State Consumer Disputes Redressal Commission
The United India Insurance Co.Ltd., And ... vs Chittiprolu Lokeswara Rao on 26 March, 2013
Both appeals are directed against the same order passed by the District
Forum
BEFORE
A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No.
189 OF 2012 AGAINST C.C.NO.283 OF 2010 DISTRICT CONSUMER GUNTUR
Between
The
Divisional Manager
The United India Insurance Co.Ltd.,
Divisional Office, Kubera Towers
Guntur
The
Branch manager
The United India Insurance Co.,Ltd.,
Branch-II, 12-21-56, Gowri Shankar Theatre
Road, Kothapet, Guntur
Appellant/opposite parties
A N
D
Chittiprolu Lokeswara Rao
S/o China Ramaiah, aged about 54 years,
Proprietor of Sri Lakshmi Sai Cotton Traders
R/o Dr.No.5-60-18/A, 3rd Lane, Ashok Nagar
Guntur
Respondent/complainant
Counsel for the Appellants M/s E.Venugopal Reddy
Counsel for the Respondent M/s K.Anand Rao
F.A.No.
190 OF 2012 AGAINST C.C.NO.283 OF 2010
Between
Chittiprolu Lokeswara Rao
S/o China Ramaiah, aged about 57 years,
Proprietor of Sri Lakshmi Sai Cotton Traders
R/o Dr.No.5-60-18/A, 3rd Lane, Ashok Nagar
Guntur
Appellant/complainant
A N
D
The
Divisional Manager
The United India Insurance Co.Ltd.,
Divisional Office, Kubera Towers
Guntur
The
Branch manager
The United India Insurance Co.,Ltd.,
Branch-II, 12-21-56, Gowri Shankar Theatre
Road, Kothapet, Guntur
Respondent/opposite parties
Counsel for the Appellants M/s K.Anand Rao
Counsel for the Respondent M/s E.Venugopal Reddy
QUORUM:
SRI
R.LAKSHMINARSIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER TUESDAY THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND THIRTEEN Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. Both appeals are directed against the same order passed by the District Forum . The opposite party-insurance company has filed appeal , F.A.No. 189 of 2012 and the complainant has filed appeal, F.A.No. 190 of 2012 . For the sake of convenience and felicity of expression, the parties are referred to as they are arrayed in the complaint.
2. The complainant, engaged in the business in pressing and ginning of cotton and he used to purchase cotton and lent and insured them with the opposite party under two insurance policies for `20,00,000/- and `25,00,000/- covering the risk from 23.11.2008 to 22.11.2009 at Maruthi Kumar Cotton Ginning Mill, Yetkur Road, Road. On 14.05.2009 fire broke out at the Ginning Mill and cotton stocks of the complainant were damaged. The complainant intimated the incident to the Fire Department. The complainant submitted claim for `44,76,027/- and the surveyor deputed by the opposite party assessed the loss at `32,00,000/-.
3. The complainant contended that the official of the opposite party coerced him to agree for settlement of the claim for `32,00,000/ stating that they would repudiate the claim or postpone settlement for six months and accordingly he agreed for and received a sum of `31,89,872/-.
4. The opposite party resisted the claim on the premise that the policy numbers and bankers name mentioned in the notice dated 29.06.2010 are incorrect. The insurance policies were issued in the name of the complainants banker, Andhra Bank, Guntur. After consideration of the surveyors report, the complainants claim was settled at `32,00,000/-towards full and final settlement subject to collection of reinstatement of the premium of `3,982/- for which the complainant voluntarily en consent. The settlement of the claim was to the knowledge of the complainants banker. The complainant and his banker without any demur and protest issued discharge voucher in advance and received the settled claim amount of `32,00,000/- by way of cheques dated 25.06.2010 issued in favour of the complainants banker and they encashed the cheques.
5. The complainant or his banker has not raised protest at the time of settlement of the claim or at the time of encashment of cheque and without questioning the settlement then, the complainant cannot seek for the balance claim amount. The complainant received the amount towards full and final satisfaction of the claim and he is not entitled to make out further claim. The salvage amount of `3,65,073/- against the complainant s estimate of `2,17,100/-
and the deduction of `3,77,039/-
is proper and just in terms of under insurance clause of the insurance policy.
6. The complainant made false allegation that delay occurred in settlement of the claim. The police concerned issued clearance certificate on 22.05.2010 and the opposite party received it on 2.06.2010 and the regional office of the opposite party approved for settlement at `32,00,000/- on 25.06.2010 and the opposite party settled the claim on 25.06.2010.There was no deficiency in service on the part of the opposite party.
7. The complainant filed affidavit and the documents Exs.A1 to A12. The Deputy Manager of the opposite party no.2 filed his affidavit and the documents Exs.B1 to B13.
8. The District Forum allowed the complaint on the premise that the surveyor assessed the net loss at `35,63,381/-, the opposite party chosen to get the claim for `32,00,000/- and the opposite party did not explain for deduction of `3,63,381/- and absence of explanation thereto was held unfair trade practice. The District Forum held that the complainant though a businessman may have hard pressed for money and the opposite party exercised undue influence to get the claim settled for `32,00,000/-.
9. Aggrieved by the order of the District Forum, the opposite party has filed appeal contending that it is not liable to pay any amount to the complainant. It is contended that the District Forum failed to appreciate that the complainant and his banker had given in writing for settlement of the claim for `32,00,000/- and the District Forum erred in calculating the amount by assessing the amount on its own without any basis or material. It is contended that the District Forum erred in fixing the total loss at `42,85,493/-
as against the availability of stocks at `49,78,829/- as per the surveyors report. The District Forum failed to see that the clearance certificate from the police is essential for processing of the claim.
10. The complainant has filed appeal contending that the District Forum failed to see that the complainant had to pay interest and it ought to have granted interest from the date of accident as also compensation.
11. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
12. The facts beyond any dispute are that the stocks pertaining to the complainant were insured by the opposite party under two insurance policies bearing nos.1508001101108110000550 and 1508021108110000770 for `20 lakh and `25 lakh respectively. The first insurance policy was issued for the period from 22.8.2008 to 21.08.2009 and the second policy from 23.11.2008 to 22.11.2009. The fire broke out 14.05.2009 at the Ginning Mill where the insured stock was stored. The surveyor assessed the loss at `35,63,381/- and the complainant along with his banker agreed for settlement of claim for `32,00,000/- and in terms of the agreement for settlement of the claim towards full and final settlement , the opposite party issued two cheques on 25.06.2010 the sum assured under the two insurance policies . The complainant encashed the cheques on 29.06.2010 and then got issued notice through his advocate on 10.05.2010 claiming for the balance claim amount.
13. The complainant has stated that the opposite party has not settled the claim for a long time on the premise that they had not received the surveyors report and the opposite party threatened him to get the claim settled for `32,00,000/- and if he does not get the claim settled , they would repudiate the claim or postpone settlement of claim for six months. He has stated that he submitted the letter dated 10.05.2010 to the opposite party on account of undue influence and coercion exercised by the opposite party.
14. The application was submitted on 10.05.2010 wherein it is stated that the complainant agreed for settlement of claim for `32,00,000/-
and with consent he wrote the application for final settlement of the claim. Since the letter was submitted more than one month elapsed and the complainant had not reported the matter. It is not as though the consent letter was executed yesterday and the amount is paid today.
15. Cautiously the complainant had not stated in his affidavit when he did he receive the cheques and when could he encash the cheques. The opposite party issued the cheques on 25.06.2009 and the complainant and the complainants banker issued discharge vouchers on the same day in favour of the opposite party. A the time, the complainant or the bank had not raised any objection or protest. The cheque was encashed on 29.06.2010 and at the time also there was no any protest from the complainant or the bank in regard to the settlement of the claim.
16. Interestingly, the complainant states that subsequent to receipt of the amount , he came to know that the opposite party deducted considerable amount without assigning any reason. The complainant received the amount on 29.06.2010 and on the same day he got issued notice which does not speak of any deduction of the amount by the opposite party nor does it contain any plea of coercion or undue influence said to have been exercised by the opposite party. The material portion of the notice reads as under:
You have delayed the settlement of the claim more than one year. Since there is no consensus between the parties for accepting the claim as offered by you. My client is entitled to claim the total compensation as claimed by him in the claim form. My client is also entitled to the interest @ 12.5% per annum with monthly rests at which rate, he has been making the payment to his banker. My client was constrained to encash the cheques furnished by you without prejudice to his rights to question the validity of your lesser payment of the compensation. You have mis-represented and failed to assign any reasons for appointing the second surveyor.
My client therefore requests you to arrange the payment of the balance amount of Rs.10,58,927/- together with interest on the total amount @ 12.5% per annum with monthly rests from the date of accident till the date of payment. My client reiterate that you have forced my client to at as per your dictation by pressuring him financially, mentally and otherwise. Evidently, irrespective of submission of the report by the Surveyor with an intent to harass my client to evade the settlement of the lawful claim, you appointed another Surveyor and delayed the matter for more than one year.
17. For the reasons known to the complainant, the third page of the notice is not filed. The surveyor submitted his report on 29.12.2009 and the complainant had submitted consent letter on 10.05.2010 .
the complainant has not shown any cause to keep quiet for such long time. Complainant along with the Andhra Bank executed discharge voucher. In the reply dated 29.07.2010 the opposite part referred to the execution of discharge voucher by the complainant and the bank as follows:
After due consideration of the surveyor report and also salvage realization your clients claim was settled at Rs.32,00,000/- towards full and final settlement of the claim of your client subject to collection of reinstatement of the premium at Rs.6,145/- and Rs.3,982/-. Your client voluntarily having full knowledge given consent letter dated 10.5.2010 accepting the claim approved and assessed at Rs.32,00,000/- treating the same towards full and final settlement of his claim. All the aspects transpired in settlement of the claim at Rs.32,00,000/- was within the knowledge of your client and also his banker i.e. Andhra Bank, SSI Branch, Guntur. Your client and also his banker referred above voluntarily without any demur and protest issued discharge vouchers on receiving the settled claim amount @ 32,00,000/- and accordingly paid the said amount agaisnst due discharge voucher while making the payment of the settled amount at Rs.32,00,000/- by way of cheque in favour of Andhra Bank, SSI Branch, Guntur Account M/s Sri Sai Cotton Traders, Guntur. The cheques issued as mentioned above for the settled claim amount are dated 25.06.2010 bearing No.10198 for Rs.14,15,854/- and dated 25.06.2010 bearing No.4038 for Rs.17,74,018/- issued in the joint name of Andhra Bank, SSI Branch, Guntur A/c M/s Sri Lakhsmi Sai Cotton Traders.
18. The complainant and the banker of the complainant not raising any protest at the time of receiving the cheques or at the time of encashment of the cheques in 6th paragraph of the notice s under:
The cheques were accordingly encashed by your client/his banker without any protest and demur. Neither your client nor his banker raised any disputes either at the time of settlement of the claim @ Rs.32,00,000/- or even after issuance of cheques towards payment of the settled amount. Without disputing the settled amount either prior to settlement of the amount or at the time of encashment of the cheques, the claim of your client seeking for alleged balance amount is absolutely not tenable under law as it is settled principle of law that once the amount is received without any dispute and protest towards full and final satisfaction of the claim the insured is not entitled to make out any further claim
19. Both discharge vouchers contain the signature of the complainant and the complainants banker. The complainant is not an individual and it is a proprietary concern. The other entity which executed the discharge voucher is a bank. They cannot be heard to say that the opposite party exercised coercion and undue influence on them. As per the terms of the insurance policy, the bank is the insured and the bank can only receive the amount assured under the insurance policy. The Bank executed discharge voucher. The bank is not made party to the complaint. The District Forum ought not to have entertained the complaint without there being the bank as party to the complaint.
20. The opposite party had stated that the delay in settlement of the claim was caused on account of delay in receiving the clearance certificate from the police and clearance certificate is essential for processing of the claim. There is no denial of the fact from the complainant. Yet the District Forum proceeded to calculate the amount and held that the delay in settlement of the claim can be inferred as exercise of coercion by the opposite party. The complainant has approached the District Forum with unclean hands and there is no deficiency in service on the part of the opposite parties as also the complaint is not maintainable.
21. The Honble National Commission in Neelam Gupta vs Reliance Life Insurance and another reported in I (2011) CPJ, 241 wherein it was held that material suppression of facts of the case disentitled the person approaching Consumer Forum from claiming any relief.
22. The Honble Supreme Court in S.P.Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs & Ors, 1994 1 SCC 1 has observed:
The Courts of law are meant for imparting justice between the parties.
One who comes to the Court must come with clean hands. We are constrained to saythat more often than not, process of the Court is being abused.
Property-grabbers, tax-evaders, bank loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely.
We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court.
He can be summarily thrown out at any stage of the litigation.
23. In the result the appeal F.A.No.189 of 2012 is allowed setting aside the order of the District Forum. Consequently the complaint is dismissed. The appeal F.A.No.190 of 2012 is dismissed. There shall be no order as to costs.
MEMBER MEMBER Dt.26.03.2013 కె.ఎం.కె*