State Consumer Disputes Redressal Commission
M/S Nectar Lifesciences Ltd. vs The New India Assurance Co. Ltd. on 11 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.177 of 2014
Date of Institution : 22.10.2014
Date of Decision :11.04.2017
M/s Nectar Lifesciences Ltd. through Shri Sandeep Goel, Vice
President, Finance & C.F.O., Corporate Office: SCO 38-39, Sector
9-D, Chandigarh-160 009.
.......Complainant
Versus
The New India Assurance Co. Ltd. through the Sr. Divisional
Manager, Divisional Office No.1, Bharat Nagar Chowk, Ferozepur
Road, Ludhiana-141 001.
........Opposite Party
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Shri Ajay Pal Singh, Advocate. For the opposite party : Shri J.P. Nahar, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant-firm, M/s Nectar Lifesciences Ltd., has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the Act") for the issuance of following directions to the opposite party:-
i) to pay a sum of ₹19,92,331/-; being the amount
wrongfully deducted from the claim;
Consumer Complaint No.177 of 2014 2
ii) to pay interest @ 12% per annum on the said amount of
₹19,92,331/- from 01.03.2012 upto the date of
realization;
iii) to pay a sum of ₹50,000/- towards harassment caused to
the complainant; and
iv) to pay costs of litigation.
2. The complainant, alleged in its complaint, that the complainant is a pharmaceutical company and is engaged in manufacturing of medicines and export of Menthol. M/s Symrise Asia Pacific Pte. Ltd, a customer of the complainant company, had placed an order with the complainant for the supply of 15000 kilograms of Menthol Crystals to be supplied to them at their warehouse in Singapore.
The complainant company executed the said order and the material was packed in 600 nos. of Fibre Drums containing 25 kilograms of net material in each. The opposite party issued a Marine Insurance Certificate No.2011/NLL/0670 under its Open Cover No.360100/21/11/05/00000001 for coverage of the said consignment against loss or damage during the transit, for a sum insured of ₹2,92,45,219/-. The said Insurance Certificate acknowledges payment of insurance premium and states the insurance premium including service tax and stamp duty "as agreed and paid" and the mode of transit as "Road, Rail & Sea" and journey "from anywhere in India to Singapore Sea port,". The insurance obtained by the complainant is against All Risks of loss of or damage to insured material. The insurance is subject, inter alia, to Institute Cargo Clauses "A" including the risk of TPND (theft, pilferage, non- Consumer Complaint No.177 of 2014 3 delivery), short delivery and breakage/damage to packing. The insurance further covers the sellers' interest. The insurance policy/certificate covers the delivery from Sellers' warehouse anywhere in India upto the warehouse of the consignee. The said material in 600 Nos. fibre drums was loaded in container No.MSWU- 0070956 of M/s Maersk Shipping Line India P. Ltd., which was properly sealed with seal No.MAERSK-ML-IN 0401279. The consignment was collected by Mr. Jalish, the driver/representative deputed by the Transporters M/s Akal Transport Co. on 09.12.2011 to be transported from Derabassi to ICD, Dadri and at ICD, Dadri Container No.MSWU-0070956 was entrusted to Shipping Company for which M/s Maersk India Pvt. Ltd., issued their Multimodal Transport Document B/L No.863061256 dated 20.12.2011. From ICD Dadri the container was dispatched to Mumbai through rail and was shipped on "MAERSK KOLKATA" for its journey to Singapore Sea Port. The said container was received by the consignee/importers M/s Symrise Asia Pte Ltd., on 31.12.2011 at their warehouse and on opening the container, the consignee found bricks and soil in the drums. Consignee immediately approached the surveyors for inspection of the consignment. The insurers got the consignment surveyed through M/s International Surveyors and Adjusters, Singapore, who found that 114 drums x 29.5 kgs contained Red Sand, 40 drums x 28.5 kgs contained MBF Bricks, 11 drums stolen away and found short and out of 600 drums only 435 drums were found externally in sound condition with lead seals. The complainant lodged FIR No.6 on 18.01.2012 at Dera Bassi, Police Consumer Complaint No.177 of 2014 4 Station u/s 406/407/420/379/120B of IPC. The owner of the truck had also lodged FIR No.18 on 15.01.2012 at Police Station Vijaynagar in District Ghaziabad (UP) under Section 406 IPC. The complainant lodged the claim for $153,996.56 equivalent to Indian ₹79,69,322/-. On 14.01.2012 the complainant had also served the notices and lodged claims upon M/s Jaykay Freighters P. Ltd., New Delhi, who had engaged the transporters for complainant; namely, M/s Akal Transport Co. New Delhi, M/s Maersk Line India Pvt. Ltd. the shipping company and to the providers of Container No.MSWU- 0070956. A notice dated 15.05.2012 was also issued to M/s Star Track Terminals Pvt. Ltd. and Container Corporation of India Ltd. The opposite party approved the claim for only ₹59,76,992/- on non- standard basis by e-mail dated 21.11.2012 and deducted a sum of ₹19,92,331/- arbitrarily for no fault of the complainant. The complainant immediately wrote to the opposite party a detailed e- mail submitting therein that the complainant company was in no way at fault and ought not to be penalized by deducting ₹19,92,331/-. It was advised that the complainant was accepting the offer of settlement under protest as part payment. By e-mail dated 23.11.2012 the complainant company had advised the opposite party that the complainant company accepts the approval under protest and further undertook that in case the complainant recovers from transporter or any other party, then the excess amount after adjusting the shortfall and recovery expenses, would be paid over to the opposite party. On 29.11.2012, the opposite party informed the complainant that it was proceeding with the processing of the claim Consumer Complaint No.177 of 2014 5 on non-standard basis for ₹59,76,992/-. Despite repeated requests the opposite party was not prepared to release the payment of even the approved amount on part payment basis and made it a pre- condition to sign a clear discharge for releasing the said amount. In- spite of the repeated requests and representations to the opposite party for settling the claim in full, only an amount of Rs.59,76,992/- was paid to the complainant after deducting the amount of Rs.19,92,331/-. A legal notice dated 17.9.2014 was served upon the opposite party to reconsider the settlement of the claim and to make payment of amount arbitrarily and unlawfully deducted by it, but the same was not responded.
3. In the reply filed by the opposite party it is admitted that the opposite party had issued a Marine Certificate of insurance mentioned in the complaint subject to the usual terms, conditions and exclusions as per Institute Cargo Clause (A) and other related clauses. It also admitted the settlement of the insurance claim on non-standard basis. While denying the other allegations, it has been pleaded that the complainant has not been able to establish that a proper system for sealing of the container after its stuffing was in place. This is the precise reason that it could not be established exactly when, where and how the loss had taken place, prejudicing the recovery rights. Since the container reached ICD Dadri bearing original seal and they did not see any apparent tempering, the custom officials cleared the cargo and put their seal also and both these seals were found intact by the consignee. Moreover, Annexure C-5 attached with the complaint clearly mentions under Consumer Complaint No.177 of 2014 6 the column PARTICULARS (Said to contain) and the carrier does not confirm what the drums contain. The carriers M/s Akal Transport Co. sent their letter dated 5.3.2012 stating that their driver loaded duly sealed container from their premises in the condition as handed over to him and in same condition was unloaded at ICD Dadri for custom clearance. The carrier denied its liability and did not give any damage/short certificate. Thus, the opposite party's recovery rights were prejudiced adversely and thus, the claim was settled on non-standard basis. The opposite party also got the claim investigated through J.C. Gupta & Co. Pvt. Ltd. and they submitted their report dated 18.05.2012 in which at para no.10.1.6 'Seal' the investigator mentioned that "the container along with shipping line seal was brought by the drivers to consignors, Dera Bassi works and the seal was affixed on the container after stuffing at the consignor works. There was hardly any system to judge the genuineness of the seals affixed on the container. No photographs were taken. It will not be out of context to mention here that if the driver, with mala fide intention, also carried a duplicate seal which if affixed on the container, the consignor could hardly detect the same." Based on verification of the records, the involvement of the consigner was not found and inquiry indicates that theft has been committed skillfully by the drivers. Both the drivers remained untraceable for several months after the first theft was discovered. The transporter M/s Akal Transport Co. also lodged FIR against the drivers stating that the drivers had committed theft. As per para 12.6 (Seal) of the Surveyor's report, it appears that the drivers handed over duplicate Consumer Complaint No.177 of 2014 7 seal to the consigner and kept the original seal with them. There was no system to verify the authenticity of the seal fixed at Derabassi after stuffing of the container. The consigner was not aware of the original seal which the shipping line provided for the purpose. The drivers were well aware of the system of seal fixing and ignorance of the consigner in the matter. In view of this, the driver could have arranged a fabricated seal for the purpose of committing theft. The drivers were planning since long time, arrangement of fabricated seal in a short period was not difficult. No damage/shortage certificate was submitted by the complainant company and thus, has prejudiced the recovery rights of the opposite party to exercise the recovery rights against the carrier. The opposite party could not have released the payment without the proper Discharge Voucher duly signed and stamped. It is denied that the complainant had signed the discharge voucher on 23.11.2012 under coercive and compelling circumstances. There is no allegation that the complainant was compelled by any of the officials of the opposite party at any stage to settle the claim at a lesser amount. After accepting the offer of the opposite party, the complainant company cannot go back on the acceptance as it is irrevocable and a concluded contract. The e-mail dated 30.11.2012 is of no consequence after submitting the Discharge Voucher voluntarily signed. The complaint is time barred and is defective due to non-joinder of the necessary parties.
4. To succeed in the complaint, the complainant-Company proved on record affidavit of Madan Gopal, Legal Affairs, as Ex.CA. Consumer Complaint No.177 of 2014 8 The complainant tendered in evidence documents Ex.C1 to Ex.C20. On the other hand, the opposite party proved on record the affidavit of Tarsem Chand, Deputy Manager and affidavit of Sh.J.C.Gupta, Director, M/s J.C.Gupta & Co. Pvt. Ltd., Surveyors & Loss Assessor as Ex.RA & Ex.RB respectively. The opposite party tendered in evidence documents Ex.R-1 to Ex.R-9.
5. We have heard learned counsel for both the sides and have carefully gone through the averments of both the sides and the evidence produced in support of their respective averments.
6. The submission of the learned counsel for the complainant- Company was that the claim of the complainant Company has been primarily opposed by the opposite party on the basis of the fact that once the partial amount has been accepted by the complainant company, the complainant-company is restrained from seeking any further claim although it may be entitled to more than what has been received by it. The opposite party has not been able to show as to under which provision of the insurance policy or under which provision of law, it is entitled to deduct money from the insurance claim payable to the complainant company on non-standard basis. As such, the deduction so made out of the insurance claim of the complainant Company is absolutely without any basis. In the Survey Reports Ex.R-5 and Ex.R-6 the surveyors categorically approved ₹79,69,322/- and there is no reason for the opposite party to deny the lawful entitlement to the complainant company defeating the very purpose of availing the insurance policy. It was further submitted by the learned counsel for the complainant-company that prior to the Consumer Complaint No.177 of 2014 9 release of the partial insurance claim, the complainant company vide e-mails dated 23.11.2012 and 30.11.2012, Ex.C-16 and Ex.C-17, respectively, duly protested against the decision of the opposite party to the settlement of the insurance claim to a limited extent. The discharge voucher Ex.C-18 has been sent in advance by the complainant company under compelling circumstances and under protest. The complainant company also sent legal notice dated 17.9.2014, Ex.C-19, but to no effect. Hence the action of the opposite party in deducting the sum of ₹19,92,331/- from the total claim of ₹79,69,322/- amounts to deficiency in service and the opposite party is liable to pay the same along with interest, compensation and costs.
7. On the other hand, it was submitted by the learned counsel for the opposite party that the complainant company received the payment of the claim after voluntarily signing the Discharge Voucher on 23.11.2012 bearing office stamp and revenue stamp and had agreed to accept the amount of ₹59,76,992/- and the payment was made on 29.11.2012, vide cheque No.369603. It has been held by the Hon'ble Supreme Court in United India Insurance Co. Ltd. v. Ajmer Singh Cotton and General Mills and others (1999) 6 SCC 400 that in case the Discharge Voucher has been obtained through undue influence, fraud or misrepresentation or the commercial bargaining compelled by the circumstances, the said Discharge Voucher can be challenged on these grounds. Since the complainant Company has received the amount of claim after voluntarily signing the Discharge Voucher, therefore, the Consumer Complaint No.177 of 2014 10 complainant Company is now precluded from claiming anything as both the parties to the contract are fully discharged from their respective obligations. After payment of claim on submission of Discharge Voucher voluntarily signed and duly executed, no cause of action survives. It is denied that the insurance was for all losses. The insurance was on all risk basis subject to terms and conditions of the policy. The complainant company has not been able to explain how theft can happen from inside the containers/drums. The survey was conducted by the Overseas Surveyor and the quantum of assessment is not in dispute but the payment of claim is subject to terms and conditions of the policy, particularly when, the recovery rights have been adversely prejudiced. Sealing of the container is the responsibility of the complainant Company and it is their failure that the loss has occurred. If the complainant had put the original seal properly, then whatever was sent would have been delivered to the consignee. He prayed that there is no merit in the present complaint and the same be dismissed with costs.
8. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
9. The admitted facts are that the complainant Company, who is a pharmaceutical company, had availed the insurance policy (Ex.C3) from the opposite party covering the risk to the goods arising out of theft, pilferage, non-delivery, short delivery, breakage, damage to packing and so on from anywhere in India to anywhere in the world and vice versa. The transportation of 15000 kilograms of menthol crystals from the warehouse of the complainant-Company in Consumer Complaint No.177 of 2014 11 Derabassi, Punjab to the consignee based in the Singapore has not been denied. It has also not been denied that the said consignment suffered pilferage and theft in transit in respect of which FIR No.6 dated 18.01.2012 got registered in PS-Dera Bassi, SAS Nagar, Mohali (Ex.C-7) and another FIR No.18 dated 15.01.2012 was got registered by the owner of Truck in Police Station Vijaynagar, District Ghaziabad (Ex.C-8). Appointment of the Surveyors by the opposite party and the assessment of the total loss at ₹79,69,322/- by the Surveyors, vide their Survey Reports dated 25.06.2012 (Ex.C-10) has also not been denied. The settlement of the insurance claim to the extent of ₹59,76,992/- on non-standard basis at the rate of 75% has also not been denied. The opposite party alleged that the amount of ₹59,76,992/- was received by the complainant-Company in full and final settlement and it has duly signed and stamped the discharge voucher dated 23.11.2012 Ex.C18/Ex.R-1 without any protest. However, the complainant Company alleged that the same was received under coercion and compelling circumstances and the discharge voucher was sent in advance under compelling circumstances and under protest.
10. In view of the aforesaid admitted position and the arguments raised by the learned counsel for both the sides, the only question to be decided in this case is, whether the amount of ₹59,76,992/- was received by the complainant-Company voluntarily in full and final settlement of the insurance claim or the same has been received under coercion and compelling circumstances and the discharge voucher Ex.C-18/Ex.R-1 was signed and sent under protest? Before Consumer Complaint No.177 of 2014 12 we deal with this question, it would be appropriate to refer to the judgment of Hon'ble Supreme Court reported in 2009(1) SCC 267 (National Insurance Co. Ltd. v. M/s Boghara Polyfab Pvt. Ltd.) in paras 27 to 31 of which it has been held as under:-
"27. Let us consider what a civil court would have done in a case where the defendant puts forth the defence of accord and satisfaction on the basis of a full and final discharge voucher issued by plaintiff, and the plaintiff alleges that it was obtained by fraud/coercion/undue influence and therefore not valid. It would consider the evidence as to whether there was any fraud, coercion or undue influence. If it found that there was none, it will accept the voucher as being in discharge of the contract and reject the claim without examining the claim on merits. On the other hand, if it found that the discharge voucher had been obtained by fraud/undue influence/coercion, it will ignore the same, examine whether plaintiff had made out the claim on merits and decide the matter accordingly. The position will be the same even when there is a provision for arbitration. The Chief Justice/his designate exercising jurisdiction under section 11 of the Act will consider whether there was really accord and satisfaction or discharge of contract by performance. If the answer is in the affirmative, he will refuse to refer the dispute to arbitration. On the other hand, if the Chief Justice/his designate comes to the conclusion that the full and final settlement receipt or discharge voucher was the result of any fraud/coercion/undue influence, he will have to hold that there was no discharge of the contract and consequently refer the dispute to arbitration. Alternatively, where the Chief Justice/his designate is satisfied prima facie that the discharge voucher was not issuedvoluntarily and the claimant was under some compulsion or coercion, and that the matter deserved detailed consideration, he may instead of deciding the issue himself, refer the matter to the arbitral tribunal with a specific direction that the said question should be decided in the first instance.
28. Some illustrations (not exhaustive) as to when claims are arbitrable and when they are not, when discharge of contract by accord and satisfaction are disputed, to round up the discussion on this subject :Consumer Complaint No.177 of 2014 13
(i) A claim is referred to a conciliation or a pre-litigation Lok Adalat. The parties negotiate and arrive at a settlement. The terms of settlement are drawn up and signed by both the parties and attested by the Conciliator or the members of the Lok Adalat. After settlement by way of accord and satisfaction, there can be no reference to arbitration.
(ii) A claimant makes several claims. The admitted or undisputed claims are paid. Thereafter negotiations are held for settlement of the disputed claims resulting in an agreement in writing settling all the pending claims and disputes. On such settlement, the amount agreed is paid and the contractor also issues a discharge voucher/no claim certificate/full and final receipt. After the contract is discharged by such accord and satisfaction, neither the contract nor any dispute survives for consideration. There cannot be any reference of any dispute to arbitration thereafter.
(iii) A contractor executes the work and claims payment of say Rupees Ten Lakhs as due in terms of the contract. The employer admits the claim only for Rupees six lakhs and informs the contractor either in writing or orally that unless the contractor gives a discharge voucher in the prescribed format acknowledging receipt of Rupees Six Lakhs in full and final satisfaction of the contract, payment of the admitted amount will not be released. The contractor who is hard pressed for funds and keen to get the admitted amount released, signs on the dotted line either in a printed form or otherwise, stating that the amount is received in full and final settlement. In such a case, the discharge is under economic duress on account of coercion employed by the employer. Obviously, the discharge voucher cannot be considered to be voluntary or as having resulted in discharge of the contract by accord and satisfaction.
It will not be a bar to arbitration.
(iv) An insured makes a claim for loss suffered. The claim is neither admitted nor rejected. But the insured is informed during discussions that unless the claimant gives a full and final voucher for a specified amount (far lesser than the amount claimed by the insured), the entire claim will be rejected. Being in financial difficulties, the claimant agrees to the demand and issues an undated discharge voucher in full and final settlement. Only a few days thereafter, the admitted amount mentioned in the voucher is paid. The accord and satisfaction in such a case is not voluntary but under duress, Consumer Complaint No.177 of 2014 14 compulsion and coercion. The coercion is subtle, but very much real. The `accord' is not by free consent. The arbitration agreement can thus be invoked to refer the disputes to arbitration.
(v) A claimant makes a claim for a huge sum, by way of damages. The respondent disputes the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Therefore, the accord and satisfaction is binding and valid and there cannot be any subsequent claim or reference to arbitration.
29. Let us now examine the receipt that has been taken in this case. It is undated and is in a pro forma furnished by the appellant containing irrelevant and inappropriate statements. It states : "I/we hereby assign to the company, my/our right to the affected property stolen which shall, in the event of their recovery, be the property of the company". The claim was not in regard to theft of any property nor was the claim being settled in respect of a theft claim. We are referring to this aspect only to show how claimants are required to sign on the dotted line, and how such vouchers are insisted and taken mechanically without application of mind.
30. The discharge voucher form was handed over to the respondent on 21.3.2006. It was signed and delivered to the appellant immediately thereafter acknowledging that a sum of Rs.2,33,94,964/- had been received from the insurer (appellant) in full and final settlement, and that in consideration of such payment, the respondent absolved the appellant from all liabilities, present and future, arising directly or indirectly, out of said loss or damage under the policy. Admittedly, on the date when such discharge voucher was signed and given by the respondent, the payment of Rs.233,94,964/- had not been made. It was made after receiving the voucher. Therefore, at the time of signing the voucher by the respondent and at the time of delivery of voucher by the respondent to the appellant, the contents of the voucher that the said amount had been received, that such amount had been received in full and final Consumer Complaint No.177 of 2014 15 settlement of all claims, and that in consideration of such payment, the company was absolved from any further liability, are all false and not supported by consideration.
31. In this case the High Court examined the issue and found that prima facie there was no accord and satisfaction or discharge of the contract. It held that the appellant is still entitled to raise this issue before an arbitrator and the arbitrator has to decide it. On the facts and circumstances and the settled position of law referred by us above, we are also prima facie of the view that there is no accord and satisfaction in this case and the dispute is arbitrable. But it is still open to the appellant to lead evidence before the arbitrator, to establish that there is a valid and binding discharge of the contract by way of accord and satisfaction."
11. In Oriental Insurance Co. Ltd. v. Government Tool Room and Training Centre reported in I(2008) CPJ 267 (NC), the Hon'ble National Commission held the practice of insurance companies in not paying the claim amount without a discharge voucher of full and final settlement as an unfair trade practice. The Hon'ble National Commission directed the insurance companies to abandon this practice and further directed the Insurance Regulatory Development Authority (IRDA) to take appropriate action so that the option/choice of the insured to approach the legal forum for just settlement of his claims is not curtailed/frustrated.
12. In National Insurance Company Ltd. v. Rajan Sood reported in IV (2014) CPJ 415 (NC), the Hon'ble National Commission rejected the similar plea of the Insurance Company holding that the insured who had lost household goods in fire accident and had been waiting for settlement of his claim for more than a year, accepted the cheque offered by the Insurance Company in full and final Consumer Complaint No.177 of 2014 16 settlement, under coercion to salvage a part of the loss suffered by him. Thus, the settlement relied upon by the Insurance Company is not a settlement based on free consent and the Insurance Company cannot take advantage of the same.
13. Hon'ble Delhi High Court in WORLDFA EXPORTS PVT. LTD. v. UNITED INDIA INSURANCE CO. LTD. [I(2006) CPJ 98] by relying upon the aforesaid judgments of the Hon'ble Supreme Court and Hon'ble National Commission has held that no law permits the Insurance Company to withhold the payment of the admitted amount unless the receipt of full and final settlement is issued by the insured and that the amount assessed by the Insurance Company is the admitted liability of the Insurance Company to the insured and the Insurance Company is obliged to make the payment of the same to the insured whether the insured accepts the assessment or not.
14. Admittedly opposite party sent e-mail Ex.C-15 to the complainant company informing it that its claim has been approved for Rs.59,76,992/- on non-standard basis subject to following:-
"1. Undertaking from the insured that if any recovery is made from the driver/carrier exceeding 25% of the claim amount i.e. Rs.19,92,331/-, then the insured will reimburse us the excess amount received.
2. To submit a specific consent letter addressed to our Head Office by the consignee confirming that the claim Consumer Complaint No.177 of 2014 17 should be settled with the insured i.e. M/s Nector Lifescience Ltd.
3. Discharge voucher is attached which is to be submitted after affixing seal/signature & revenue stamp.
After receipt of above in original we shall remit the claim immediately."
In response to the same, the complainant company sent e-mail dated 23.11.2012, Ex.C-16, to the opposite party stating therein that the decision for settlement of its claim at 75% is unilateral, biased and is not acceptable to it and that they were accepting the 75% settlement under protest as part payment of the total claim amount and subject to full and final settlement of their claim. Discharge Voucher after affixing seal/signature and revenue stamp was also attached. Thereafter another e-mail dated 30.11.2012 Ex.C-17 was sent by the complainant Company to the opposite party stating therein that they accepted the approved claim under protest as the same was settled on non-standard basis. A photocopy of the said voucher has been produced by the complainant Company as Ex.C18. A perusal of the same would indicate that the column of Date of Payment is blank. At the bottom of the voucher a revenue stamp has been affixed which has been duly signed and stamped by the complainant-Company and is dated 23.11.2012. The opposite party also produced that discharge voucher as Ex.R-1 but it did not produce the e-mails sent by the complainant-Company to it, meaning Consumer Complaint No.177 of 2014 18 thereby that it has not come to this Commission with clean hands. The opposite party produced on record Payment Voucher dated 29.11.2012 as Ex.R-2, vide which cheque No.369603 dated 29.11.2012 for an amount of ₹59,76,992/- was sent to the complainant-Company towards the payment of the claim amount.
15. A collective perusal of the documents, referred to above, would reveal that the Discharge Voucher Ex.C-18/Ex.R-1 duly signed and stamped by the complainant company was sent in advance to the opposite party as the same is dated 23.11.2012 and the cheque of ₹59,76,992/- towards the payment of the claim amount has been issued on 29.11.2012. Moreover, the complainant-Company from the very beginning has been writing to the opposite party to pay 100% of the claim and was showing its protest to the payment being made on non-standard basis. It is held that the complainant Company issued the discharge voucher and accepted the claim amount on non-standard basis under coercion and compelling circumstances. Furthermore, it is a common practice of the Insurance Companies that they withhold the amount and ask the insured to sign and send the vouchers in advance. This fact has also been admitted by the opposite party in preliminary objection No.1 of its reply in which it has been categorically stated that the complainant has received the payment of the claim after voluntarily signing the Discharge Voucher on 23.11.2012 bearing office stamp and Revenue Stamp and had agreed to accept the amount of Rs.59,76,922/- and the payment was made on 29.11.2012, vide Consumer Complaint No.177 of 2014 19 cheque No.369603. Admittedly in the Survey Report dated 18.05.2012, Ex.R-6, submitted by J.C. Gupta & Co. Pvt. Ltd. the loss was assessed at ₹79,69,322/-. Against the column 'Liability' it has been mentioned that the loss has occurred in transit and there is liability under the policy. No law permits the Insurance Company to withhold the payment of admitted amount unless the amount is voluntarily accepted by the insured as full and final settlement. Moreover, the protests and non-acceptance was conveyed to the opposite party before the cheque was got encashed. In such circumstances, it cannot be held that the amount was accepted by the complainant-company voluntarily. Rather the same has been accepted under the aforementioned compelling circumstances and under protest.
16. In view of the fact that the payment of claim amount has been received by the complainant Company under compelling circumstances and under protest the judgment relied upon by the learned counsel for the opposite party in Ajmer Singh Cotton and General Mills' case (supra) is not applicable to the facts of the present case.
17. In view of our above discussion, this complaint is accepted and the opposite party is directed:-
i) to pay a sum of ₹19,92,331/- to the complainant-
Company along with interest at the rate of 9% per annum Consumer Complaint No.177 of 2014 20 from the date of payment of ₹59,76,992/- i.e. 29.11.2012 till the date of payment;
ii) to pay ₹2,00,000/- as compensation; and
iii) to pay ₹20,000/- as costs of litigation.
18. The opposite party is directed to comply with the order within 30 days of the receipt of the certified copy of the same.
19. If the opposite party fails to comply with the order within the stipulated period, then the amount of compensation of Rs.2,00,000/- awarded, vide this order shall carry interest at the rate of 9% per annum from the date of this order till realization.
20. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 11, 2017 Bansal