Sidra Rama Thombare vs UNITED INDIA INSURANCE CO. LTD.

THE issue involved in this case, is whether the complainant after giving discharge voucher for full and final settlement without any protest to the Insurance Company, agitate the matter again before the Consumer Fora nearly 11 months after accepting the amount.

THE case of the complainant in brief is that the complainant purchased a Mahindra Voyager Jeep for Rs. 5,07,000 by obtaining bank finance and was insured with the respondent - Insurance Company. As the said vehicle suffered a major accident, the Insurance Company appointed a Surveyor who had initially assessed the loss at Rs. 3,40,000 and subsequently he scaled it down to Rs. 2,40,000 stating that the market value of the said vehicle had gone down. He also fixed the salvage value at Rs. 50,000, after deducting the salvage value, Rs. 1,90,000 was paid through cheque which was accepted by the Bank as well as the complainant as full and final settlement on 31.7.2001.

SUBSEQUENT LY on 29.6.2002, a complaint was filed before the District Forum praying for balance amount of Rs. 3,16,000 along with interest and compensation. The District Forum awarded Rs. 3,16,000 with 9% interest per annum from 1.7.2002 till the date of payment with Rs. 1,000 as cost. Dissatisfied by the order of the District Forum, the Insurance Company had filed an appeal before the State Commission. The State Commission allowed the appeal mainly on the grounds that there was no protest letter at the time of accepting the amount as full and final settlement and the discharge voucher was executed by the complainant as well as the Mahindra and Mahindra Finance. Further, the complaint was filed after a lapse of considerable period from the date of the discharge voucher. In addition, there was no evidence to hold that discharge voucher was obtained fraudulently or by exercising undue influence. Accordingly, the State Commission set aside the order of the District Forum and allowed the appeal while dismissing the complaint.

DISSATISFI ED by the order of the State Commission, the complainant has filed this revision petition before us.

HEARD the learned Counsel for the petitioner. This revision petition has been filed with a delay of 95 days for which an application for condonation of delay has been filed. The main reasons given in the application is that since the impugned order was passed ex parte, the petitioner was unaware of the said order and came to know of it much latter. The reasons given in this application are not at all convincing. Hence, this revision petition is liable to dismissed on the grounds of delay as observed by the Hon''ble Apex Court in State Bank of Punjab v. B.S. Agriculture Industries (sic), II (2009) CPJ 29 (SC)=II (2009) SLT 793. However, we are not going to dismiss the same on the grounds of delay alone. Hence, we have decided to consider the matter on merits also.

LEARNED Counsel for the petitioner quoted from the revision petition: "can applicant apply for the claim against the Insurance Company even though he had signed the voucher after full and final settlement? Also even though applicant had accepted the insurance amount but in which position applicant had accepted it? Whether applicant is eligible to get the remaining amount of the insurance policy from non -applicant? We feel right to take all these points into consideration. Applicant had accepted the insurance amount of Rs. 1,90,000 under protest. We have to take into consideration that in which position applicant had signed the voucher. While granting the claim of insurance, Insurance Company have not disbursed the amount till customer had signed the valid discharge voucher but customer cannot be allowed to accept the insured amount under protest. So the customers have to accept the amount against his will. Due to financial problem customer accepts the amount against his will, which is very true. We do not feel to consider of non -applicant''s say that applicant cannot claim for remaining amount because he had accepted the amount as full and final settlement and signed on the voucher. For the above conclusion we are willing to show the judgment of National Commission, in National Insurance Co. Ltd. v. New Bharat Rice Mills, II (1997) CPJ 77 (NC), wherein the Commission has held as under. "There is no merit in the first submission of Mr. Rawat that the State Commission erred in entertaining and allowing the complaint as the claim of the complainant was settled for Rs. 40,56,755 for which the complainant had executed the discharge voucher in full and final settlement of the claim. The discharge voucher dated 17.3.1994 does state that it was in "full and final settlement" of the claim, but the facts and circumstances noticed by the State Commission clearly establish that the complainant was coerced to agree to sign the voucher. This Commission had occasion to consider various aspects of the services agreed to be performed by the Insurance Company in pursuance of the contract of insurance in the event of the loss of the risk covered. In First Appeal No. 59 of 1994 National Insurance Company Ltd. v. M/s. Lal Chand Jain and Sons, decided on 8.1.1997, it was ruled that in case where the claim has been quantified and offered, the complainant may have been compelled to give a valid discharge voucher to the Insurance Company who may have coerced the complainant into accepting the settlement of the claim unwillingly or involuntarily. The Insurance Company will not disburse the amount unless discharge voucher in full and final settlement without protest is given by the insured. The complainant may have no option but to accept the amount offered due to financial constraints or other compelling reasons. The insured may lodge a protest immediately on receipt or soon thereafter. The conduct of the insured becomes relevant on the facts of each case to find out whether the discharge voucher was given voluntarily in full and final settlement or he was coerced into."

(Emphasis supplied by us)

THE judgments quoted above do not help the case of the complainant, for the following reasons: The insured has not given any proof to establish that he was coerced to agree and sign the discharge voucher. Further, the insured had not lodged any protest immediately on receipt of the amount or soon thereafter.

IN this case the complainant has given the discharge voucher for Rs. 1,90,000 as full and final settlement on 31.7.2001. There was no protest note attached to the same. Further, no objections were raised protesting against the settlement by sending a communication to the Insurance Company for 10 long months. It is only on 29.6.2002 almost after 11 months the complaint was filed before the District Forum.

NOWHERE there is a mention in the complaint that discharge voucher is executed under fraud or undue influence or misrepresentation of facts etc. Hence, the judgment of the Apex Court in Ajmer Singh Cotton and General Mills and Others v. United India Insurance Co. Ltd., (sic) II (1999) CPJ 10 (SC)=VI (1999) SLT 590=(1999) 6 SCC 400, is relevant, the extract of which is quoted in extenso: "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 life, 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. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop 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 the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorized the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd., shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint."

WE have followed the ratio of the above judgment in FA Nos. 528, 529 and 530 of 2003, in National Insurance Co. Ltd. v. M/s. Vasanthi Marine Foods Ltd., decided on 5.3.2009. In the case under consideration - the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence and the State Commission was justified in dismissing the complaint. Accordingly, we do not see any merit in this revision petition. Therefore it is dismissed. There shall be no order as to cost. R.P. dismissed.