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Judgment
THE complainant in O.P. 276/1998 on the file of the Consumer Disputes Redressal Forum, Alappuzha is the appellant. THE complainant''s case before the District Forum was that he purchased a lorry KL-04-E-717 which was insured with the opposite parties for the period from 16.7.1997 to 15.7.1998 while the vehicle was thus having insurance cover it met with an accident on 12.11.1997. Due to that accident it sustained extensive damage and it was taken to the TVS Company at Ernakulam from where it was removed to TVS workshop at Thiruvananthapuram and towards the repair charges an amount of Rs. 1,21,561/-, the value of spare parts Rs. 9,500/-, and towards towing charge was Rs. 1,000/- has to be incurred. He made a claim, but the opposite parties paid only Rs. 93,381/- and thus the balance amount of Rs. 38,680/- is due from the opposite parties. Though he made repeated demands, they did not comply with the demand. Opposite parties filed version in which they contended that certain parts were subject to depreciation at the rate of 50% and certain other items are excluded, and compulsory excess of Rs. 1,500/- had to be deducted as per the conditions of the policy. It is then contended that the complainant accepted the said Rs. 93,381/- in full and final settlement of the claim and, therefore, it is not open to the complainant to allege any deficiency in service. THEy wanted dismissal of the complaint. On behalf of the complainant Exbts. A1 to A22 were produced, complainant gave evidence as P.W. 1. On the side of the opposite party R.W. 1 was examined and Exbts. B1 to B5 were produced. On a consideration of the said material the District Forum came to the conclusion that as per Exbt. B1 there was full and final settlement of the claim. Consequently the case of the complainant on the basis of deficiency of service was not accepted and thus on the said view dismissed the complaint. THE said dismissal is under challenge in this appeal.
LEARNED Counsel for the appellant strenuously assailed the view of the District Forum that Exbt. B1 would constitute full and final settlement of the claim. He pointed out that the very basis of the finding of the District Forum. that the complainant has no case that he came to sign Exbt. B1 under coercion and fraud is not correct and he pointed out that as a matter of fact the circumstances under which he has affixed his signature having been pleaded in para 11 of the complaint the District Forum ought to have given the weight to the same and the observation of the District Forum to the aforesaid effect cannot, in such circumstance, be sufficient to non-suit the complainant. The learned Counsel for the respondent on the other hand sought to support the dismissal of the District Forum maintaining that except that there is a plea like that in para 11 of the complaint even the complainant did not swear to the same in his examination as P.W. 1, therefore, according to the learned Counsel having regard to the fact that the burden is on the complainant it cannot be said that there was evidence to support the aforesaid case pleaded by the complainant in para 11. Consequently according to the learned Counsel the dismissal cannot be called in question. The short question that arise for consideration in the context of the arguments advanced by the learned Counsel is whether Exbt. B1 voucher would constitute full and final settement of the claim. The Supreme Court had occasion to consider under what all situation such a statement could be challenged at the instance of the insured and the Fora could make appropriate direction if the complainant is successful in establishing the same. In the decision of the Supreme Court in United India Insurance Co. v. Ajmer Singh Cotton and General Mills & Ors. and United India Insurance Co. Ltd. v. Asa Singh Cotton Factory & Ors., in VI (1999) SLT 590=(1999) 6 SCC 400, the Supreme Court considers this aspect in para 4 of the said decision it is stated by the Supreme Court "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".
As has already noted the complainant''s case is that he had to spent an amount of Rs. 1,21,561/- towards the repair of the vehicle. He has also produced Exbts. A7, A8, A9, A14, A15 and A18 receipts. As a matter of fact the main thrust of the defence was that he had executed Exbt. B1 discharge voucher wherein he had stated that he received the said amount in full and final discharge of the claims. It is true, in para 5 of the decision of the Supreme Court, the Supreme Court held that such a discharge voucher cannot be challenged in the absence of pleadings and evidence to the said effect. In view of the above the first question to be looked into is, whether there is plea. The District Forum observes in para 6 of its order that the complainant has no case that he signed Exbt. B1 under coercion or fraud. In para 11 of the complaint the complainant alleges that he is entitled to be paid for the actual loss. Then he proceeds to allege, pursuant to the accident since his economic position was affected and destroyed he had to accept the amount offered by the opposite parties and that over and above that the opposite parties had made him believe that the balance amount would be paid to him later and the complainant was compelled to accept the amount. The allegation in para 11 brings out, pursuant to the accident the complainant''s economic position was such that he had to accept the amount offered by the opposite parties. Adding to that according to him the opposite parties had offered to give the balance and he was prevailed upon to receive the same. If the allegation in para 11 of the complaint is true, the same would satisfy the condition mentioned by the Supreme Court in Ajmer Singh''s case (supra). It is true the complainant as P.W.1 does not swear to the aforesaid ingredients in his evidence; therefore, it could have been said that though there is an allegation there is no evidence. But in the version filed by the opposite parties there is no denial of the aforesaid aspect alleged in para 11 of the complaint. In fact para 11 is not answered except stating in para 7 of the version, the obligation on the policy is fully met with when the settlement of the claim was made for an amount of Rs. 93,381/- and insured has given discharge voucher in full and final settlement of the claim. What is significant to be noted is, even assuming that para 7 of the version is answer to para 11, the allegation in para 11 to the effect that his economic condition was such that he had to accept the offer made by the opposite parties and that they had offered to pay the balance amount, and that he was made to believe as such by the opposite parties is not specifically answered. When the allegation particularly on a question of fact is made unless the same is denied by the opposite party it must be deemed that the same is admitted; under law an admitted fact need not be proved. In such circumstance the allegation in para 11 to the aforesaid effect has to be taken to have been admitted; and if that is so, applying the principle laid down by the Supreme Court in Ajmer Singh''s case, it has to be held that Exbt. B1 being the result of coercive bargaining compelled by circumstances cannot prevent the complainant from making the claim to the effect that the opposite parties are liable to pay the amount that he had to spend towards the repair charges. It is pointed out that the accident was in six months of the purchase of the vehicle. Having regard to the said aspect the view taken by the District Forum cannot be supported. Therefore, the direction has to be made to the opposite parties to pay Rs. 38,680/-, the balance amount which he had to pay towards the repair charges. The appeal has to be allowed.
IN the result the appeal is allowed and the opposite parties are directed to pay Rs. 38,680/- with interest at 12% from the date of the complaint till payment. The opposite parties shall pay the amount within a period of three months from the date of receipt of the copy of this order. IN the circumstance of the case the parties are directed to suffer their costs. Appeal allowed.