DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Het Ram Chauhan and Sons, SCF No.7, Subzi Mandi, Sector 26, Chandigarh, through its Proprietor Het Ram Chauhan.

                   ---Complainants

Vs

The New India Assurance Company Limited, SCO No. 58, Sector 26-C, Chandigarh, through its Branch Manager.

---- Opposite Party

BEFORE:    MRS.MADHU MUTNEJA               PRESIDING MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Jagseer Singh, Proxy Counsel for

            Sh. Bhupinder Ghai, Counsel the Complainant.

Sh. Rajesh K. Sharma, Counsel for Opposite Party.

PER MADHU MUTNEJA, MEMBER

1.        Factually speaking, the Complainant had taken an insurance policy from the Opposite Party to indemnify the loss if any in his business of selling and sending fruits and vegetables to distant places. The Complainant has said that one consignment carrying apples from Chandigarh met with an accident on the way to Bangalore. On receipt of information of the accident, a complaint was lodged with the Opposite Party, who appointed a Surveyor to assess the loss. The Complainant had made a claim of Rs.6,20,000/-. After all the formalities were completed, the claim of Rs.2,99,300/- was released to the Complainant. According to the Complainant, the act of the Opposite Party by not honouring the full claim amounts to deficiency in service. He thus, filed this complaint, with a prayer for payment of the balance amount, besides compensation and cost of litigation. 

2.        After admission of the complaint, notices was sent to the Opposite Party.

3.        Opposite Party in reply has taken the preliminary objection that the transporter/ carrier has not been made a party to the dispute. Factually, the Complainant has taken an Open Marine Policy for Rs.25,00,000/-. When the Complainant gave intimation that his Truck carrying the consignment of apples had met with an accident, a Surveyor was deputed to access the loss. The salvaged apples available at the site in 476 boxes were sold on the spot for Rs.1,16,620/-. The amount was paid to the Complainant. Eventually, the loss was assessed by the Surveyor for Rs.3,21,894/-. After deducting necessary excess of Rs.22,533/-, a claim of Rs.2,99,360/- was passed. The Complainant gave his full and final consent for receipt of this amount and further undertook not to initiate any proceedings against the answering Opposite Party in any court of law about the loss (details are at Annexure R-1, R-2 and R-3). Opposite Party has contended that after accepting the settlement of the claim, the Complainant should not have entered into further litigation.

          On merits, the Opposite Party had admitted that the Complainant had taken an Open Marine Policy and that the consignment of apples was sent from Chandigarh to Bangalore. During the survey, it was found that only 476 boxes of apples were at the site which was sold for Rs.1,16,620/- by way of open tender. The amount was given to the Complainant. The Opposite Party has further submitted that the Complainant did not complete the formalities required for the claim as required by the Investigator for release of the claim. Eventually, the Surveyor assessed the loss, as per details already given above.

          The Complainant sent his Manager Mr. Sunil Kumar along with an authority letter to collect the cheque. After receipt of the amount in full and final settlement, the Complainant is now only trying to create confusion and complicate the matter. Hence, pleading that the claim of the Complainant has been settled fully, Opposite Party has prayed for dismissal of the complaint with exemplary costs.   

4.        Parties led evidence in support of their contentions.

5.        We have heard the learned counsel for the Opposite Party and have perused the record, as well as the written arguments filed on behalf of the Complainant.

6.        The case of the Complainant is that the Opposite Party has not made payment to it against the full amount claimed. In support of his contentions the Complainant has placed on record details of Marine Declaration Form and Consignment note. However, the claim submitted before the Opposite Party by the Complainant is not part of the record. The legal notice issued by the Complainant to the Opposite Party is also on the record. Also, the Complainant has mentioned in the written arguments that he has received Rs.2,99,300/- (Rs.2,99,360/- as per his bank statement attached) on 04.06.2009 and Rs.1,06,479/- on 03.10.2009. 

          Annexure R-1 is a note from the Complainant to the Opposite Party, wherein he has shown his willingness to settle the claim for Rs.2,99,360/- as full and final settlement. The Complainant has also submitted that he does not wish to file any legal case.

          Annexure R-2 is a letter of authority from the Complainant to the Opposite Party to hand over the claim cheque to his Manager Sh. Sushil Sharma alias Mamu, as he had to go out of station for some days.

          Annexure R-3 is the satisfaction note duly signed by the Complainant for receipt of amount of Rs.2,99,360/-, in full and final settlement of the claim.

          After the Complainant has signed these documents, we do not understand under what pretext has he filed the present complaint. He has also said in the written arguments that he has received Rs.1,06,479/- also.  

7.        The Hon’ble Supreme Court of India in case NATIONAL INSURANCE COMPANY LIMITED V BOGHARA POLYFAB PRIVATE LIMITED, (2009) 1 Supreme Court Cases 267, has held as under: -

“………..If the party which has executed the discharge agreement/ voucher alleges fraud/ coercion/ undue influence practiced by the other party and is able to establish the same, then obviously the discharge of such contract by such agreement/ voucher is rendered void and cannot be acted upon – Consequently, any dispute raised by the executor of the discharge agreement/ voucher would be arbitrable.”

          The Complainant has relied on the ruling of the Hon’ble Supreme Court of India in case NATIONAL INSURANCE COMPANY LIMITED V. SEHTIA SHOES, 2008(2) Consumer Protection Cases 1,  wherein it has been held as under: -

“Consumer Projection Act, 1986 – Section 23 and 14(1)(d) – Settlement of claim – Insured shop damaged in fire – Claim of Rs.2.72 lacs was settled as full and final settlement – Appellant claimed enhancement in amount of claim – Enhancement is permissible if it is proved that insurer had settled the claim under coercion and amount was not accepted voluntarily by claimant – Matter remitted to Forum below to adjudicate as to whether Appellant had signed the voucher voluntarily or under coercion in view of observations made in United India Company’s case 1999 (2) CPC 601 S.C. – Case remanded.”

The same case reported in (2008) 5 Supreme Court Cases 400, has the following observations:-

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

          It is also given in the judgment that “………though a claim can be entertained even when there is a settlement to receive a particular amount, yet the same is subject to the condition that the earlier settlement was obtained under coercion and/or was not on account of free will” (Para 5).

          The Complainant has not alleged that he has been forced or coerced to accept the amount of Rs.2,99,360/- and therefore, this complaint after receipt of the amount as full and final settlement is unjustified and deserves dismissal only.  

8.        Hence, in view of above discussion, we deem it appropriate to dismiss the complaint as the Complainant has not been able to satisfy us about the veracity of the claim. No costs.

9.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

22^nd August, 2012.                                           

Sd/-

 (MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

“Du