The New India Assurance Company Ltd. Vs. M/S. R.B. Traders, Maranda and Another - Court Judgment

Excerpt:
consumer protection act, 1986 - section 12 - trader/respondent no.1 claiming insurance amount - sudden fire broke out in the business premises of respond no.1- he had insured the stock - the insurance company paid only rs.7 lakhs and odd- it was accepted by respondent no.1 under protest- he further claimed balance amount of rs.5 lakhs and odd- district consumer disputes redressal forum rejected the claim of respond no.1- state commission set aside the said order and allowed the claim of the respondent no.1- the insurance company filed the present revision petition - court held, the state commission rightly allowed the claim of the respond no.1 and accordingly dismissed the revision preferred by the insurance company by imposing cost of rs.10,000/- due to anguish. (paras 1, 2, 3, 4, 5, 6, 10, 12, 15) cases referred: i) abhay neelawarne vs. new india assurance company ltd. ii (2008) cpj 261 (nc); (ii) branch manager, new india assurance company ltd. vs. m/s. vimal through its proprietor (revision petition no.1318 of 1998 decided on 27.05.1999 by this commission); (iii) new india assurance company ltd. vs. sushil sharma and another (first appeal no.216 of 2005 decided on 2nd february, 2010 by this commission); (iv) ambica construction vs. union of india, (2006) 13 scc 475 and (v) chairman and md, ntpc ltd. vs. r.c.b. contractors, (2004) 2 scc 663. vi. 창€œunited india insurance company vs. ajmer singh cotton and general mills, (1999) 6 s890cc 400창€?.v.b. gupta, presiding member in this revision petition there is challenge to order dated 1.10.2010 pased by h.p. state consumer disputes redressal commission, shimla (for short, state commission) vide which appeal filed by respondent no.1/complainant was allowed. 2. briefcase of the respondent no.1 is that he is sole proprietor of m/s. r.b. traders maranda p.o. maranda, stock of which was insured with petitioner /opposite party no.1 for a sum of rs.13 lakh.. it is stated that respondent no.1 has cc limit of rs.10,00,000/- with respondent no.2. it is stated that during subsistence of the insurance policy, on 5.3.2006 during night, all of a sudden a fire broke out in the business premises of the respondent no.1 and whole of the stock of the shop got burnt. due information was given to the petitioner and respondent no.2. it is stated that after completing necessary formalities, respondent no.1 submitted his claim before petitioner, who on 29.5.2006 handed over a consent letter to respondent no.1 and asked him to accept a sum of rs.7,72,627/- net loss, as assessed by the surveyor, towards full and final settlement of his claim. upon this, petitioner gave three different consent letters. thereafter, respondent no.1 gave consent letter dated 30.5.2006 and stated that he is ready to accept the claim of rs.7,72,623/- under protest only and will press for rest of the claim of rs.5,27,377/- plus interest. the grievance of respondent no.1 is that petitioner has not paid the insured amount despite the fact that all the stock lying the shop were insured with petitioner for a sum of rs.13,00,000/-. thus, petitioner has committed deficiency in service. 3. petitioner in its written version stated that claim made by respondent no.1 was duly processed, investigated, verified, assessed, approved and paid to him, vide cheque no.242738 dated 27.7.2006 for a sum of rs.7,67,623/-as per consent given in affidavit dated 31.5.2006 after deduction of rs.5,000/- which has been received earlier by respondent no.1 as ex-gratia payment from h.p. govt. since, respondent no.1 accepted the said amount without any protest, there is no deficiency in service on the part of the petitioner. 4. respondent no.2/o.p. no.2 in its reply admitted that respondent no.1 had cash credit limit with it. other averments have been denied. 5. district consumer disputes redressal forum, kangra (for short, district forum) vide order dated 24.3.2009, dismissed the complaint of respondent no.1. 6. being aggrieved, respondent no.1 filed appeal before the state commission, which allowed the same vide impugned order. state commission in its order directed; œthat respondent no.1 is entitled rs.5,27,377/- + interest @ 9% per annum from the date of filing of the complaint, i.e. 20.9.2006 till its payment/deposit, whichever is earlier, besides rs.10,000/- as cost of litigation in both the courts, as well as compensation in this case quantified at rs.50,000/-. likewise respondent no.2 is directed to recast its account statement without charging interest or the amount due on 6/3/2005 till date as it has been held to be deficient in service as also negligent. appeal is allowed in these terms.? 7. hence, this revision petition. 8. we have heard the arguments as advanced by learned counsel for petitioner as well as learned counsel for the respondents. 9. it is contended by learned counsel for the petitioner that claim was settled on the basis of assessment of loss made by the surveyor who after taken into account all the documents and record furnished by the insured has assessed the loss. moreover, respondent no.1 had been associated with the assessment process. it is also contended that respondent no.1 on his own free-will and consent, submitted an affidavit that he is accepting the amount of compensation as offered to him towards the full and final settlement of his claim and in pursuance thereof, he executed the discharge voucher which was signed by him with his free-will and consent, without any undue influence or coercion on the part of the petitioner. under these circumstances, impugned order is liable to be set aside. 10. on the other hand, learned counsel for respondent no.1 contended that respondent no.1 informed the petitioner that he was ready to accept the claim of rs.7,72,623/- under protest and will press for rest of his claim. therefore, signing of discharge voucher by respondent no.1, cannot be said to be without any undue pressure or coercion. in support, learned counsel relied upon the following judgments; (i) abhay neelawarne vs. new india assurance company ltd. ii (2008) cpj 261 (nc); (ii) branch manager, new india assurance company ltd. vs. m/s. vimal through its proprietor (revision petition no.1318 of 1998 decided on 27.05.1999 by this commission); (iii) new india assurance company ltd. vs. sushil sharma and another  (first appeal no.216 of 2005 decided on 2nd february, 2010 by this commission); (iv) ambica construction vs. union of india, (2006) 13 scc 475 and (v) chairman and md, ntpc ltd. vs. r.c.b. contractors, (2004) 2 scc 663. 11.statecommission, while allowing the appeal held; œ9. on the basis of the material on record, we are of the view that the consent to receive rs.7,72,623/-, cannot in the facts and circumstances of this case be said to be the result of free will as well as volition on the part of the appellant. at that point of time his position can be better imagined than explained, looking to the situation in which he was placed. reason being that he was in no win situation. after the fire, his stock-in-trade was completely destroyed. correspondence on the file suggests that as late as on 25.5.2006, appellant was in the dark. this is clearly made out from annexure c.39, letter addressed by the appellant to the respondent no.1. this letter could not be contested on behalf of said respondent. on 30th he was called upon to give consent for the receipt of the said amount. he had specifically written vide annexure c.44, as well as vide annexure c.48 informing the respondent no.1, that he will press for the balance amount as detailed in these communications. we fail to understand that on what basis insurance company is trying to project, that with the payment of above referred amount to the bank, chapter stood closed. 10. basing its defence solely on annexures c.46, c.47, op.1, op.2 and op.3, does not justify the stand of the respondent no.1. no doubt, amount has been paid in terms of the assessment made by shri surinder kumar soni, surveyor as assessed by him in his report, annexure c.28. in our opinion affidavits, annexures c.47 and op.1 cannot be said to be the result of free will and volition on the part of the appellant. reason being that the situation in which the appellant was placed, compelled him per force of circumstances, as well as due to persistence of respondent no.1 to accept what was offered. it is a different matter that despite having given the affidavit, annexure op.1, appellant had on 30.5.2006 itself intimated the respondent no.1 by lodging his protest and also his right to claim the said amount when he sent the letter by registered post to respondent no.1. in this behalf, we are of the view that if the appellant had not signed the affidavit, god only knows whether he would have been given the amount that was offered and paid after expiry of about few days less than two months. why this delay, mr. sharma submitted that after receipt of the affidavit, annexure op.1, his client had to follow the procedure before releasing the amount. in the circumstances of this case, submission of mr. sharma that complaint was not maintainable is being noted to be rejected. respondent no.1 is a high contracting party and appellant had no bargaining power when he was asked to give consent affidavit op.1, for the receipt of the amount paid. his position was to either accept this amount on the terms insisted or leave it, there was no other way out. it is a different matter the appellant lodged protest and sent communications. this is one aspect of the case. bank liability was mounting due to interest burden. 11. we are of the view, that even if it is held that the appellant had accepted the amount as was urged by mr. ratish sharma, fact remains that before accepting the amount and even thereafter by numerous communications including annexures c.50, c.51, legal notice annexure c.52, appellant was making a grievance against the offer made by respondent no.1. 12. another very intriguing aspect of this case is, that on one hand there is affidavit of the appellant annexure op.1, on which the whole case of the respondent no.1 hinges upon, again vide annexure c.57, respondent no.1 called upon the appellant to submit the consent letter in prescribed wording which was handed over to him on 3.7.2006, i.e. annexure c.42 when he visited the office of respondent no.1 on the said date. where was the need if the affidavit had been submitted by the appellant, annexure op.1 to have insisted upon the appellant to execute annexure c.42. this in our opinion indicates that the respondent no.1 was aware that the appellant had not consented to receive the offered amount of his free will and volition. 13. totality of the circumstances of this case indicates that every now and then respondent no.1 kept on pressurizing the appellant to agree and give consent for the receipt of the amount offered. therefore, it cannot be said to be free from pressure as well as coercion upon the appellant by respondent no.1. we are further satisfied in this context that the matter was between two unequals and the status of the appellant was of a weak contracting party who had practically lost his stock-in-trade and was left high and dry. as such he had no option but for executing the affidavit in question. it is a different matter that we have not accepted the affidavit on its face value. 14. in our opinion, despite annexure op.1 affidavit of the appellant, the respondent no.1 cannot debar the appellant from instituting the complaint more especially when we have held that he was coerced as well as pressurized due to the situation in which he was placed due to loss of his stock-in-trade which was of much higher value than the insurance cover. 15. now coming to the affidavits on which whole case of the insurance company rests. from a perusal of affidavit, annexure c-46, it is open to the naked eye that there is tampering in it, because something has been written in hand in it, there is white fluid put over some portion of it. this is duly notarized on 31.5.2006. annexure c.47 is the photostat copy of affidavit in which there is no interpolation. this appears to be a carbon copy of annexure op.1. where was the need for something being added/interpolated in hand and on some part of annexure c.46 white fluid being put, learned counsel for respondent no.1 could not satisfy us. in these circumstances, we have no hesitation in coming to the conclusion that no advantage can be taken by the respondent no.1 from the affidavit, annexure c.46, dated 31.5.2006. this is one aspect of the case. 16. so far annexure op.1 is concerned, in the circumstances we have already noted in detail in this order, we feel that no advantage can be taken for the view that we have taken of the circumstances whereunder it was executed. state commission further held; 19. as a financier bank, conduct of respondent no.2 in this case was most reprehensible. as a service provider it was rendering service to the appellant. and in lieu of such service, the bank was charging interest as a consideration from the appellant on one hand. on the other it is the admitted case of this respondent no.2, in para 22 of its reply to the complaint that it acts as an agent of respondent no.1 and charges commission for insurance it gets done from respondent no.1. 20. in the face of this admitted position by respondent no.2, we are of the view that this respondent was duty bound in law to have taken up the matter with the insurer for early settlement and payment of the claim. there is nothing on record to suggest if any such steps were initiated by the bank. this in our opinion was otherwise necessary to protect its own interest as prudent bank. thus in our opinion, in no situation the bank can be absolved for inaction/negligence in this case. thus the bank also needs to compensate the appellant, and we order accordingly.? 12. we may point out that petitioner in this revision has not placed all the relevant documents on record for the reasons best known to it which have been referred by the state commission, in the impugned order. petitioner has deliberately and selectively chosen to place only those documents which goes in its favour, namely, copy of affidavit dated 31.4.2006 of respondent no.1 (page no.80 of paper book). copy of discharge voucher dated 2.8.2006 purported to have been signed by respondent no.1 (page no.81 of the paper book). this act on the part of petitioner in selectively placing only those documents which are in its favour, clearly amounts to the concealment of the material facts and to mislead this commission. 13. the law on this subject has clearly been laid down by hon'ble supreme court of india in œunited india insurance company vs. ajmer singh cotton and general mills, (1999) 6 s890cc 400?. it was held 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. hon'ble court has observed; œthe 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.? 14. looking from any angle we do not find any infirmity or ambiguity in the impugned order, when respondent no.1 from very beginning has been clamoring that he is accepting the sum of rs.7,72,623/- under protest and without prejudice to his rights. moreover, he reserved his rights to recover the sum of rs.5,27,377/-. under these circumstances, it cannot be said that the discharge voucher in the present case was signed by respondent no.1 on his free-will and consent. 15. in our view, the findings recorded by the state commission that there was deficiency in service on the petitioners part is based on correct analysis of the facts and appreciation of the evidence which cannot be termed as erroneous. accordingly, we dismiss the revision petition with cost of rs.10,000/- (rupees ten thousand only). we are imposing these cost only due to anguish, since petitioner has mislead this commission and also caused undue harassment to respondent no.1, by dragging him to the highest fora under the act, when it has no case at all. 16. petitioner is directed to pay/deposit the cost by way of demand draft in the name of respondent no.1, within eight weeks from today. in case, petitioner fails to pay/`deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization. 17. list for compliance on 12.7.2013.