National Consumer Disputes Redressal
Smt. Laxmi Devi Kakhani vs The Oriental Insurance Company Ltd. on 11 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
NEW
DELHI
REVISION
PETITION NO. 1649 OF 2012
(From order dated 9.1.2012 in First Appeal No. 1591 of 2008 of Rajasthan State Consumer Disputes
Redresdsal Commission, Jaipur)
Smt. Laxmi Devi Kakhani
W/o Ramesh Chand Kakhani
R/o 102/5, Patel Marg,
Mansorover, Jaipur
Revisionist/Petitioner
Versus
The Oriental Insurance Company Ltd.
Through Divisional Manager,
Divisional Office First,
IInd
Floor, Anand Bhawan,
Sanchar Chand Road,
Jaipur
.Respondent
BEFORE:
HONBLE MR. JUSTICE V. B. GUPTA, PRESIDING
MEMBER
For the Petitioner : Mr.Avanish Kumar , Advocate
Pronounced on: 11th October, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioner being aggrieved by order dated 9.1.2012, passed by State Consumer Disputes Redressal Commission, Jaipur (for short, State Commission) has filed the present revision petition.
2. Petitioner/Complainant case is that her Taxi was insured with Respondent/O.P. On 3.7.2006, the said Taxi met with an accident and information of the accident was given to the respondent. Spot survey was got done on 4.7.2006. The accidental vehicle was delivered at the workshop of M/s Roshan Motors Pvt. Ltd. and estimated expenses towards repairs were made as Rs.4,25,397.87P. Thereafter, petitioner submitted her claim along with necessary documents with the respondent. However, respondent did not clear the claim of the petitioner on one pretext or the other and petitioner was made to accept full and final settlement of the claim for the sum of Rs.2,51,873/- on 3.1.2007 under duress. As per petitioner, she is entitled to receive total compensation of Rs.7,53,627/- w.e.f. 3.7.2006 along with 12% interest thereon.
3. In its written statement respondent has stated that surveyor had submitted its report after conducting his survey. Petitioner had also submitted all relevant documents in the office of the respondent, whereon respondent paid the claim of the petitioner, as full and final settlement after getting the signature of the petitioner on voucher without making any delay in clearance of the claim of the petitioner after receiving the survey report from the surveyor. Now, petitioner has filed this false complaint with the motive to receive false claim even after receiving full and final settlement. Hence, complaint is not maintainable and is liable to be dismissed.
4. District Forum, vide its order dated 31.7.2008, dismissed the complaint.
5. Aggrieved by the order of District Forum, petitioner filed appeal before the State Commission which dismissed the same, vide its impugned order.
6. Hence, this revision petition.
7. It is contended by learned counsel for the petitioner that petitioner has received the amount from the respondent under duress and compulsion. Since, petitioner from the very beginning has been demanding that her claim be settled on total loss basis and not on repair basis. Petitioner has incurred a sum of Rs.3,50,136/- for repairing the vehicle, whereas, she was made to accept Rs.2,51,873/- under duress. Hence, impugned order is liable to be set aside.
8. As per list of dates and events, complaint before the District Forum was filed on 19.2.2007, whereas petitioner had already received a sum of Rs.2,51,873/- on 3.1.2007, in full and final settlement of her claim.
9. District Forum in this regard has observed;
The complainant could not place his case regarding the reasoning of her claim but respondent had already paid Rs. 2,51,873/- to the complainant clearing the claim on the basis of the repair. The most important fact of the complaint is that the complainant has received Rs.2,51,873/- on 3.1.2007 before filing the complaint. The main reply of the respondent is as aforesaid. The complainant has not denied the payment of the amount nor she has submitted any fact such type of which show the any though has been committed against her or the proceeding held under some confusion. Therefore complainant could not made any dispute regarding the claim after the acceptance of full and final settlement amount and this is full established principal of the law. It is a also much wonderful that the complainant has filed the complaint after receiving so huge amount and also concealed this fact in the complaint knowingly and not mention this fact even in the light manner. Hence, complainant is the guilty of not coming to the Forum with clean hand.
10. State Commission, while concurring with the decision of the District Forum, in its impugned order has observed;
The complainant had accepted full and final settlement on 3.1.2007 in the present case and it is not mentioned in the complaint and it is also not mentioned that she had made any protest before the respondent between 3.1.2007 to 15.2.2007. She made complaint against the respondent before the Prime Minister Office and other places but not submitted any protest documents.
Therefore, the Judgment of the District Forum is correct in our opinion. The complaint had received the claim amount voluntarily and without any protest. Now the claim proceeding could not be restarted further. The appeal of the appellant/complainant is without merit hence, dismissed.
11. As apparent from the record, on 3.1.2007 petitioner had already received a sum of Rs.2,51,873/- towards full and final settlement of her claim. But surprisingly, she did not mention this important fact in her complaint filed on 19.2.2007, before the District Forum.
12. It is well settled that that if any litigant approaches the Court of Law/Judicial Forum by misrepresenting the facts or concealing the material facts, then his complaint/petition should be thrown away at the threshold. Further, once petitioner has settled her claim with the respondent, without their being any force, compulsion or fraud, then she cannot back out from that 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. In the present case, there is nothing on record to show that petitioner was compelled by the respondent at any stage to settle the claim at lesser amount than the claim made by her. There is also not an iota of evidence on record to show that any official of the respondent compelled the petitioner to settle the claim at lesser amount. Interestingly, petitioner after having received the cheque and having encashed the same, as far as back in the year 2007 has been enjoying the aforesaid money for more than five years. Now petitioner wants to repudiate the discharge voucher duly signed by her. This clearly shows malafide intention on the part of the petitioner in filing the present complaint. Once the petitioner has received the amount unconditionally and has also got the cheque encashed, under these circumstances petitioner cease to be Consumer as per Consumer Protection Act, 1986. 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 refund unconditionally and also got the cheque encashed.
16. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
17. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.
The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
18. In view of the concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.
19. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasonings.
20. The present petition being merit less, bogus and frivolous one is required to be dismissed with punitive cost for wasting time of this Commission and for causing harassment to the respondent. Accordingly, the revision petition stands dismissed with punitive cost of Rs.10,000/- (Rupees Ten Thousand only).
21. 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.
22. In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.
23. List on 30th November, 2012 for compliance.
..J (V.B. GUPTA) PRESIDING MEMBER