State Consumer Disputes Redressal Commission
M/S Woollen Processors Pvt. Ltd. vs National Insurance Company Ltd. on 1 February, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.111 of 2015
Date of institution : 30.01.2015
Date of decision : 01.02.2016
M/s Woollen Processors (P) Ltd., Katra Ahluwalia, Amritsar, through
its Director D.K. Jain.
....Appellant/Complainant
Versus
The National Insurance Company Limited, Divisional Office No.1,
Queens Road, Amritsar, through its Senior Divisional
Manager/Person Over All Incharge.
....Respondent/Opposite Party
First Appeal against the order dated
15.12.2014 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Upjeet Singh Brar, Member
Present:-
For the appellant : Shri S.K.Mahajan, Advocate
For the respondent : Ex parte.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant has preferred this appeal against the order dated 15.12.2014 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum"), vide which the complaint filed by it, under Section 12 of the Consumer Protection Act, 1986, for directing the respondent/opposite party to pay the sum of Rs.1,24,266/-, along with interest at the rate of 12% First Appeal No.111 of 2015 2 per annum and Rs.50,000/-, as compensation on account of the mental agony and harassment suffered by it, was dismissed.
2. As per the allegations, made in the complaint, the complainant is a Private Limited Company, duly registered with the Registrar of Companies. It purchased one Stenter (hereinafter to be referred as "the machine") from M/s Flash SRL VIA POLLATIVE 125 D/E 59100 PROTO ITALY, for 27000 Euro and the same was got insured with the opposite party for 32670 Euro (conversion amount of which in Indian currency comes to Rs.20,25,540/-) after adding 10% of the CIF (cost insurance and freight) in the said price, vide Cover Note No.016356 issued on 14.03.2007. The machine was purchased for the said amount, vide Commercial Invoice No.080313. The risk of transit from any part of Europe to Amritsar, by Rail, Road and Ship, was covered under the said Insurance Cover. The machine was despatched from Italy to Amritsar in 76 cases, vide above said invoice, in duly sealed containers, as per "International Packing Standard", acceptable to the shipping companies. That consignment was subject to the Custom Authorities check-ups. When the consignment was received at Ludhiana on 05.05.2008, the same was in damaged condition and the opposite party was informed immediately. The containers were opened in the presence of Sh. V.K. Mehta of M/s Mehta Associates of Amritsar, Surveyor; who was deputed by the opposite party. The claim was also lodged by it with "M/s Emirates Shipping Agencies India Pvt. Ltd.", New Delhi and other transporters. As directed by the surveyor, the consignment was despatched to Amritsar in damaged condition and First Appeal No.111 of 2015 3 the Final Survey was conducted on 05.05.2008. The machinery was got repaired with the consent of the opposite party and the Final Repair Bill of Rs.2,02,931/- was submitted to the surveyor. It was after protracted correspondence and several meetings that its claim was settled by the surveyor for Rs.98,313/-. 75% of that claim (Rs.78,665/-) was received by it on 29.09.2010. The claim was allowed to that extent arbitrarily and by ignoring the provisions of the Policy terms and "Marine Insurance Act, 1963" and that too after a period of two years and five months of the despatch of the consignment. The said amount was received by it, as it was financially pressed. However, it immediately lodged a protest on the same day even before the encashment of the cheque. The opposite party never supplied to it the Policy documents and the terms and conditions. The surveyor, so appointed by it, was a Mechanical Engineer and was not conversant with the "Maritime" or "Marine Transit Losses"; which were governed by the provisions of the said Act. He was not competent to survey such losses and the method adopted by him for assessing the loss was against the Act. The opposite party illegally reduced the claim amount from Rs.2,02,931/- to Rs.78,665/- and, as such, a direction is liable to be issued to it for the payment of the balance amount of Rs.1,24,266/-, along with interest at the rate of 12% per annum; in addition to Rs.50,000/-, as compensation for the mental agony and harassment suffered by it.
3. The complaint was contested by the opposite party, by filing written reply before the District Forum. In that written reply, it admitted that the Insurance Policy, as mentioned in the complaint, First Appeal No.111 of 2015 4 was obtained from it by the complainant and that the machine was insured for Rs.20,25,540/-, vide Cover Note dated 14.03.2007. It also admitted the appointment of the surveyor, as mentioned in the complaint, by it for assessing the loss and that it settled the claim at Rs.98,313/- and 75% of that amount (Rs.78,665/-) was paid to the complainant, vide cheque dated 09.08.2010. It also admitted that the protest was lodged by the complainant regarding the payment of that claim on 29.09.2010. While denying the other allegations made in the complaint, it pleaded that the repair bill submitted by the complainant was exaggerated one and was without any basis. The surveyor had correctly settled the claim for Rs.98,313/-, in the presence of the authorized official of the complainant. The complainant was repeatedly requested, by writing letters, to submit the Damage Certificate, proof of notice to the carrier, duly completed Claim Form, Bills of Lading, cause of loss etc., but it failed to do so. Nevertheless, its claim was settled at Rs.98,313/- on the basis of the free consent given by it. The Discharge Voucher was sent to the complainant regarding 75% of that claim, vide letter dated 17.08.2010, and it duly received that cheque and gave its consent, freely, for the settlement of the claim for the said amount. Therefore, it is estopped by its own act and conduct from filing the present complaint. It has mis-represented the material facts and has not come with clean hands. It prayed for the dismissal of the complaint with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going First Appeal No.111 of 2015 5 through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for the appellant/complainant, as the respondent/opposite party did not appear before this Commission, in-spite of its service and was proceeded against ex parte. We have also carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that from the oral and documentary evidence produced by the complainant, it stands proved that he accepted the cheque of Rs.78,665/-, towards the claim amount, on account of the financial constraints and immediately lodged the protest with the opposite party that the said amount was never received by it in full and final settlement of the claim. The complainant was entitled to the total amount of Rs.2,02,931/-, as claimed by it, and the claim was wrongly reduced by the surveyor to Rs.98,313/- and it cannot be made out from his report, as to what was the basis for allowing the claim to that extent. The complainant was entitled to the total amount, which was spent for the repairs of the machinery and from the documentary evidence, it stands proved that the above said amount was paid for those repairs. Therefore, a direction is to be issued to the opposite party to pay the balance amount of Rs.1,24,266/-, along with interest at the rate of 12% per annum and in addition to that, it is also liable to pay Rs.50,000/-, as compensation for the mental agony and harassment suffered by the complainant. The District Forum committed an illegality, while ignoring the evidence produced by the First Appeal No.111 of 2015 6 complainant for proving all these facts and the order recorded by it is liable to be set aside.
7. The District Forum, while taking up the point as to whether the letter dated 29.09.2010 Ex.C-10 was ever sent by the complainant to the opposite party, came to the conclusion that the complainant had failed to prove delivery of that letter to the opposite party; as it failed to produce any postal receipt or acknowledgement receipt or any evidence from the Post Office for proving that the said letter was so delivered to the opposite party. That finding of the District Forum is not correct and it should have been otherwise; in view of the fact that the opposite party never denied the receipt of that letter and rather averred in Para No.7 of the written reply that the alleged protest lodged by the complainant on 29.09.2010 is not legally tenable. It never stated in the written reply that such a letter was not received.
8. Before taking up the other argument of the counsel for the complainant as to whether the claim was to be allowed on the basis of the report of the surveyor, it is to be determined, whether the complainant executed the Discharge Voucher for Rs.78,665/- in favour of the opposite party, with its free consent, and, as such, is estopped from claiming the other amount under the Insurance Policy?
9. The only ground pleaded in the complaint by the complainant is that it was compelled to execute the Discharge Voucher and accepted the said amount, by means of cheque, on account of financial constraints. No doubt, it lodged the protest, vide First Appeal No.111 of 2015 7 letter dated 29.09.2010 Ex.C-10, and it mentioned that fact in that letter, but in addition to that it was required to prove that it was made to receive that amount in full and final settlement of its claim; as a result of the fraud, coercion or undue influence exercised by the opposite party. It was held by the Hon'ble National Commission in 2014 (3) CLT 320 (NC) (M/s. Tata AIG General Insurance Co. Ltd. Vs. M/s. Nissan Electronics Ltd.) that where the complainant accepted the claim amount from the Insurance Company and issued the Discharge Voucher, without demur, and did not allege fraud, coercion and undue influence for the execution of the Discharge Voucher, anterior to the filing of the complaint, he was estopped from questioning the correctness of the surveyor's report for release of the aforesaid amount and allege deficiency in service on the part of the Insurance Company for not accepting the claim preferred by him. The ratio of that judgment fully applies to the facts of the present case. Once the said amount of Rs.78,665/- was accepted by the complainant from the opposite party in respect of the claim lodged by it, by executing the Discharge Voucher, it was required to allege and prove that the opposite party exercised fraud or coercion or undue influence upon it for executing that Discharge Voucher. Mere financial constraint, as alleged by the complainant, will not mean that it executed the Discharge Voucher as a result of any fraud, coercion or undue influence exercised upon it by the opposite party. Once it accepted that amount, by executing a Discharge Voucher and having failed to allege and prove such fraud, coercion or undue influence, it cannot be said that there was any deficiency in service First Appeal No.111 of 2015 8 on the part of the opposite party or that it adopted unfair trade practice.
10. In view of the above discussion, we conclude that there is no merit in this appeal and the same is hereby dismissed and the order passed by the District Forum is upheld.
11. The arguments in this case were heard on 20.01.2016 and the order was reserved. Now, the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (UPJEET SINGH BRAR) MEMBER February 01, 2016.
(Gurmeet S)