relied upon following judgements;
i) National Insurance Company Ltd. Vs. Sehtia Shoes 2008(3)SCALE 135;
ii) United India Insurance Company Vs. Ajmer Singh Cotton & General Mills & others 1992 (2) CPC 601 (SC);
iii) Rajeev Tripathi Vs. United India Insurance Company Ltd., Revision Petition No.1066 of 2008 decided on 18th September, 2012 by this Commission and
iv) Ajay Verma Vs. United India Insurance Company Ltd., Revision Petition No.2911 of 2010 decided on 28th April, 2011 by this Commission.
13. State Commission in its impugned order observed;
Certain facts in this case are not disputed that the claim of the complainant was settled in full and final settlement of his claim at Rs.2,08,000/- and the complainant had received the aforesaid amount on 3.6.1998 without any protest. It is not the case of the complainant that he had received the aforesaid amount under any undue influence of the opposite parties. In case the complainant had any grievance for delay in settling the claim amount, he should have received the amount under protest but he had received the amount without any protest and this fact does not constitute any kind of deficiency in service on the part of opposite parties Reliance is placed on the observations made in case of United India Insurance Versus Ajmer Singh Cotton & General Mills & Ors Etc. 1999(2) CPC (S.C.), wherein the Honble Supreme Court has held;
Insurance claim-Full settlement-Where claim has been accepted without any objection, full and final settlement of claim was made by insurer, claimant cannot be allowed any further relief. But mere execution of discharge voucher cannot deprive the claimant of consequential relief particularly when such discharge voucher was obtained by fraud, misrepresentation or under coercion-In the instant case complainant failed to prove any such reason, he therefore, was not entitled to any further relief-Even delay of few months taken in settlement of claim does not constitute deficiency in service-Order of State Commission restored-Order passed by National Commission set aside."
The facts and circumstances of the present case are fully attracted to the case law cited supra. The District Forum while deciding the complaint has not considered the factual position on record and committed great error in accepting the complaint and thus, the impugned order under challenge is not sustainable in the eyes of law.
As a sequel of our above discussion, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
14. Law on this subject has been clearly laid down by Honble Supreme Court of India in Ajmer Singh Cotton & General Mills (supra). Honble Court 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, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints.
15. 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 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.
16. As per averment made in the complaint, respondent required petitioners consent in writing to accept the sum of Rs.2.15 lacs for full and final settlement of his claim. Accordingly, petitioner gave his consent to accept Rs.2.15 lacs though he is entitled to full amount. However, in the same breadth petitioner alleges that when his claim was not settled he gave legal notice claiming sum of Rs.2.25 lacs alongwith interest @ 18% p.a. w.e.f. 8.5.97 till payment. It is further averred in the complaint that petitioner was called by the respondent and persuaded to accept Rs.2.08 lacs. On this petitioner gave his consent on 10.12.97 to accept the sum of Rs.2.08 lacs for the full and final settlement of his claim provided a cheque of this amount was given to him within 30 days.
17. Petitioner has not placed on record even a single document with regard to the above averments. Moreover, petitioner on the one hand states that he gave his consent in writing to accept a sum of Rs.2.15 lacs for full and final settlement of his claim, while on the other hand he states that he gave his consent on 10.12.1997 to accept the sum of Rs.2.08 lacs for full and final settlement of his claim provided a cheque of this amount was given to him within 30 days. So, petitioner itself is taking contradictory stand with regard to its claim.
18. Even otherwise, in the present case there is nothing on record to show that petitioner was compelled by the respondent at any stage to settle the claim at lesser amount than the claim made by him. There is also not an iota of evidence on record to show that any official of the respondent compelled the petitioner to settle the claim at lesser amount. This clearly shows malafide intention on the part of the petitioner in filing the present complaint. It is well settled that provisions of the Consumer Protection Act, 1986 are not meant for enrichment of the consumer. Once petitioner had received the amount unconditionally, then he ceases to be 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.
19. Thus, there is no merit in the present petition. The same is accordingly dismissed on merits as well as being barred by limitation with cost of Rs.5,000/- (Rupees Five Thousand only).
20. Cost be deposited by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of the Consumer Protection Rule, 1987, within four weeks.
21. In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a. till realization.
22. List for compliance on 5.4.2013.
..J (V.B. GUPTA) PRESIDING MEMBER ..J (K.S. CHAUDHARI) Sg/ MEMBER