State Consumer Disputes Redressal Commission
Ashok Kumar Agrawal vs Manager The New India Insurance Co.Ltd. on 18 May, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/726
Instituted on : 20.10.2014
Ashok Kumar Agrawal, Age 49 years,
S/o Late Govind Ram Agrawal,
At present R/o : House No.37, Gulmohar Park,
Laxman Nagar, Kota Road,
City, Tehsil & District Raipur (Chhattisgarh) ... Appellant
Vs.
Manager,
The New India Assurance Company Limited,
Divisional Office No.01, First Floor, Madina Manzil,
Kutchery Chowk, Jail Road, Raipur,
City, Tehsil & Distrct Raipur (Chhattisgarh). ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Horilal Chandrakar, for the appellant.
Shri P.K. Paul, for the respondent.
ORDER
DA TED : 18/05/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 22.08.2014, passed by District Consumer Disputes Redressal Forum, Raipur(C.G.) (henceforth "District Forum") in Complaint Case No.266/2013. By the impugned order, the learned District Forum, has dismissed the complaint of the appellant (complainant).
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2. Briefly stated the facts of the case are that the appellant (complainant) is a businessman and he has obtained insurance policy No.450300/31/10/0100008274 for his vehicle bearing registration No.C.G.04-HC-3950. The premium of the policy was Rs.12,643/- and the sum assured was Rs.4,87,296/-. The policy was effective for the period from 06.01.2011 to 05.01.2012. On intervening night of 21-22/04/2011, the vehicle of the appellant (complainant) was stolen by some unknown person from his residence D-15, Sector -1, Raipur. The appellant (complainant) made complaint in Police Station Devendra Nagar, Raipur, where Crime No.58/11 was registered . The Police investigated the matter and tried their level best to search the vehicle and accused, but when they did not trace the vehicle, then Final Report (Khatma Prativedan) No.19/11, was registered by the Police. The appellant (complainant) submitted claim form before the respondent (O.P.) and the respondent (O.P.) paid a sum of Rs.3,46,824/- to the appellant (complainant) and a sum of Rs.1,40,472/- is still payable by the respondent (O.P.) to the appellant (complainant). On 18.04.2013, the appellant (complainant) sent a letter to the respondent (O.P.) for making payment of the remaining amount and on 24.04.2013 the appellant (complainant) sent letter in writing to the respondent (O.P.). On 09.05.2013, the appellant (complainant) sent legal notice to the respondent (O.P.) through Advocate but the respondent (O.P.) did not give any reply thereof. The appellant (complainant) contacted the respondent (O.P.) // 3 // several time for obtaining remaining amount, but the respondent (O.P.) did not pay the same to him due to which the appellant (complainant) suffered mental agony and the said act of the respondent (O.P.) comes within purview of deficiency in service. Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The respondent (O.P.) filed his written statement before the District Forum and averred that the appellant (complainant) left his vehicle unattended in the road outside his house without taking any safety measure. The appellant (complainant) violated the terms and conditions of the insurance policy. The respondent (O.P.) had paid 75% of the Insured Declared Value of the vehicle to the appellant (complainant) i.e. Rs.3,46,824/-. The appellant (complainant) is not entitled for getting remaining insured value Rs.1,40,772/- from the respondent (O.P.).
4. After having considered the material placed before it by both the parties, learned District Forum, dismissed the complaint by the impugned order.
5. The appellant (complainant) filed documents. Document Annexure A-1 is Motor Vehicle Cover Note issued by the New India Assurance Company Limited, Annexure A-2 is First Information Report (Under Section 154 Cr. P.C.), Annexure A-3 is Bank Account details for claim // 4 // payment through ECS/NEFT, Annexure A-4 is Vehicle Enquiry Reort, Annexure A-5 is claim towards insurance and letter of indemnity, Annexure A-6 is Police Investigation Report, Annexure A-7 is Summon from the Court of Judicial Magistrate First Class, Raipur (C.G.) in connection to Crime No.58/11, Annexure A-8 is letter dated 18.04.2013 sent by the appellant (complainant) to The Divisional Manager, The New India Assurance Company Ltd. Raipur regarding balance pay against theft claim of vehicle No.C.G.04.HC-3950, Annexure A-9 is legal notice dated 09.05.2013 sent by Smt. Indrani Chowdhury, Advocate on behalf of the appellant (complainant) to The Divisional Manager, New India Assurance Company Ltd., Raipur (C.G.).
6. The respondent (O.P.) has also filed documents. The documents are Insurance Policy for Vehicle No.C.G.04-HC-3950, Vide Policy No.45030031100100008274 with Private Car Package Policy Condition, Copy of First Information Report (Under Section 154 Cr. PC, Crime Details Form, Claim Note, Discharge Voucher, reply dated 30.04.2013 sent by Shri Pradeep Kumar Paul to the appellant (complainant) in respect to legal notice dated 24.0.2013 sent to the respondent (O.P.).
7. Shri Horilal Chandrakar, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the District Forum, is perverse and contrary to law. The vehicle in question was stolen by unknown person and First Information Report // 5 // was lodged in Police Station Devendra Nagar, Raipur. The miscreant was not identified, therefore, Final Report (Khatma Prativedan) No.19/11 was issued by Deputy Inspector General & Senior Superintendent of Police, Raipur. The Insured Declared Value of the vehicle in question was Rs.4,62,931/-, therefore, the appellant (complainant) is entitled to get compensation to the tune of Rs.4,62,931/- from the respondent (O.P.) but instead of Rs.4,62,931, the respondent (O.P.) only paid a sum of Rs.3,46,824/- to the appellant (complainant) on non-standard basis which is illegal and learned District Forum has wrongly accepted the contention of the respondent (O.P.) and dismissed the complaint. He further argued that the discharge voucher was not executed by the appellant (complainant) voluntarily. The consent of the appellant (complainant) was not obtained by the respondent (O.P.) and the respondent (O.P.) sent a printed form for getting signature of the appellant (complainant) and merely signing the document, it is not sufficient to hold that the appellant (complainant) executed discharge voucher in favour of the respondent (O.P.) in his free will. He placed reliance on judgments of Hon'ble Supreme Court in Security Printing and Minting Corporation of India Limited And Another Vs. Gandhi Industrial Corpn., (2007) 13 Supreme Court Cases 236; M.K. Abraham And Company vs. State of Kerala and Another with Vijay Constructions vs. State of Kerala and Another, (2009) 7 Supreme Court Cases 636, judgments of Hon'ble Commission in National Insurance Co. Ltd. vs. Shrawan Bhati, 2008 (2) // 6 // CPR 305 (NC); United India Insurance Co. Ltd. & Anr. vs. Ravi Kant Gopalka, IV 2007 CPJ 32 (NC); judgment of this Commission in Bajaj Allianz General Insurance Co. Ltd. vs. Santosh Kumar Ratre, 2013 (1) C.G.L.J. 20 (CCC).
8. Shri P.K. Paul, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the District Forum and submitted that it does not call for any interference by this Commission. He further argued that the appellant (complainant) left the vehicle unattended and on the above ground the claim of the appellant (complainant), was allowed on non-standard basis and the appellant (complainant) received the amount in full and final satisfaction of his claim, therefore, he is not entitled to get any further amount from the respondent (O.P.). The impugned order passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality and the appeal filed by the appellant (complainant) is liable to be dismissed.
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
10. In the complaint the appellant (complainant) pleaded that the vehicle in question was stolen by some unknown person when the vehicle was parked in his house, but on the contrary in First Information Report, it is mentioned that the vehicle in question was parked in front of his // 7 // house. It appears that the vehicle was not kept within the residential premises but the vehicle in question was parked outside the house i.e. in road.
11. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has held that "There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (R.P No.643 / 2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (R.P. No.2097), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar, (RP No.3294 / 2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009). There has been a landmark judgment of Hon'ble Apex Court in the matter of National Insurance Company Ltd. v Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard 'basis".
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12. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), Hon'ble Supreme Court has observed thus :
"12. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission"
13. In the case of Baljeet v. United India Insurance Company Limited., 2014 (1) CPR 61 (NC), Hon'ble National Commission has observed thus :
"12. The above issue is no more resintegra. Similar question came up for consideration before the National Commission in the matter of United India Insurance Company Limited Vs. Gian Singh (2006) 2 CPJ 83 (NC) wherein it has been held that in case // 9 // violation of conditions of the policy so as to nature of use of the vehicle, the claim ought to be settled on a non-standard basis.
13. The question whether the insurance company is justified in repudiating the claim of the insured for violation of the terms and conditions of the insurance policy in the case of theft of vehicle came up before the Hon'ble Supreme Court in the matter of National Insurance Company Limited Vs. Nitin Khandelwal (2008) 11 SCC 259, wherein the Hon'ble Supreme Court observed thus :
"In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of settled legal position, the view taken by the State Commission cannot be faulted and the National // 10 // Commission has correctly upheld the said order of the State Commission".
14. In case of M/s New India Assurance Co. Ltd. & anr. Vs. Sh. Ajit Kumar, 2013 (4) CPR 4 (NC), Hon'ble National Commission has held thus :
"6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him. There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at 'C' Block Janakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination. The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of // 11 // the investigator that the complainant unofficially informed him that his car was snatched from the same spot by some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim "sic utere tuo at alienum loedas" - A person is held liable at law for the consequence of his negligence."
15. In the case of Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), Hon'ble Supreme Court has observed thus :-
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC) = 2006 CTJ 221 (CP) ((NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC) = 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held :
"...... The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the // 12 // appellant Insurance Company ought to have settled the claim on non-standard basis."
16. In Royal Sundaram Alliance Insurance Co. Ltd. vs. Sanju Dongre, II (2012) CPJ 197 (NC), Hon'ble National Commission, has observed thus :-
"2. .................. So far as the question whether the complainant himself was negligent by leaving the key in the car, no sufficient proof has been adduced by the opposite party Insurance Company. In our view, therefore, the petitioner Insurance Company was not justified in repudiating the claim on those grounds. At best it could settle and has been directed to settle the claim on non-standard basis........."
17. It appears that the vehicle in question was left unattended by the appellant (complainant) and appellant (complainant) himself is negligent for security of his vehicle. It appears that the appellant (complainant) violated the terms and conditions of the insurance policy, therefore, on the basis of above cited judgments, the appellant (complainant), is only entitled for getting compensation on non-standard basis and the respondent (O.P.) has rightly paid compensation to the appellant (complainant) on non-standard basis i.e. 75% of Insured Declared Value of the vehicle.
18. Now we shall examine whether the appellant (complainant) accepted a sum of Rs.3,46,824/- voluntarily from the respondent (O.P.) ?
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19. In the instant case, the respondent (O.P.) has filed discharge voucher. Learned counsel for the appellant (complainant) submitted that the discharge voucher was not executed by the appellant (complainant) voluntarily. The consent of the appellant (complainant) was not obtained by the respondent (O.P.) and the respondent (O.P.) sent a printed form for getting signature of the appellant (complainant) and merely singing the document, it is not sufficient to hold that the appellant (complainant) executed discharge voucher in favour of the respondent (O.P.) in his free will.
20. In Section 14, 15 and 16 of The Indian Contract Act, 1872 "Free Consent" "Coercion" and "Undue Influence" respectively have been defined. Section 14, 15 & 16 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.
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 // 14 // 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)."
21. 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 // 15 // 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 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."
22. 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 // 16 // 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.
23. 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 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."
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24. 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 :-
"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 // 18 // 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."
25. 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 :-
"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 // 19 // 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 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."
26. 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 // 20 // 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 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, // 21 // etc., of the complainant company been produced, before this Commission, the same would not have supported the case as set out in the complaint."
27. In the instant case, the appellant (complainant) himself pleaded that he submitted his claim before the respondent (O.P.) and the respondent (O.P.) had paid a sum of Rs.3,46,824/- to him. The appellant (complainant) did not plead that he accepted the above amount under protest. Even the appellant (complainant) did not plead that he accepted the above amount under coercion or undue influence given by the respondent (O.P.) or he was in hardship of money. The above amount was paid by the respondent (O.P.) to the appellant (complainant) in the month of October, 2012, whereas the complaint was filed by the appellant (complainant) in the month of July, 2013 i.e. after near about 9 months. 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.3,46,824/- from the respondent (O.P.) in full and final settlement of his claim, therefore, the appellant (complainant) has stopped from claiming any further amount from the respondent (O.P.) in respect of claim in question.
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28. The respondent (complainant) received the amount of Rs.3,46,824/- from the respondent (O.P.) in full and final satisfaction of his claim, therefore, the finding recorded by the District Forum, is just and proper and does not call for any interference by this Commission.
29. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /05/2015 /05/2015 /05/2015 /05/2015