National Consumer Disputes Redressal
Garg Acrylics Ltd. vs United India Insurance Co. Ltd. on 16 December, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 36 OF 2014 Garg Acrylics Ltd. Kanganwai Road, VPO Jugiana, G.T. Road, Ludhiana Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative Complainant Versus United India Insurance Co. Ltd. Divisional Office No. II, Near Clock Tower, Ludhiana Opposite Party BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Complainant : Mr. Sameer Nandwani, Advocate For the Opposite Party : Ms. Tajinder Virdi, Advocate Pronounced on : 16th December, 2014 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. Garg Acrylics Ltd., the complainant in this case, took an Insurance Policy from United India Insurance Co. Ltd.-OP for Standard Fire and Special Peril Insurance Policies for its Unit No. II situated at Kanganwal Road, VPO Jugiana, G.T. Road, Ludhiana on 27.03.2009. A fire broke out in the said unit of the complainant on the night falling between 15 & 16 December, 2009. The fire was detected by the watchmen and the Fire Brigade took 13 hours 43 minutes to bring the fire under control. The police report was lodged and the Fire Brigade also gave its report. Approximately a loss of Rs. 5.00 crores was reported by the complainant.
2. The complainant intimated the O.P. about the aforesaid fire incident on 16.12.2009. The complainant lodged its protest to the Surveyors loss amount of Rs 2,67,77,752/- towards payment of the claim. The surveyor submitted his report whereby he acknowledged that the salvage has been sold only for Rs.32,00,000/- and deducted Rs.85,00,000/- towards its value. The complainant was not satisfied with his report. It is alleged that the surveyor gave his report on arbitrary grounds. Furthermore in the said report under Insurance of 12% was taken. On 14.12.2010 a cheque in the sum of Rs.2,70,05,371/- was handed over to the complainant towards partial payment of the claim. On 20.01.2011 the complainant wrote a letter to the opposite party demanding the balance claim amount.
3. On 24.07.2012, the complainant filed a complaint before the Punjab State Consumer Commission, Chandigarh against the O.P. On 02.12.2013, the Punjab State Consumer Commission, Chandigarh rejected the complaint of the complainant on the ground that it exceeded the pecuniary jurisdiction of the State Commission with liberty to file the complaint before this Commission. Consequently, the complaint was filed before this Commission on 06.02.2014. After hearing the counsel for the Complainant, notice of admission of this complaint was issued to the Opposite Party. We have heard the counsel for both the parties and perused the written synopses filed by the complainant.
4. First of all, we advert to the settlement intimation voucher which is reproduced as follows:-
Office Code: 200800 Office Name:
Divisional Office-II Address: Above Allahabad Bank, Near Clock Tower, Katchery Road, Post Box No. 98, Ludhiana-141008 Punjab Tel. 0161-5003719 5004424, 5004425
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Settlement Intimation Voucher
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Claim No.200800/11/09/11/90000011 Sr. No.1 Dev. Officer: 7777771/Broker Agent:
88888112/Sridhar Insurance Broker Pvt. Ltd.
Received from United India Insurance Company Ltd. the sum of Rupees Two Crores Seventy Lakh Five Thousand Three Hundred Seventy One Only
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Which I/ we agree to accept in full and final discharge of my/our claim upon the Company under Policy No.200800/11/08/11/00001006 in respect of M/s Garg Acrylics Ltd. Unit No. II Rs.2,70,05,371.00
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Signature: for Garg Acrylics Ltd.
Name: M/s Garg Acrylics Ltd. Unit No. II For Punjab and Sind Bank Chief Manage r Saban Bazar, Ludhiana This voucher does not bear any date. But according to the counsel for the Complainant, it was signed on 07.12.2010. It was argued that the said amount of claim was neither acceptable, nor fair, proper and grossly inadequate and did not make the goods loss actually suffered by the complainant and is contrary to the terms of the policy. The said voucher does not bind the complainant.
5. The complainant admits that it received payment by way of cheque No. 889558 for Rs.2,70,05,371/- dated 01.12.2010 received at the time of the admission of the discharge voucher directly to the Banker of the complainant. It, therefore, means that the amount was paid on 01.12.2010. This fact stands further proved by the protest letter written by the complainant on 14.12.2010, its relevant portion runs as follows:-
Sub: Insurance claim consequent upon fire on 16-12-2009 Dear Sir, We acknowledge the receipt of cheque number 889558 dated 01-12-2010 for Rs.270,05,371.00 towards the payment of our insurance claim consequent upon fire on 16-12-2009.
We accept the above cheque towards part payment of our claim and hereby request your goodself to please pay the following amounts:
1. The surveyor Sh. N.Veeraraghavan appointed by UIICO to assess the loss, has given his final report on March 25th 2010. However the claim amount has been paid on Dec. 1st, 2010. The interest at commercial rate for 8 months is due for the delayed period.
It is also clear that the cheque was encashed before the filing of the present complaint. This fact smacks of malafides of intention on the part of the complainant.
6. The complainant also sent reminders vide letters dated 20.01.2011 and 0202.2011. However, the OP vide its letter dated 27.01.2011 reiterated its stand and contended that the claim had been settled fully and finally as per the Execution of discharge voucher.
7. Counsel for the complainant vehemently argued that it had accepted the amount under duress because he had taken loan from the Bank and he was being forced by the Bank to return the money. It is contended that the Execution of the discharge voucher as a pre-condition to release the amount itself amounts to economic duress and coercion and also to arm twisting tactics without which the said part amount would not have been released.
8. It is contended that the Delhi High Court in a case titled as Sara International Limited Vs. Rizhao Steel Holding Group Co. Ltd. reported in 2013 (201) DLT 262, explained the circumstances under which it was forced to accept the amount being offered was under legitimate pressure and threat. It is contended that in this case, the complainant is also covered by the authorities titled as United India Insurance Vs. Ajmer Singh Cotton & General Mills and Others reported in (1999) 6 SCC 400 and National Insurance Co. Ltd. Vs. Sehtia Shoes reported as 2008 (5) SCC 400.
9. For the following reasons we clap no importance to these arguments. We will, first of all, consider the question of repudiation for and against.
Against Repudiation
i) Protest after one week.
It is thus clear that protest was raised after the lapse of one week. There was a big gap.
ii) Economic Pressure Counsel for the Complainant vehemently argued that there was economic pressure. The amount was to be paid to the Bank. The Bank was increasing the interest by leaps and bounds. However, this case is not supported by any evidence.
FOR REPUDIATION
i) Protest raised at a late stage.
The protest was raised at a very late stage. The complainant has enough time to ponder over. The protest was not raised immediately.
As per Strouds Judicial Dictionary, Fifth Edition, word immediately is defined as under: -
(1). The word immediately, although in strictness it excludes all mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing.
As per Blacks Law Dictionary, Sixth Edition, word immediately means: -
Immediately. Without interval of time, without delay, straightway, or without any delay or lapse of time. When used in contract is usually construed to mean within a reasonable time having due regard to the nature of the circumstances of the case, although strictly, it means, not deferred by any period of time. The words immediately and forthwith have generally the same meaning. They are stronger than the expression within a reasonable time and imply prompt, vigorous action without any delay.
This is an after thought. There was no immediate reaction to the discharge voucher. There was no immediate protest, whisper, word or syllable for a period of seven days. The complainant should have protested immediately by sending a telegram or sending the protest immediately. No value can be pinned with such like protest.
10. Protest After Encashment of Cheque
i) It appears that the complainant wants benefit of both the worlds. It is trying to be smart. If it was not satisfied with the above said settlement, it would have kept the cheque without encashing it. The duplicity on the part of the complainant is clearly discernible.
11. The full and final report is in consonance with the Surveyors report.
The full and final settlement discharge voucher clearly shows that it is in consonance with the Surveyors report, rather it is more than that. The Surveyor without any allegation of ill will or malice appears to be a sterling witness. 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)
12. Economic Pressure
i) The economic pressure has no connection with the present controversy. There is not a single business man on the earth, who does not have the economic pressure. No other particulars of fraud, undue influence or coercion saw the light of the day. There is no economic hardship. No notice, no notice under the SARFAESI Act, No notice under the D.R.T. Act was placed before us.
13. Signed with open eyes Last but not the least, the complainant signed the settlement discharge voucher with open eyes. The question of economic pressure may be hovering around at that stage as well. It could have refused to sign the settlement and waited for sometime to put up his claim before the Court of Law.
14. We are also of the considered view that the celebrated authority reported in United India Insurance Co. Ltd. Vs. Ajmer Singh Cotton & General Mills & Ors. (1999) 6 Supreme Court Cases 400 rather supports the case of the O.P. Its relevant portions run as follows:-
4.
. 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 mis-representation 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, (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. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier.
5. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints.
15. Similar view was taken by this Commission in the case titled as Raj Kumar Versus United Insurance Co. Ltd. [III (2011) CPJ 354 NC], Longowal Spinning Mills Pvt. Ltd. Vs. New India Assurance Co. Ltd. in Revision Petition No. 4700 of 2010, In Shiv Ram Gramodyog Sansthan Vs. United India Insurance Co. Ltd. & Anr. In Revision Petition No. 3689 of 2009 & IFFCO TOKIO General Ins. Co. Ltd. Vs. Pratima Jha in Revision Petition No. 171 of 2012 and by the Apex Court in Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) 5 SCC 311.
16. Thus we find that the whole gamut of facts and circumstances leans towards the side of the O.P. The case is lame of strength and therefore, dismissed at the admission stage. No orders as to costs.
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(J. M. MALIK, J) PRESIDING MEMBER ...
(DR.S. M. KANTIKAR) MEMBER Jr/17