Avon Automobiles vs NATIONAL INSURANCE COMPANY LTD

BOTH these revision petitions are being disposed off by this common order arising out of common order dated 6.9.2011, passed by State Consumer Disputes Redressal Commission, Panchkula( for short " State Commission " ) in First Appeals No. 692 and 698 of 2005.

BRIEF facts are that petitioner/complainant deals in spare parts of Jeep, Car etc. Smt. Usha Rani is its Proprietor. Petitioner purchased a shop keeper policy, vide policy cover No. 910169, w.e.f. 29.01.2002 to 28.01.2003 from respondents/OPs. On the intervening night between 04/05.4.2002, a fire broke out due to sparking of the electricity wires in the premises of petitioner. As a result of which spare parts and furniture lying in the shop were totally damaged. FIR to this effect was lodged with Police Station and intimation to this effect was also given to the respondents, which appointed Sh. Avnish Sharma, Surveyor to survey the loss suffered. It is submitted that petitioner visited several times and requested respondents to settle the claim but all in vain. On 11.01.2003, petitioner got served a notice through counsel asking respondents to pay an amount of Rs. 5,82,000/- on account of damage caused to the stocks, furniture and fixtures, which were destroyed in the fire. On 21.1.2003, respondents informed that they had approved the claim for Rs.1,68,270/-. Respondents further stated that this amount of Rs.1,68,270/-would not be paid until and unless, petitioner executes a voucher as prescribed by it. In this way using coercive, bargaining and undue influence and compelled by the circumstances, respondents got executed a voucher-allegedly a consent letter from the petitioner. It was only then amount of Rs.1,68,270/- were paid to the petitioner. However, it was not the amount of full and final settlement. The aforesaid amount was received by the petitioner under protest, coercion and duress. Petitioner is entitled to recover the remaining amount of Rs. 4,31, 730/- along with interest @ 18% per annum from the date of incident.

RESPONDENTS in its written statement took the plea that petitioner gave its free consent for full and final settlement amount of the claim. Accordingly, respondents released the cheque No. 837983 dated 21.1.2003, for Rs. 1,68,270 as per the surveyor report and as per the terms and conditions of the insurance policy. The claim amount was settled and approved and petitioner also gave her free consent to this full and final settlement and had also got enchased the cheque amount issued in her favour. Now, petitioner has no legal right to re-agitate the mater by way of present complaint. So, there was no deficiency in service on the part of the respondents.

DISTRICT Consumer Forum, vide its order dated 10.3.2005, accepted the complaint. Dissatisfied with the compensation awarded by the District Forum, petitioner filed an appeal for enhancement. Respondents also filed an appeal but for dismissal of the complaint.

STATE Commission vide impugned order, accepted the appeal of the respondents/Insurance Co., whereas appeal of petitioner/complainant was dismissed.

WE have heard the learned counsel for the petitioner and have gone through the record. It is contended by learned counsel that petitioner suffered huge loss on account of damage caused due to fire. Respondents unilaterally, illegally and arbitrarily approved the settlement of the claim for a meager amount of Rs.1,68,270/- against claim of Rs.5,82,400/-as demanded by the petitioner. Petitioner had received the disputed amount of Rs.1,68,270/- under protest which was a decision of the petitioner taken under compelling circumstances, duress and coercion inflicted by the respondents.

IT is further contended that impugned order is not in consonance with the ratio laid down by Apex Court and this Commission, in Catena of cases. In support, learned counsel has relied upon the following judgments; (i) Noor Ali Vs. National Insurance Company Limited ( 2009) 17 Supreme Court of Cases 565; (ii) New India Assurance Co. Ltd. Vs. Pardeep Kumar IV (2009) CPJ 46( SC) ; (iii) Singureddy Ramana Murthy Vs. National Insurance Co. Ltd. and Ors. I (2003) 37 (NC) ; (iv) United India Insurance Vs. Ajmer Singh Cotton and General Mills and others (1999) 6 Supreme Court Cases 400; (v) Umedilal Aggarwal Vs. United India Assurance Co. Ltd. II (1992) CPJ 451 (NC) and (vi) M/s Padmasri Tobacco Co. Vs. New India Assurance Co. Ltd. II (2002) CPJ 96(NC).

THE law on this subject has been clearly laid down by Hon ''ble Supreme Court of India inAjmer Singh (supra), in which it was held that, discharge voucher though signed as ''full and final '' may not be treated as final if the consumer can satisfy the Court that it was obtained through undue influence fraud or misrepresentation. Hon ''ble Court has observed: "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 (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. There mere execution of discharge voucher and acceptance of the insurance would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier ".

Statecommission in its impugned order observed; "It is contended by the learned counsel for the respondents-opposite party that the complainant had received the amount of Rs. 1,68,270/- from the opposite party. Learned counsel for the appellant has placed on record Ex. R-17 discharged certificate, which is reproduced as under:- '' National Insurance Co. Ltd. '' Claim Discharge Voucher Memo No. ______________ Date: 23.01.2003. Claim No. 48/98/02/02 Policy No. 9806733. Received a sum of Rupees one Lac Sixty Eight Thousand Two hundred and seventy only towards full and final settlement of the claim of damage dated 4/5-4-2002 caused to the shop in the fire incident dated 4/5-4-2002. I give my full consent for receiving the said claim amount . Rs. 168270/- Sd/- 23.01.2003 The complainant admits that she had received a cheque of Rs. 1,68,270/-. It is specific case of OP that a sum of Rs. 1,68,270/- was paid towards full and final settlement which was accepted by the complainant and cheque encashed, which fact had not been denied by the complainant. Having considered the facts and circumstances of the case that the complainant had agreed to accept the amount of Rs. 1,68,270/- from the opposite party as full and final settlement. It is well settled law that once the claim has been accepted by the claimant without any objection, thereafter, the claimant cannot be allowed to reopen his claim seeking any further relief. There is no evidence on behalf of the complainant that any fraud or misrepresentation or coercive method was adopted by the Insurance Company and as such the complainant is not entitled for any further compensation. Admittedly, the complainant has agreed to accept Rupees !,68,270/- as full and final settlement and therefore question of any pressure tactics by the opposite party upon the complainant does not arise. The District Consumer Forum has not appreciated the facts of the present case in its true perspective and committed error in allowing the complaint. As a sequel to our aforesaid discussions, appeal bearing No. 698 of 2005 is accepted, impugned order is set aside and the complaint is dismissed. Appeal bearing No. 692 of 2005 filed by complainant is dismissed ".

THUS , question which arise for consideration as to whether discharge vouchers executed by the petitioner were obtained by fraud, misrepresentation, undue influence or like coercive bargaining compelled by circumstances.

THERE is nothing on record to show that petitioner was compelled by the respondents at any stage to settle the claim at lesser amount than the claim made by her. In the entire complaint, it has nowhere been pleaded by the petitioner as to which official of the respondents misrepresented or exercised undue influence on her or compelled her to enter into coercive bargaining. There is not an iota of evidence on record to show that any official of the respondents compelled the petitioner to settle the claim at lesser amount. Discharge voucher as reproduced above, does not depict that the same was obtained by the respondents from petitioner under coercion or duress. It would be pertinent to note that as per discharge voucher, petitioner has given full consent for receiving a sum of Rs. 1,68,270/-. Interestingly, petitioner after receiving the cheque and having encahsed the same as far as back in the year 2003, is using that money till date. Had petitioner received the said amount under duress, coercion or pressure, she would not have got the cheque encashed but would have returned the same to the respondents forthwith alongwith her protest. After enjoying the above money for more than nine years, now petitioner wants to repudiate the discharge voucher duly signed by her. This clearly shows the malafide intention on the part of the petitioner in filing these complaints. None of the judgments cited by learned counsel are applicable to the facts. Moreover, as per Ajmer Singh (supra) in the present case, there has been no coercion or compulsion which compelled the petitioner to sign the discharge voucher. Petitioner ''wants to have the cake and eat it too '', which however is not permissible under the law.

ACCORDINGLY , these petitions are wholly misconceived and are meritless. These have been filed just to waste the time of this Commission. Hence, these petitions stand dismissed with costs of Rs. 10,000/-( Rupees Ten Thousand only) each.

PETITIONER is directed to deposit aforesaid costs of Rs. 20,000/- (Rupees Twenty Thousand ) by way of demand draft in the name of "Consumer Legal Aid Account ", within four weeks from today. In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization.

PENDING application stands disposed of.

LIST on 31st August, 2012 for compliance.