C.F. CASE No. : CC/2013/66
COMPLAINANT : Abdul Majid Sk.
S/o Iyasin Sk.
Vill. Hospitalpara,
P.O. Bethuadahari,
P.S. Nakashipara,
Dist. Nadia,
PIN – 741126
OPPOSITE PARTIES/OPs : 1) Branch Manager,
United India Insurance Company Ltd.
Krishnagar Branch, 2 D.L. Roy Road,
Hospital More, P.O. Krishnagar,
P.S. Kotwali, Dist. Nadia, PIN – 741101
2) Manager,
Bhandari Automobiles Pvt. Ltd.
N.H. 6, Nibra, Salap – 2,
Howrah – 711403
3) Manager,
Bhandari Automobiles Pvt. Ltd.
Krishnagar Branch,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia, PIN – 741101
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SHRI SHYAMLAL SUKUL, MEMBER
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 31st October, 2013
: J U D G M E N T :
The instant case was instituted by one Abdul Majid Sk. S/o Iyasin Sk. a resident of Hospitalpara, P.O. Bethuadahari, P.S. Nakashipara, Dist. Nadia against the opposite parties i.e., United India Insurance Company Ltd., Bhandari Automobiles (P) Ltd. alleging deficiency in service.
Succinctly put, facts are that the complainant’s / petitioner’s vehicle (Wagnor VXI) bearing Registration No. WB-52K 1523 was insured with the opposite party Insurance Company for the period from 18.09.2011 to 17.09.2012 and the vehicle met an accident during the subsistence of the policy. The complainant lodged FIR and simultaneously informed the opposite party Insurance Company got the investigation alone through a surveyor and allowed the claim of Rs. 29,250/- and made the payment thereof to the complainant / petitioner on 04.06.13 by account payee cheque. The complainant / petitioner received the said cheque without any protest. Thereafter, on 08.07.13 the complainant / petitioner strangely appeared in this Forum and filed a petition of complaint under Section 12 of the Consumer Protection Act, 1986 in a flat contradiction of his earlier stand praying reliefs as stated in the petition of complaint.
The opposite party Insurance Company in the present case, neither entered appearance nor filed written version in spite of notice served on him. It seemed to us the opposite party abandoned the case, the same was ordered to be heard out and decided in absence of the opposite parties. Accordingly, exparte hearing was done. The complainant fully relied upon the documents that he had filed.
The complainant has grudge against the opposite party Insurance Company not against opposite party No. 3. The opposite party No. 3 acted bonafide without fraud and deciption and within the bounds of their authority. So there is no deficiency in service on their part as such they are not responsible in any manner.
The only question which requires consideration in the present case is whether or not the Discharge Voucher mentioning payment of Rs. 29,250/- in full and final settlement of the claim of the complainant was obtained by the opposite party Insurance Company by practicing fraud, misrepresentation or coercion?
From the close scrutiny of records, we find that the complainant knowingly and willingly, signed the discharge voucher in full and final settlement of his claim without any protest. Now, the complainant is estopped from repudiating the discharge voucher duly signed by him. This being the undisputed factual position, the complainant cannot be permitted to approach consumer Forum for balance amount treating the payment as only part payment against the claim unless he establishes that he accepted the amount under undue influence, misrepresentation or fraud played by the opposite party Insurance Company.
Law on this subject has been clearly laid down by the Hon'ble Supreme Court of India in United India Insurance v. Ajmer Singh Cotton & General Mills and Others, II/1999 CPJ 10 (SC) = VI (1999) SLT 590 – (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 under influence, fraud or misrepresentation. Hon'ble court has observed:
“The mere execution of 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 paid on default 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 discharged voucher was obtained by fraud, misrepresentation under influence or the like, coercive bargaining compelled by the 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 further claim from the insurer, but only under 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 insurance 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 in 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.”
In Bhagwati Prasad Pawan Kumar V. Union of India, II (2007) CLT 293 (SC) = III (2006) ACC 1(SC) = IV (2006) SLT 771 = (2006) 5 Supreme Court cases 311, Apex Court has observed:
“18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made on offer to the appellant laying down in 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 07.04.1993. The offer prescribed the mode of acceptance, and by conduct of the must be held to have accepted the offer and, therefore, could not make a claim later. However, it 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 ‘offence’ cannot be permitted to change his mind after the unequivocal acceptance of the offer.
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 offence did the act with intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed to this principle. Each case must rest on its own facts. The court must examine the evidence to find out whether in the facts and circumstances of the case of conduct of the ‘offeree’ was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case discloses 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 evidence discloses that the ‘offeree’ had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in term of Section 8 of the Contract Act.”
In the present case, there is nothing on record to show that – complainant was compelled by the opposite party Insurance Company at any stage to settle the claim at lesser amount. Then the claim made by him. There is not an iota of evidence on record to show that any official of the Insurance Company compelled the complainant to settle the claim at lesser amount. Interestingly, the complainant having received the sum of Rs.29,250/- has been enjoying the aforesaid money for more than one month. Now, the complainant wants to repudiate the discharge voucher duly signed by him. This clearly shows malafide intention on the part of the complainant in filing the present complaint. It is well settled that the provisions of the Consumer Protection Act, 1986 are not meant for enrichment of the consumer. Once the complainant has received the amount unconditionally, under these circumstances the complainant ceases to be ‘consumer’ as per the Act. The privity of contract are relationship of consumer and service provider between the parties, if any, came to an end, the moment accepted the amount unconditionally.
Under these circumstances, the present petition of complaint is absolutely meritless, bogus and frivolous which has been filed to mislead this Forum and to waste the precarious time of this Forum, which is required to be dismissed with punitive costs. Accordingly, it is
Ordered,
that, the present case stands dismissed exparte with punitive cost of Rs.10,000/- (Rupees ten thousand only).
The complainant is directed to deposit the costs of Rs.10,000/- by way of demand draft in the name of “State Consumer Welfare Fund” within a period of 2 (two) weeks from today. In case the complainant fails to deposit the aforementioned costs within the prescribed period, thus it shall also be liable to pay interest @ 9% p.a. till realization.
