Upendra Kumar Vs. the New India Assurance Company Limited and Another - Court Judgment

V.B. Gupta, Presiding Member

1. Present Revision Petition has been filed under Section 17(b) of the Consumer Protection Act, 1986 (for short, Act) against order dated 23.2.2007, passed by State Consumer Disputes Redressal Commission, Bihar, Patna (for short, State Commission).

2. Petitioner/complainant, filed a complaint before District Consumer Disputes Redressal Forum, Patna(for short, District Forum) stating that he purchased second hand Maruti Car which was insured with respondents/O.Ps for Rs.2,10,000/-. After two days after the purchase of the car, on 11.2.1999 the same was stolen. Petitioner lodged claim with the respondents. After about two and half years, respondents decided his case and paid Rs.1,15,000/- only. It is alleged by the petitioner that he accepted this amount under protest, since he is entitled to get the insured amount of Rs.2,10,000/-, besides compensation for late settlement of the claim.

3. Respondents in their written statement admitted the factum of insurance of the car in question. It is stated that after receipt of the information of theft of the car, they appointed surveyor who assessed the value of the car as Rs.1,15,000/-. This amount was paid to the petitioner on 17.10.2001 as full and final settlement of his claim. Petitioner signed the discharge voucher and accepted this amount. Thus, there is no merit in the complaint.

4. District Forum, vide order dated 4.2.2004 allowed the complaint and directed respondents to pay to the petitioner a sum of Rs.95,000/- with 9% interest p.a. with effect form 11.2.1999 (from the date of making of claim) till the payment.

5. Being aggrieved by the order of District Forum, respondents filed appeal before the State Commission which allowed the same, vide its impugned order.

6. Hence, this revision.

7. We have heard the learned counsel for the parties and have gone through the record as well as reply filed by the respondents and written arguments filed on behalf of the petitioner.

8 It has been contended by learned counsel for the petitioner that petitioner had to accept the amount of Rs.1,15,000/- under compelling circumstances, as full and final settlement of his claim as his claim was kept pending for more than two and half years.

9. On the other hand, it has been argued by learned counsel for the respondents that in the complaint it has been nowhere alleged that any coercion or pressure was put upon the petitioner to accept the amount. This plea has been taken up for the first time in this revision petition.

10. StateCommission, while allowing the appeal of the respondents has held ;

œIn view of the admitted fact the car was about 4 and half years old from the date of its first hand purchase and also considering the price of the new Maruti Car on the date of theft as stated above, we are of the view that there was reasonable ground from the surveyor to assess the price of the stolen Car to Rs.1,15,000/- only. We do not find any element of prejudice on the part of the surveyor in assessing the value of the Car. The value of the Car has been assessed on the price of the new Car on the date of theft and as such it is a case of close proximity. Prima-facie, we do not find any material irregularity in calculating the valuation of the Car which was admittedly about four and half years old on the date of its theft. As such, we are of the view that there is no reason not to accept the surveyors report. The reason assigned by the District Forum that since the Assurance Company has insured the Car for Rs.2,10,000/-, therefore, it should pay the same amount is not a valid ground to come to the conclusion that surveyor has assessed under-value price of the Car and hence its report should not be accepted. On the other hand we find that there is no reason to reject the report of the surveyor, as such, accepting the report of the surveyor we are of the view that the insured is entitled to get Rs.1,15,000/- which he has received from the Assurance Company.

In the result, the appeal is allowed. The impugned order of the District Forum is set aside?.

11. Law on this subject has been clearly laid down by Honble Supreme Court of India inUnited India Insurance Vs. Ajmer Singh Cotton and General Mills and others (1999) 6 Supreme Court Cases 400, in which 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. Honble Court has observed:

œThe mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respectto 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. 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, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints?.

12. In BhagwatiPrasad Pawan Kumar Vs Union of India (2006) 5 Supreme Court Cases 311, Apex Court has observed;.

œ18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 74.1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An œofferee? cannot be permitted to change his mind after the unequivocal acceptance of the offer. 19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the œofferee? was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the œofferee? had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act?.

13. In the present case, there is nothing on record to show that petitioner was compelled by the respondents at any stage to settle the claim at lesser amount than the claim made by him. There is also not an iota of evidence on record to show that any official of the respondent compelled the petitioner to settle the claim at lesser amount. Interestingly, petitioner after having received the sum of Rs.1,15,000/- as far as back in the year 2001, has been enjoying the aforesaid money for last more than twelve years. Now petitioner wants to repudiate the discharge voucher duly signed by him. This clearly shows malafide intention on the part of the petitioner in filing the present complaint. It is well settled that provisions of the Consumer Protection Act, 1986 are not meant for enrichment of the consumer. Once petitioner has received the amount unconditionally, under these circumstances petitioner cease to be Consumer as per the Act. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment petitioner accepted the amount unconditionally.

14. Thus, there is no merit in the present petition and same is accordingly dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).

15. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization.

16. List on 12^th April, 2013 for compliance.