DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/262/2018
No. DF/ Central/
-
H. No. 10, Viii, Hirmthla, Tehsil Nuh,
Distt. Mewat (Haryana)
2. M/s. Pratap Shree Finance Company
2717, Kashmere Gate, Delhi - 110006
…..COMPLAINANTS
VERSUS
1. Branch Manager,
Oriental Insurance Company Ltd.,
1576, Church Gate, Delhi – 110006
2. Claim Hub: Oriental Insurance Company Ltd.,
4th/14, Azad Bhawan, G/Floor,
Jhandewalan, Extn, New Delhi - 55
…..OPPOSITE PARTIES
ORDER
Rekha Rani, President
1. Where a man has no choice, or rather no meaningful choice, but to give his consent to a contract or to sign on the dotted line in a prescribed or other form or to accept a set of rules as part of contract, however, unfair, unreasonable and unconscionable courts will strike down the same being an unfair or unreasonable clause in a contract entered into between the parties who are not equal in bargaining power. Thus observed Hon’ble Apex Court in Central Water Transport Corporation Ltd. &Anr. Vs. TarunKanti Sengupta & Anr. (1986) 3 SCC 156.
In arriving at the aforesaid conclusion Hon’ble Court referred to Chitti on
Contracts (25thEdn. Vol. 1, pr. 4) wherein it was observed that the Courts have
developed a number of devices for refusing to implement exemption clauses
imposed by the economically stronger party on the weaker. Thereafter, in the United India Insurance Co. Ltd., v. Ajmer Singh Cotton & General Mills Ors.,(1999) 6 SCC 400, it was observed that mere execution of discharge voucher and acceptance of insurance claim would not estop insured from making further claim from the insurer under the circumstances which can be termed as exercise of undue influence or coercion or the like.
2. The question which falls for consideration in the instant complaint is as to whether complainant had accepted settled amount under protest or voluntarily and whether he is entitled to protection under the judgements of the Apex court as quoted above.
3. Instant complaint was filed U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) by Fakruddin and M/s. Pratap Shree Finance Company (in short the complainants) pleading therein that : Complainant No. 1 is the owner of vehicle bearing Registration No. HR-74-A-3550 having Chassis No.MAT448062D3N20440, Engine No. : 31K63349735, Make : Tata Tipper (Truck) 2518-C Model 2013, Complainant No. 2 is the financer of the vehicle under an HPA which was insured with Oriental Insurance Company Ltd., (in short the OP) vide document of insurance titled
GCCV-Public Carriers other than ‘‘Three Wheelers Package Policy – Zone C Policy’’ for period from 27.11.2015 to 26.11.2016 (midnight) for a sum of Rs. 17,69,000/-.
On 27/03/2016 at about 1:20 AM the driver of the vehicle found the vehicle stolen. FIR No. 009167 dated 27.03.2016 was registered at Police Station Bindapur. The police investigated the matter and finally closed the case as untraced. Intimation regarding theft of the vehicle was reported to OP vide letter dated 27.03.2016. OP appointed M/s. Kotilya Detective & Investigation Agency for carrying out investigation in the circumstances of loss of the vehicle.
When OP did not settle the claim of the complainant, he visited OP’s office on a number of occasions and pleaded for quick settlement of the claim.
On 22/03/2017 complainant sent a notice to the OP. The matter was already one year old. In May 2017 OP proposed to the complainant that in case he accepted 75% of the claim amount, OP would pay the claim. As stolen vehicle was financed and condition of the complainant was financially deteriorating, he agreed to accept 75% of the claim amount but despite his consent OP did not release the payment. Therefore he on 04/06/2018 withdrew his consent and demanded 100% of the claim amount. OP did not settle the claim for long. Complainant needed money to pay the principal loan and the interest. So he signed the undertaking and letter of indemnity, as provided by OP, under undue influence. OP released payment of Rs. 13,25,250/- on 08/10/2018.
The said payment is short by Rs. 4,43,750/- which OP is stated to be bound to pay with interest at the rate of 12% per annum.
4. OP contested the claim vide its written statement. It is pleaded that complainant is a Private Limited Company and is engaged in commercial
activities and therefore does not fall within the purview of definition of consumer as defined under section 2(d) of the Consumer Protection Act, 1986. It is also pleaded that transaction between the parties is commercial and not that of service provider and consumer.
Further it is stated that OP repudiated the claim vide its letter 21/03/2017 on the basis of opinion of various experts and after investigating the matter it was found that the keys submitted by the complainant, which were got forensically examined, were fabricated and duplicate and they were not original considering the use of the keys as per the age of the vehicle and consequent wear and tear. It was found by the forensic expert that there was no natural striation marks on both the keys which proved that keys were unused and chemical test found that no special lubricant material deposit in the grooves of the keys. As such complainant violated clause 5 of the conditions of insurance policy. It is further stated that OP scrutinized the claim and approved payment of sum of Rs. 13,25,250/- on ‘nonstandard basis’ inclusive of depreciation, salvage value, excess clause etc. with the ‘consent of the complainant’. It is further stated that
complainant duly executed and signed the discharge voucher and letter of undertaking dated 10/08/2018.
5. Both sides filed their evidence by way of affidavits. Parties have also filed written arguments.
6. We have heard Shri Bhaskar Nayak counsel for complainant. Shri Sujit Kesri advocate for OP.
7. Learned Counsel for OP submitted that vehicle in question is a Tata truck which is a public carrier and is used for transportation of building material which is a commercial purpose and therefore complainant is not a consumer.
As per statement made under section 154 of Code of Criminal Procedure in FIR No. 009167 dated 27/03/2016 regarding the loss of vehicle in dispute, complainant stated that he is engaged in the business of supply of building material and he had a driver namely Khalil and helper namely Jabbar to run the vehicle in question.
8. Learned counsel for OP has taken an objection that complainant is a company and the purpose for which the vehicle was used is commercial purpose. OP is not able to prove that complainant is a company. The vehicle is being used for supply of building material which is a source of livelihood of the complainant as mentioned in para 17 of the complaint. He has alleged that he was left with no means of livelihood after the loss of the vehicle.
In Laxmi Engineering Works v. P.S.G, Industrial Institute [1995 (3) SCC 583] Hon’ble Apex Court has ruled :
‘’… On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit activity will not be 'consumers' entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be
gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large- scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit. "
9. OP has taken objection that vehicle is commercial in nature. Complainant is a Company and therefore is not a consumer as he was using the vehicle for commercial purpose.
Case of the complainant, on the other hand, is that he was using the vehicle for supply of building material for earning his livelihood and he was left with no
means of earning his livelihood after loss of the vehicle.
In Laxmi Engineering Works (supra) Hon’ble Apex Court has ruled that if buyer/owner, takes assistance of one or two persons to help him to run the vehicle he does not cease to be a consumer. So, even if complainant has engaged driver and a helper to run the vehicle he does not cease to be a consumer as the vehicle was being used for the purpose of earning his livelihood.
10. Learned Counsel for OP further submitted that complainant, having settled his claim for sum of Rs.13,25,250/-and having accepted the settled amount, is barred from agitating the issue afresh.
As per OP claim of Rs. 13,25,250/- was approved on non-standard basis with the consent of the complainant who received the same and duly executed and signed discharge voucher and letter of undertaking dated 10/08/2018 voluntarily without a word of protest. Reliance in this regard is placed on Judgement of National Commission in ‘‘Shree Balaji Woolen Mills vs. Oriental Insurance Company Limited’’ II (2013) CPJ 366 (NC) to submit ‘‘that once insured had received the amount in full and final settlement of his claim and signed the discharge voucher, insured claimant cannot permitted to reagitate his claim and further on another judgement of National Commission in
‘‘A.P. Jos vs. ICICI Lombard General Insurance Company Limited’’ II (2013) CPJ 386 (NC)to submit ‘‘that once petitioner/claimant has received the amount unconditionally and has also got the cheque encased, the complaint was not maintainable.’’
As per complainant he being in need of money to pay off his loan was forced to accept deficient amount. It is stated in paras 13 and 17 of the complaint that the vehicle stolen was financed and installments were required to be paid but as the vehicle was lost and no income could be earned by use of the vehicle condition of complainant was financially deteriorating and he was left without any means of livelihood. So, he was constrained to accept 75% of claim amount to pay of his loan and interest which was accumulating.
It is not in dispute that complainant vide his letter dated 04/06/2018 had withdrawn his consent and demanded 100% claim amount. As per complainant since his claim was not being paid and the loan amount was accumulating, he accepted 75% of the claim under compelling circumstances.
Reference may be made to the written statement of OP where OP has not specifically disputed the case of the complainant as pleaded in Para 13 and 17 of the complaint, that the stolen vehicle was financed. Principle loan amount and interest was accumulating which complainant had to pay to the financer and that
after the vehicle had been stolen he had no means of livelihood and no money to pay to the financer.
11. It is therefore clear that complainant did not accept deficient payment voluntarily. He had registered his protest against 75% payment. He had withdrawn his consent vide letter dated 04/06/2018 and made it clear to OP that he wanted 100% payment.
Thus complainant accepted settled amount under compulsion and not voluntarily. He is therefore, entitled to the benefit of the Judgement of Apex Court in Central Water Corporation (supra) as discussed in para 1 of this judgement.
It is the case of OP that claim was not maintainable. If that is so there was no need to settle the claim even on non – standard basis.
So complainant is held to be a consumer having accepted settled amount under protest.
12. In view of the aforesaid the instant complaint is allowed. OP is directed to pay Rs. 4,43,750/- to complainant along with Rs. 10,000/- as litigation cost within eight weeks from today failing which it shall carry interest @ 9% per annum from the said date till realisation. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this 18th Day of Dec. 2019.
