DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.201/28.11.2008 Decided on : 04.02.2009 Amrit Paul S/o Sh.Parkash Chand C/o R.C.Industries, Jawaharke Road, Mansa ..... Complainant. VERSUS 1.Oriental Insurance Company Limited, through its Manager, Mansa. 2. The D.M. Oriental Insurance Company Limited, Bathinda. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Complainant with counsel, Sh.Naval Goyal, Advocate. Sh.P.K.Singla, Advocate, counsel for the opposite parties. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President. This complaint has been filed, by Sh.Amrit Paul son of Sh.Parkash Chand C/o M/s R.C.Industries, a small scale unit, engaged in supply of mustard oil, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'). The complainant has secured the Marine Insurance Policy from the opposite parties, vide cover note No.58374 dated 10.6.2002, for his above said product carried in tanker bearing Registration No.WB-73/8470 and paid a sum of Rs.23,337/- as premium covering transit risk, from Mansa to Calcutta. The said tanker met with an accident, on 2.8.2002, at Durgapur Express highway, near Contd........2 : 2 : Gougram in District Burdwan in the State of West Bengal on account of which he suffered loss and the surveyor appointed by the opposite parties, assessed loss, in the sum of Rs.6,61,718/-, and submitted his report on 9.9.2002. The opposite parties, had paid a sum of Rs.5,01,509/-, vide cheque No.0370011 dated 6.11.2002 and gave assurance, to the complainant, that remaining amount would be paid shortly. The complainant, has visited the office of the opposite parties several times, for remaining payment, but they have not paid any heed. Earlier they, agreed to pay the amount, to the complainant, after procuring his signatures on some papers after much harassment and loss of time and money. The complainant, had no other option, but to append his signatures, at the asking of the opposite parties, to avoid further harassment, loss and inconvenience. The opposite parties then delivered him cheque dated 2.5.2003, in the sum of Rs.1,06,321/-, after a period of six months after delivery of first cheque, as such, there is deficiency in service, on the part of the opposite parties, who, after a period of two months, informed the complainant that they will not pay the remaining amount of loss assessed by their surveyor inspite service of notice vide registered letter on 9.7.2003 on OP No.2. At the end a prayer, has been made, to direct the opposite parties, to make balance payment of Rs.90,113/-, alongwith interest and costs and compensation in the sum of Rs.50,000/-. 2. On being put to notice, opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complainant is not a consumer, under them, within its definition, given in the Act; that complainant have purchased the insurance policy for commercial purpose, as such, complaint is not maintainable; that complaint is bad for non joinder and mis joinder of necessary parties; that the complainant, has no locus standi and cause of action, to file the complaint; that he, has concealed the material facts, from the knowledge of this Forum and his complaint, being false and vexatious, is liable to be Contd........3 : 3 : dismissed with compensatory costs of Rs.5,000/-. On merits, it is admitted, that complainant is partner of M/s R.C. Industries. It is also not disputed that complainant secured the Marine Insurance Policy from the opposite parties vide cover note No.58374 dated 10.6.2002 and paid a sum of Rs.23,337/- on account of premium. It is also not denied that tanker carrying mustard oil weighing 15.520 metric tonnes of the firm of the complainant from Mansa to Kolkata met with an accident on 2.8.2002 at Durgapur Express highway near village Gougram, District Burdwan in the State of West Bengal and he suffered loss in the said accident. It is submitted that amount of Rs.5,01,509/- and Rs.1,06,321/- was paid to the complainant, in full and final settlement, of his claim, after he affixed his signatures on vouchers, letter of subrogation, letter of indemnity and letter of undertaking, relinquishing all his rights and liabilities to recover any amount from the transporters in the consignment. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 3. On being called upon by this Forum to do so, both the parties adduced oral and documentary evidence through their respective counsel. 4. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by them , carefully, with their kind assistance. 5. At the out set, learned counsel for the opposite parties Sh.P.K.Singla, Advocate, has submitted that complainant, has executed documents with his free consent and has received the amount, as full and final settlement of his claim, with protest, as such, he is estopped by his own act and conduct, from reagitating the matter again. Learned counsel, has argued that in case payment is received by the insured, without protest, as full and final settlement of claim, then he cannot file the complaint for recovery of the amount as assessed by the Surveyor. Learned counsel, has further argued that intricate questions of law and facts, are involved, as Contd........4 : 4 : such, controversy cannot be decided in summary manner and opportunity has to be afforded to the parties to lead evidence to prove their respective contentions, as such, proper course is to refer them to the civil court. In support of his contentions, learned counsel has relied upon 2002(III) NC CPJ 367 Vipras Corporation Limited versus National Insurance Company Limited, wherein it has been held by the Hon'ble National Commission, that it would be appropriate to relegate the parties to civil court, if it is not possible, to decide the issue in summary manner. The complaint, was returned to be filed in civil court or before any other appropriate Forum ,with the verdict that complainant would certainly have right to seek exclusion of time spent in pursuing his complaint, as provided under Section 14 of the Indian Limitation Act, 1963 in view of the ratio of judgment delivered by the Hon'ble Supreme Court in 1995(II) CPJ SC 1 Laxmi Enginerring Works versus PSG Industrial Institute. 6. On the other hand, learned counsel for the complainant Sh.Naval Goyal, Advocate, has contended that documents have been got signed, from the complainant, under coercion and duress, by the opposite parties, as such, they cannot be said to have been executed by him with his free consent. Learned counsel, has argued that opposite parties are liable to pay the remaining amount, as per assessment made by their Surveyor , even if it is established that complainant has not received the payment earlier as full and final settlement. 7. We find merit in the argument advanced by the learned counsel for the opposite parties, who have produced on record several documents purported to have been executed by the complainant with his free consent. As per their plea, he has received the amount of claim in two installments, in the sum of Rs.5,01,509/- and Rs.1,06,321/-, as full and final settlement and, has relinquished all his rights against the common carrier, who carried his consignment of mustard oil from Mansa to Kolkata. The copies of discharge voucher, letter of subrogation, letter of Contd........5 : 5 : indemnity, letter of undertaking, Ext.OP-7 to OP-9, produced on record by the opposite parties contains recitals to the effect that complainant, has received the amount as full and final settlement of his claim. They also bear his signatures and seal of his firm. The complainant has not denied existence of his signatures, on these documents, but his plea, is that, his signatures, were secured on them, under duress and coercion, practiced by the opposite parties. There is nothing on record, to show that, complainant received the amount, under protest. As such, there are substantial questions, which need investigation and can be adjudicated, in just and proper manner, by the civil court, after affording opportunity, to the parties to lead their evidence. 8. For the aforesaid reasons and being fortified by the ratio of judgment relied upon by the learned counsel for the opposite parties and cited above, we dismiss the complaint with liberty to the complainant to avail remedy open to him before the civil court or from any other authority. The complainant will have right to seek exclusion of time spent before this Forum, for the purpose of condonation of delay, as permissible, under Section 14 of the Indian Limitation Act, 1963. 9. In view of the peculiar facts and circumstances of the case, parties are left to bear their costs. 10. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. The file be indexed and consigned to record. Pronounced: 04.02.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
