NEW INDIA ASSURANCE COMPANY THROUGH ITS OFFICER INCHARGE vs N.K.Singh

THIS is an appeal against the judgment and order dated 1.6.1999 passed by District Consumer Forum-II, Lucknow in Complaint Case No. 983/98.

THE facts of the case stated in brief are that the complainant got his car insured for Rs. 1,60,000/- on 15.10.1997 which was stolen on 18.11.1997. A sum of Rs. 1,40,000/- has been settled and paid by the Insurance Company on 9.3.1998. It is further alleged that hardly a sum of Rs. 1,000/- could have been deducted from the value of the car as the car was stolen only after one month of its purchase. THE complainant has prayed for further amount of Rs. 19,000/-. The opposite party in its written version has alleged that the Surveyor has recommended for payment of Rs. 1,60,000/- after making deduction of 10% amount. He also said that the market value of such a car is only 1,40,000/-. The complainant has accepted the payment of Rs. 1,40,000/- in full and final settlement and has already encashed the cheque.

The learned District Forum, after considering the case of the parties, came to the conclusion that the complainant is entitled to get sum of Rs. 21,000/- alongwith interest at the rate of 18% per annum. This amount of Rs. 21,000/- included a sum of Rs. 1,000/- as cost and Rs. 1,000/- as compensation. The learned District Forum has also directed that if the amount was not paid within three months then the interest shall run to 2% per month.

AGGRIEVED against the order of the learned District Forum, the appellant has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsels for the parties. The learned Counsel for the appellant has argued that the insured has accepted the amount of Rs. 1,40,000/- which was sent to him by cheque, therefore, he is not entitled to any further amount.

A perusal of the record will go to show that the complainant has accepted the cheque in full and final settlement of the claim. A photocopy of the receipt dated 9.3.1998 will go to show that the amount has been received by the complainant from the New India Assurance Company Limited, Lucknow as full and final settlement of all the claim under the policy in dispute with respect to the Vehicle No. UP-32M-2301 Make Maruti Model 1995. It is also mentioned that it has been settled on total loss basis, subject to realisation of the account payee cheque. In view of this declaration given by the complainant, it is clear that the complainant had received the entire amount in full and final settlement of the claim. Even in the written statement, it has been alleged that the amount of Rs. 1,40,000/- has been paid towards full and final settlement of the claim with regard to the vehicle in question and hence the present case is not maintainable. A copy of that written statement is on record filed by the opposite party. We have also seen the report of the Surveyor filed by the opposite party. In the case of United India Insurance Company v. Ajmer Singh Cotton and General Mills & Ors., II (1999) CPJ 10 (SC), the Hon''ble Supreme Court has held that 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 satisfied the Authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, 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 estopped 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 insurance 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. A copy of the complaint is on record but we do not find any such allegations being made with the complaint. In para 7 of the complaint, it is alleged that the opposite party has paid only Rs. 1,40,000/- in spite of the fact that the Maruti car was insured for Rs. 1,60,000/-. It has also been mentioned in the complaint that at the time of theft of the Maruti van, it was a new vehicle purchased only a month back. In the entire complaint the facts entitling the claimant to claim compensation as has been mentioned above in the judgment of the Hon''ble Supreme Court, have not been alleged or perused. Therefore, the complainant cannot be allowed to file any complaint for recovery of any amount when he accepted the amount of Rs. 1,40,000/- in full and final settlement of the claim. Thus the order passed by the learned District Forum is not correct and liable to be set aside. Order

THE appeal is allowed. THE judgment and order of the learned District Forum are set aside. THE complaint is dismissed. THE party shall bear their own cost.

LET copy be made available to the parties as per rules. Appeal allowed.