State Consumer Disputes Redressal Commission
Jbr Enterprises vs 1. Universal Sompo General Insurance ... on 25 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 171 of 2013 Date of Institution : 18.04.2013 Date of Decision : 25.06.2013 JBR Enterprises, SCF 262, Motor Market, Manimajra, Chandigarh, through its Proprietor Naveen Kumar. Appellant/Complainant V e r s u s 1. Universal Sompo General Insurance Company Limited, SCO No.72, 1st Floor, Swastik Vihar, Mansa Devi Complex, Sector 5, Panchkula-134109, through its General Manager. 2. Universal Sompo General Insurance Company Limited, Unit No.401, 4th Floor, Sangam Complex, 127, Andheri Kurla Road, Andheri (E) Mumbai 400059, through its Managing Director ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh.Gourav Goel, Advocate for the appellant.
Sh.
Manoj Lakhotia, Advocate proxy for Sh. Sahil Abhi, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 22.03.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the Complainant purchased Standard Fire and Special Perils Policy, in respect of the stock of medicines and drugs, for the sum assured, to the tune of Rs.50 lacs, for the period from 24.03.2012 to 23.03.2013, from the Opposite Parties (now respondents), through Karnataka Bank Ltd., on payment of premium of Rs.10,970/-. On 05.05.2012, Mr. Naveen Kumar, Proprietor of the Complainant, locked the insured premises/shop, at around 7.30 PM, and left for his residence. After about 10 minutes, when the Proprietor of the Complainant was on his way, he received a phone call, from his neighbourer M/s Sikka Trading Company, that some smoke was coming out of the insured premises/shop, whereupon he rushed to the spot, and saw huge flames of fire, coming out of the front portion of the insured premises/shop. On entering the premises, it was found that a large stock of medicines was burnt, in the said fire. The occurrence of fire was reported to the Police, as well as to Opposite Party No.1. DDR No.65, dated 06.05.2012 was lodged in Police Station Manimajra, Chandigarh. Mr.Sanjay Gupta, Surveyor and Loss Assessor, was appointed to assess the loss, caused to the insured goods. The information and requisite documents, as demanded by the Surveyor and Loss Assessor, were supplied to him. After the completion of investigation, the Surveyor assessed the loss to damaged goods, to the tune of Rs.24,67,927/-.
3. It was stated that despite having conducted the proper investigation and due verification of all the relevant documents, as also physical verification of the insured premises, the Surveyor made an illegal and wrongful deduction, from the claim of Rs.24,67,927/-, and assessed the net amount payable to the complainant, to the tune of Rs.18,94,380/-. It was further stated that though the said assessed loss of Rs.18,94,380/- was much less than the actual loss, yet the Proprietor of the Complainant, under compelling circumstances, gave consent letter, accepting the same, as full and final settlement of the claim.
4. To the utter surprise of the complainant, the Opposite Parties, instead of releasing the settled amount of Rs.18,94,380/-, appointed another Investigator-M/s Royal Associates. The said Investigating Agency, recommended 20% more deduction, from the claim amount of Rs.18,94,380/-, as already assessed by Mr.Sanjay Gupta, Surveyor and Loss Assessor. It was further stated that since the Proprietor of the Complainant, was in dire need of money, and, as such, he was compelled to sign the discharge voucher, in full and final settlement of the claim, to the tune of Rs.15,12,571/-. It was further stated that the said amount of Rs.15,12,571/-, was credited to the account of the complainant, by the Opposite Parties, on 06.10.2012 (Saturday). Thereafter, the Proprietor of the Complainant, immediately, wrote protest letter to the Opposite Parties, on 08.10.2012 (Monday), disputing the amount, paid by them, and demanded the balance amount of Rs.9,46,356/- (infact Rs.9,55,356/- i.e. Rs.24,67,927/- minus (-) Rs.15,12,571/-). The Proprietor of the Complainant, also sought information from the Opposite Parties, as to on what basis, his claim had been assessed by them, but his request was rejected vide letter dated 10.10.2012 Annexure C-9, on the ground, that they did not find any justifiable reason for considering his request, with regard to the same.
5. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to release the remaining claim amount of Rs.9,46,356/- (infact Rs.9,55,356/-), alongwith interest @18% P.A., till realization; compensation, in the sum of Rs.30,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/- .
6. The Opposite Parties, in their joint written version, pleaded that the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. It was admitted that the Complainant purchased the Standard Fire and Special Perils Policy, from them, in respect of the stock of medicines and drugs, for the sum assured, to the tune of Rs.50 lacs, for the period from 24.03.2012 to 23.03.2013. The occurrence of fire, and intimation to the Police, as also the Opposite Parties, with regard to the same were also admitted. It was also admitted that, on receipt of intimation, Mr.Sanjay Gupta, Surveyor and Loss Assessor, was appointed for the assessment of loss. It was stated that Mr.Sanjay Gupta, Surveyor and Loss Assessor, submitted his report dated 12.06.2012. It was further stated that after receipt of the said report, M/s Royal Associates, Investigating and Detective Agency, Urban Estate Kurukshetra, Haryana, was appointed as Surveyor/Investigator, which submitted its report dated 22.08.2012, after scrutinizing the documents, placed in the claim file, as well as applying mind, to the facts and circumstances of the case. It was further stated that M/s Royal Associates, Investigating and Detective Agency, approved and settled the claim, in the sum of Rs.15,12,571/-, which was received by the Proprietor of the Complainant, in full and final settlement of the same (claim). It was further stated that discharge voucher, in that regard, was also signed by the Proprietor of the Complainant, and countersigned by Karnataka Bank Ltd. It was further stated that, at the time of receiving the amount of Rs.15,12,571/-, in full and final settlement of the claim, the Proprietor of the Complainant, did not raise any protest. It was further stated that, once the Proprietor of the Complainant, received that amount, without any protest, later on, he could not turn round and say that he was not bound by the same. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
10. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully, including written arguments.
11. An objection was taken, in the written reply, by the respondents/Opposite Parties, that the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint, on the ground, that the claim was lodged with the respondents/Opposite Parties, by the Proprietor of the Complainant, and was processed by Opposite Party No.1, at Panchkula, as also the amount, in full and final settlement was paid to him (Proprietor of the Complainant), by respondent no.1/Opposite Party No.1, at Panchkula. It was pleaded that, as such, no cause of action, arose to the appellant/ complainant, within the territorial Jurisdiction of Chandigarh. Such an objection does not appear to be correct. The premises, in which the stock of medicines was lying, which was got insured, by the Proprietor of the Complainant, is situated at Manimajra, within the territorial Jurisdiction of Chandigarh. Fire incident took place, in the said premises, within the territorial Jurisdiction of Chandigarh. Under these circumstances, a part of cause of action, arose to the complainant, within the territorial Jurisdiction of Chandigarh. In this view of the matter, the District Forum, at Chandigarh, had Jurisdiction, to entertain and decide the complaint, at Chandigarh.
12. Undisputedly, the complainant purchased the Standard Fire and Special Perils Policy, in respect of the stock of medicines and drugs, for the sum assured, to the tune of Rs.50 lacs, for the period from 24.03.2012 to 23.03.2013, from the Opposite Parties, through Karnataka Bank Ltd., on payment of premium of Rs.10,970/-. On receipt of intimation, with regard to the fire incident, Mr.Sanjay Gupta, Surveyor and Loss Assessor, was appointed by the respondents/Opposite Parties, to assess the loss, who submitted his report Annexure R-2 (colly.) dated 12.06.2012. He came to the conclusion, that the amount, which was payable, by way of indemnification, to the Complainant, was Rs.18,94,380/-. While preparing his report, he took into consideration, the value of total stocks on their purchase price, as per the list attached by the Proprietor of the Complainant, value of the safe goods, as per the list attached, value of the damaged goods, less variance 10% and less dead and slow moving stocks 10%. He also submitted his affidavit, in support of his report. Even the consent letter Annexure C-4, agreeing to accept Rs.18,94,380/-, was submitted by Mr. Naveen Kumar, Proprietor of the Complainant, in full and final settlement of the claim of loss, on account of fire on 05.05.2012, covered under the Policy, in question. Once, Mr.Sanjay Gupta, Surveyor and Loss Assessor, submitted his report, Annexure R-2 (colly.) dated 12.06.2012, after due investigation, at the site, in question, as also of the stock, it is not known, as to what compelled the Opposite Parties, to appoint another Investigator i.e M/s Royal Associates, Investigating and Detective Agency. No cogent and convincing evidence, was produced by the Opposite Parties, that the report of Mr.Sanjay Gupta, Surveyor and Loss Assessor, was, in any way, incorrect and, on account of that reason, M/s Royal Associates, Investigating and Detective Agency, was appointed as another Surveyor/Investigator. Both Mr.Sanjay Gupta, Surveyor and Loss Assessor and M/s Royal Associates, Investigating and Detective Agency, came to the conclusion, that on the basis of findings and documentary evidence, the date and time of fire seemed to be genuine and accidental, though cause of the same (fire), could not be established. No doubt, M/s Royal Associates, Investigating and Detective Agency, came to the conclusion, that the amount claimed, by the Complainant, seemed to be on the higher side, as some medicines had already been spoiled by water, in the shop, at the time of fire. For coming to such a conclusion, no data or material was produced by the Proprietor of M/s Royal Associates, Investigating and Detective Agency. The alleged statements of Jaini Kumar, employee, Vikram Singh, employee, Vijay Kumar, neighbourer and Sanjeev Bhardwaj, neighbourer, were not recorded. In its report M/s Royal Associates, Investigating and Detective Agency, only stated that these people confirmed that all the medicines had already been destroyed, by pouring water, on the same. In the absence of separate statements of these persons, recorded by the Investigator of M/s Royal Associates, Investigating and Detective Agency, no reliance thereon, could be placed. In the first instance, no plausible explanation, was furnished by the Opposite Parties, as to what compelled them to appoint another Surveyor/Investigator, i.e. M/s Royal Associates, Investigating and Detective Agency, when already Mr.Sanjay Gupta, Surveyor and Loss Assessor, appointed by them, had given his report Annexure R-2 (colly.) dated 12.06.2012, and secondly, the Survey report of M/s Royal Associates, Investigating and Detective Agency, is not based on any cogent and convincing evidence and material. Under these circumstances, the report of Mr.Sanjay Gupta, Surveyor and Loss Assessor, is correct. According to that report, the Complainant was entitled to Rs.18,94,380/- by way of indemnification. Even, no evidence was led by the appellant/complainant, to disprove the report of Mr.Sanjay Gupta, Surveyor and Loss Assessor. It is, therefore held, that the Complainant was required to be indemnified, in the sum of Rs.18,94,380/-i.e. the loss assessed by Mr.Sanjay Gupta, Surveyor and Loss Assessor. By not making payment of Rs.18,94,380/-, and instead by paying Rs.15,12,571/-, the respondents/Opposite Parties were certainly deficient, in rendering service, as also indulged into unfair trade practice.
13. In the written arguments, the Counsel for the respondents/Opposite Parties, however, submitted that once a cheque, in the sum of Rs.15,12,571/-, was received and the discharge voucher was signed by the Proprietor of the Complainant, in full and final settlement of the claim, without raising any protest, and even that cheque was encashed, later on, he could not turn round to say that the amount was not, in full and final settlement. As stated above, originally the consent letter Annexure C-4, vide which, the Proprietor of the Complainant, agreed to accept Rs.18,94,380/-, the net amount payable, as per the Mr.Sanjay Gupta, Surveyor and Loss Assessor, in full and final settlement, of the claim, was submitted. Once, that consent letter, on the asking of the respondents/Opposite Parties was submitted by the Proprietor of the Complainant, thereafter, the second Surveyor/ Investigator, could not be appointed, just with a view to lessen that amount. No doubt, Annexure C-6, is the discharge voucher, showing the receipt of Rs.15,12,571/-, in full and final settlement of the claim, which was signed by the Proprietor of the Complainant. However, it may be stated here, that according to the Proprietor of the Complainant, when he came to know that the amount of cheque, in the sum of Rs.15,12,571/-was credited to his account, on 06.10.2012 (Saturday), 7th being Sunday, he, on 08.10.2012, issued the protest letter Annexure C-7, to the Opposite Parties, claiming therein, that the loss which occurred to the stock, was to the tune of Rs.24,67,927/-, but he had been paid only a sum of Rs.15,12,571/-.
He also intimated the respondents/ Opposite Parties, that the remaining amount of Rs.9,46,356/- (infact Rs.9,55,356/-), be paid to him. It means that, immediately, after the credit of cheque amount, in the sum of Rs.15,12,571/-, the Proprietor of the Complainant, vide letter Annexure C-7, intimated the respondents/Opposite Parties, that he was entitled to the amount of 24,67,927/-, the value of the goods, which were destroyed, in fire. It was not that the appellant/ Proprietor of the Complainant, slept over the matter, for a number of days, and, thereafter, woke up from his deep slumber. He wrote letter Annexure C-7, to the respondents/Opposite Parties, that the cheque, in the sum of Rs.15,12,571/-, credited to his account, was on account of only part payment, and reserved his right to claim the remaining amount. No doubt, at the time of signing the discharge voucher, the Proprietor of the Complainant, did not write that he was signing the same, under protest. However, that hardly mattered. Since the Proprietor of the Complainant, at the first available opportunity, without wasting his time, wrote letter Annexure C-7, that the cheque, in the sum of Rs.15,12,571/-, was accepted by him, as a part payment and he reserved his right of claiming the remaining amount, it could not be said, that he was estopped from claiming the remaining said amount, which was due to him.
14. In the complaint, the Proprietor of the Complainant, in clear-cut terms, stated that since his entire medicine stock had been destroyed, in the fire, and he was in financial constraints, he was not having any option, with him, than to accept whatever little amount was paid to him, in full and final settlement of claim. The Counsel for the appellant, also submitted that had he written on the discharge voucher, that he was receiving the amount of Rs.15,12,571/-, under protest, he would not have been paid that amount also, as a result whereof, he would have been pushed into further deep financial constraints. In United India Insurance Co. Vs. Ajmer Singh Cotton & General Mills & Ors. etc. 1999(2) CPC 602 (SC), it was, in clear cut terms, held that mere execution of the discharge voucher could not deprive the claimant of the consequential relief, particularly when such discharge voucher was obtained by fraud, misrepresentation or under coercion or by way of coercive bargain. In the instant case, no doubt, the cheque was obtained, in the sum of Rs.15,12,571/-, by the Proprietor of the Complainant, without any protest, but immediately, thereafter, he wrote letter Annexure C-7, to the effect, that he accepted the said amount, only as a part payment, and reserved his right to claim the remaining amount. At the time of signing the discharge voucher, and accepting the cheque, the Proprietor of the Complainant, was in disadvantageous position, whereas, the Insurance Company i.e. the Opposite Parties, were in dominating position. Under these circumstances, it could be said, that it was a case of coercive bargaining, where a person in disadvantageous position, was pitted against a person, which is in a dominating position. In such circumstances, the person in a disadvantageous position, always accepts whatever little, offered to him, otherwise, he may not be able to get anything. It cannot be imagined that a person/ Proprietor of the Complainant, who filed a claim of 24,67,927/-, on account of loss of goods, in fire, would accept a paltry amount of Rs.15,12,571/-, in full and final settlement of claim. Surely, the Proprietor of the complainant had been coerced to do so. Not only this, in United India Insurance Company Limited Vs. K. Gangadharan, 2002 (1) CPC 210, a case decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, having similar facts, it was held that if full and final settlement of the claim was accepted, on account of financial hardship, and not on account of free will, the complainant/consumer, could claim the remaining amount, and he could not be said to be estopped by his act and conduct, from claiming the same. In Central Water Transport Corporation Ltd. and Anr. Vs. Tarun Kanti Sengupta and Anr. (1986) 3 SCC 156, it was held that where a man has no choice, or rather no meaningful choice, but to give his consent to a contract or to sign on the dotted line, in a prescribed or other form or to accept a set of rules, as part of contract, howsoever, unfair, unreasonable, and unconscionable a clause in that contract, may be the Courts will enforce and will, when called upon to do so, strike down as unfair or unreasonable clause in a contract entered into, between the parties, who are not equal in bargaining power. In Oriental Insurance Co. Ltd. & Ors. Vs. Government Tool Room and Training Centre, 1 (2008) CPJ 267 (NC), it was held that mere execution of discharge voucher and acceptance of insurance claim, did not estop the insured from making further claim. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore held that the complainant had no meaningful choice, than to sign the discharge voucher, and accept the amount, in full and final settlement of claim. As such, his free consent, in executing the same was not proved. Under these circumstances, the complainant was not estopped from claiming the remaining amount. The appellant/complainant, is, thus, held entitled to the remaining amount of Rs.3,81,809/-
(Rs.18,94,380/- the amount of claim, assessed by Mr.Sanjay Gupta, Surveyor and Loss Assessor minus (-) Rs.15,12,571/-, the amount paid by the Opposite Parties, to the complainant, on 06.10.2012, through cheque), with interest @9% P.A., from 06.10.2012.
15. Reliance, no doubt, in the written submissions, was placed by the Counsel for the respondents/Opposite Parties, on Laxmi Devi Kakhani Vs. Oriental Insurance Company Ltd. IV (2012) CPJ 483 (NC), Nirmal Singh Vs. Oriental Insurance Company Ltd. IV (2012) CPJ 641 (NC), Raj Kumar Vs. United India Insurance Co. Ltd., Revision Petition No.354 of 2007, decided on 06.07.2011, by the National Consumer Disputes Redressal Commission, New Delhi, and Ajay Verma Vs. United India Insurance Company Ltd. II (2011) CPJ 246 (NC), in support of his contention, that once the amount of Rs.15,12,571/-, was accepted by the Proprietor of the Complainant/appellant, in full and final settlement of the claim, without any protest, he could not claim the remaining amount, as he was estopped from doing so. In Laxmi Devi Kakhani`s case (supra), there was nothing, on record, that the petitioner was compelled, at any stage, to settle the claim, at lesser amount, than what was claimed by her. It was, under these circumstances held that once she accepted the refund unconditionally, she could not claim any further amount. In Nirmal Singh`s case (supra), it was held that the discharge voucher, though signed by the insured, as full and final settlement, may not be treated as final, if the consumer satisfied the Court, that the same was obtained under fraud, undue influence and misrepresentation or the like. In Raj Kumar`s case (supra), similar principle of law, was laid down. In Ajay Verma`s case (supra), it was held that the complainant failed to prove, as to who stopped him, from writing under protest on discharge voucher, and, as such, he could not claim further amount, as the payment made was in full and final settlement of the claim. There is, no dispute, with regard to the principle of law, laid down, in the aforesaid cases. However, the facts and circumstances of the cases, referred to in this paragraph, are clearly distinguishable, from the facts and circumstances of the instant case. In the instant case, it has been held above, that, no doubt, the consent letter sent by the Proprietor of the Complainant, was, in the sum of Rs.18,94,380/-, yet, he was paid only a sum of Rs.15,12,571/-, and he signed the discharge voucher. The Proprietor of the Complainant, in the complaint, as also, in the affidavit, by way of evidence, in clear-cut terms, stated that he was in financial constraints and, as such, in dire need of money. He, thus, being in disadvantageous position and the Opposite Parties, being in dominating position, had no other meaningful choice, than to sign the discharge voucher, on doted lines. Had he written on the discharge voucher, that he was receiving the amount of Rs.15,12,571/-, under protest, he would not have been paid that amount also, as a result whereof, he would have been pushed into further deep financial constraints. Since, the Proprietor of the Complainant was in financial constraints, as his insured stock of medicines and drugs was destroyed in fire, he had to, thus, discharge a number of liabilities. It was, under these circumstances, that the Proprietor of the Complainant accepted, whatever amount was offered and given to him, by the Opposite Parties, being in dominating position, and, immediately, thereafter, wrote the protest letter dated 08.10.2012 Annexure C-7. Not only this, the aforesaid cases were decided by a Single Member Bench or Two Member Bench, whereas, United India Insurance Company Limited Vs. K. Gangadharan`s case (supra), was decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, in which, on account of financial constraints, the amount in full and final settlement of claim was received by the insured, and later on, he filed a complaint, with regard to the remaining amount, which was accepted on the ground, that he had no meaningful choice, than to accept whatever little amount was paid to him. The principle of law, laid down, United India Insurance Company Limited Vs. K. Gangadharan`s case (supra), decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, therefore, would hold the field. The facts and circumstances of the cases, relied upon, by the Counsel for the respondents/Opposite Parties, mentioned in this paragraph, being distinguishable, from the facts and circumstances of the instant case, no help can be drawn by him, therefrom.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, the appeal is accepted, with costs. The order of the District Forum is set aside. The complaint is partly accepted, in the following manner, against the Opposite Parties/ respondents:-
(i). The Respondents/Opposite Parties, are jointly and severally, directed to pay Rs. i.e Rs.3,81,809/-
(Rs.18,94,380/- the amount of claim, assessed by Mr.Sanjay Gupta, Surveyor and Loss Assessor minus (-) Rs.15,12,571/-, credited to the bank account of the complainant, on 06.10.2012, through cheque).
(ii). The Respondents/Opposite Parties, are further directed to pay interest @9% P.A., on the amount of Rs.3,81,809/-, as indicated in Clause
(i) above, from 06.10.2012, (the date when the amount of Rs.15,12,571/-, was credited to the bank account of the complainant), until the expiry of 45 days, from the date of receipt of a copy of this order.
(iii). The Respondents/Opposite Parties, are further directed to pay cost of litigation, to the appellant/complainant, to the tune of Rs.20,000/-.
(iv). The amount mentioned in Clause (i) shall be paid by the Respondents/Opposite Parties, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the same shall be paid, alongwith penal interest @12% P.A., instead of 9% P.A., from the date indicated above, i.e. 06.10.2012, till realization, besides payment of costs, to the tune of Rs.20,000/-.
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion Pronounced.
25.06.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg