Bsl Ltd vs NATIONAL INSURANCE CO LTD

PRESENT appeal has been filed by Appellant/Complainant against impugned order dated 20.12.2013, passed by State Consumer Disputes Redessal Commission, Rajasthan, Jaipur (for short, ''State Commission'').

BRIEF facts are that, appellant had "Export Marine Insurance Policies" for Rs.70cr and Rs.20cr, for the period 01.07.2004 to 30.6.2005 and for Rs.70cr and Rs.40cr for the period 01.07.2005 to 30.06.2005. Appellant issued six different invoices to Hyman Brickle and Sun Ins., USA and sold total 25,035.90 yards clothes having insured value of Rs.64,91,282/ - and invoice value Rs.58,21,230/ -(US Dollar 1,34,117). The said goods were dispatched to R. Nicolas Distributors, I.N.C. Canada. However, the said goods were damaged/affected/effected on the way.

RESPONDENTS /Opposite Parties appointed surveyor for assessment of the loss. Preliminary surveyor assessed the loss of appellant company at Rs.61,57,791/ - (1,40,781.69 U.S. Dollars) and final survey accepted the claim for Rs.51,24,874.50P (US$ 1,17,166.77). Respondent No.1 assessed the claim of Rs.47,62,567/ - having made deductions out of the amount assessed by the final surveyor. However, respondents made the payment of Rs.24,18,550/ - only to the appellant, which amounts to serious deficiency in services on the part of the respondents. Hence, respondents be ordered to pay the remaining amount of Rs.41,34,377.34P, having deducted Rs.24,18,550/ - already paid, out of the actual loss suffered by the appellant i.e. Rs.65,52,927.34P, along with interest @ 18%. Respondents No.1 and 2 in their reply stated, that sum of Rs.24,18,550/ - has already been paid to the appellant towards full and final settlement. The surveyor had suggested re -processing of damaged goods, but whole goods were reprocessed without informing the surveyor. Therefore, appellant is not entitled to get any other amount.

THE State Commission, while deciding the consumer complaint in the impugned order observed; "Opposite Party has satiated insured amount under full and final settlement. Complainant wants to get amount in addition to this. Therefore, the said case does not pertain with the jurisdiction of the Commission. Therefore, complainant should have filed suit in the court enjoying competent jurisdiction.

In addition to this, several complicated issues involved in the complaint that out of the goods exported/despatched by complainant i.e. 25,035.90 yards, how much cloth was sold in proper condition, how much goods/cloth was returned, what is the value of returned goods, what is the value of goods sold, which can be found out through detailed evidence only. Therefore, in such situation too, it is justifiable to send the complaint in the court enjoying competent jurisdiction allowing exemption of limitation.

Order Therefore, complaint of complainant is disposed of accordingly that complainant would before to file his complaint in the court enjoying competent jurisdiction. Complaint is disposed of accordingly."

HENCE , this appeal.

WE have heard the learned counsel for appellant and gone through the record.

IT is submitted by learned counsel, that State Commission did not take into consideration the survey reports which are determining factor. Moreover, claim of appellant was liable to be adjudicated under the Consumer Protection Act. Therefore, State Commission had the jurisdiction to adjudicate upon the present dispute and no further evidence was required for the same.

IT is further submitted, that State Commission ought to have taken into consideration that appellant could not be held liable due to the failure of the surveyor, appointed by the respondents themselves, to inspect the complete fabric.

LASTLY , learned counsel submits that payment was received by the appellant under protest. However, thereafter vide letters dated 16.11.2006 and 20.11.2006, appellant requested respondents to look into the matter again. But no reply was received from them. Thus, protest was made by appellant well within time and there was no full and final settlement of the appellant''s claim. In support, learned counsel relied upon following judgments; National Insurance Company Ltd. Vs. Sehtia Shoes, 2008 5 SCC 400;

United India Insurance Vs. Ajmer Singh Cotton and General Mills and Ors,, 1999 AIR(SC) 3027;

Rugs India (100 percent EOU) Vs. M/s ICICI Lombard General Insurance Co, (R.P. No. 2874 of 2012) decided by this Commission on 13th November, 2013 and M/s Bhagwati Prasad Pawan Kumar Vs. Union of India, (Civil Appeal No. 150 -151 of 2001) decided by Hon''ble Supreme Court on 25.5.2006.

SHORT question which arise for consideration is as to whether discharge voucher signed by the appellant was in pursuance of full and final settlement of appellant''s claim or not.

IN this regard, letter dated 3.11.2006 (copy on page no.71 of the paper book) sent by respondents to appellant, is a relevant document which state; " As already informed to you your above claim has be approved by the competent authority for an amount of Rs.24,18,550/ -(Rupees twenty four lacs eighteen thousand five hundred and fifty only). I had visited you on 18.10.2006 and also had a meeting with Sh. M.D. Gagrani, President when I had shown the entire calculation of the approved claim amount. You had informed me that after some discussions with your senior management you would send us the claim discharge voucher so that we could hand over the claim cheque. I had again enquired from you on 27.10.2006, when you informed me that the matter should be decided upon by 31.10.2006. I have received no further communication. I am sending the Claim Discharge voucher once again. Please send both the copies duly signed after affixing revenue stamp so that we can release the cheque immediately."

IN response, appellant signed the discharge voucher in "full and final settlement of its claim". In addition, appellant wrote letter dated 16.11.2006 to the respondents stating therein; "We are in need of funds, therefore you are requested for arrange to release claim amount at the earliest."

Further, appellant requested respondents to look into certain points as raised in the above letter, while admitting that there was mistake on the part of appellant stating that; "This mistake was committed only due to oversight, therefore looking to our business relations you are requested for consider this aspect in proper business manner instead of taking it as a mistake at our end and deducted entire claim amount of the said invoice. However, we would like to mention here that claim amount of this invoice, may be release on substandard basis for submitted revised declarations."

RESPONDENTS by sending letter dated 3.11.2006, explained their stand clearly to the appellant who after understanding the contents of the letter, signed the discharge voucher. Therefore, it cannot be said by any stretch of imagination, that respondents had put any pressure, force or coercion upon the appellant, to sign the discharge voucher.

BE that as it may, after signing the discharge voucher, appellant unconditionally accepted the sum of Rs.24,18,550/ -. Thereafter, appellant remained silent for more than one year and seven months. Then all of a sudden in June, 2008, appellant filed the consumer complaint. Appellant has not explained, as to why there was delay of about 19 months in filing the complaint.

LAW on this subject has been clearly laid down by Hon''ble Supreme Court of India in United India Insurance Vs. Ajmer Singh Cotton and General Mills and Ors. in which the Court observed 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 stop 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 against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.

In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints".

IN Bhagwati Prasad Pawan Kumar in which Hon''ble Apex Court 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 74.1993. 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.

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".

IN the present case, there is nothing on record to show that appellant was even compelled by respondents at any stage, to settle its claim at a lesser amount. There is also not an iota of evidence on record, to show that any official of respondents compelled the appellant to settle the claim at lesser amount. Interestingly, appellant after having received the sum of Rs.24,18,550/ -as early as, on 16.11.2006, i.e., more than eight years ago has been enjoying the aforesaid money. Thus, appellant wants to "have the cake and eat it too." Now appellant wants to repudiate the discharge voucher duly signed by it. This clearly shows malafide intention on its part, in filing the consumer complaint. Once appellant had received the amount unconditionally and also got the cheque encashed, under these circumstances, appellant cease to be a ''Consumer'' as per the ''Act''. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment appellant accepted the discharge voucher of its claim unconditionally and got the cheque encashed.

THERE is nothing on record to show, that order passed by the State Commission is erroneous or there is any illegality in the same. The present appeal being without any legal basis is meritless, so the same stand dismissed with cost of Rs.10,000/ -(Rupees Ten Thousand only).

APPELLANT is directed to deposit the cost by way of demand draft in the name of "Consumer Legal Aid Account" of this Commission within four weeks from today.

IN case, appellant fails to deposit the said cost within the prescribed period, it shall also be liable to pay interest @ 9% p.a., till realization.

LIST for compliance on 29th May, 2015.