National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs M/S Combined Medical Institute Private ... on 17 March, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 219 OF 2009 (Against the Order dated 07/11/2008 in Appeal No. 40/2008 of the State Commission Uttaranchal) 1. NEW INDIA ASSURANCE CO. LTD. Through Its Managing Director. Dr. Mahesh Kuriyal, 54, Haridwar Road Dist. Dehradun Uttrakhand ...........Petitioner(s) Versus 1. M/S COMBINED MEDICAL INSTITUTE PRIVATE LTD. Throug Its Branch Manager 9 Subhash Road, near Kanak Cinema Dist. Dehradun Uttrakhand ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER For the Petitioner : Ms. Anjalli Bansall, Advocate For the Respondent : Mr. Vijay K. Jain, Advocate Dated : 17 Mar 2015 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER The complainant Combined Medical Institute Private Limited, a Company registered under the provisions of Companies Act got insured C.T. Scan machine along a Table, a Monitor and a Camera etc., with the opposite party New India Assurance Co. Ltd., vide policy dated 09.06.2003. Alleging malfunctioning of the Data Execution Board, a report was lodged by the complainant with the insurance company. After inspection of the machine by the surveyor, the complainant company got it repaired by replacing the Data Execution Board, paying a sum of Rs.5,42,400/- to Seagate Medical Service for the purpose. The complainant submitted a claim for the aforesaid amount to the insurance company. The aforesaid C.T. machine again went out of order on 16.12.2003 since its camera stopped working. After informing the insurance company, the complainant got the camera repaired at a cost of Rs.1,76,282.30 and lodged a claim with the insurer. Since the claims were not paid, the complainant approached the concerned District Forum by way of a complaint, seeking payment of a sum of Rs.7,18,683/-, along with interest @ 18% per annum, compensation amounting to Rs.1,00,000/- and the cost of litigation.
2. The complaint was resisted by the insurance company on the ground that after filing the complaint, they had paid a sum of Rs.2,90,259/- to the complainant against the first claim of Rs.5,42,400/- and a sum of Rs.57,994/- against the second claim of Rs.1,76,282.30. This was also alleged by the opposite party that the aforesaid payment was made in full and final settlement of the claim and a Discharge Voucher was also duly executed by the complainant company in this regard.
3. Vide order dated 30.01.2008, the District Forum held that in view of the payment made to the complainant, it was not entitled to any further amount from the insurance company and accordingly dismissed the complaint.
4. Being aggrieved from the order of the District Forum, the complainant company approached the concerned State Commission by way of an appeal. Vide impugned order dated 07.11.2008, the State Commission directed the insurance company to pay a sum of Rs.2,52,141/- to the complainant against the first claim and a sum of Rs.1,18,288/- against the second claim, along with interest on that amount @ 6% per annum and cost of litigation amounting to Rs.2,000/-. Being aggrieved from the order passed by the State Commission, the insurance company is before this Commission by way of the present revision petition.
5. A perusal of the settlement Intimation Voucher duly signed by the complainant company, which are available at pages 58 and 59 of our paper book would show that the complainant company agreed to accept a sum of Rs.2,90,259/-in full satisfaction and discharge of its claim against policy in question and accordingly received the aforesaid amount from the insurance company, whereas a sum of Rs.57,994/- was received in full satisfaction and discharge of the second claim of the complainant company.
6. It is evident from a perusal of the aforesaid discharge vouchers that the amount offered by the insurance company was accepted by the complainant without any reservation or protest and in full and final satisfaction of its claim. If the complainant company was not satisfied with the amount offered to it by the insurance company, nothing prevented it from rejecting the said offer. Alternatively, since the complaint was already pending before the District Forum at that time, the complainant company could have applied to the said Forum for a direction to the insurance company to pay the amount offered by it without prejudice to the rights and contentions of the complainant. That having not been done, it is obvious that the complainant company was satisfied with the offer of the insurance company and that is why it executed the discharge vouchers without use the office of the District Forum for the purpose of receiving the said payment. Having accepted the aforesaid amounts in full and final satisfaction of the claim without protest and reservation, the complainant company is estopped from demanding any further amount against the claims lodged by it.
7. In United India Insurance V. Ajmer Singh Cotton & General Mills & Ors., AIR 1999 SCC 3027, it was found that the discharge vouchers were executed voluntarily and the complainant had not alleged execution under fraud or undue influence, misrepresentation or the like. It was held that in the absence of pleadings and evidence, the State Commission was justified in dismissing the complaints. During the course of the judgment, the Apex Court observed as under:
"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, 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. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability".
8. However, in the case before us, there is no allegation of fraud, misrepresentation, undue influence etc., on the part of the insurance company, nor was any such case made out before the District Forum. Section 14 of the Indian Contract Act, 1872, which is relevant in this regard reads as under:
"14. Free consent" defined Consent is said to be free when it is not caused by - (1) coercion, as defined in Section 15, or (2) undue influence, as defined in Section 16, or (3) fraud, as defined in Section 17 or (4) misrepresentation, as defined in Section 18, or (5) mistake, subject to the provisions of Sections 20, 21, and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake".
9. Coercion, undue influence, fraud and misrepresentation are defined in Sections 15, 16, 17 and 18 respectively of the Indian Contract Act and reads as under:
15. "Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Explanation: It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed.
16."Undue influence" defined (1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).
17. "Fraud defined "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents , with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
(1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation: Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
18. "Misrepresentation" defined "Misrepresentation" means and includes-
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains and advantage to the person committing it, or any one claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
10. Thus, the consent given by a person would be deemed to be a free consent and would be binding upon the parties to the contract unless it can be shown that it was obtained by exercise of coercion, undue influence, fraud, misrepresentation and mistake as defined in Sections 15, 16, 17 & 18 or by mistake subject to provisions of Sections 20 to 22 of the Indian Contract Act.
11. In the case before us, there was no such relationship between the complainant and the opposite parties that the opposite parties can be said to be in a position to dominate the will of the complainant company and use that position to obtain an undue influence over the complainant Company. The Insurance Company does not stand in a fiduciary relationship vis a vis the complainant. Clause (b) of Sub- Section (2) of Section 16 concerns an individual whose mental capacity is affected by reason of age, illness etc. and is obviously inapplicable. Since the Insurance Company cannot be said to be in a position to dominate the will of the complainant, Sub-Section (3) of Section 16 of the Act would also not apply. There is no allegation of fraud against the insurance company. There is no allegation of concealment of any material fact by the insurance company from the complainant with a view to obtain the consent of the complainant company to the aforesaid settlement. Therefore, Section 17 of the Act is also not applicable. There is no allegation of any misrepresentation within the meaning of Section 18 of the Contract Act and, therefore, the aforesaid Section also does not apply.
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 the complainant, with intention of causing the complainant to enter into any settlement.
For the reasons stated herein above, the order passed by the State Commission cannot be sustained and the same is accordingly set aside. The complaint is consequently dismissed, as having been satisfied.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER