National Consumer Disputes Redressal
M/S. Mjrj Medichem Surgicals vs National Insurance Company Ltd. on 22 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.1927 OF 2013 With I.A.No.3146 of 2013 (For Condonation of Delay) (From order dated 4.2.2013 in First Appeal No.80/2012 of the State Consumer Disputes Redressal Commission, Rajathan) M/s. MJRJ Medichem Surgicals Through Sh. Rakesh Jain Owner of Shop No.6 & 26, Jalori Gate, Nala Shopping Centre, Inside Jalori Gate, Jodhpur ....Petitioner Versus 1. National Insurance Company Ltd. Through Sr. Divisional Manager, 12, Residency Road, Jodhpur. 2. National Insurance Company Ltd. Through its Branch Manager, E-4, Kapltaru Shopping Centre, Jodhpur. 3. UCO Bank Through its Branch Manager Sardarpura Branch, Jodhpur ....Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner : Mr. S.S. Jain, Advocate Pronounced on: 22nd January, 2015 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed under Section 21(b) of the Consumer Protection Act,1986(for short, Act), against order dated 4.2.2013 passed by State Consumer Disputes Redressal Commission, Bench Jodhpur, Rajasthan (for short, State Commission) in F.A. No.80 of 2012.
2. Brief facts of this case are that Petitioner/Complainant had insured goods of his shop for a sum of Rs.16 lacs for the period 4.9.2008 to 3.9.2009. On 10.7.2009, at about 12.30 p.m. petitioners shop got fire by short circuit with the result stocks and furniture were brunt. Petitioner in this process suffered loss of Rs.12,33,436/-. Information in this regard was given to the Respondents/Opposite Parties. Shri Sanjay Bhandari was appointed as surveyor by the respondent, who after physical verification assessed the loss of Rs.2,22,659/-. However, respondents officer asked the petitioner to accept the sum of Rs.1,55,213/- only being the interim payment and assured him that the balance amount would be paid later on.
On their assurance, petitioner accepted the cheque of Rs.1,55,213/- only on 11.1.2010. Due to the non payment of the genuine claim, petitioner sent a legal notice dated 16.8.2010 but getting no response from the respondents, the petitioner filed a consumer complaint.
3. Respondents in their written statement have stated that on receipt of the information from the petitioner, surveyor was sent to assess the loss, who after completing his investigation has assessed the loss on the basis of damage on the spot and the documents submitted by the petitioner. A list of loss worth of Rs.2,22,659/- was given to the respondent by the petitioner. After physical verification, the total loss of Rs.1,,55,213/- was assessed and the same was intimated to Shri Rakesh Jain, the complainant. The complainant expressed his satisfaction and as such a cheque for a sum of Rs.1,55,213/- was handedover to Shri Rakesh Jain, who accepted the same. Since, petitioner had received the amount on its own, he is not entitled to receive any further amount. It is further stated that no official of respondent company ever stated that the amount being received by the petitioner was interim.
4. District Consumer Disputes Redressal Forum, Jodhpur (First), Rajasthan (for short District Forum) vide order dated 2.3.2012, allowed the complaint and passed the following directions;
Therefore case of the applicant is accepted against non-applicant No.1 and 2 and it is ordered that non-applicant No. 1 and 2 jointly or separately, will pay to the applicant within one month of the date of decision, the total cost of burnt material Rs.10,10,000/-, Rs.38,275/- extra amount of partly burnt material total Rs.10,48,275/- with 9% interest on the said amount from the date of presentation of the case 01.09.2010 till to the date of making payment. Other than this Rs.10,000/- for mental harassment and Rs.5,000/- for cost of the case total amount Rs.15,000/- be paid to the applicant by non-applicant No. 1 and 2. The case against non-application No. 3 is not granted.
5. Being aggrieved, respondent filed an appeal before the State Commission, which allowed the same vide the impugned order.
6. Hence, present petition.
7. We have heard ld. the counsel for the petitioner and gone through the record, including written arguments submitted by the petitioner in support of its claim.
8. It has been submitted by ld.
counsel for the petitioner that as per, documents including surveyors report and evidence of parties on record, the entire claim for the lost/destroyed goods of petitioner was of Rs.12,,33,436/-. However, surveyor in his report had assessed only part of the total goods lost/destroyed in the fire, for the sum of Rs.1,55,213/-, against the value of Rs.2,22,659/- as per list obtained of the half burnt unusable damaged goods which was declared and verified. The acknowledgement of cheque of Rs.1,55,213/- by petitioner was in respect of the loss assessed of the goods of Rs.2,22,659/-. By no stretch of imagination the same was acknowledged or could be presumed to have been acknowledged towards his entire claim.
9. It is further submitted, that State Commission has committed serious error of law in presuming that petitioner signed the discharge voucher towards full and final satisfaction, by ignoring the specific finding of the District Forum that;
the Insurance Company has not produce any receipt on record whereby the petitioner alleged to have accepted the payment of Rs.1,55,224/- in full and final satisfaction of his claim.
10. In support, ld. counsel has relied upon following judgments;
i) Collector, Land Acquisition, Anantnag and another Vs. Mst, Katiji and others;
AIR 1987 Supreme Court 1353
ii) Padma Sundara Rao (Dead) and others Vs. State of T.N. and others;
(2002) 3 Supreme Court Cases 533,
iii) Central Board of Dawoodi Bohra Community and another Vs. State of Maharashtra and another;
(2005) 2 Supreme Court Cases 673,
iv) New India Assurance Company Ltd. Vs. Polycap Industries;
III (2010 CPJ 313 (NC) and
v) Niharika Maurya Vs. New India Assurance Company Ld. and others;
II (2011) CPJ 241 (NC)
11. The District Forum, while allowing the complaint held;
As per question is of receiving Rs.1,55,224/- as complete final payment from the Insurance Company, non-applicant Insurance Company has not produced any receipt which may confirm that the payment made to the applicant is final and complete. The applicant has clearly stated in his affidavit that officers of the Insurance Company insisted him to take this payment being interim, there is no reason for non accepting this statement. Except this in above mentioned references by the applicant who had lost app. Rs.12,50,000/- in fire accident, was when offered Rs.1,55,224/- accepted under duress can not be described as complete and final payment received happily and satisfactory. Therefore the case of the applicants is worth acceptance and it seems proper and right that payment of Rs.10,10,000/- cost of burnt material and the cost of partly burnt material and also Rs.38,275/- deducted money payment the non-applicant Insurance Company No.1 and 2 to the applicant with 9% interest per annum from the date of presentation of this case 01.09.2010 till the day of payment seems right.
12. The State Commission, while accepting the appeal in its impugned order observed;
Therefore, the last and position is that if the full and final amount has been paid then it is the responsibility of complainant to prove that he had received it under protest or interim. By observing the receipt it is not proved that the amount received is interim or duress. Hence, this appeal is admitted. The complainant is not entitled to receive an extra claim after full and final settlement.
13. Law on this subject has been clearly laid down by Honble Supreme Court of India in United India Insurance Vs. Ajmer Singh Cotton & General Mills and others (1999) 6 Supreme Court Cases 400, in which it was held that, discharge voucher though signed as full and final may not be treated as final if the consumer can satisfy the Court that it was obtained through undue influence, fraud or misrepresentation. Honble Court has 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.
14. In Bhagwati Prasad Pawan Kumar Vs Union of India (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 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.
15. As per discharge voucher placed on record (Page No.118 of the paper book), the petitioner had received a sum of Rs.1,55,213/- in full and final settlement of his claim in respect of the property loss or damage due to fire.
16. There is nothing on record to show that petitioner was compelled by any of the officials of the respondent at any stage to settle the claim at a lesser amount. There is not an iota of evidence on record to show as to which official of the respondent, compelled the petitioner to settle its claim at a lesser amount.
17. Admittedly, petitioner received the sum of Rs.1,55,,213/- on 11.1.2010 by cheque.
However, the legal notice making further demand was sent by the petitioner only on 16.8.2010, that is, after a period of more than seven months. There is no explanation at all on behalf of petitioner as to why he remained silent for seven months after accepting the sum of Rs.1,55,213/-. Further, it is manifestly clear from the record that petitioner had intentionally and willingly signed the discharge voucher for full and final settlement of its claim. Now, petitioner is estopped from repudiating the discharge voucher duly signed by him. This clearly shows mala fide intention on behalf of the petitioner in filing the consumer complaint. Petitioner had been enjoying the sum of Rs.1,55,213/- for the last five years. Moreover, if petitioner had received the sum of Rs.1,55,213/- under duress and pressure, then why did it get the cheque encashed. In such circumstances, petitioner ought to have returned the same to the respondent forthwith alongwith its protest.
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 cease 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.
19. Thus, present petition is wholly misconceived and is meritless. None of the aforesaid judgments (supra) as relied upon by counsel for the petitioner in support of its claim, are applicable at all to the facts of the present case. Accordingly, we dismiss the petition with cost Rs.5,000/- (Rupees Five Thousand only).
20. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within four weeks from today.
21. In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
22. List on 27.02.2015 for compliance.
(V.B. GUPTA, J.) PRESIDING MEMBER Sg.