Order 15. Dated 08.09.2022
Today is fixed for passing order in respect of MA No.375 of 2021 filed by the OPs coupled with relevant annexure. The matter was heard on 06.09.2022 in presence of both the parties. WO has already been filed by the complainant on 05.04.2022. Advocates of both sides had made their respective submissions.
While perusing the said MA petition it is observed that the OPs have filed the petition for dismissal of the consumer complaint on the ground of disbursal of the claim amount in favour of the complainant towards the full and final settlement and satisfaction of the complainant.
The fact is, the claim of the complainant was rejected by the OPs at various stages and reasons of rejection of the same were duly communicated to the complainant vide various letters details of which are there in the Written Version filed by the OPs. The OPs have annexed with the MA petition the document in the form of a letter dated 31.03.2021 issued to M/S Bhasker Apparels being represented by the complainant himself. The said letter appears to be a proposal of settlement in between the parties subject to certain terms including the free consent of the complainant.
In the said letter under para No.3. the wordings as written is reproduced herein below.
Para No. 03. The above said lapses and/or breach of Policy Conditions have rendered your claim in respect of said shipment inadmissible, inter alia, as per terms of the issued policy. However, while reserving our rights to repudiate our liability in its entirety in respect of your claim for shipments listed at Sr.no. 1 above, we propose to waive our rights in this regards and to settle the claim (for the said shipment) with a reduction in the percentage of the amount of loss payable to you as an ex- gratia settlement as per the terms of the Policy so as to mitigate the harshness of the consequences of your acts of omission and/or commission in breach of the policy conditions.
Para No 04. In view of the above cited lapses/ breaches of Policy Conditions, we propose to pay you Rs.21,73,347/- i.e. 80% of the amount of admissible loss, in full and final settlement of your claim in terms of shipment listed at Sr. No. 1 above instead of 90% that would have otherwise been payable as per the Policy if you had performed and observed all the terms and conditions.
Para No.8 : You may note that you are at liberty not to accept the above said proposal in which case no payment shall be made to you in respect of any of shipments listed at Sr. No. 1 above.
Para No. 09 : In case of acceptance of this proposal you hereby certify that your acceptance is voluntary and is granted out of free will and the same has not been obtained under duress or by coercion or force or compulsion.
Further to the above mentioned letter the offer was also sent through mail with the following wordings.:
“We request you to provide consent on the enclosed letter and sent us by return mail to enable us to proceed further.”
The above offer was accepted by the complainant on 31.03.2021 vide his mail dated 31.03.2021. The wordings of acceptance is reproduced herein below.
Thanks for your mail containing the approved claim on account of M/S Durrat Bab Shariff Est. Saudi Arabia. We are enclosing herewith our consent for your further proceedings.
Thereafter the said payment was made through Corporation Bank Kolkata-Dharmatolla Branch on 31.03.2021 vide Cheque No. 186239 dated 31.03.2021 which was duly encashed on 05.04.2021 as per enclosed Bank Statement. In view of the above facts and circumstances the OPs have prayed for dismissal of the consumer complaint because by accepting the claim amount in full and final satisfaction of his claim the complaint petition has become infructuous.
Against the above submission of the OPs the complainant has filed W/O wherein in para No. 6 it is stated that “ The complainant has communicated his consent to the petitioners/Opposite Parties. Such consent of the complainant cannot be treated as waiver of the rights and contentions of the petitioners in the complaint case. Be that as it may, the other claims of the petitioners/ops as stated in the complaint have not been paid by the petitioners/ops. The petitioners/ops are liable to pay the entire amount as prayed for in the complaint case to the complainant”
The rest of the submission of the complainant in the WO does not contravene the submission made by the OPs. In course of the submission Ld. Advocate for the complainant has cited the following orders.
- CC No.61 of 2013 in the matter of J.Thomas &Co.Pvt. Ltd. v.National Insurance Co. Ltd. & others. Order passed on 02.12.2013 by the Hon’ble SCDRC,WB.
- CC No.83 of 2010 in the matter of M/s Emami Ltd. v. Reliance Genl. Ins. Co. Ltd. order passed on 03.03.2011 by the Hon’nle SCDRC, WB.
The above orders have been perused at our end but we don’t find any merit in favour of the complainant.
Now let us examine the submissions critically. The instant consumer complaint has been filed on 16.09.2020. The offer of settlement of the claim was given by the OPs to the complainant on 31.03.2021. The offer was given to the complainant with a liberty not to accept the same also. In case of acceptance of the offer / proposal the complainant will certify that the acceptance is voluntary and is granted out of free will and the same has not been obtained under duress or by coercion or force or compulsion.From the documents produced, the offer is seemed to have been accepted by the complainant with thanks and all eagerness and there is no sign of any grievances nor there is any restrictive clause and/or protest of accepting the same. Even no whisper of pressure or compulsion or coercion has been raised by the complainant. It seems to us that the offer was accepted by the complainant gladly with full unison of mind with the OP.
More so, the settlement has been done by and between the parties during pendency of the proceeding where there was no role or any involvement of this Commission. The complainant could not produce a single document substantiating that the OPs have forcibly compelled him to accept the same. Even there is no protest letter filed by the complainant before encashing the claim cheque. The settlement has been found complete peacefully in between the parties with full unison of mind outside the commission.
In this context the judgement passed by the Hon’ble NCDRC 2022(3) CPR 90 (NC) in the matter of M/S Prabhu Dayal Trilok Chand vs Oriental Insurance Company Ltd. and Anr. is found relevant.
Under Para No.12 of the said judgement the Hon’ble Commission has observed that “On merits, it is noted that the complainant had accepted the amount in full and final settlement of the claim. Admittedly the complainant also signed the discharge voucher. In M/S Bhagwati Prasad Pawan Kumar v. Union of India (2006-03 PLD 76 (SC) ) Hon’ble Supreme Court held that the protest of non acceptance must be conveyed before the cheque is encashed. After signing the discharge voucher and accepting the amount in full and final settlement, the complainant is not permitted to raise the plea that the amount was accepted under protest.
It is also stated in the said para that “The complainant had not produced any evidence oral or documentary to prove that there was any coercion on the part of the OPs.”
In Para 13 of the said judgement it is stated that there is not even a whisper about pressuring the complainant to accept the amount in full and final settlement as alleged by the complainant. In view of the foregoing discussion we find no merit in the complaint and the same is dismissed with no order as to its costs.”
Considering submissions of both sides and the citation of the above judgement of the Hon’ble NCDRC we are of the view that the OPs have established the case against the complainant .
Hence the MA petition No. 375 of 2021 is allowed on contest and the said MA is thus disposed of.
In view of the facts and circumstances mentioned above the Consumer Complaint case being No.159 of 2020 is dismissed.
