Tripura

StateCommission

A/12/2016

The Divisional Manager , The oriental Insurance Co.ltd - Complainant(s)

Versus

Sri. Gopal Debnath - Opp.Party(s)

Mr. P.K Debnath

02 Aug 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/12/2016

 

 

 

1. The Divisional Manager,

The Oriental Insurance Company Ltd.,

44/2, Central Road, Agartala,

West Tripura, Pin-799001.

                                                  ….    ….    ….    ….    Appellant.

 

 

                   Vs

 

 

1. Sri Gopal Debnath,

S/o Lt. Ram Mani Debnath,

Vill-Durgabari, P.O. Tebaria, Bamutia,

District - West Tripura.

Pin – 799015.

                                                            ….    ….    ….    ….    Respondent.

 

 

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

 

For the Appellants             :         Mr. Prahlad Kumar Debnath, Adv.

For the Respondent           :         Mr. Surajit Bhattacharya, Adv.

Date of Hearing       :         13.07.2016. 

Date of delivery of Judgment:       02.08.2016. 

 

 

 

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 22.04.2016 by the appellant, Oriental Insurance Company Ltd. under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Award dated 18.03.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-47/2015 whereby the Ld. Forum allowed the application filed under section 12 of the Consumer Protection Act and directed the opposite party Oriental Insurance Company Ltd. to pay to the complainant the total Rs.6.00 lakhs as compensation out of which Rs.2,72,000/- already paid. It appears that by the said judgment, the Ld. Forum also directed the Insurance Company to pay the rest amount i.e. Rs.3,28,000/- to the petitioner with a further direction to pay Rs.10,000/- for deficiency in service and Rs.5,000/- for cost of litigation to the petitioner within two months and if the amount is not paid within two months, it will carry interest @9% per annum.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the vehicle No.TR-01-B-1361 (mini bus) belonging to the respondent-complainant Gopal Debnath was insured with the appellant Oriental Insurance Company Ltd. for a sum assured of Rs.11,95,000/-, but the vehicle met with an accident during policy period and on receipt of intimation of accident dated 02.02.2014 and on submission of the Motor Claim Form, estimate and survey report, MVI report and Police report, bill, voucher etc., the claim was recommended and approved for making payment of Rs.2,76,200/- by the appellant as full and final settlement of all claims including the repairing cost of the damaged vehicle, with the respondent and accordingly, Gopal Debnath, the respondent accepted the settlement on 27.11.2014 and signed on the discharge voucher without any protest letter on the settled amount and accordingly, the said amount was paid and posted on 29.11.2014 favouring SBI, Shalbagan Branch A/C of Mr. Gopal Debnath and the said amount was encashed as per banking system.
3. It is alleged that after satisfying with all the process of settlement, the respondent lodged the complaint with baseless pleadings before the Ld. District Forum who has determined the complaint on two points only and allowed the complaint and passed the impugned judgment.     
4. Being aggrieved by and dissatisfied with the impugned judgment dated 18.03.2016, the appellant has preferred the instant appeal on the grounds that the impugned judgment is not maintainable in law being against the principle of estoppels, waiver and acquiescence and thus, the judgment and award is void, unjustified and illegal, that the Ld. Forum ought to have appreciated that there was enough documentary evidence to show that the respondent insured has accepted the amount without any coercion, undue influence, misrepresentation etc. and this fact has not been specifically considered by the Ld. Forum, that the Ld. Forum misread the evidence and on perverse approach, passed the impugned judgment by ignoring the materials on record and has failed to decide the important fact in issue that there had to be an adjudication as to whether the discharge voucher was signed by the respondent voluntarily or under any coercion, undue influence, misrepresentation or the like, that the Ld. District Forum has misconstrued and misunderstood the implication of relevant fact and in absence of pleadings and evidence, the award so passed is not justified in allowing the complaint, that the Ld. Forum ought to have appreciated that the report of surveyed assessment of Rs.3,02,072/- is issued without prejudice and the Insurance Company considered the report after scrutinizing all matters as per the policy norms and settled the amount at Rs.2,76,200/- and as such, the claim of expenses for Rs.6.00 lakhs is totally baseless and imaginary, that there was no deficiency in service on part of the Insurance Company, that the respondent-complainant accepted the settlement on 27.11.2014 and signed on the discharge voucher voluntarily and without any protest on the settled amount, but the Ld. Forum erroneously passed the award for an amount of Rs.6.00 lakhs as compensation and also awarded a sum of Rs.10,000/- for deficiency in service which is not sustainable in the eye of law and as such, the impugned judgment should be set aside and hence, the instant appeal has been preferred.  

 

Points for Consideration

5. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in allowing the claim and passing the award by the impugned judgment and (ii) whether the judgment under appeal should be set aside as prayed for.

Decision with Reasons     

6. Both the points are taken up together for the sake of convenience and brevity.
7. Going through the pleadings of the parties and the evidences, it is found admitted position that the vehicle No.TR-01-B-1361 (mini bus) belonging to the respondent-complainant Gopal Debnath was insured with the appellant Insurance Company for the sum assured of Rs.11,95,351/-. It is also admitted fact that the said vehicle met with an accident on 02.02.2013 at Umsamlem, NH-40, Umsning Police Out Post, Meghalaya during the insurance coverage period beginning from 23.03.2012 to 22.03.2013. It is also admitted fact that the said motor vehicle accident was diarized at Nongpoh Police Station. It is also admitted fact that the matter of accident was reported to the appellant Oriental Insurance Company Ltd. who in turn appointed the surveyor Aswini Sarma for assessment of the damages caused to the said motor vehicle due to accident. It is also admitted fact that the surveyor after necessary inspection and allowing necessary depreciation submitted report after assessing the quantum of damages at Rs.3,02,072/-. It is also admitted fact that the appellant Insurance Company settled the claim of the complainant at Rs.2,76,200/-. It is also admitted fact that the complainant signed the discharge voucher on 27.11.2014 for the said settled amount of Rs.2,76,200/-.

It is also admitted fact that after the said motor vehicle accident, the vehicle of the complainant was brought to Agartala from the place of accident and placed with “Sharma Auto Industries” at Siddhi Ashram for repairing.

8. At the outset we like to mention that as per complaint in paras 13 & 14, the amount so settled and paid is at Rs. 2,76,000/- , but the Ld. District forum in paras 1 & 7 of the impugned Judgment wrongly mentioned it as Rs. 2,76,000/-. Again, the Ld. Forum in para 8 i.e. the operative portion of the impugned Judgment erroneously mentioned Rs. 2,72,000/- instead of Rs. 2,76,200/-.
9. The Ld. Counsel for the appellant Insurance Company submitted that the complainant Gopal Debnath voluntarily accepted the settlement for Rs.2,76,200/- and accordingly, the Insurance Company transmitted the said amount in the bank account of the complainant at Shalbagan Branch. He also submitted that the complainant accepted that settlement not under coercion, undue influence, misrepresentation and like, but after some days of it, the complainant went to the office of the Insurance Company and submitted a letter claiming more money. He also submitted that as the claim of the complainant is fully and finally settled and having no chance to reopen the file, further claim of the complainant was not considered by the appellant Insurance Company. He also submitted that the Insurance Company did not force the complainant to sign the Discharge Voucher, rather the complainant signed the Discharge Voucher with full satisfaction and therefore, the complainant cannot make further claim for more money, but the Ld. District Forum wrongly entertained the complaint containing claim for more money from the Insurance Company.
10. The Ld. Counsel for the appellant also submitted that although the complainant lodged complaint before the Ld. District Forum claiming more money, but the complainant has not made out any case of coercion, undue influence and misrepresentation in the complaint for establishing that the complainant did not sign the discharge voucher voluntarily. In this regard, the Ld. Counsel for the appellant has referred to the two decisions of the Hon’ble Apex Court reported in (1999)6 Supreme Court case 400 and 2008 CTJ 329 (Supreme Court) (CP). Relying on the principle of laws laid down by the Hon’ble Apex Court in the two referred decisions, Ld. Counsel for the appellant also submitted that the Ld. District Forum erroneously allowed the complaint and passed the impugned judgment which, not being proper, legal and justified, should be set aside and the appeal should be allowed.
11. On the other hand, the Ld. Counsel for the respondent-complainant submitted that the Insurance Company did not supply any copy of the survey report to the complainant before making the alleged settlement of the claim. He also submitted that the complainant casually visited the office of the appellant for getting information regarding the claim submitted by him before the Insurance Company and at that time, Insurance Company without informing and explaining him anything got the discharge voucher signed by the complainant. He also submitted that the manner in which the Insurance Company got the discharge voucher signed by the complainant has made it clear that the complainant did not sign the discharge voucher voluntarily. He also submitted that the Insurance Company settled the amount arbitrarily at Rs.2,76,200/-, whereas, the surveyor appointed by the Insurance Company, assessed the quantum of damages after allowing necessary deductions and depreciation at Rs.3,02,072/-. He also submitted that the Insurance Company even did not settle the amount assessed by its surveyor. He also submitted that the complainant had to incur an amount of Rs.40,000/- for bringing his vehicle from the place of the accident to Agartala by crane, but the surveyor only recommended to allow Rs.2,500/- as carrying cost. He also submitted that the complainant incurred totally an amount more than Rs.6.00/- lakhs and submitted the necessary documents showing the incurring of such expenditure with the Insurance Company along with claim application, but the Insurance Company whimsically did not accept the claim of the complainant. He also submitted that the Ld. District Forum duly considered the entire matter and rightly allowed the compensation of Rs.6.00 lakhs as cost of repairing the damaged vehicle and also allowed compensation of Rs.10,000/- for deficiency in service  by the impugned judgment which, being proper, legal and justified, should be affirmed and the appeal should be dismissed.  
12. Admittedly, no voucher or receipt showing the incurring of expenditure of Rs.40,000/- by the complainant for bringing the damaged vehicle from the place of accident to Agartala has been produced by the complainant either before the surveyor or before the Insurance Company or before the Ld. District Forum. The complainant as PW.1 admitted in his cross-examination that he has not produced any document showing the incurring of such an expenditure of Rs.40,000/-.   
13. At the time of hearing, the Ld. Counsel for the respondent admitted before us that the complainant has nothing to prove that he has incurred an amount of Rs.40,000/- as carrying cost for bringing the damaged vehicle from the place of accident to Agartala. Mere claim without supporting any documentary evidence does not entitle the claimant to get the claimed amount as prayed for unless it is admitted by the party allegedly contradicting the said claim. In the instant case, the Insurance Company never admitted the said amount as carrying cost as claimed by the complainant and therefore, the claim of Rs.40,000/- as claimed by the complainant towards the carrying cost is not allowable. We also find nothing to hold that the Insurance Company is under legal obligation to supply the copy of the survey report to the complainant before making such settlement as submitted by the Ld. Counsel for the respondent.
14. Going through the impugned judgment, we find that the Ld. District Forum directed the o.p. Insurance Company to pay total Rs.6.00 lakhs as compensation for cost of repairing of the damaged vehicle. Para-7 of the said judgment, we find that the Ld. District Forum assessed the amount considering that there was insurance coverage up to Rs.11.00 lakhs, the o.p. Insurance Company could assess the damage without depreciation and also by way of taking into consideration the labour charge. From the photocopy of three invoices issued by HIND AUTOMOTIVES, it transpires that the complainant filed three invoices for amount of Rs.37,400/-+23,780/-+34,010/- totalling   Rs.95,190/-. It also appears from the photocopy of another bill issued by Sharma Auto Industries containing estimate that the said bill discloses an expenditure of Rs.5,28,000/-. Barring these four bills, the complainant filed no other bill or invoice showing that he had incurred an amount of Rs.6.00 lakhs towards the cost of repairing of his damaged vehicle, but if these four amount are taken into calculation, it becomes Rs.6,23,190/-. The Ld. District Forum did not mention in the impugned judgment as to why only 6.00 lakhs has been allowed as compensation on the count of repairing charge of the damaged vehicle. In this regard, we find that the cross-examination of the complainant as PW.1 and the cross-examinations of PW.3 Pradip Kumar Sharma as proprietor of M/s Sharma Auto Industries are very vital.
15. The PW.1 (complainant) stated in his cross-examination that some of the spare parts mentioned in the bill were purchased from outside by the repairer. He also stated in his cross-examination that out of total 26 spare parts as mentioned in the bill, about 23 numbers of spare parts were purchased from outside and all the vouchers showing the purchase of spare parts from outside were handed over to the repairer by him. PW.3, owner of Sharma Auto Industries stated in his cross-examination that they repaired the Bus TR-01-B-1361 and the estimate of repairing was issued by his manager and the parts were not sold from Sharma Auto Mobiles, but the photocopy of the bill issued for an amount of Rs.5,28,000/- has made it clear that it contains 25 items mentioning therein the price or the cost for each item. This bill does not show that the items showing the amount of charge for each item were not supplied by Sharma Auto Industries, but the same were purchased from outside. It is true that only three invoices mentioned earlier disclose that some items were purchased from Hind Automotives which cost only at Rs.95,190/-. So, it is palpable that the photocopy of the bill issued from Sharma Auto Industries for an amount of Rs.5,28,000/- is not supported by any purchased voucher. If we take into consideration that the estimate for repairing the damaged vehicle inclusive of all is at Rs.5,28,000/-, it does not justify for granting a compensation of Rs.6.00 lakhs as allowed by the impugned judgment.
16. The complainant in the Ld. Forum claimed total Rs.6,40,000/- as cost of repairing the damaged vehicle, but the Insurance Company in the written objection categorically raised an important question alleging that the Insurance Company did not force the petitioner to sign the discharge voucher and the petitioner (complainant) signed the voucher with full satisfaction. That being the plea of the o.p. Insurance Company, the Ld. District Forum ought to consider whether the complainant signed the discharge voucher after accepting the settlement at Rs.2,76,200/- voluntarily or signed the discharge voucher under coercion, undue influence, misrepresentation and the like, although the complainant has made out no such case in the complaint. The Ld. Advocate for the Insurance Company argued before us at length in this regard stating, when the complainant voluntarily signed the discharge voucher, there is no scope to file such a complaint case subsequently. The Ld. Advocate for the Insurance Company also submitted that a complaint case even after signing of the discharge voucher can be lodged before the Ld. District Forum, if the signing of the said discharge voucher is not made voluntarily, but is made under coercion, misrepresentation, fraud and undue influence. He also submitted that for lodging such complaint, the complainant has to make out such a case in the complaint pleading a case of coercion, undue influence, fraud, misrepresentation and the like, but in the instant case, the complaint is devoid of any such pleading. He also submitted that not only so, the complainant adduced no evidence in this regard.
17. Going through the complaint, we find that the complainant practically made out no case to the effect that he signed the discharge voucher under coercion, fraud, undue influence, misrepresentation etc. Even he did not plead in the complaint that he did not sign the discharge voucher voluntarily. The complainant as PW.1 categorically stated in his cross-examination that he was not forced by the o.p. to receive the cheque. He also admitted in cross-examination that at the time of receiving the cheque, he did not put any remark to the effect that he was not satisfied with the amount paid to him by the Insurance Company. This admission and the circumstances as appearing from the cross-examination of the PW.1 have made it clear that the complainant signed the discharge voucher voluntarily and he was not forced to sign the discharge voucher under fraud, undue influence, coercion, misrepresentation and the like.
18. We have gone through the case-laws referred to by the Ld. Counsel for the appellant Insurance Company. It transpires from the decision of the Hon’ble Apex Court reported in (1999) 6 Supreme Court Cases 400 as referred by the Ld. Counsel for the appellant that the Hon’ble Apex Court has pleased to hold that mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. It is also held in the said referred case that despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the C.P. Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. It is also held in the said referred case that if the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made, would be justified in granting appropriate relief. The Hon’ble Apex Court in the said referred case also has been pleased to hold, “in the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence, the State Commission was justified in dismissing their complaints.” The Hon’ble Apex Court has also been pleased to hold the similar view in another case reported in 2008 CTJ 329 (Supreme Court) (CP).
19. The Ld. Advocate for the respondent-complainant practically admitted in course of hearing the appeal that the complainant has made out no such case of coercion, undue influence, fraud, misrepresentation etc. in the complaint. He submitted that the Insurance Company did not settle the amount as per estimated amount and not only so, the Insurance Company failed to follow the report of the surveyor appointed by it. He also submitted that the Insurance Company whimsically settled the claim of the complainant only at Rs.2,76,200/- which is not supported by any reasoning and as such, he further submitted for upholding the judgment passed by the Ld. District Forum. The facts and circumstances of the instant case have made it clear that the complainant signed the discharge voucher voluntarily. It is also established that the complainant has made out no case of exercising any coercion, fraud, undue influence, misrepresentation or the like upon him by the Insurance Company for signing the discharge voucher. Admittedly, the Insurance Company deposited the settled amount of Rs.2,76,200/- in the bank account of the complainant as per discharge voucher dated 27.11.2014. So, in view of the principle of law enunciated by the Hon’ble Apex Court in the cases referred by the Ld. Counsel for the appellant Insurance Company mentioned above, we are of the view that the complainant voluntarily and knowingfully well signed the discharge voucher dated 27.11.2014 being agreed to accept the settlement offered by the Insurance Company. We are also of the view that the lodging of the complaint with the District Forum, is not only a matter of afterthought, but also, such complaint is devoid of any case pointing out the finger towards the signing of the discharge voucher under fraud, undue influence, misrepresentation, coercion and the like. Not only so, the complainant failed to plead and establish that in a compelling circumstance, he signed the discharge voucher. Be that as it may, we are of the view that the complaint lodged by the complainant before the Ld. District Forum is devoid of any merit and liable to be dismissed. That being our view and keeping in mind the principle of law laid down by the Hon’ble Apex Court referred to above, we are of the opinion that the judgment passed by the Ld. District Forum awarding compensation to the complainant is not sustainable in law and as such, it is liable to be set aside and the complaint lodged before the Ld. Forum is also liable to be dismissed being devoid of any merit and the appeal is liable to be allowed.
20. In the result, the appeal is allowed. The complaint lodged and registered as C.C.No.47/2015 before the Ld. Forum is dismissed. The impugned judgment dated 18.03.2016 passed by the Ld. District Forum, West Tripura, Agartala in case no.CC-47/2015 hereby stands set aside.
21. The appellant Insurance Company is directed to deposit a sum of Rs.10,000/- as cost of appeal in the Legal Aid Account of this Commission within five weeks from the date of this judgment, failing which this amount shall carry interest @9% per annum after the expiry of five weeks till the payment is made in full.       

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura