United India Insurance Company Limited vs K.Venkatappa

IN this appeal, the short point for consideration is as to whether the order passed by the District Forum can be found fault with.

IT is noticed that the complainant had insured his vehicle with the opposite party for a sum of Rs. 2,50,000/-. The insurance was covered for theft, among other things. In fact, it was a comprehensive policy. When it was so, the said vehicle was said to have been stolen on 20.11.1995. he complainant put in his claim on 18.12.1995. IT appears that on a consideration of the claim put in by the complainant, after obtaining the same in the prescribed form, the opposite party settled the claim for a sum of Rs. 1,87,000/-. The complainant is shown to have given a receipt for the said amount in full and final settlement of the amount due. However, the complainant was not satisfied with the amount which was actually given to him. He therefore approached the District Forum. The complaint was resisted by the opposite party.

The opposite party, among other things, took up the contention that the complaint is not maintainable having regard to the fact that the complainant had already received the amount in full and final settlement of the amount payable with reference to the cause of action. The District Forum, however, did not accept the contention raised by the Insurance Company and allowed the complaint by directing the opposite party to pay an amount of Rs. 63,000/- together with interest at 12% p.a. from 31.12.1997 till payment, of course, in addition to the amount which was received by the complainant by way of settlement. Hence the instant appeal by the opposite party.

THE main thrust of the submission made by Mr. Venkatesh, the learned Counsel for the appellant, is that the complainant-respondent is not entitled to claim anything more than what was said to be amicably settled between the parties regarding truck discharge voucher is given by the complainant. In support of his contention the learned Counsel has relied on the decision of the National Commission in New India Assurance Company Limited v. Achhar Kumar Garg, reported in I (1996) CPJ 140 (NC)=1996 NCJ 64. THE learned Counsel also contended that the complainant did not take adequate care to protect his vehicle. THE learned Counsel further contended that there is no reason to doubt the modus operandi adopted while settling the amount. On these grounds, in sum and substance, the learned Counsel Mr. Venkatesh prayed for the setting aside of the order passed by the District Forum. On the other hand, Mr. S.V. Prakash, the learned Counsel for the respondent, contended that the earlier decision of the National Commission has undergone a change in a later decision viz., in the decision of National Insurance Company Limited v. New Bharat Rice Mills, reported in II (1997) CPJ 77 (NC), and it has been held in the decision of the National Commission that it was perfectly permissible for the District Forum to award an amount over and above the one which was agreed upon by the parties.

THE learned Counsel also contended that there was no contention by the other side that there was negligence on the part of the complainant in protecting his property. He therefore submitted that the appeal is liable to be dismissed. We have given our anxious consideration to the submissions made on either side. It will have to be seen as to whether there is. any substance in the contention raised by Mr. Venkatesh that the complainant is not entitled to ask more than the amount which was settled between the complainant and the appellant. In this connection the decision of the National Commission reported in II (1997) CPJ 77 (NC), referred to hereinabove can be looked into. In the said case, at para 5, it is observed as under : "5. We heard Mr. Kishore Rawat, Advocate for the appellant and Mr. Vijay Kishan, Advocate for the complainant and with their help have gone through the records. 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 established that the complainant was coerced to agree to sign the voucher. This Commission had occasion to consider various aspects of the service 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 Limited 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 discahrge voucher was given voluntarily in full and final settlement or he was coerced into. In this case the cheque was released on 22.3.1994 and the complaint itself was filed on or about 2.6.1994. The complainant being in an unequal bargaining capacity had to pay the difference of premium demanded as otherwise the Insurance Company had refused to release the payment of compensation. The view taken by the State Commission that the complainant was coerced to deposit a sum of Rs. 3,46,180/- before the settled amount . was paid to him, is affirmed and the complainant''s conduct established that he never accepted it voluntarily in full and final settlement."

(Underlining supplied)

MR. Venkatesh, the learned Counsel for the appellant, put his finger on the underlined portion in the aforesaid observation of the National Commission. Dilating on the same, the learned Counsel contended that in the instant case, the complainant did not protest after the amount was settled and therefore the decision of the National Commission does not help him at all and the earlier decision of the National Commission will operate. We are not inclined to agree with the learned Counsel for the appellant. It is necessary to say here that the decision of the National Commission will have to be understood in totality. What the National Commission has stated is that having regard to the practice followed by the Insurance Company, not to settle the amount unless the voucher is signed by the insured without protest, it would be unjust to hold that the settlement of the amount by the parties would bar him to claim anything more than what is reflected in the voucher. The National Commission has also stated that it is permissible for him to protest after having taken the amount. It is therefore clear that if the protest can be culled out or can be inferred from the totality of circumstances brought into being on record the claim made by the complainant cannot be denied. The circumstances leading to the filing of the complaint and the averments made in the complaint would warrant a conclusion that the settlement was not without pressure. Therefore, we are of the view that the decision of the National Commission will squarely apply to the facts of this case. Under these circumstances, we have no hesitation to hold that it is perfectly permissible to claim something more than the amount settled between the parties.

IF that be so, the next point for consideration that will have to be seen is as to whether, in the facts and circumstances of the case, the complainant was entitled to something more than what was actually settled between him and the Insurance Company. It is noticed that the sum assured is Rs. 2,50,000/-; the sum settled is for Rs. 1,87,000/-, Mr. Venkatesh, the learned Counsel for appellant, submitted _ that the figure of Rs. 1,87,000/- has been worked out on non-standard basis. '' In the facts and circumstances of the case and the materials on record, which we have gone through carefully, we are of the view that it would be just and proper to fix the amount payable by opposite party at Rs. 2,30,000/-. In our view the order of District Forum deserves to be modified only to the aforesaid extent.

It is noticed that an amount of Rs. 1,87,000/- was already paid by the Insurance Company next before the complaint was filed. Therefore, what is required to be paid by the opposite party is a sum of Rs. 43,000/- together with interest thereon at 12% p.a. from 31.12.1997 till payment.

IT is ordered accordingly. No costs in this appeal. Appeal disposed of.