Haryana

StateCommission

A/870/2014

The New India Assurance Company Limited - Complainant(s)

Versus

M/s Varun Enterprises - Opp.Party(s)

18 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.870 of 2014

Date of Institution: 01.10.2014

                                                               Date of Decision: 18.11.2016

 

1.      The New India Assurance Company Limited,  Corporate office-87, M.G.road, Fort Mumbai-4000001, through its Manager.

2.      The New India Assurance Company Limited, Regional Office, SCO No.36-37, Sector 17-A, Chandigarh-160017, through its Chief Regional Manager.

3.      The New India Assurance Company Limited, Branch Office near S.D.College, G.T.Road, Panipat through its Divisional Manager.

          Now all through its authorized signatory, A.L.Madan, Manager, Regional office,SCO No.36-37, Sector 17-A, Chandigarh.

….. Appellants

Versus

 

1.      M/s Varun Enterprises, Rishalu Road, Panipat through its proprietor Varun Garg S/o Sh. M.R.Garg.

2.      Varun Garg S/o Sh.M.R.Garg, proprietor M/s Varun Enterprises, Rishalu Road, Panipat.

                                      …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri J.P.Nahar, Advocate counsel for appellants.

Shri Hitender Kansal proxy counsel for   Mr.Gopal Mittal, Advocate for respondents.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          It was alleged by the complainants that they obtained Standard Fire and Special Peril Policy from Opposite Parties (O.Ps.) for Rs.1,15,0000/- commencing from 28.03.2011 to 27.03.2012.  In the evening of 29.03.2011 fire broke out in the premises and they suffered loss to the tune of Rs.17,75,000/-.  O.Ps. appointed Asish Behal as surveyor and loss assessor, but, his work was not up-to mark and he was not able to assess the loss properly.  He was requested to decide the matter speedily because they were in urgent need of money to settle the business payments, but, to no result.  On 27.03.2012 officials of O.Ps. came to their premises and pressurised them to accept money offered by them otherwise they would have to wait for 6-7 months and had to go to the courts.  The discharge voucher was simple formality and was not binding upon him and in case of dissatisfaction he could go to the courts.  As he was in urgent need of money discharge voucher was signed under protest and O.Ps. deposited Rs.8,60,100/- in the account.  Surveyor reduced value of stock more than 50% and value of machines 40% which was on higher side.  The O.Ps. be directed to pay the balance amount alongwith compensation to the tune of Rs.Two lacs for mental agony etc.

2.      O.Ps. filed reply controverting his averments and alleged that complaint was not maintainable and he had concealed material facts. Surveyor assessed loss to the tune of Rs.8,63,800/- and complainant accepted that amount as full and final settlement without any objection or protest, so he was not having any right to file complaint. He did not suffer loss as alleged by him.  Objections about jurisdiction, accruing cause of action etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Panipat (In short “District Forum”) allowed the complaint vide impugned order dated 01.09.2014 and directed as under:-

“We hereby allow the present complaint with a direction to opposite parties to pay of Rs.9,14,900/- with interest @ 9% per annum from the date i.e. 27.03.2012 when payment of Rs.8,60,100/- was made to the complainants, till its actual realization.  We further direct the opposite parties to compensate the complainant to the tune of Rs.10,000/- for rendering deficient services, for mental agony and harassment etc. Cost of litigation quantified at Rs.2200/-.”

4.      Feeling aggrieved therefrom, O.Ps. have preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the complainants vehemently argued that they were in dire need of money and officials of O.Ps. threatened to wait for 6-7 months, so discharge voucher was signed under protest as alleged in Para No.7 of the complaint. The discharge voucher was not signed with free will.  They filed this complaint just after receiving amount and cannot be considered as after thought version.  Incident took place on 29.03.2011, whereas surveyor gave report on 04.08.2011 beyond the prescribed period.  Learned District Forum rightly discarded the pleas of the O.Ps.  In support of his arguments, he placed reliance upon the opinion of Hon’ble Supreme Court  expressed in New India Assurance Company Limited Vs. Pradeep Kumar 2010 (1) C.P.C. 387. 

7.      This argument is devoid of any force. The complainant has miserably failed to show that he signed the discharge voucher under duress or misrepresentation etc.  There is no evidence on the file showing that any fraud was played with him.  Mere need of money is no ground to presume that the discharge voucher was signed due to force.  Hon’ble Supreme Court and Hon’ble National Commission has opined in so many cases that unless it is proved by insured that discharge voucher was obtained by fraud, mis-representation,  undue influence or coercive method it cannot be presumed that he can challenge the same and file fresh complaint.  It is also opined that there is no single business man on the earth who does not have the economic pressure.  The case laws referred by learned counsel for the O.Ps. are mentioned below:-

1.      United India Insurance Vs. Ajmer Singh cotton & General Mills & Ors Vs. decided on 12.08.1999.

2.      NIC Vs.Sehtia Shoes 2008 (June) CPJ 16 (SC)

3.      In consumer Case No.36 of 2014 titled as M/s Varg Acrylics Ltd Vs. M/s United India Insurance co. Ltd. decided on 16.12.2014 by Hon’ble National Commission.

4.      In consumer case No.32 of 2007 titled as Anshupati Fibres Pvt. Ltd. Vs. National Insurance Company decided on 14.01.2015  by Hon’ble National Commission.

In united India Insurance Vs. Ajmer Singh case (supra) it was held that:-

“If in a given case the consumer satisfied the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.”

In National Insurance Company Ltd. Vs. Sehtia Shoes case (supra) para No.8 is reproduced as under:-

“Filing of a complaint is, therefore, not barred; but it has to  be proved that agreement to accept a particular amount was on account of coercion.”

In M/s Garg Acrylics Ltd Vs. M/s United India Insurance case (supra), relevant para Nos.10,11 and 12 is as under:-

          “10.   Protest After encashment of Cheque

1. It appears that the complainant wants benefit of both the worlds.  It is trying to be smart.  If it was not satisfied with the above said settlement, it would have kept the cheque without encashing it.  The duplicity on the part of the complainant is clearly discernible.

11.    The full and final report is in consonance with the surveyor’s report

          The full and final settlement discharge voucher clearly shows that it is in consonance with the Surveyor’s report, rather it is more than that. The surveyor without any allegation of ill will or malice appears to be a sterling witness. This is settled law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the law laid down in “United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court cases 19 and in D.N.Badoni Vs. Oriental Insurance Co. Ltd. 1 (2012) CPJ 272 (NC.).

12.    Economic pressure

          i)        The economic pressure has no connection with the present controversy.  There is not a single businessman on the earth, who does not have the economic pressure. No other particulars of fraud, undue influence or coercion saw the light of the day.  There is no economic hardship. No Notice, no notice under the SARFAESI Act, No notice under the D.R.T Act was placed before us.”

In Anshupati Fibres Pvt. Ltd. Vs. National Insurance Company and anr. Relevant portion of Para No.6 is reproduced as under:-

“6.    Section      14 of the contract Act which defines ‘Free Consent” reads as under:-

14  Free consent defined- consent is said to be free       when it is not caused by

I.        coercion, as defined in section 15

2.      undue influence, as defined in section 16, or

3.      fraud, as defined in section 17

4.      misrepresentation, as defined in section 18

5.      mistake, subject to the provisions of sections 20,21, and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.”   

It shows that if objection is not raised at the time of accepting amount, complaint cannot be filed lateron.  From the perusal of Ex.R-4 and R-5 it is clear that the amount was received by complainant without any protest.  Neither it is mentioned in consent letter Ex.R-5 nor in discharge voucher Ex.R-4 that he was receiving this amount under protest.  Discharge voucher is dated 27.03.2012, whereas he filed this complaint on  06.03.2013 so it can be safely  presumed that this complaint is after thought version and is filed after 11 months and ten days.  It is alleged in Para No.7 of complaint that officials of O.P. arrived at the place of complainant on 27.03.2012 for paying the claim amount.  It shows that it is an after thought version.   Complainants cannot derive any benefit from the cited case laws because they are based on altogether different facts. In those cases value and procedure about survey report was discussed. Learned District Forum failed to take into consideration all these aspects, so impugned order dated 01.09.2014 cannot be sustained and the same is hereby set aside. Resultantly appeal is allowed and complaint is dismissed.

8.      The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

November 18th, 2016Diwan Singh Chauhan             R.K.Bishnoi,                                                                           Member                                  Judicial Member                                                                     Addl. Bench                            Addl.Bench                

S.K.