Torrent Cables Ltd vs NEW INDIA ASSURANCE CO. LTD.

PRESENT appeal has been filed by appellant/complainant challenging order dated 19.04.2011, passed by Consumer Disputes Redressal Commission, Ahmedabad (for short as ''Consumer Commission '') vide which Complaint filed by appellant was rejected. Along with this appeal, an application for condonation of delay has also been filed.

BRIEF facts are that appellant is a company engaged in the manufacturing of Penicillin-G and other allied products. Appellant obtained Marine-cum-Errection Sterage-cum-Errection for the period of eighteen months including four months testing period from 10.1.21994 to 18.07.1995 from respondent/opponent company. Appellant placed an order for supply of imported Diesel Generating sets from Czech Republic for their factory and for that purpose it appointed Express Transport Pvt. Ltd. as its clearing and shipping agent. After the Diesel Generating Sets had landed at Vadala, clearing agent entrusted the same to transporter M/s Adarsh Parivahan for the purpose of transportation and carriage to Masar. The aforesaid consignment was received by the appellant in badly damaged condition. Therefore, clearing and shipping agent on behalf of the appellant, lodged claim with the transport company. Appellant later on, came to know that the aforesaid Diesel Generating Sets had toppled out during transit and thereafter it was transshipped in damaged condition. Appellant intimated to the respondent about these facts and lodged a claim with it. Respondent appointed R. D. Engineer and Co. as a Surveyor, who visited Masar for inspection of damage to Diesel Engine and found the same in broken condition. Respondent, further appointed P.C. Gandhi and Associate as a joint Surveyor. Appellant supplied all the relevant documents to them. Thereafter, appellant agreed for the net loss of Rs. 51,89,298/- as full and final assessed amount, as per Surveyor report against claim lodged for Rs. 57.60 lacs. However, respondent instead of releasing the claim amount of Rs. 51,89,298/-, issued a loss voucher, dated 17.11.1999 for Rs. 40,66,571/- on non standard basis without stating the reason as to how it has treated the claim on non standard basis. Thus, respondent has withheld the appellant ''s claim of Rs.13,55,524/-, without any valid reason. Accordingly, consumer complaint was filed before the State Commission. As per written reply, the defence of respondent is that, appellant has put its signatures on the discharge voucher "for full and final settlement ". As such, present complaint is not maintainable. The appellant accepted the amount without any protest or pressure nor there is no allegation or proof of any undue influence. The appellant had accepted the amount offered by the respondent under policy, with open eyes. Thus, there is no deficiency on the part of the respondent.

STATE Commission, vide impugned order dismissed the complaint of the appellant.

AGGRIEVED by the order of the State Commission, appellant has filed this appeal. We have heard learned counsel for the parties and have gone through the record.

SINCE , there is a delay of only seventeen days in filing of the appeal, for the reasons mentioned in the application, we condone the delay.

COMING to the merits of the case, it is contended by learned counsel for the appellant that State Commission did not consider the survey report of the Surveyor, who was appointed by the respondent, in which he has assessed the claim as Rs. 51,89,298/-. Respondent after long delay of more than five years offered the claim of Rs. 40,66,571/- on non standard basis without stating any reason. Appellant had to per force accept the amount computed on non standard basis, as appellant needed the money. On the other hand, it is contended by learned counsel for respondent that appellant accepted the amount without any protest and now he cannot turn around. Moreover, appellant has also filed a Civil Suit on the same cause of action.

IN this case, no allegation whatsoever with regard to any fraud, coercion etc. has been made in the complaint. There is nothing on record to show that respondent had put any pressure on the appellant to settle the claim at the lesser amount. As per material available on record, appellant has accepted the amount offered by the respondent without any protest.

STATE Commission in its impugned order observed; "The statements of the parties, and on consideration of documentary evidences on record I am of the opinion that, the dispute between the parties is as stated in English is in too Narrow Compass and as per my opinion only one important question is required to be decided that, the complainant has accepted an amount of Rs. 40,66,571/- whether the said amount has been accepted as full and final settlement or not ? or has accepted the said amount under protest and have kept the rights reserved for the rest of the amount and on page nos. 86 and 87 of the main file of the complaint there is Xerox copy of the voucher in respect of the payment of Rs. 40,66,571/- made to the complainant and there the words in the voucher that, "In full satisfaction of our claim " and under which there is signature of Shri S. M. Shah, Managing Director of the complainant company and under the said voucher, it has not been endorsed by the Managing Director of the complainant company that he is accepting the aforesaid amount with objection and the date of voucher is 17.11.1999 and it has been found from the record that, thereafter the complainant has filed the original petition No. 177/2000 before the Hon ''ble Commission and prior to that if any letter written to the opponent insurance company that as day to day the economical condition of his company getting weaker and as they have been referred before B.I.F.R. he is accepting the amount and for the rest of the amount keep his claim reserved and now first of all the party statement which has been made accordingly in the complaint that as per my opinion as stated in English is the afterthought and the Managing Director of the company, at the time of signing the voucher has read the words written in the voucher and it cannot be believed that, the person like Managing Director of the company has accepted the amount under any forcible circumstances and therefore, I am of the clear opinion that, as the complainant has accepted the aforesaid amount towards the full and final settlement, the said complaint is not maintainable and only for such reason is required to be rejected ".

The law on this subject has been clearly laid down by Hon ''ble Supreme Court of India in United India Insurance Co. Ltd. v. Ajmer Singh Cotton and General Mills and Others, II (1999) CPJ 10 (SC)=VI (1999) SLT 590=(1999) 6 SCC 400, in which it has been laid down 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. The Court 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 ".

THUS , question which arise for consideration as to whether discharge voucher executed by the appellant had been obtained by fraud, misrepresentation, undue influence or like coercive bargaining compelled by circumstances.

THERE is nothing on record to show that appellant was compelled by the respondent at any stage to settle the claim at lesser amount than the claim made by it. In the entire complaint, it has nowhere been pleaded as to which official of the respondent misrepresented or exercised undue influence or compelled appellant to enter into coercive bargaining. There is not an iota of evidence on record to show that any official of the respondent compelled the appellant to settle the claim at lesser amount. It would be pertinent to note that as per discharge voucher, appellant has given full consent for receiving a sum of Rs. 40,66,571/-. Interestingly, appellant after receiving the cheque, got it encahsed as far as back in the year 1999. Thus, for last twelve years, appellant had been using that money. If appellant had received the said amount under duress, coercion or pressure, it would not have got the cheque encashed but would have returned the same to the respondent forthwith, alongwith its protest. Appellant after enjoying the above money for more than twelve years, now wants to repudiate the discharge voucher duly signed by it. This clearly shows the malafide intention on the part of the appellant in filing the present complaint. Thus, the present appeal is wholly misconceived and the same is meritless. It has been filed just to waste the time of this Commission. Accordingly, we dismiss this appeal with costs of Rs. 20,000/-( Rupees Twenty Thousand only).

APPELLANT 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 appellant shall be liable to pay interest @ 9% p.a., till realization. Pending application stands disposed of.

LIST on 7th September, 2012 for compliance. First Appeal dismissed.