State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd ... vs Ganjpal Patre on 10 June, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/742
Instituted on : 03.11.2014
The Oriental Insurance Company Limited,
R/b its Divisional Officer, Divisional Office,
Parmanand Building, Rajendra Park Chowk,
Durg (C.G.) ... Appellant
Vs.
Ganjpal Patre, S/o Sundarlal Patre,
R/o : Tenduwadhi,
Tahsil Pandariya, District Kabirdham (C.G.) ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Miss B.S. Kanti, for the appellant.
Shri Bhupendra Jain, for the respondent.
ORDER
DATED : 10/06/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 06.09.2014, passed by District Consumer Disputes Redressal Forum, Kabirdham / Kawardha (C.G.) (henceforth "District Forum") in Complaint Case No.16/2014. By the impugned order, the learned District Forum, has partly allowed the complaint filed by the respondent (complainant) and directed the appellant (O.P.) to pay within a period of two months from the date of order the remaining amount after deducting salvage value from Rs.83,737/- along with interest @ 7% p.a. from the date of // 2 // filing of the complaint i.e. 07.05.2014 till realisation. The appellant (O.P.) has further been directed to pay a sum of Rs.5,000/- towards cost of litigation and advocate fees.
2. Briefly stated the facts of the case are that the respondent (complainant) is registered owner of the vehicle Xylo bearing registration No.C.G.09/E-1111, which was financed by Mahindra & Mahindra Limited. The said vehicle was insured by the appellant (O.P.) under Insurance Policy No.192590/31/2013/661 for the period from 08.06.2012 to 07.06.2013. On 26.08.2012, the said vehicle met with accident near Dashrangpur and was turtled. The incident was reported to Police Station Pandatarai and Crime No.155/12 for offence under Section 279, 337 IPC was registered and after investigation charge sheet was submitted before Judicial Magistrate, Pandariya. On the date of incident itself the respondent (complainant) gave intimation regarding the incident to the office of the appellant (O.P.) as well as finance company. On receiving intimation regarding the incident, the appellant (O.P.) assured the respondent (complainant) that if the respondent (complainant) got the vehicle repaired, then entire expenses will be paid by the appellant (O.P.) to him. On being assurance given by the appellant (O.P.), the respondent (complainant) got repaired the vehicle from Auto Centre, Bilaspur in which a sum of Rs.3,34,091/- was incurred. The said amount was demanded by the respondent (complainant) from the appellant (O.P.), but the appellant (O.P.) had // 3 // only paid a sum of Rs.1,67,330/- and had avoided to make payment of the remaining amount and thereafter orally the appellant (O.P.) refused to pay the said amount to the respondent (complainant). At the time of obtaining premium, the agent of the appellant (O.P.) assured the respondent (complainant) that in case of any incident, accident or loss, the entire amount of the loss would be paid by the Insurance Company to the respondent (complainant), but the appellant (O.P.) did not pay the entire amount of the insurance, which comes in deficiency of service. Therefore, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The appellant (O.P.) filed written statement and denied the allegations made by the respondent (complainant) against it in the complaint. It has been pleaded that the agent of the appellant (O.P.) clearly informed the respondent (complainant) that the payment of claim would be paid as per terms and conditions of the insurance policy and in case of violation of terms and conditions of the policy, no payment would be made. The respondent (complainant) had given incomplete particulars regarding the incident with an intention to conceal actual facts. The report was lodged by Jawaharlal Sahu, according to him at the time of accident 9 persons were sitting in the vehicle and the vehicle was being driven by driver Rajkumar. Thus, in the vehicle in question 9 + 1 = 10 persons were sitting, whereas // 4 // according to R.C. book the sitting capacity is 8 and as per the insurance policy the sitting capacity is 7 + 1, from which it is clear that at the time of accident, the vehicle in question was being driven by violating the registration and terms and conditions of the policy. The claim of the respondent (complainant) could have been repudiated on this ground but the appellant (O.P.) by following the principle of Supreme Court " if terms and condition of the policy has been violated then the claim be settled by making 75% of the claim amount) has paid a sum of Rs.1,67,330/- after deducting Rs.4,000/- towards salvage from Rs.1,75,330/- which is 75% of the claim amount Rs.2,28,440/-, which is fully justified. After getting consent of the respondent (complainant), the O.D. claim was settled through full and final settlement, which does come in the category of any deficiency in service. Therefore, the complaint of the respondent (complainant) is liable to be dismissed with cost.
4. After having considered the material placed before it by both the parties, learned District Forum, has partly allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned in para 1 of this judgment.
5. The respondent (complainant) filed documents. Document A-1 is Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B, A-2 is Certificate of Registration of vehicle // 5 // bearing registration No.C.G.09-E-1111, A-3 is Driving Licence of Mr. Rajkumar, A-4 is First Information Report (Under Section 154 Cr. P.C.), A-5 & A-6 is Tax Invoice of Auto Centre, Bilaspur, A-7 are Payment Receipts issued by Auto Centre, Bilaspur on different dates, A-8 is letter dated 27.09.2013 issued by the appellant (O.P.).
6. The appellant (O.P.) has also filed documents. Document OP-1 is letter dated 27.09.2013 issued by the appellant (O.P.), OP-2 is letter dated 28.11.2013 sent by the respondent (complainant) to the Branch Manger, The Oriental Insurance Co. Ltd. Branch Office Rajnandgaon (C.G.), OP-3 is discharge voucher, OP-4 is letter dated 17.01.2014 sent by the appellant (O.P.) to the Branch Manager, Dena Bank, Rajnandgaon (C.G.), OP-5 is Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B, OP-6 is Certificate of Registration of vehicle bearing registration No.C.G.09-E-1111, OP-8 is letter dated 28.08.2012 sent by The Oriental Insurance Co. Ltd. Branch Office, Rajnadgaon (C.G.) to Shri Chhagan Lal Sahu, Investigator, Durg, OP-8 is Investigation Report of Chhagan Lal Sahu dated 06.11.2012, OP-9 is Bill Check Report dated 02.09.2013 of Shri Vinod Kumar Jain, Surveyor, OP-10 is First Information Report (Under Section 154 Cr. P.C.).
7. In the instant case the appellant (O.P.) has filed application under Order 41 Rule 27 CPC along with Private Car Package Policy, // 6 // and sought permission to the same as additional evidence at the appellate stage.
8 We have heard learned counsel for both the parties on the application filed under Order 41 Rule 27 CPC and have perused the document sought to be filed by the appellant (O.P.) at the appellate stage as evidence.
9. The appellant (O.P.) sought to file Terms & Conditions of Private Car Package Policy. It is admitted fact that the vehicle in question was insured with the appellant (O.P.) and the appellant (O.P.) issued insurance policy in favour the respondent (complainant), therefore, the terms and conditions of the private card package policy is essential for proper adjudication of the case, hence the application the application filed by the appellant under Order 41 Rule 27 CPC, is allowed and the document is taken on record as additional evidence.
10. Ms. B.S. Kanti, learned counsel appearing for the appellant (O.P.) has argued that the vehicle in question was purchased by the respondent (complainant) in the month of August, 2011 and the incident took place on 26.08.2012. Shri Vinod Kumar Jain, was appointed as Surveyor & Loss Assessor and he gave his report and assessed the loss to the tune of Rs.2,28,440.83 and after deducting amount of salvage of the vehicle Rs.4,000/-, he assessed the loss to the tune of Rs.2,24,440.83. She further argued that the seating capacity of // 7 // the vehicle was 8 and at the time of accident, in the vehicle 9 persons were sitting. Shri Chagan Lal Sahu was appointed as Investigator and he investigated the matter. In his Investigation Report, he specifically mentioned that at the time of incident, 9 persons were sitting in the vehicle in stead of 8 persons, which is clear cut violation of terms and conditions of the insurance policy, therefore, the respondent (complainant) is only entitled to get compensation on non-standard basis i.e. 75% of the amount assessed by the Surveyor. The amount of Rs.1,66,831/- was paid by the appellant (O.P.) to the respondent (complainant) and the respondent (complainant) received the above amount in full and final satisfaction of his claim and executed discharge voucher, hence the respondent (complainant) is not entitled to get any further amount from the appellant (O.P.) and the complaint is liable to be dismissed. She further argued that learned District Forum, has wrongly reached to the conclusion that the respondent (complainant) incurred expenditure of Rs.3,34,091/- on repairing of the vehicle in question and the respondent (complainant) is entitled to get sum of Rs.3,34,091/- instead of Rs.2,24,440.83, therefore, the impugned order passed by the District Forum, is erroneous and is liable to be set aside.
11. Though, Shri Bhupendra Jain, Advocate appeared for the respondent (complainant), but he did not argue the matter.
// 8 //
12. We have heard Miss B.S. Kanti, learned counsel for the appellant (O.P.) and have also perused the record of the District Forum.
13. Learned District Forum, in para 12 of the impugned order has observed that the respondent (complainant) filed bills of Auto Centre, Authorised Dealer of M & M, Sector C, Plot No.54 Public A, Sirgitti, Bilaspur for Rs.3,34,091/- and observed that it cannot be said that the above bills filed by the respondent (complainant) are exaggerated. In para 13 of the impugned order, learned District Forum further observed that the respondent (complainant) incurred expenditure of Rs.3,34,091/- in repairing of the vehicle in question and therefore, he is entitled to get 75% of the above amount on non-standard basis. The respondent (complainant) received a sum of Rs.1,66,830/- from the appellant (O.P.), therefore, the respondent (complainant) is entitled to get difference amount i.e. Rs.83,737/-.
14. The respondent (complainant) filed Tax Invoice of Auto Centre, Authorised Dealer, Mahindra & Mahindra Limited, Bilaspur and payment receipt. In payment receipts it is mentioned that a sum of Rs.15,000, Rs.2,19,091/- and Rs.1,00,000/- were paid by the respondent (complainant) to Auto Centre on 17.05.2013, 17.05.2013 and 07.02.2013 respectively.
15. Now w e shall examine whether the respondent (complainant) is entitled to get Rs.3,34,091/- from the appellant (O.P.) ?
// 9 //
16. Shri Vinod Kumar Jain, was appointed as Surveyor & Loss Assessor by the appellant (O.P.) and he inspected the vehicle in question and gave his report dated 02.09.2013 (document OP-9), in which he assessed the loss to the tune of Rs.2,28,440.83 and deducted salvage amount Rs.4,000/- and thereafter assessed total loss Rs.2,24,440.83. Shri Vinod Kumar Jain, Surveyor & Loss Assessor gave details in his report regarding parts name/ description, estimate amount, assessed amount, bill amount etc. and after giving details of the particulars of the parts and their value, he assessed the loss to the tune of Rs.2,24,440.83.
17. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
18. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
// 10 // "17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
19. In Shankarlal Virji Thakkar vs. United India Insurance Co. Ltd. 2015 (1) CPR 821 (NC), Hon'ble National Commission has observed thus :-
"7. The report of the Surveyor appears to be quite reasonable and just. There is no evidence whatsoever to 501 affected bags + other bags which were not counted. Thos bags must have fetched some amount. There is no reason to discard the report of the Surveyor. It is a balanced report. It has considered all the factors. It is well settled that the report of the Surveyor has to be given due weightage in view of the celebrated authorities of the Hon'ble Apex Court in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19, para 7, D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC).
20. In New India Assurance Company Ltd. vs. Balaji Emporium, I (2015) CPJ 588 (NC), Hon'ble National Commission has observed thus :-
"9. We are of the considered view that the report made by the Surveyor appears to be correct. It is bolstered by sold and unflappable // 11 // evidence. He has also considered the income tax reports and entries in the stock registered. The conclusion of the State Commission is vague, evasive and leads us nowhere."
21. In Sunanda Kishor Bhand & Anr. v. United India Insurance Co. Ltd. I (2014) CPJ 369 (NC), Hon'ble National Commission has observed thus :-
"11. It is well settled law that a surveyor's report has significant evidentiary value, unless is proved otherwise, which the complainant has failed to do so in the case. This view was taken in the case of D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC).
22. In D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC), Hon'ble National Commission has observed thus :-
"10. The facts pertaining to the insurance policy taken by the petitioner and his vehicle being buried under snow for several months is not in dispute, it is also a fact that because of the washing away of the roads and inclement weather where the tanker was stranded, it took several months before the Surveyor could get the vehicle inspected and this delay could not, therefore, constitute deficiency in service. We have carefully gone through the report of the Surveyor based on his inspection of the vehicle and note that he has meticulously listed out the physical condition of the vehicle at the time of his inspection, which clearly indicates that no damage had been caused to the vehicle including to its engine and other mechanical systems. As a result of being buried under the snow, some paint had got chipped off from the body of the tanker and there was some external rusting and minor cracks in the tyre.
// 12 //
11. We see no reason to disbelieve the report of the Surveyor particularly since the petitioner has not been able to produce any credible evidence to contradict the same. The contention of the authorized agent of the petitioner that the Surveyor had admitted that the loss suffered was Rs.93,340 is not correct. In fact, in his report Surveyor has just quoted the assessment and the details of the repairs given by the petitioner.................."
23. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that "the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report".
24. In Khimjibhai & Sons v. New India Assurance Co. Ltd., IV (2011) CPJ 458 (NC), Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
25. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an // 13 // important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
26. Therefore, the Survey Report of Shri Vinod Kumar Jain, Surveyor & Loss Assessor is reliable document and is acceptable. On the basis of Surveyor Report of Shri Vinod Kumar Jain, Surveyor & Loss Assessor, the respondent (complainant) is entitled to get compensation i.e. the amount as assessed by the Surveyor towards loss.
27. In the instant case, the seating capacity of the vehicle in question was 8 and instead of 8 persons, 9 persons were sitting in the vehicle in question at the time of the accident. Shri Chagan Lal Sahu, was appointed as Investigator by the appellant (O.P.), who investigated the matter and gave his report dated 06.11.2012 (document OP-8). In his report, Shri Chagan Lal Sahu, has specifically pined that the seating capacity of the vehicle was 8 persons and at the time of accident 9 persons were sitting in the vehicle in question. It appears that the vehicle in question, was being driving in violation of terms and conditions of the insurance policy, therefore, the respondent // 14 // (complainant) is entitled to get compensation on non-standard basis of the loss assessed by Shri Vinod Kumar Jain, Surveyor & Loss Assessor Rs.2,24,440.83 and 75% of Rs.2,24,440.83 comes out to Rs.1,68,330.62 (rounded off Rs.1,68,331/-). The appellant (O.P.) had already paid a sum of Rs.1,66,831/- to the respondent (complainant) and the respondent (complainant) received the same and executed discharge voucher in full and final settlement of his claim, in favour of the appellant (O.P.).
28. In the case of United India Insurance Company Limited Vs. Ajmer Singh Cotton & General Mills, II (1999) CPJ 10 (SC), Hon'ble Supreme Court observed that "the mere execution of discharge voucher would not always deprive consumer from preferring claim with respect to deficiency in service or consequential benefits arising out of the amount paid in default of 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, mis-representation, under 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, where such discharge voucher is proved to have been obtained under any of // 15 // the suspicious circumstances noted hereinabove, the Tribunal or the Commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier."
29. In the case of Subhash Malhotra vs. United India Insurance Company Ltd. III (2014) CPJ 123 (NC), Hon'ble National Commission has observed thus :-
"27. Though, he has alleged that the discharge voucher was signed under undue influence and coercive bargaining, but he has not filed any evidence to support the same. Discharge voucher was sent to him by Registered Post and he signed the same and sent it back. He has also encashed the cheque of Rs.1,91,162/- sent to him. Thereafter the District Forum granted further relief of Rs.1,98,205.16 (after deducting Rs.1,91,162 already paid) from the total awarded amount of Rs.3,69,367.97. He has also been awarded interest due on the full amount at 12%. Admittedly, the Insurance Company has also paid the same and which has been received by the petitioner. The orders of the both the Fora below are very well-reasoned and have death with the report of the surveyor in detail. The petitioner has failed to make out any case for further increase in the compensation amount.
30. In the case of Suresh Kumar S.S. vs. Iffco-Tokio General Insurance Co. Ltd. & Anr., II (2014) CPJ 69 (NC), Hon'ble National Commission has observed thus :-
"6..................
// 16 // "4........ Since the opposite party had made the said proposal with an unreasonable condition by which it is offered to release the claim settlement amount through DD in favour of M/s. Mini Muthoottu a Private money lending company, the complainant had objected to the releasing of the settled claim amount through M/s. Mini Muthoottu and demanded to release the amount through a nationalized Bank and expresses his willingness to accept the proposed offer of settlement for an amount of Rs.4,56,661. Since M/s Mini Muthoottu has nothing to do with the contract of insurance between this complainant and IFFCO-TOKIO General Insurance Company Ltd., this complainant had conveyed his objection and dissent to the said proposal through a reply letter dated 4.12.2009 sent to the opposite party Insurance Company, but signified his consent to the proposed offer of settlement of the claim for an amount of Rs.4,56,661 (Four lakh fifty-six thousand six hundred and sixty-one only) and demanded to release the amount through DD to be drawn in a nationalized bank preferably to this complainants account No.20013616040 in the State Bank of India, Kottayam, Thirunakkara Branch."
31. In the case of Chittiprolu Lokeswara Rao vs. United India Insurance Co. Ltd. & Anr. I (2014) CPJ 39 (NC), Hon'ble National Commission has observed thus :-
"9...........We agree with the principle laid down in aforesaid judgment, but in the case in hand, we do not find any circumstances providing fraud, undue influence, mis- representation etc. on the part of OP. Letter dated 10.5.2010, appears to be in the handwriting of complainant himself and no protest was made till encashment of cheques. In such circumstances, aforesaid citation does not help to the // 17 // petitioner. He has also placed reliance on decision of this Commission in R.P. No.4275 of 2007 decided on 11.1.2008 in which it was held as under :-
"5. The complainant has submitted in his complaint that after 7 days of receipt of Rs.3,45,968, the complainant had approached the Insurance Company (O.P.1) and demanded the balance amount which was declined and he was asked to approach O.P.2. He further submitted that since the entire stock was burnt and because of financial crisis and heavy loss of interest, the complainant was constrained to sign on the discharge voucher, which was in a printed format. Therefore, he had no option but to file a complaint for the balance amount. This, we feel is an act of coercive bargaining indulged in by the Insurance Company. A distressed insured person, who has lost all mans of earning his livelihood in a catastrophic fire, has no other choice but to accept any amount as an initial payment in the first instance."
10. Facts of aforesaid case are different from the facts of case in hand. In the aforesaid case printed discharge voucher was signed by the complainant under compelling circumstances and the complainant approached Insurance Co. just after 7 days of receipt of payment whereas in the present case, complainant as given letter in his own handwriting and notice has been given after 50 days of letter dated 10.5.2010 for final settlement."
32. In the case of M.L. Spinners Pvt. Ltd. vs. United India Insurance Company Limited, II (2014) CPJ 692 (NC), it is observed by Hon'ble National Commission thus :-
// 18 // "12. In Bhagwati Prasad Pawan Kumar v. Union of India, II (2007) CLT 293 (SC) = III (2006) ACC 1 (SC)=IV (2006) SLT 771 = (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 7.4.1993. 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 non-acceptance must be conveyed before the cheques are encashed. If the 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 //
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."
33. In Natraj Handlooms Pvt. Ltd. vs. New India Assurance Co. Ltd. II (2015) CPJ 214 (NC), Hon'ble National Commission has observed thus :-
"8. .....................
No case of coercion is made out by the complainant company, since there is no allegation of committing, or threatening to commit, any act forbidden by the Indian Penal Code or unlawful detaining, or threatening to detain any property, to the prejudice of complainant, with intention of causing the complainant to enter into any settlement.
Mere financial hardship of the complainant, in our view does not constitute 'coercion' as defined in Section 16 of the Indian Contract Act. Nothing prevented the complainant company from approaching this Commission instead of entering into a settlement with the Insurance Company and in such a complaint the company could // 20 // have sought an interim relief based upon the preliminary report of the Surveyor. Such a course, however, was not adopted and the complainant company chose to settle the claim for a substantial amount of Rs.65,40,926.
9. The only reason given by the complainant company for giving consent to the settlement of the claim for Rs.65,87,847 is that it was in financial difficulty on account of the losses sustained in the fire and the wedding of the daughter of its Managing Director was to take place in December, 2008. However, the complainant has not produced its account books and balance sheets to prove that the complainant company was in financial difficulties at the time the consent letter dated 24.11.2008 was given by it to the Insurance Company. In the absence of the requisite documentary evidence it is not possible to accept the claim of the complainant company that it was in financial difficulty at the relevant time and, therefore, had no option but to give the aforesaid consent. Had the complainant company submitted its balance sheets including the list of its assets and liabilities at the relevant time only then this Commission could have known whether it was really in a financial difficulty at the time the letter dated 24.11.2008 was given by it to the Insurance Company, or not. No explanation has been given by the complainant company for not producing the aforesaid documentary evidence before this Commission. Therefore, an adverse inference needs to be drawn against the complainant company that had the account books, audited balance sheets, etc., of the complainant company been produced, before this Commission, the same would not have supported the case as set out in the complaint."
34. In the instant case, the appellant (O.P.) filed a document i.e. Discharge Voucher (OP-3). The respondent (complainant) himself admitted that he received the amount of Rs.1,67,300/- from the // 21 // appellant (O.P.). In Discharge Voucher (Document OP-3), the signature of the respondent (complainant) is affixed over the revenue stamp and the respondent (complainant) did not deny specifically regarding execution of the discharge voucher in favour of the appellant (O.P.). The respondent (complainant) has not been able to prove that Discharge Voucher (Document OP-3) was executed by him in unavoidable circumstances or under coercion and when he was in need of money. Looking to the Discharge Voucher (Document OP-3), it appears that the respondent (complainant) had freely consented for accepting the amount of Rs.1,66,831/- and accepted the same in his free will from the appellant (O.P.) in full and final satisfaction of his claim, therefore, the finding recorded by the District Forum, is erroneous and suffered from infirmity and illegality and is liable to be set aside.
35. Hence, we allow the appeal of the appellant (O.P.) (Insurance Company) and set aside the impugned order dated 06.09.2014, passed by the District Forum. Consequently, the complaint also stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /06/2015 /06/2015 /06/2015 /06/2015