1. The Complainant is a Cotton Ginning Company for which it has stocks of cotton, cotton loose, cotton seeds that emerge after ginning and utilized for preparation of oil and oil cases, and it is for these stocks that insurance policies have been under taken namely the Special Fire and Perils Policy to secure the goods against any losses. The present Complaint is in relation to a loss occurred due to a fire on 03.05.2011 causing damage to the cotton, cotton bales and other materials that were stocked in the two godowns at the premises in question and also stocked outside the godown in the open area. The entire loss included raw as well as finished cotton.
2. The insurance policies were taken from the two Insurance Companies namely the New India Assurance Co. Ltd. the Opposite Party No.1 and the National Insurance Co. Ltd. the Opposite Party No. 2 herein. The surveyors were appointed who assessed the loss. The cause of fire was suspected to be accidental and then the loss was assessed in respect of the policies taken from both the Insurance Companies.
3. The three polices taken from the New India Assurance Co. Ltd. were one for the goods in godown no.1&2, one for the goods in godown no.5 and one for all stocks in the entire premises. The sum insured for each of the polices is different. Simultaneously, the policy taken from the National Insurance Co. covered all stocks in the entire premises.
4. The surveyors indicated that in view of the fact that the fire was accidental, the claim was found to be admissible. However on the stocks, the surveyors opined a lesser amount of loss as claimed by the Complainant keeping in view the stock statements the audited accounts as well as their own calculation with regard to the quantum of the cotton lost in the fire. An addendum survey report was submitted to the National Insurance Co. clarifying the policies and the insured amount therein.
5. After the entire exercise was done, the correspondence was exchanged regarding the queries raised and the information given by the Complainant. After having considered the report of the surveyors, the Opposite Party No.1 New India Assurance Co. settled the claim with the Complainant in respect of the loss due to fire for a sum of Rs.76 lakhs. A discharge voucher to that effect recording an agreement to accept the full and final amount as settlement and discharge of all claims dated 23.10.2012 is on record which is extracted hereinunder:

6. This was satisfied by tendering the said amount to the HDFC Bank with which the stocks were hypothecated.
7. The said amounts received were credited to the account of the Complainant. There is no averment in the entire Complaint or in the pleadings or evidence of the Complainant that prior to the issuance of the discharge voucher or even at the time of accepting the offer, the said amounts were preceded by any protest or objections regarding the settlement. There is no averment about the said settlement having been arrived at on the exercise of any duress, undue influence, threat or coercion by the New India Assurance Co.
8. On 08.11.2012, the Complainants after almost 15 days of having accepted the amount dispatched a letter stating that they had received it under protest and that this was done in order to avoid the harsh actions that might be taken by the Bank. It was further averred that the Complainants reserve their right to stake their claim with regard to recovering the balance amount as they did not treat the settlement as full and final. In one of the paragraphs it has also been alleged that the cheques were sent directly to the bankers without their consent and therefore it is an ad-hoc payment pending final settlement. The said letter of protest dated 08.11.2012 is extracted hereinunder:

                                                                                                                                                   "date:08/11/2012

To,

The New India Assurance Company Limited Ravin Chambers,

9-Bhaktinagar Station Plot,

Opp: Patel Dharmashala,

Rajkot-360 002

Sub: Fire Claim under policies issued by you

Loss due to Fire on 02-03/05/2011

Acceptance of part payment under protest

Dear Sir,

With reference to above subject we would like to state as under.

1. That above loss was reported to you immediately after happening of the event and subsequently you have appointed Mr.Anil Fadke as your surveyor.

2. That we have extended our fullest co-operation during his course of visit to our site and supplied him all the necessary information, documents, account reports etc. demanded by him from time to time.

3. That considerable time has elapsed after happening of loss however; you have not released even a single penny on ad- hoc/ on account payment which you have promised us.

4. That even after more than 18 months time we have not been informed about status of our claim despite our several reminders, RTI applications, numerous letters and follow up. You are aware that we have obtained financial assistance from banks and incurring huge losses day by day in form of interest burden and keeping in view, our responsibility towards bank we cannot sit idle without taking any action from our side and therefore, we have appointed independent Surveyor Mr.D.T.Patel for inspection and assessment of loss. Mr. D.T.Patel has visited our factory premises earlier.

5. That despite our advance intimation about meeting with the IRDA license surveyor you did not remain present in the said meeting and therefore, as per schedule the meeting was arranged, we have apprised the surveyor about loss and submitted necessary documents as demanded by him. After satisfying with our compliance and information, the surveyor Mr.D.T.Patel submitted his report to us. As per the report Mr.D.T.Patel has assessed the loss at Rs.3,55,89,385/-

6. That now, it has been came to our you have sent two cheque amounting Rs.35,00,000/- and Rs.41,00,000/- directly to our banker without obtaining our consent. We believe that the payment you have made is an ad-hoc payment pending final settlement of claim by your higher authorities. Please not that we accept this payment under protest and keep our right reserved to recover balance amount of your co-insurance claim liability recoverable from you under all the policies you have issued in relation to the subject matter of claim under reference.

7. That we shall let you know the exact amount of your balance share payable by you after getting clarification from Mr. Anil Fadke to whom also we have written a letter for his clarification for exact apportionment of share of liability of yours as well as of National Insurance Company Limited. Please also note that we do not agree with the quantum of loss assessed by Mr. Anil Fadke as the same is far below the amount of loss we have actually sufferred and therefore, we stick to the quantum of loss assessed by Mr. D.T.Patel under intimation to you.

8. That the payment made by you does not amount to full amount of loss suffered by us and payable by you as per your co-insurance share and therefore, we have accepted the payment of your cheque under protest and not as full and final settlement of claim.

9. That we have accepted this amount only to save us from bank's harsh action as we have no other option but to surrender before your dominant position as bargainer.

10. That we reiterate that we have accepted the amount under protest by keeping our right reserved for recovering balance amount from you which please be noted.

We shall write you very shortly for exact amount recoverable from you.

Please be advised accordingly.

Thanking You,

Truly Yours,

For Raj Ginning Industreis,

sd/-

partner"

9. Similarly, the National India Insurance Co. settled the claim with the Complainant on 09.04.2012 with a payment of Rs.55,51,505/-. The discharge voucher absolving the Insurance Co from all liability on account of the full and final settlement dated 09.04.2012 is extracted hereinunder:

“FORM ACL -10(1)

Loss Voucher- Non Motor & P.A.

Received from NATIONAL INSURANCE COMPANY LIMITED through its poiicy issuing office after called “The Company” the sum of Rs.55,51,505/- (RUPEES FIFTY FIVE LAKH FIFTY ONE THOUSAND FIVE HUNDRED FIVE ONLY)

In full and final settlement of all my/our claims in request of the property lost or damaged due to Fire on 02/05/2011 under Policy No.300503/11/10/3100001472

In consideration of such payment I/We hereby absolve the Company from all liability present or future arising directly or indirectly out of the said loss or damage under the said policy. Further I/We hereby assign to the Company my/our rights to the articles/property lost/stolen which shall, in the event of their recovery be the property of the Company.

I/We also agree that the sum insured under the said policy stand reduced by the amount paid until the next renewal.

Date:09-04-2012

Address

On Account Payment Disbursed: Rs.0.00”

10. The Complainant after 10 days on 19.04.2012 raised a similar protest before the National Insurance Co. stating that the amount had been received under protest and that they had appointed an independent surveyor on their own. Hence the Insurance Company should come and negotiate for settlement of the balance amount. They have made a similar statement in their letter regarding the apprehension of harsh action by the Bank that compelled them to accept the payment referred to above. A copy of the said letter dated 19.12.2012 is extracted hereinunder:

“From

Raj Ginning Industries,

Gir Gadhada Road,

​                                                                                                                                                                                             19.04.2012

                                          To,

National Insurance Company Limited

First Floor, Kasturi Building,

Bunder Raod,

Veraval

Sub:- Fire Claim under fire policies issued by you

Loss due to Fire on 02-03/05/2011

Your Advance payment voucher of Rs.55,51,505/- under policy No.300503/11/10/3100001472. Cheque No.62899 dated 09.04.2012 drawn on Bank of Baroda, amount Rs.55,51,505/- Acceptance of part payment under protest.

Dear Sir,

With reference to above subject please refer our letter dated 20.12.2011 contents of which reproduced here below.

1. That above loss was reported to you immediately after happening of the event and subsequently you have appointed Mr.Anil Fadke as your surveyor.

2. That we have extended our fullest co-operation during his course of visit to our site and supplied him all the necessary information, documents, account reports etc. demanded by him from time to time. At last we have also sent him duly translated copies of FSL report before month time.

3. That considerable time has elapsed after happening of loss however, you have not released even a single penny on ad-hoc/ on account payment which you have promised us.

4. That even after more than 7 months time we have not been informed about status of our claim despite cur several reminders and follow up. You are aware that we have obtained financial assistance from banks and incurring huge losses day by day in form of interest burden and keeping in view, our responsibility towards bank we cannot sit idle without taking any action from our side and therefore, we have appointed independent Surveyor Mr.D.T.Patel for inspection and assessment of loss. Mr. D.T.Patel has visited our factory premises earlier and now he wants to finalise his report in your presence on 29.12.2011. You are requested to remain present personally or ensure the presence of your representative on 29.12.2011. Please note that if you do not attend the meeting on specified date stated above, Mr. Patel will issue the report unilaterally which shall be binding upon you. Please note that Mr. D.T.Patel is also IRDA approved surveyor and you do not have any reason for not considering his report. Therefore, we once again request you to ensure your presence at our factory premises on 29.12.2011.

That despite our advance intimation about meeting with the IRDA license surveyor you did not remain present in the said meeting and therefore, as per schedule the meeting was arranged, we have apprised the surveyor about loss and submitted necessary documents as demanded by him. After satisfying with our compliance and information, the surveyor Mr.D.T.Patel submitted his report to us on 20-01.2012 As per the report Mr.D.T.Patel has assessed the loss at Rs. 3,55,89,385/- Now, we have received a cheque from you amounting Rs.55,51,505/- dated 09.04.2012 drawn on Bank of Baroda. The payment you have made is under policy No. 300503/11/10/3100001472 only whereas payment under other three policies is still pending from your side. Please not that we have accepted this payment under protest and keep our right reserved to recover balance amount of your co-insurance claim liability recoverable from you. We shall let you know the exact amount of your balance share payable by you very shortly.

That the cheque sent by you does not amount to full amount of loss suffered by us and payable by you as per your co-insurance share and therefore, we have accepted the payment of your cheque under protest and not as full and final settlement of claim.

We are constrained to accept this cheque under compelling circumstances of our financial position as our bankers have issued a notice to declare our borrowing NPA. The action of bank would lead our goodwill ruined and in future no bank will come forward to lend us money on borrowing. We have accepted this amount only to save us from bank's harsh action as we have no other option but to surrender before your dominant position as bargainer.

We were forced to accept this amount due to our compelling circumstances of financial constrained otherwise we would have not accepted this part amount. We reiterate that we have accepted the amount under protest by keeping our right reserved for recovering balance amount from you which please be noted.

We shall write you very shortly for exact amount recoverable from you. Please be advised accordingly.

Thanking You,

Truly Yours,

For Raj Ginning Industries,

             Partner”

11. From a perusal of the aforesaid facts it is evident that the claim with the National Insurance Co. the Opposite Party No.2 by issuing a discharge voucher was concluded on 09.04.2012 that was followed by a letter of protest after 10 days  on 19.04.2012 extracted hereinabove. It is after six months of the said settlement that the subsequent settlement with New India Assurance Co. took place on 23.10.2012 that was followed by a protest letter after 15 days on 08.11.2012 is extracted hereinabove.
12. This Complaint was heard on 09.02.2024 when the following orders were passed:-

“Dated 09.02.2024

ORDER

Heard learned Counsel for the Complainant and the learned Counsel for both the Insurance Companies.

The issue involved in this case narrows down to the controversy as to whether the Complainant was under any compelling circumstances or circumstances of undue influence called upon to sign the discharge vouchers. The discharge vouchers for full and final settlement in respect of National Insurance Company is stated to have been signed on 09.04.2012. A letter of protest was sent on 19.04.2012 after the amount had been encashed and was paid towards the loan to the HDFC Bank.

So far as the New India Assurance Company is concerned the discharge voucher was signed on 23.10.2012 where after the protest was dispatched on 08.11.2012. These documents are on record and the contention of the learned Counsel for the Complainant is that signing of such discharge vouchers, in the circumstances in which the Complainant was compelled to sign, was one where undue influence was exercised and that the Insurance Company being in a dominant position had obtained the discharge vouchers from the Complainant whereafter protests were filed.

The complaint has been filed alleging undue influence as well as it is submitted that this amounts to unfair trade practice on the part of the Insurance Company hence the complaint deserves to be entertained and allowed.

The complaint has been vehemently opposed by both the learned Counsel for the Insurance Company contending that in effect fraud, coercion or undue influence was nowhere pleaded in the letter of protest nor it has been pleaded in the complaint and in such circumstances the plea of having signed the discharge vouchers under compulsion is not pleaded nor it needs to be assessed or considered by this Forum. The submission is that there are neither pleadings nor any evidence to that effect.

Learned Counsel for the Complainant has been apprised of the latest order of this Commission in the Consumer Complaint No. 165, 166/2003 decided on 01.01.2024 in the case of Patanjali Foods Ltd. Vs The Oriental Insurance Company Limited where reliance has been placed on the judgments of the Apex Court that are also being relied  upon by the learned Counsel for the Insurance Company in this case.

Learned Counsel for the Complainant may study the matter and then appropriately assist the Bench.

List on 16.05.2024 at 02:00 p.m.”

13.  The dispute therefore narrowed down to the issue as to whether the discharge vouchers that were issued were obtained on account of any distress, duress, undue influence or coercion exercised by the Insurance Companies, and if so the consequential relief that the Complainant can claim.
14. Learned Counsel for the Complainants Mr. Pancholi has cited two decisions. The first is by this Commission in the case of Ramdas Sales Corporation Vs. New India Assurance Co. Ltd. reported in III (2016) CPJ 40 (NC). Learned Counsel submits that a circular dated 24.09.2015 issued by the Insurance Regulatory and Development Authority was taken into account even though the Complaint was relating to a period much before the issuance of the circular. The contention that the circular could not be applied retrospectively was not accepted as per paragraph 8 thereof which is extracted hereinunder:

"8.We find no merit in the contention that the aforesaid circular cannot be applied in a pending consumer complaint. The very fact that IRDA decided to issue such a direction implies that the practice adopted by the insurers to insist upon execution of a discharge voucher in full and final settlement of the claim before releasing the payment approved by it was found to be objectionable by the Authority and that is why it had to issue direction requiring the insurers, not to use the instrument of discharge voucher as a mean of estoppel against the aggrieved policy holders when they approach a judicial Fora. As a result of the aforesaid direction issued by IRDA, the plea of estoppel taken by the opposite party is no more available to it, the said plea being contrary to the direction contained in the circular. Therefore, in our opinion, once the aforesaid circular is issued, it is not open to the insurer to contend at the time of hearing that having executed the discharge voucher in full and final settlement of its claim the complainant is estopped from filing a consumer complaint claiming additional payment from the insurer in respect of the claim subject matter of the discharge voucher. Therefore, we are not inclined to consider the plea of estoppel taken by the opposite party.”

15.  It was also held therein that the Complainant was entitled to the indemnification as claimed as the circular was not under challenge nor had been set aside by any Forum and therefore the Complaint was allowed.
16. Learned Counsel has then cited the judgment of the Apex Court in the case of the Oriental Insurance Co. & Anr Vs. Dicitex Furnishing Ltd. reported in (2020) 4 SCC 621 to urge that even though the said case was in respect of the appointment of an arbitrator under Section 11(6) of the Arbitration Act by the Bombay High Court, arising out of a dispute of an insurance claim yet the core contention was about the discharge voucher having been submitted when the insured was facing financial and economical duress with distressful business liabilities. It was observed in that judgment given the facts of that case, that it remains to be decided as to whether the discharge voucher survived the allegations of any coercion or undue influence and therefore in view of the law laid down as discussed therein, the issue required to be examined which was left to be done by the arbitrator. It was, however, found that the claimant insured had a presentable grievance in respect of the issuance of the discharge voucher under protest and it was accordingly held that the appointment of the arbitrator by the High Court of Bombay did not deserve any interference. The contention of the learned Counsel therefore is that in view of the aforesaid legal position as discussed, the discharge vouchers signed by the Complainant in the present case should be held to be invalid as being obtained on account of the financial distress in which the Complainant had to sign the same under duress that was an outcome of coercion on the part of the Respondent Bank.
17.  Learned Counsel for the Insurance Companies have, however, contested this position maintaining that there is neither any pleading nor any evidence of duress, coercion, undue influence or alleged financial distress being faced by the Complainant nor is there any evidence to prove any such submissions prior to signing of the discharging vouchers. It is urged that in the absence of any such material on record, the Complaint cannot be allowed as every case requires a decision on its own facts. They have urged that the order passed by this Commission in the case of Ramdas Sales Corporation (Supra) was nowhere concerned with a situation as involved herein where there is no pleading or any evidence. The said order was passed on peculiar facts of its own regarding the circular of 2015 and hence the ratio of the said order is nowhere applicable on the facts of the present case. It is also submitted that there is no ground also raised about violation of any such circular in the pleadings nor is there any material to substantiate the same.
18. Regarding the other judgment in the case of the Oriental Insurance Co. Ltd. (Supra), it is submitted that the same was an order passed under Section 11(6) of the Arbitration Act and the Court was nowhere assessing any case on merits relating to the claim. It is urged that it was a proceeding only in respect of an application that had been allowed by the Bombay High Court by appointing an arbitrator in an insurance claim. The appeal was therefore dismissed by the Apex Court and while doing so it has discussed the law on the facts of that case where the claimant had in between the proceedings, before they could be finalized, withdrawn his request for final settlement. The subsequent acceptance through a discharge voucher therefore was left to be determined by the arbitrator to find out whether it was under duress or not on the facts of that case. It is therefore submitted that none of the principles in the cases cited on behalf of the Complainant are attracted on the facts of the present case.
19. Learned Counsel for the Opposite Parties on the other hand have cited the following decisions in support of the contention that unless it is established by the Complainant that there was any duress, coercion or distress as alleged, there is no occasion to disbelieve the discharge settlement.

“A. Export Credit Guarantee Corporation of India Ltd. versus Garg Sons International reported as (2014) 1 SCC 686 (Paras 10 to 13)

B. Suraj Mal Ram Niwas Oil Mills Private Ltd. versus United India Insurance Co.Ltd. reported as(2010) 10 SCC 567.

C. United India Insurance Co. Ltd. versus Harchand Rai Chandan Lal reported as (2004) 8 SCC 644.

D. Vikram Greentech India Ltd. versus New India Assurance Co. Ltd. reported as (2009) 5 SCC 599.

E. Oriental Insurance Co. Ltd. versus Sony Cherian reported as (1999) 6 SCC 451.

F. General Assurance Society Ltd. versus Chandmull Jain reported as AIR 1966 SC 1644.”

20. Having heard learned Counsel for the parties, the only averment which can be found in the Complaint regarding the alleged protest is traceable to the list of dates and events of 19.04.2012 and 08.11.2012 of having accepted payment under protest. The pleadings in the Complaint are contained in paragraph 3.4 and 3.8 which are extracted hereinunder:

“3.4 When the Complainant firm write a letter to National Insurance Co. Ltd. Veraval regarding acceptance of the payment of Rs.55,51,505 under protest to recover balance amount on dated 19^th April, 2012.

3.8 when the complainant firm write a letter to the New India Assurance Co. Ltd. Rajkot that payment is accepted under protest with right to recover balance fire claim on dated 8^th November, 2012.”

21. Apart from these pleadings there is no averment either in the complaint, rejoinder or the evidence in affidavit to substantiate the plea of any duress or protest on account of coercion or undue influence sufficient to establish that the discharge vouchers had been issued under protest. The protest letters dated 19.04.2012 and 08.11.2012 were planned and worded much after the discharge vouchers were voluntarily signed and the amounts were duly credited to the account of the Complainant. There is no evidence led to support the allegations contained in these two letters that in all probability are a strategic move after the bargain was made with the Insurance Company. No interrogatories, questioning of examination of the officials of the Insurance Companies have been attempted on behalf of the Complainant to evidence the allegations and elicit any material to establish the allegations.
22. The Opposite Party No.1 in its reply in paragraph 1 has taken a preliminary objection stating that a valid discharge voucher has been issued and therefore the Complainant is estopped from raising any such plea. This fact has again been stated in paragraph 7 of the reply wherein it has been stated that it is after settlement entered into and the signing of the discharge voucher that the cheques were sent to the Bank which had the first charge on the hypothecated goods that were lost. Other contentions on merits were also refuted.
23. It is evident that prior to the acceptance and settlement of the claim there was no protest raised. It is only after 10 days in one case and after 15 days in the other case that the letters of protest were dispatched. There were no allegations of any coercion, or exercise of any undue influence alleged against the Insurance Company. The claim with National Insurance Co. was settled in April 2012 and almost after 6 months it was settled with the New India Assurance Co. on 31.10.2012.
24. In the rejoinder, it has been stated that the Complainant was kept in the dark and he had accepted under protest. No other pleading or proof has been brought on recorded to counter the aforesaid fact of having accepted the settlement and the issuance of the discharge voucher. The rejoinder dated 03.12.2013 in reply to the written statement of the Opposite Party No.1 is as sketchy as the averments made in the complaint. The evidence affidavit nowhere brings on record any proof of coercion, duress or undue influence. To the contrary the evidence filed by the Insurance Company categorically reiterates the stand taken by them in their written submissions.
25. In the background above, there is neither any pleading nor any evidence to prove the claim of any protest having been raised either on account of undue influence, coercion or even indicating any material to demonstrate the financial distress as alleged by the Complainant. Even otherwise, this issue of pleadings and evidence being absent cannot be appreciated in a summary jurisdiction of this forum inasmuch as such typical issues arising out of disputed questions of fact can only be gone into by a Civil Court after leading evidence.
26. Accordingly, the Complaint lacks pleadings and material to substantiate the allegations of the deficiency in service and is therefore rejected.