State Consumer Disputes Redressal Commission
Smt. Sangeeta Jain vs National Insurance Co.Ltd. on 29 June, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2013/509
Instituted on : 16.09.2013
Smt. Sangeeta Jain,
W/o Late Shri Sunil Kumar Jain,
S/o Shri Kailashchand Jain, Aged 36 years,
R/o : Heera Moti Line,
Rajnandgaon (C.G.) ... Appellant/Complainant
Vs.
National Insurance Company Limited,
Rajnandgaon (C.G.). ... Respondent/O.P.
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Rakesh Puri, Advocate for the appellant (complainant.).
Shri D.L. Rathor, Advocate for the respondent (O.P.).
ORDER
DATED : 29/06/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 18.07.2013, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum") in Complaint Case No.13 /2007. By the impugned order, learned District Forum, has dismissed the complaint of the complainant and directed that the complainant will pay a sum of Rs.2,000/- (Rupees Two Thousand) towards cost of litigation to the O.P. within two months from the date of order.
// 2 //
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is doing business of Tendu leaves and collecting Tendu leaves in her godown at Saunder (Maharashtra). The complainant obtained Fire Insurance Policy from the O.P. which was effective for the period from 05.05.2002 to 04.05.2003. The complainant had taken loan from Bank of India and also from market. Royalty was also paid to Forest Department, Government of Maharashtra in respect of the Tendu leaves, kept in the said godown. The complainant collected the Tendu leaves in the month of June, 2002. On 08.07.2002, all of a sudden, the godown where the Tendu leaves were collected, caught fire resulting which entire stock of Tendu leaves, which was of 2504 bags, valuing Rs.43,82,000/- was completely damaged. The incident was immediately reported to the O.P., who appointed S.K. Kansal as Surveyor and Loss Assessor. The Surveyor assessed the loss and he investigated the record of the complainant as well as Forest Department and Bank of India and thereafter submitted his report to the O.P., but the O.P. did not settle the claim of the complainant, hence the complainant was forced to pay interest to the Bank and other financial concerns. Cheque amounting to Rs.30,09,656/- was deposited in the bank account of the complainant and deposited a sum of Rs.8,93,086/- in the bank account of the Forest Department through cheque. The O.P. assured the complainant that remaining amount would be paid to the complainant, but the remaining amount was not paid by the O.P. The complainant sent letter to the O.P. // 3 // for making payment of the remaining amount, but the O.P. did not pay the same to the complainant. The complainant contacted the Nagpur office of the O.P. and also sent letter through registered post to Regional Manager, Nagpur and another demanding balance amount of Rs.5,65,940/-, but the O.P. did not pay the above amount to the complainant, therefore, the complainant is entitled for Rs.5,65,940/- along with interest @ 12% p.a. Rs.2,83,060/- and Rs.50,000/- towards compensation total Rs.7,99,000/-. Hence the complainant filed the instant complaint before the District Forum and prayed for granting reliefs as mentioned in relief clause of the complaint.
3. The O.P. filed its written statement and averred that the complainant had not clarified, as to how the fire was set in godown and who was responsible for such fire and why action was not taken for extinguishing the fire immediately. It has further been averred that intimation to the Insurance Company was given belated stage. The complainant received the amount in full and final settlement of his claim and executed discharge voucher, therefore, the complainant is not entitled for any more amount from the O.P. Such payment was made in the year 2003, whereas complaint has been filed in the year 2007, therefore, the complaint is barred by limitation, hence is liable to be dismissed.
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4. The complainant has filed documents. Document A-1 is Fire Claim Form, A-2 is letter dated 23.04.2006 sent by the complainant to Chief Regional Manager, National Insurance Co. Ltd. Indore, A-3is Death Certificate of Sunil Jain, A-4 is Fire Insurance Interim Protection Note No.014871 and Fire Insurance Protection Note No.A-014768, A-6 is Certificate regarding storage of goods, A-7 is details regarding storage of goods in godown, A-8 is details regarding the quality of the goods, A-9 is Mauka Panchnama, A-10 is report regarding checking of godown, A-11 is Statement of Account, A-12 is details regarding the goods kept in godown, A-13 is receipt, A-14 is Fire Report, A-15 is letter dated 22.05.203 sent by Sunil Kumar Jain to the O.P., A-16 is letter dated 16.11.2004 sent by Bank of India to Divisional Manager, National Insurance Co. Ltd., Bhilai Area, A-17 is chart relating to complainant and other firm regarding the claim and payment of amount, A-18 is Certificate dated 01.02.2007 issued by Bank of India, Rajnandgaon (C.G.), A-19 is brief details, A-20 is letter dated 27.04.2006 sent by the O.P. to Pankaj Trading Company, A-21 is letter dated 16.11.2014 sent by the Bank of India to Divisional Manager, National Insurance Co. Ltd. Bhilai Area. The complainant has also filed letter dated 12.04.2004 sent by the complainant to the Manager, National Insurance Co. Ltd. Rajnandgaon, postal receipts, letter sent by Deputy Forest Conservator, Sironcha, Aallapalli to Deputy Department Officer, Rajura, letter dated 03.12.2002 sent by Deputy Conservator of Forest, Sironcha, Allapalli to Sunil // 5 // Kumar Jain, letter dated 27.12.2002 sent by Dy. Conservator of Forests, Soroncha Division, Allapalli to The Bank Manager, Bank of India, Rajnandgaon, letter dated 16.11.2014 sent by Bank of India to Divisional Manager, National Insurance Co. Ltd. Bhilai Area, letter dated 16.05.2006 sent by O.P. to Pankaj Trading Company, order dated 30.06.2008 passed by the District Forum in Complaint Case No.38/2007 - Ashok Kumar Jain Vs. National Insurance Company, order dated 19.04.2010 passed by this Commission in Appeal No.461/2008 Ashok Kumar Jain Vs. National Insurance Co. Ltd. and Appeal No.468/2008 National Insurance Co. Ltd. Vs. Ashok Kumar Jain.
5. The O.P. has filed documents. OP-A-1 and OP-A-2 are discharge vouchers, OP-A-3 is letter dated 09.05.2003 sent by O.P. to the Branch Manager, Bank of India, Rajnandgaon, OP-A-4 is Survey report dated 05.03.2003 of Shri S.K. Kansal Surveyor and Loss Assessor, OP-A-5 is letter dated 04.07.2003 sent by O.P. to Sr. Div. Manager, Div. Office, Bhilai, OP-A-6 and OP-A-7 is ledger for the period from 01.01.2002 to 30.09.2002, OP-A-8is Cash Sheet for the period from 1.4.2002 to 7.7.2002, OP-A-9 is Schedule of Fire Insurance Policy "C", OP-A-10 is Insurance Interim Protection Note No.A-014763,OP-A-11 is Schedule Fire Insurance Policy, OP-A-12 is Fire Insurance Interim Protection Note No.A-014769, OP-A-13 is Schedule of Fire Insurance Policy "C", OP-A-14 is Fire Insurance Interim Protection Note No.A-014871, OP-A-15 is Schedule of Fire Insurance Policy "C", OP-A-16 is Fire Insurance Interim Protection // 6 // Note No.A-014872, terms and conditions of Fire Policy 'C', OP-A-17 is disbursement voucher, OP-A-18 is letter dated 22.05.2003 sent by Sunil Kumar Jain to O.P., OP-A-19 is Telegram, OP-A-20 is transit pass, Addendum report dated 25.04.2003 of S.K. Kansal, Surveyor and Loss Assessor, Chart of complaint case at District Forum, OP-A-22 is letter dated 09.05.2003 sent by O.P. to Divisional Forest Officer, Sironcha Division, Cover Note 14871 dated 12.06.2002 of Fire Policy No.2002/3100181, Cover Note No.14768 dated 04.05.2002 of Fire Policy No.2002/3100090. Cover Note No.14872 dated 12.06.2002 of Fire Policy No.2002/3100182
6. Vide order dated 18.07.2013, the complaint of the complaint was dismissed by the District Forum. The complainant filed appeal No.FA/2013/509 before this Commission and vide order dated 16.01.2015, this Commission has dismissed the appeal of the complainant. The complainant filed Revision Petition No.1110 of 2015 before Hon'ble National Commission and vide order dated 13.04.2017 Hon'ble National Commission has allowed the revision petition, set aside the orders of the District Forum and this Commission and remanded the case back to this Commission observing that :
"Insofar as the question of limitation is concerned, the District Forum having condoned the said delay vide order dated 30.06.2008 in the earlier round of litigation, we are of the view // 7 // that the petitioners had made out sufficient cause for condonation of the said delay.
As regards the second issue noted supra, we are of the opinion that in view of the Circulars issued by the Insurance Regulatory Development Authority (IRDA), dated 24.09.2015 and 08.06.2016, the stand of the Insurance Company in rejecting the balance claim on the strength of discharge voucher, needs to be reconsidered by the State Commission.
In that view of the matter, we allow the Revision Petition, set aside the orders impugned in these Petitions and remand the cases back to the State Commission for adjudication of the entire claims made by the Petitioners on merits, keeping in view the aforesaid Circulars issued by IRDA.
Record of the District Forum shall be sent back forthwith.
Parties / their Counsel are directed to appear before the State Commission on 31.05.2017 for further proceedings.
Since the Complaints were filed as far back as in the year 2007 and 2013, we request the State Commission to take a final decision in the Complaints as expeditiously as possible."
7. Shri Rakesh Puri, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is the businessman, who is doing the business of Tendu Patta and is keeping to stock of Tendu Patta in his godown and for that purpose she had taken // 8 // the loan from Central Bank of India and he also obtained insurance policy from the respondent (O.P.) for the period from 12.06.2002 to 11.06.2003. The sum assured under the policy was Rs.20,00,000/-. On 08.07.2002, all of sudden, the godown where the tendu leaves were collected caught fire resulting which entire stock of tendu leaves which was of 2504 bags valuing Rs.43,82,000/- was completely damaged due to burning. The matter was reported to the respondent (O.P.). The respondent (O.P.) appointed S.K. Kansal as Surveyor and Loss Assessor, who assessed the loss. On the basis of Survey Report, the appellant (complainant) submitted claim before the respondent (O.P.). The cheque amounting to Rs.30,09,656/-- was deposited in the bank account of the appellant (complainant) and the cheque amounting to Rs.8,93,086/- was deposited in bank account of the Forest Department. The respondent (O.P.) assured the appellant (complainant) that remaining amount would be paid to the appellant (complainant) but remaining amount was not paid by the respondent (O.P.) to the appellant (complainant). The appellant (complainant) sent several letters to the respondent (O.P.) for making payment of remaining amount, but the respondent (O.P.) did not pay the amount to the appellant (complainant), then the appellant (complainant) filed consumer complaint before the District Forum. The District Forum vide order dated 18.07.2013 dismissed the complaint of the appellant (complainant) holding that the appellant (complainant) had received the amount on 09.05.2003 in full and final satisfaction. The // 9 // appellant (complainant) filed appeal No.FA/2013/509 before this Commission against the order dated 18.07.2013, passed by the District Forum. Vide order dated 16.01.2015, this Commission dismissed the appeal of the appellant (complainant) and confirmed the order passed by the District Forum, by holding that the complaint is barred by time and the appellant (complainant) had received the amount in full and final satisfaction. The appellant (complainant) filed Revision Petition No.1118 of 2015 before Hon'ble National Commission against the order passed by this Commission in Appeal No.FA/2016/509 on 16.01.2015. Vide order dated 13th April, 2017, allowed the Revision Petition No.1110/2015 and remanded the case back to this Commission for reconsideration in view of Circular issued by Insurance Regulatory and Development Authority on 24.09.2015 and 08.06.2016. Shri Rakesh Puri, has further argued that on the basis of above circulars, the appellant (complainant) is entitled for remaining amount from the respondent (O.P.). Merely signing discharge voucher cannot stop the appellant (complainant) to file the complaint against the respondent (O.P.) for obtaining remaining amount. The appellant (complainant) is entitled for the reliefs, as mentioned in the relief clause of the complaint. The appeal filed by the appellant (complainant) be allowed and reliefs as prayed in the relief clause of the complaint, be granted to the appellant (complainant).
8. Shri D.L. Rathor, learned counsel appearing for the respondent (O.P.) has argued that the appellant (complainant) is unable to prove that // 10 // he signed the Discharge Vouchers under fraud, undue influence, coercion or misrepresentation. The appellant (complainant) has signed the documents with his free will and free consent and Hon'ble National Commission has only remanded the matter to reconsider regarding Circulars issued by Insurance Regulatory and Development Authority, which is not binding to this Commission. The complaint of the appellant ((complainant) is barred by time, therefore, the same is liable to be dismissed. The order dated 16.01.2015 passed by this Commission, deserves to be maintained and appeal, is liable to be dismissed. He placed reliance on Cauvery Coffee Traders, Mangalore Vs. Hornor Resources (International) Company Limited, (2011) 10 SCC 420
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as impugned order.
10. So far as point of limitation is concerned, this Commission vide order dated 16.01.2015 passed in Appeal No.FA/2013/509 has observed that the complaint filed by the appellant (complainant) is barred by time, but Hon'ble National Commission vide order dated 13.04.2017, passed in Revision Petition No.1117 has observed that "In so far as the question of limitation is concerned, the District Forum having condoned the said delay vide order dated 30.06.2008 in the earlier round of litigation, we are // 11 // of the view that the Petitioner had made out sufficient cause for condonation of the said delay."
11. Hon'ble National Commission has already observed that the complaint is within limitation, therefore, the objection raised by the respondent (O.P.) regarding limitation, is rejected.
12. Now we shall examine, whether on the basis of above both Circulars of Insurance Regulatory and Development Authority, the appellant (complainant) is entitled for the remaining amount, as prayed by the complainant in the complaint ?
13. Learned District Forum, in para 12 of the impugned order has observed that "We are of the opinion that both the documents filed by the respondent (O.P.) have been executed as per law and their contents are clear and undoubted. In the case it has not been proved that the above documents were executed by coercion or misrepresentation. According to the above documents, the amount mentioned therein, has been received towards loss, in full and final satisfaction. In these circumstances, the appellant (complainant) is not entitled to get any amount towards loss. "
14. The appellant (complainant) signed the Discharge Voucher (Annexure OP-A-1 & OP-A-2) and sent the letter to the respondent (O.P.) regarding Discharge Vouchers on 22.05.2003.
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15. So far as Circular No. IRDA/NL/CIR/Misc./173/09/2015 dated 24.09.2015 and Circular No. IRDA/NL/CIR/MISC/113/06/2016 dated 08.06.2016 issued by Insurance Regulatory and Development Authority, are concerned, they are simply Circulars and they are not binding to the District Forums or State Commission, but on the basis of directions given by the Hon'ble National Commission, we shall examine whether on the basis of above Circulars, the appellant (complainant) is entitled for the total amount assessed by the Surveyor.
16. The appellant (complainant) has filed copy of Circular No. IRDA/NL/CIR/Misc./173/09/2015 dated 24.09.2015 issued by Insurance Regulatory and Development Authority TO CEOs of all General Insurance Companies, in which it is mentioned thus :-
"Discharge Voucher in settlement of claim The Insurance Companies are using 'discharge voucher' or 'settlement intimation voucher' or in some other name, so that the claim is closed and does not remain outstanding in their books. However, of late, the authority has been receiving complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policyholder extinguish their rights to contest the claim before the Courts.
While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurers shall not use the instrument of discharge voucher as a means of estoppel against the aggrieved policy holders when such policy holders approaches judicial foras.
Accordingly insurers are hereby advised as under :-
"Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts.
// 13 // However, it should be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law."
All insurers are directed to comply with the above instructions.
17. The appellant (complainant) has filed copy of Circular No. IRDA/NL/CIR/MISC/113/06/2016 dated 08.06.2016 issued by Insurance Regulatory and Development Authority to all CEOs including Stand-alone Health Insurance Companies and Specialised Insurance Company, in which it is mentioned thus :-
"Discharge Voucher Issue This refers to the Circular No.IRDA/NL/Cir/Misc/173/09/2015 dated 24th September, 2015 on the captioned subject. Since then insurers, on various occasions, have submitted that the above circular is not in the line with the IRDA (Protection of Policyholders interests) Regulations, 2002 (PPI Regulations) and the Indian Contract Act.
The Authority has reviewed the matter taking into consideration the provisions of the Contract Act, PPI Regulations and Apex Court Judgments. Taking equal cognizance of the legal rights of the policy holders and insurers, the Authority hereby further directs that :-
(i) Wherever there are no disputes by the insured/s or claimant/s to the amount offered by the insurer towards settlement of a claim, the present system of obtaining the discharge voucher may be continued. However, the insurers must ensure that the vouchers collected must be dated and complete in all respects while obtaining the signature/s of the insured/s or claimant/s.
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(ii) If the amount offered is disputed by the insured/s or claimant/s, insurers would take steps to pay the amount assessed without waiting for the voucher discharged by the insured/s or claimant/s.
(iii) Under no circumstances, the discharge voucher shall be collected under duress, by coercion, by force or compulsion.
Since there is no uniformity in the format /wordings of the Discharge Vouchers in use, Authority would suggest that the insurers may consider adopting a standardised format/wording/s of the Discharge Voucher.
Insurers are directed to comply with the above with immediate effect."
18. The Surveyor and Loss Assessor assessed the loss to the tune of Rs.32,65,733/- and Rs.8,93,086/- for the Government Royalty and Taxes. The appellant (complainant) pleaded that the respondent (O.P.) deposited the above amount in the bank amount of the appellant (complainant) and Forest Department, even then the appellant (complainant) is entitled for remaining amount of Rs.5,65,940/-.
19. The respondent (O.P.) filed copy of Discharge Vouchers, which are marked as Annexure OP-A-1 and OP-A-2. In document Annexure OP-A-1, it is mentioned that the appellant (complainant ) received a sum of Rs.4,00,336/- and in document OP-A-2, it is mentioned that appellant (complainant) received a sum of Rs.19,49,921/- - in full and final satisfaction. Annexure OP-A-3 is covering letter dated 09.05.2003 // 15 // sent by the respondent (O.P.) in which mentioned that cheque No.801966 for Rs.11,42,563/- and cheque no.801967 for Rs.19,49,921/- were sent to the Branch Manager, Bank of India, Rajnandgaon, in respect of fire claim of the appellant (complainant). The appellant (complainant) herself pleaded that the respondent (O.P.) deposited Rs.30,09,656/-- in the bank account of the appellant (complainant) and Rs.8,93,086/- in the bank account of the Forest Department through cheques.
20. Now we shall examine whether the appellant (complainant) has signed the above discharge vouchers, with her free consent and free will ?
21 In Section 14, 15, 16, 17 & 18 of The Indian Contract Act, 1872 "Free Consent" "Coercion", "Undue Influence", "Fraud" and "Misrepresentation""respectively have been defined. Section 14, 15, 16, 17 & 18 of The Indian Contract Act, 1872, run thus :-
"Section 14. "Free Consent" defined .-
Consent is said to be free when it is not caused by -
(1) coercion, as defined in Sec, 15, or (2) undue influence, as defined in Sec. 16, or (3) fraud, as defined in Sec. 17, or (4) misrepresentative, as defined in Sec. 18, or (5) mistake, subject to the provisions of Secs. 20, 21 and 22.
Consent is said to be so caused when it would not have been given by for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
// 16 // Section 15. "Coercion" defined. -
"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.
Section 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 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 bodily distress.
(3) Where a person who is in 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 be upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of Sec. 111 of the Indian Evidence Act, 1872 (1 of 1872)."
Section 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 // 17 // his agent, 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.
Section 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 the believes it to be true ;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any cone 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."
22. The appellant (complainant) has not filed any evidence to the effect that he received the cheques under protest. The appellant // 18 // (complainant) has filed copy of the letter dated 22.05.2003 sent by her to the respondent (O.P.). The cheques were sent to the appellant (complainant) on 09.05.2003 along with covering letter dated 09.05.2003. The appellant (complainant) signed discharge vouchers and for the first time, after near about 12 days from the date of receiving cheques, she sent letter to the respondent (O.P.).
23. In the case of United India Insurance Company Limited Vs. Ajmer Singh Cotton & General Mills, II (1999) CPJ 10 (SC), Hon'ble Supreme Court observed that "the mere execution of discharge voucher would not always deprive consumer from preferring claim with respect to deficiency in service or consequential benefits arising out of the amount paid in default of 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, 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, 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 // 19 // each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier."
24. In the case of Subhash Malhotra vs. United India Insurance Company Ltd. III (2014) CPJ 123 (NC), Hon'ble National Commission has observed thus :-
"27. Though, he has alleged that the discharge voucher was signed under undue influence and coercive bargaining, but he has not filed any evidence to support the same. Discharge voucher was sent to him by Registered Post and he signed the same and sent it back. He has also encashed the cheque of Rs.1,91,162/- sent to him. Thereafter the District Forum granted further relief of Rs.1,98,205.16 (after deducting Rs.1,91,162 already paid) from the total awarded amount of Rs.3,69,367.97. He has also been awarded interest due on the full amount at 12%. Admittedly, the Insurance Company has also paid the same and which has been received by the petitioner. The orders of the both the Fora below are very well-reasoned and have death with the report of the surveyor in detail. The petitioner has failed to make out any case for further increase in the compensation amount.
25. In the case of Suresh Kumar S.S. vs. Iffco-Tokio General Insurance Co. Ltd. & Anr., II (2014) CPJ 69 (NC), Hon'ble National Commission has observed thus :-
"6..................
"4........ Since the opposite party had made the said proposal with an unreasonable condition by which it is offered to release the claim settlement amount through DD in favour of M/s. Mini Muthoottu a Private money lending company, the complainant // 20 // had objected to the releasing of the settled claim amount through M/s. Mini Muthoottu and demanded to release the amount through a nationalized Bank and expresses his willingness to accept the proposed offer of settlement for an amount of Rs.4,56,661. Since M/s Mini Muthoottu has nothing to do with the contract of insurance between this complainant and IFFCO- TOKIO General Insurance Company Ltd., this complainant had conveyed his objection and dissent to the said proposal through a reply letter dated 4.12.2009 sent to the opposite party Insurance Company, but signified his consent to the proposed offer of settlement of the claim for an amount of Rs.4,56,661 (Four lakh fifty-six thousand six hundred and sixty-one only) and demanded to release the amount through DD to be drawn in a nationalized bank preferably to this complainants account No.20013616040 in the State Bank of India, Kottayam, Thirunakkara Branch."
26. In the case of Chittiprolu Lokeswara Rao vs. United India Insurance Co. Ltd. & Anr. I (2014) CPJ 39 (NC), Hon'ble National Commission has observed thus :-
"9...........We agree with the principle laid down in aforesaid judgment, but in the case in hand, we do not find any circumstances providing fraud, undue influence, mis- representation etc. on the part of OP. Letter dated 10.5.2010, appears to be in the handwriting of complainant himself and no protest was made till encashment of cheques. In such circumstances, aforesaid citation does not help to the petitioner. He has also placed reliance on decision of this Commission in R.P. No.4275 of 2007 decided on 11.1.2008 in which it was held as under :-
// 21 // "5. The complainant has submitted in his complaint that after 7 days of receipt of Rs.3,45,968, the complainant had approached the Insurance Company (O.P.1) and demanded the balance amount which was declined and he was asked to approach O.P.2. He further submitted that since the entire stock was burnt and because of financial crisis and heavy loss of interest, the complainant was constrained to sign on the discharge voucher, which was in a printed format. Therefore, he had no option but to file a complaint for the balance amount. This, we feel is an act of coercive bargaining indulged in by the Insurance Company. A distressed insured person, who has lost all mans of earning his livelihood in a catastrophic fire, has no other choice but to accept any amount as an initial payment in the first instance."
10. Facts of aforesaid case are different from the facts of case in hand. In the aforesaid case printed discharge voucher was signed by the complainant under compelling circumstances and the complainant approached Insurance Co. just after 7 days of receipt of payment whereas in the present case, complainant as given letter in his own handwriting and notice has been given after 50 days of letter dated 10.5.2010 for final settlement."
27. In the case of M.L. Spinners Pvt. Ltd. vs. United India Insurance Company Limited, II (2014) CPJ 692 (NC), it is observed by Hon'ble National Commission thus :-
"12. In Bhagwati Prasad Pawan Kumar v. Union of India, II (2007) CLT 293 (SC) = III (2006) ACC 1 (SC)=IV (2006) SLT 771 = (2006) 5 Supreme Court Cases 311, Apex Court has observed :-
// 22 // "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 7.4.1993. 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 non-acceptance must be conveyed before the cheques are encashed. If the 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 // 23 // 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."
28. In Natraj Handlooms Pvt. Ltd. vs. New India Assurance Co. Ltd. II (2015) CPJ 214 (NC), Hon'ble National Commission has observed thus :-
"8. .....................
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 complainant, with intention of causing the complainant to enter into any settlement.
Mere financial hardship of the complainant, in our view does not constitute 'coercion' as defined in Section 16 of the Indian Contract Act. Nothing prevented the complainant company from approaching this Commission instead of entering into a settlement with the Insurance Company and in such a complaint the company could have sought an interim relief based upon the preliminary report of the Surveyor. Such a course, however, was not adopted and the complainant company chose to settle the claim for a substantial amount of Rs.65,40,926.
9. The only reason given by the complainant company for giving consent to the settlement of the claim for Rs.65,87,847 is that it was in // 24 // financial difficulty on account of the losses sustained in the fire and the wedding of the daughter of its Managing Director was to take place in December, 2008. However, the complainant has not produced its account books and balance sheets to prove that the complainant company was in financial difficulties at the time the consent letter dated 24.11.2008 was given by it to the Insurance Company. In the absence of the requisite documentary evidence it is not possible to accept the claim of the complainant company that it was in financial difficulty at the relevant time and, therefore, had no option but to give the aforesaid consent. Had the complainant company submitted its balance sheets including the list of its assets and liabilities at the relevant time only then this Commission could have known whether it was really in a financial difficulty at the time the letter dated 24.11.2008 was given by it to the Insurance Company, or not. No explanation has been given by the complainant company for not producing the aforesaid documentary evidence before this Commission. Therefore, an adverse inference needs to be drawn against the complainant company that had the account books, audited balance sheets, etc., of the complainant company been produced, before this Commission, the same would not have supported the case as set out in the complaint."
29. According to the appellant (complainant) she received the cheques on 09.05.2003, whereas the letter was sent by her to the respondent (O.P.) on 22.05.2003 i.e. after near about 12 days from the date of receipt of the cheques.
30. In the instant case, there is no material or evidence on record from which it could be held that the respondent (O.P.) (Insurance Company) was in a position to dominate the Will of the appellant (complainant) and // 25 // used that position to cause undue influence upon appellant (complainant). There is no evidence that the mental capacity of the appellant (complainant) was temporarily or permanently affected by reasons of age, illness or mental or bodily distressed. The appellant (complainant) did not make allegation that any fraud was committed by the respondent (O.P.) (Insurance Company). Even there is no allegation regarding misrepresentation, therefore, on the basis of document Annexure A-15 which is letter dated 22.05.2003, it cannot be presumed that the appellant (complainant) received the amount under need. If the appellant (complainant) would have received the above amount under protest or under coercion or under undue influence given by the respondent (O.P.), then the appellant (complainant) would have immediately sent letter to the respondent (O.P.) regarding receiving the amount under protest. Therefore, we are of the firm view that the appellant (complainant) having voluntarily accepted a sum of Rs.30,09,656/- and Rs.8,93,086/- from the respondent (O.P.) in full and final settlement of her claim, therefore, the appellant (complainant) has stopped from claiming any further amount from the respondent (O.P.) in respect of claim in question.
31. Therefore, the basis of Circular No. IRDA/NL/CIR/Misc./173/09/2015 dated 24.09.2015 and Circular No. IRDA/NL/CIR/MISC/113/06/2016 dated 08.06.2016 issued by Insurance Regulatory and Development Authority, it cannot be held that the // 26 // respondent (O.P.) committed any deficiency in service. The appellant (complainant) is not entitled for getting any more amount than he received from the respondent (O.P.). The appellant (complainant) received the amount with her free consent, free will and without undue influence given by the respondent (O.P.), therefore, the appellant (complainant) is not entitled for the amount, as prayed by her in the complaint
32. Therefore, the impugned order dated 18.07.2013, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
33. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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