STATE COMMISSION

(First Appeal No.212 of 2012)

Argued by:  Sh. Tajender K. Joshi, Advocate for the applicant/ appellant.

                    Sh. Rajbir Singh, Advocate for the non-applicant/ respondent.

Dated the 1^st day of October 2012

ORDER

              Alongwith the appeal, an application for placing on record, Annexure A-1 copy of the cheque, Annexure A-2 copy of the discharge voucher and Annexure A-3 copy of the consent letter, by way of additional evidence, has been filed by the applicant/appellant.

2.           As per the averments, contained in the application, the applicant/appellant/Opposite Party could not produce these documents, before the District Forum, as the claim file was not traceable. It was stated that, on account of this reason, even reply could not be filed by the Opposite Party, in the District Forum, as a result whereof, its defence was struck off, vide order dated 09.03.2012. It was further stated that the Officials of the Opposite Party/appellant tried their level best, to locate the claim file, and, ultimately, the same was located on 14.05.2012. It was further stated that, under these circumstances, the documents, sought to be adduced, by way of additional evidence, could not be produced before the District Forum, at the relevant time. Accordingly, a prayer, referred to above, was made.

3.           We have heard the Counsel for the parties, on the application, and have gone through the record, carefully.

4.           The documents, aforesaid, sought to be placed on record, by way of additional evidence, were very much in possession of the appellant/Opposite Party. Had, due diligence been exercised by the Officers/Officials of the Opposite Party, at the relevant time, then the same could be produced before the District Forum. No party can be allowed to fill in lacunae, in its case, at the appellate stage. If these documents are allowed to be placed, on record, by way additional evidence, at this stage, further delay shall be caused in the disposal of appeal, thereby, defeating the very purpose of the provisions of the Consumer Protection Act, 1986. No ground is, therefore, made out, for allowing the application, and the same deserves to be dismissed.

4.           For the reasons recorded above, the application under disposal, is dismissed.

5.           Certified copies of this order, alongwith the order in the appeal, be sent to the parties, free of charge.

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Rg.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Reliance General Insurance Company Limited, through Rakesh Sonkar, Manager Legal, Power of Attorney holder of M/s Reliance General Insurance Company Ltd., DLF Building, F Block, Ist Floor, I.T., Park, Chandigarh [(old address 134-135, Sector 9-C, Madhya Marg, Chandigarh) (as mentioned in the complaint)]

……Appellant/Opposite Party

V e r s u s

Mukesh Kumar, son of Jeet Ram, r/o H.No.2515, Sector 15, Panchkula.

              ....Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Tajender K. Joshi, Advocate for the appellant.

                   Sh. Rajbir Singh, Advocate for the respondent.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 12.03.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, and directed the Opposite Party, as under:-

“As a result of the above discussion, the complaint is allowed and the OP is directed to pay the amount of   Rs.1 lac (balance claim amount) to the complainant subject to submission of documents of the vehicle along with subrogation letter for the purpose of transfer of the vehicle in the name of the OP – Insurance Company. The OP is also directed to pay a sum of Rs.10,000/- to the complainant as compensation for mental agony and harassment and Rs.5,000/- as costs of litigation.

This order be complied with by the OP within one month from the date of receipt of its certified copy, failing which, OP shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the complaint, till its realization, besides Rs.5,000/- as costs of litigation”.

2.      The facts, in brief, are that the complainant, being the owner of Tata (infact Toyota) Qualis Car, bearing registration No.HR-68-4346, got the same insured, with the Opposite Party, vide policy bearing No.2004702311012038, for the period from 23.11.2008 to 22.11.2009, for the Insured Declared Value of Rs.3 lacs. According to the complainant, no terms and conditions of the Policy were supplied to him. It was stated that on 30.3.2009, the driver of the complainant, parked the car, near his house. In the morning, it was found to be stolen. According to the complainant, he lodged FIR No.316 dated 9.4.2009, at Police Station, Manimajra, Chandigarh, under Section 379 IPC, and, thereafter, lodged the claim, alongwith the requisite documents, with the Opposite Party. The Opposite Party, assured that the claim would be released, within one month. It was further stated that, in November 2009, the complainant was told by the Opposite Party, that it will release the payment of Rs.2 lacs, against the insured amount of Rs.3 lacs, subject to signing of the discharge voucher, in full and final settlement of the claim. It was further stated that the Opposite Party, obtained his signatures, under undue influence, and coercion. It was further stated that, only Rs.2 lacs, were paid to the complainant, by the Opposite Party, against the claimed amount of Rs.3 lacs. It was further stated that the Opposite Party, illegally retained the amount of Rs.1 lac, from the claim, filed by the complainant. It was further stated that the Opposite Party was, many a time, asked to release the illegally retained amount of Rs.1 lac, but to no avail.  It was further stated that the aforesaid act of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Party, to release the balance claim amount of Rs.1 lac, alongwith interest @18% per annum, from the date of theft, till realization; pay compensation for mental agony and physical harassment, to the tune of Rs.50,000/-; and pay cost of litigation, to the tune of Rs.11,000/-.

3.             The Opposite Party, put in appearance, through its Counsel. A number of opportunities, were granted to the Counsel for the Opposite Party, to file written version, and evidence, with or without costs, but it failed to do so. Ultimately, vide order dated 09.03.2012, the defence of the Opposite Party, was struck off, by the District Forum.

4.             The complainant led evidence, in support of his case.

5.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, produced by the complainant, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

7.             We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

8.             The Counsel for the appellant, submitted that, as per the admission of the complainant, in the complaint itself, he received a sum of Rs.2 lacs, against the claim submitted by him, in the sum of Rs.3 lacs. He further submitted that, the cheque, in the sum of Rs.2 lacs, was received by the complainant, in full and final settlement of the claim, on 02.02.2010. He further submitted that the cheque was received by the complainant, without raising any protest. He further submitted that even the discharge voucher was signed by the complainant, of his own free volition, without raising any protest. He further submitted that, in case, the signatures of the complainant, on the discharge voucher, were obtained under coercion or duress, if he could not raise any protest, at the time of receipt of the cheque, in the sum of Rs.2 lacs, on 02.02.2010, he could, immediately, write a letter to the Opposite Party, that he received the amount, of Rs.2 lacs, in partial satisfaction of the claim, lodged by him, and that the remaining amount be paid to him. He further submitted that since no pressure was exercised on the complainant, nor he signed the discharge voucher, under coercion, he did not raise any objection, at the time of signing the same, or immediately thereafter. He further submitted that he slept over the matter, for a period of more than one year and nine months, and, ultimately, on 09.11.2011, filed the complaint, that his signatures, on the discharge voucher were obtained under undue influence, coercion and duress. He further submitted that, such a belated stand of the complainant, taken by him, in the complaint, could not be relied upon, by the District Forum. He further submitted that, no doubt, the Opposite Party did not file the written version and evidence, despite affording a number of opportunities to it, yet it is settled principle of law, that the District Forum, was required to properly scrutinize the evidence, produced by the complainant, before coming to the conclusion, as to whether, the discharge voucher was signed by him, under undue influence, coercion and duress, but it did not do so. He further submitted that the bald statement of the complainant, that his signatures were obtained under undue influence, coercion and duress, that too, after a period of about two years, from the acceptance of payment of Rs.2 lacs, vide the cheque, aforesaid, could not be acted upon, to prove his assertion. He further submitted that the District Forum, erred in accepting the complaint, and awarding reliefs, to the complainant. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

9.             On the other hand, the Counsel for the respondent, submitted that while accepting the cheque of Rs.2 lacs, on 02.02.2010, and while signing the discharge voucher, undue influence, coercion and duress were exercised on the complainant. He further submitted that since the allegations, made by the complainant, in the complaint, relating to undue influence, coercion and duress, having been exercised upon him, duly supported by his own affidavit, remained unrebutted, as the Opposite Party, failed to submit its written version and evidence, the District Forum was right in believing the case of the complainant. He further submitted that the order of the District Forum is legal and valid.

10.          After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence, on record, led by the complainant, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded hereinafter. Undisputedly, the car, in question, was got insured with the Opposite Party, vide policy bearing No.2004702311012038, valid for the period from 23.11.2008 to 22.11.2009, for the Insured Declared Value of Rs.3 lacs.  There is hardly any dispute, that the car was stolen on 30.03.2009 and FIR No.316 dated 9.4.2009, at Police Station Manimajra, Chandigarh, under Section 379 IPC, in respect thereof was lodged by the complainant. The complainant also filed the claim, alongwith the requisite documents. Admittedly, the complainant received a sum of Rs.2 lacs, vide cheque dated 02.02.2010, against the claim of Rs.3 lacs, lodged by him. The question, that falls for consideration, is, as to whether, the amount of Rs.2 lacs, was received by the complainant, in full and final settlement of the claim and the discharge voucher was signed by him, of his own free volition, or under undue influence, coercion and duress. In the complaint, it was stated by the complainant, that in the month of November, 2009, he was called by the Opposite Party, to its office and was told that it will release the payment of Rs.2 lacs, against the insured amount of Rs.3 lacs, in full and final settlement of the claim, but he refused the offer. According to the complainant, the Opposite Party told him, that, in case, he did not accept the amount of Rs.2 lacs, the payment shall not be made to him. He further stated in paragraph number 3b, of the complaint, that thereafter, the Opposite Party obtained his signatures on the discharge voucher, under undue influence, coercion and duress. No doubt, the averments, made by the complainant, in his complaint, in this respect, were also supported by him, in his affidavit, which was submitted, by way of evidence. Originally, the complainant did not produce the discharge voucher. Later on, on the directions of the District Forum, the  complainant moved an application, for placing on record the discharge voucher Annexure C-1. Thus, the discharge voucher Annexure C-1 was taken on record, and admitted into evidence. It may be stated here, that the complainant, intentionally, did not produce the complete and true copy of the discharge voucher. It appears, that while getting a photocopy of the said discharge voucher, the portion on which the signatures of the complainant, were in existence, was shadowed, by keeping a paper thereon. Since, it was the definite case of the complainant, in the complaint, that his signatures were obtained on the discharge voucher, under undue influence, coercion and duress, then how the signatures on Annexure C-1, copy of the discharge voucher produced by him, disappeared, is not known. There is nothing in Annexure C-1, that he raised any protest.  In case, the amount of Rs.2 lacs was not acceptable to him, then he could make an endorsement, on the discharge voucher, copy whereof is Annexure C-1. Not only this, even immediately after signing the discharge voucher and receipt of the cheque, in the sum of Rs.2 lacs, the complainant did not write any letter to the Opposite Party, that he had received the amount, in partial satisfaction of his claim, and was entitled to the remaining amount. What to speak of writing a letter to the Opposite Party immediately, after the receipt of cheque, in the sum of Rs.2 lacs, in alleged partial satisfaction of his claim,  he did not write the same, upto the filing of complaint. Instead he filed the complaint on 09.11.2011, i.e. after a period of about one year and nine months, of the receipt of the cheque, and after about two years, of signing the discharge voucher. Why the complainant slept over the matter, for a period of about 2 years, is not known. It was, in the complaint, that for the first time, he claimed that his signatures, on the discharge voucher, were obtained under undue influence, coercion and duress. There is neither any document, on record, nor any circumstance prevailing thereon, to convince this Fora, as to what prevented the complainant, from lodging the protest, immediately, after the receipt of the amount, aforesaid. Since, the discharge voucher was signed by the complainant, of his own volition, and without any coercion or pressure, he did not lodge any protest, with the Opposite Party, that he was receiving the amount, in partial satisfaction of the claim, and was entitled to the remaining amount. The silence of the complainant, for a period of about one year and nine months, in itself, was sufficient to notify his volition and consent, regarding the receipt of the amount of Rs.2 lacs, in full and final settlement of the claim on the basis of Annexure C-1. Copy of the discharge voucher Annexure C-1, also recites that the complainant voluntarily gave the same, to the Opposite Party, in full and final settlement of the claim, present or future arising directly/ indirectly, in respect of the said loss/accident. The District Forum, failed to take into consideration, this very important circumstance, on record, and, on the other hand, relied upon the make-believe story, set up by the complainant, in the complaint, after about one year and nine months of the receipt of amount of Rs.2 lacs, and after a period of two years, from the date of signing the discharge voucher. In United India Insurance Co. Vs. Ajmer Singh Cotton & General Mills & Ors. etc., 1999(2) CPC,  601 (SC) the principle of law, laid down, was to the effect that, when the claim was accepted by the complainant, without any objection or without any protest, as full and final settlement of the claim, made by the insurer, then it  could not be allowed,  to seek any further relief. It was further held that mere execution of the discharge voucher could not deprive the claimant of the consequential relief, particularly when such discharge voucher was obtained by fraud, misrepresentation or under coercion or by way of coercive bargain. The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. No doubt, the complainant, after the signing of the discharge voucher, and receipt of the cheque of Rs.2 lacs, could immediately write a letter, raising protest that the amount of Rs. 2 lacs, was received in partial satisfaction of the claim. He could also, make an endorsement on the discharge voucher, that he was receiving the amount of Rs.2 lacs, under protest, but he did not do so, as stated above. Not only this, as depicted above, discharge voucher, in itself, is sufficient to prove that the amount of Rs.2 lacs was received by the complainant,  in full and final settlement of the claim. Under these circumstances, by no stretch of imagination, it could be said that any pressure was exercised upon the complainant, or he signed the discharge voucher, under undue influence, coercion and duress. Had the District Forum, scrutinized the bald statement of the complainant, made by him, by way of affidavit, in the prevailing facts and circumstances of the case, it would have certainly come to the conclusion, that the complaint filed by the complainant, was nothing, but false and frivolous. However, the District Forum, did not scrutinize the facts and circumstances of the case, as also the documents on record, in proper perspective, as a result whereof, it fell into a grave error, in holding that the discharge voucher was signed by the complainant, under undue influence, coercion and duress, and the amount of Rs.2 lacs, was received by him, in partial satisfaction of the claim. The District Forum was, thus, wrong in coming to the conclusion, that the Opposite Party was deficient, in rendering service. The order of the District Forum, being illegal and invalid, is liable to be set aside

11.          No other point, was urged, by the Counsel for the parties.

12.          In view of the above discussion, it is held that the order passed by the District Forum, being not based, on the correct appreciation of evidence, facts and circumstance of the record, as also law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.

13.          For the reasons recorded above, the appeal, is accepted, with no order as to costs. The order of the District Forum is set aside.

14.          Certified copies of this order, be sent to the parties, free of charge.

15.          The file be consigned to Record Room, after completion

Pronounced.

October 1, 2012

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[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

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[NEENA SANDHU]

MEMBER

Rg