This is a consumer complaint made before this Commission in 2001. After this matter was heard and reserved for orders, a Miscellaneous Application was filed to amend the cause title. The matter was therefore de-reserved, both parties were heard and amendment of the cause title was allowed on 14.7.2011. The name and title of the Complainant accordingly stands changed from “Swan Mills Ltd.” to “Swan Energy Ltd.” 2. As seen from the records, the complainant is one of the oldest composite textiles Mills in India, set up in 1909. It went into financial difficulties and was taken up for rehabilitation under the BIFR. Reportedly, the management of the company turned it around in 1995. The company posted a turnover of 75.27 crore and profit of Rs.1.3 crore, after wiping out the accumulated losses. 3. According to the complainant, in February 1997 the petitioner company started receiving materials from various parties for printing job-work, resulting in increase in the stock position of their own as well as the stocks held in trust for other customers. It was reported to the insurance company in a letter of 7.2.1997. The additional stocks were covered within the policy for which additional premium of Rs.2,06,991/- was also paid on 2.5.1997. The case of the petitioner is that on 15.5.1997 an accidental fire took place at the south side of the folding department, situated on the ground floor in Block 39. The fire raged for about five hours, causing extensive damage. OP/New India Assurance Company, was informed. Their officials, along with the manager of Loss Prevention Association of India (LPAI), visited the premises and, according to the complainant, satisfied themselves as to the site of the fire i.e. block number 39 on the ground floor where stamping, holding, bailing and printing etc was being carried out. 4. M/S Parimal R Shah & Co, were appointed as the surveyors by the OP who asked for certain details which were duly furnished. The complainant also claims to have furnished the list of parties whose goods were lying in trust with them. The total loss caused in this fire was alleged to be of the order of Rs.116.89 lakhs approximately. 5. According to the complainant, along with the cheque for additional premium sent on 2.5.1997, he had also annexed schedule showing inter-alia, additional stocks to be insured block- wise in respect of 16 items. In the schedule storage was shown in respect of block number 39 at first floor. This, according to the complainant, was “an inadvertent typographical error”, due to which Roman letter ‘I’ was, by mistake, shown against ‘floor’ instead of ‘class of construction’. By a subsequent letter of 26.11.1997, he claims to have informed the OP that they had no intention to stock materials on the first floor. 6. The case of the complainant is that his claim under the policy was assessed by the surveyor for a net amount of Rs.62,20,389/- for which he had sent his letter of concurrence on 11.5.1998. He was informed that the matter was awaiting approval at the regional/head office. He was therefore surprised when the OP wrote to him on 14.6.2000 offering to pay only Rs.19,78,774/- in full and final settlement. This clearly refers to the discharge voucher of 14.6.2000 in which this amount has been acknowledged by the complainant in full settlement of all claims in relation to the damage caused by the fire of 15.51997. This voucher is at page 168 of the Paperbook. On the very next day, i.e. on 15.6.2000, the complainant wrote to the divisional manager of OP/New India Assurance Company, that they were accepting this settlement under protest. The OP was informed that “ We once again request you to consider our claim and release the balance amount of Rs.32,29,037/- otherwise we will be reluctantly compelled to take recourse to legal action for the recovery of our dues along with interest, especially for the deficiency and lethargy of service in deciding the claim by your company.” We find this letter at page 140 of the Paperbook. 7. In the consumer complaint therefore, a prayer has been made to direct the OP/New India Assurance Company Ltd, to pay— Compensation of Rs.32,29,037/- to the petitioner. Interest on Rs.52,20,389/-, at 18% per annum from 1.9.1998 to 20.6.2000 and Rs.32,29,037/- from 21.6.2000 till realization. Rs.50,000/- towards mental agony and harassment and the costs of the petitioner. 8. Per contra, the response of the OP calls the complaint petition “false, frivolous, vexatious and mischievous.” It is emphatically asserted that the complainant was duly informed by the insurance co. that his claim had been approved for a total sum of Rs.29,82,852/- and after adjustment of on account payment of Rs.10 lakhs made on 17.02.1998 and Rs.4078/- towards reinstatement a cheque for Rs.19,78,774/- was sent alongwith discharge voucher. He was informed to sign the discharge voucher in full and final settlement of the claim, so that the cheque could be released. The discharge voucher signed accordingly by him would show that he had accepted the claim as approved without any protest. It is one of the documents relied upon by the OP/New India Assurance Co. 9. The OP has sought dismissal of the complaint on the ground that: “if the claims, after the claimant having accepted the payment in full and final settlement of the claim, are allowed to be challenged, this will open flood gates for such claims and will create prejudice to the insurance company besides hardship caused including incurring huge expenditure as also man power involvement in such vexatious and frivolous cases.” 10. The law on this subject was clearly laid down by Hon’ble Supreme Court of India in United India Assurance Vs. Ajmer Singh Cotton & General Mills (1999) 6 SCC 400. It was held that discharge voucher though signed as ‘full and final’ may not be treated as final if the consumer can satisfy the court that it was obtained through undue influence fraud or misrepresentation. Hon’ble Court has observed:- “The 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. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the 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. If in a given case the consumer satisfies the authority under the Act that 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.” 11. The affidavit evidence of one Gopal Navin Dave, director of the complainant company, is filed on 10.6.2002, as rejoinder to the reply of the OP. In para 5 he states “I respectfully say and submit that as averred by the Petitioner, the Opposite Party coerced the Petitioner to accept the said sum of Rs.29,82,852/- which was so accepted under protest/ duress on account of financial crunch faced by the petitioner.” 12. We have perused the records, considered the documents filed by the two parties and heard the two counsels. 13. Learned counsel for the complainant argued that the OP had wrongly deducted a very large amount of Rs.33 lakhs approximately, towards salvage. It should have been limited to Rs.2.75 lakhs. While the complainant counsel could not offer any details in support of this argument, it was pointed out by the OP counsel that the amount deducted by the OP, had been accepted by the complainant. Our attention in this context, was drawn to the letter of 11.5.1998 written by Mr. N. M. Oak, Manager (Administration) of the complainant Company to the surveyor, M/s Parimal Shah & Co. A copy of this letter is at page 123 of the Paperbook. The letter clearly states that— “We also agree after various meetings and discussion with various salvage buyers and with our technical persons for the salvage of damaged goods (own and held in trust) at Rs.32,38,000/- in lumpsum, which will be retained by us. We now give our consent for Rs. 62,20,389/- in full and final settlement after deduction of salvage value.” 14. In view of this evidence on record, we have no hesitation in rejecting the argument of the complainant counsel on the deduction made for salvage. 15. Further, learned counsel for the complainant vehemently argued that the consent for full and final settlement was for Rs. 62,20,389/- and not for Rs.29,82,852/- finally paid by the OP. He placed reliance on the same letter which was cited by the OP counsel, as mentioned in the previous para. He explained that the difference between the two was due to deduction for under insurance, which was wrongly made. The position of excess stock, it was argued, had been informed by the complainant to the OP, three months before the accident of fire. Additional premium had also been paid to raise it from Rs.50 lakhs to Rs.125 lakhs. Thereafter, there should have been no question of any deduction for under insurance. 16. The above argument was countered by the OP counsel, who pointed out that the additional coverage was for the stocks on the Ist Floor of Block 39 and not for the Ground floor, where the fire had occurred. This had been clarified in the affidavit evidence of Mr. B. N. Prasad, Manager of the OP/insurance company, filed in November 2003. He referred to the following averment in Para 9 of the affidavit— “It is submitted that the endorsement made by the Opposite Party on the basis of the Complainant’s request for increase in the sum insured clearly indicates an increase of Rs 75 lakhs in sum insured in respect of block 39 (First Floor). However, the Insured/Complainant herein contended after the fire took place, vide their letter dated 17.11.1997, as stated by them, that the enhancement pertained to the ground floor of block 39 and that due to inadvertent typographical error which have occurred at the time of feeding to computer from the schedule.” 17. In the early part of this order, while discussing the case of the complainant, we have referred to this matter. It is not the case of the complainant that he had filed proper documents to obtain the coverage for additional stocks. His case is that by an “inadvertent, typographical error” he had sought this coverage for the First Floor, instead of the Ground Floor of the building. On this point, learned counsel for the OP argued that on 16.5.1997, the complainant wrote to the Divisional manager of OP company correcting another “typographical mistake” in their letter of 15.5.1997. It related to the date of the incident of fire. Even in this letter, there is no mention of the alleged “typographical error” relating to the floor for which additional insurance coverage was taken. 18. A copy of the report of the surveyor has been brought on record by OP/Insurance Co, in compliance with a specific direction of this Commission. We have perused this report, with reference to the claims of the two parties and arguments of their counsels. 19. This report, dated 11.5.1998, shows that machinery, fabric stocks and electrical installations have been damaged in this fire. Block No 39 was affected in this fire. Stamping, bailing, folding, and screen making operations are performed in this block. It was a three floor building. The ground floor was “partially used as office for General Manager, and Sales Managerial personnel on eastern side of the building and behind these office cabins, Folding Department of the insured is located to carry out operations like stamping, folding and bailing.” The report shows that about 440 sft only is used by the office cabins, out of the total 9600sft on the ground floor. Also, a hoist is installed on the ground floor for movement of goods to the first floor. As per this report, the surveyor did not find any stocks on the first or the second floor. Counsel for the complainant relied upon this part of the report of the surveyor to draw support for the claim of the complainant that additional coverage was actually for the ground floor, though by mistake (called inadvertent, typographical error, in the complaint petition) mentioned as the first floor. We note that the same report also mentions that a hoist is installed on the ground floor for movement of goods to the first floor. It also suggests that a few years ago, the first floor was being used for storage of goods and needed renovation for such use again. We are therefore, unable to accept his argument that report of the surveyor, showing absence of stocks on the first floor, should be taken as evidence in support of the claim that additional coverage was meant for the ground floor and not the first floor. 20. Further, on 15.5.1997, the complainant had written to the OP informing about the fire. On the very next day i.e. on 16.5.1997, he wrote again, correcting the date of the incident to 16.5.1997 from 15.5.1997 and explaining it as a typographical mistake. But, no such immediate letter was written on a much more vital matter relating to the mention of ‘First Floor’ for additional insurance coverage instead of ‘Ground Floor’ in block 39. The complainant wrote it only on 26.11.1997, which was long after the incident of fire. The complaint petition filed in 2001 seeks to explain it as an ‘inadvertent typographical error’. In our view, the only conclusion, which can possibly be drawn, is that it was an after thought and not a typographical error. 21. We now come to the claim of the complainant that his acceptance of the settlement, offered by the OP, was under protest. We have already noted that the discharge voucher for Rs 19,78,774, signed by the complainant on 14.6.2000, calls it “in full settlement of all claims”. It carries no endorsement of acceptance under protest. We have earlier referred to the affidavit of Gopal Navin Dave, filed on behalf of the complainant. It is claimed in this affidavit that the OP coerced the petitioner to accept the settlement. But, no details are given to show how this was done. 22. We find from the material on record that— i. On the very next day after accepting the settlement, i.e. on 15.6.2000, the complainant wrote to the OP informing that “we are accepting your settlement under protest.” The letter explains complainant’s reasons for expecting a much higher amount. But, it carries no indication or allegation of any coercion, undue influence, fraud or misrepresentation exercised by the OP to obtain acceptance of the settlement by the complainant. ii. The allegation of coercion was made only in the affidavit of Gopal Navin Dave which was filed on 10.6.2002. If the signature, as alleged, was obtained by coercion on 14.6.2000, why did the complainant have to wait for two years to point it out? iii. His affidavit also alleges that the complainant accepted the settlement “under protest/duress on account of financial crunch faced by the petitioner.” No evidence has been led to prove the alleged financial crunch. On the contrary, it is stated in the complaint petition, that in the year ending March 1995, the complainant had achieved a turnover of Rs 75.27 crore and profit of Rs.1.3 crore. iv. The complaint petition, filed before this Commission, does allege that the consent of the complainant was obtained by “coercive bargaining”. But, no details are mentioned nor is any evidence led on this point. If this omission was a mistake, there is no explanation for it. 23. Therefore, in our view, the complainant has failed to prove that the discharge voucher was obtained through coercion, as later alleged. 24. Counsel for the Opposite Party, New India Assurance Co. also drew our attention to the decision of Hon’ble Supreme Court in (2000) 10 SCC 334, New India Assurance Co. Ltd. Vs. Sri Venkata Padmavathi R & B Rice Mill. In this case, the facts of the case were that rice mill stock of the Complainant had suffered severe damage due to cyclone and heavy rain. One of the Surveyors appointed by the Assurance Company assessed the loss Rs.23.30 lakhs and the other Surveyors assessed it at Rs.5.25 lakhs. The Assurance Company, therefore, appointed third Surveyor, who assessed loss at Rs.14.80. The Complainant reportedly agreed to accept Rs.14.16 lakhs in full and final settlement, but later approach the National Commission seeking full amount of Rs.23.30 lakhs. This was allowed by the National Commission, but the order was set aside by the Hon’ble Apex Court. It was observed that: “ Where assured agrees to accept a certain amount in full and final settlement of his claim, held, such an assured is bound by his commitment- In particular where there are no allegations before any forum that the agreement was vitiated by fraud or undue influence- National Consumer Disputes Redressal Commission erred in allowing respondent Mill’s claim for an amount higher than the payment amount agreed between respondent and appellant Insurance Company.” In the case before us, though allegations of coercion are made, the Complainant has failed to substantiate them. 25. In the background of the detailed consideration above, we are of the view that the complainant has completely failed to make out a case with acceptable evidence. Therefore, the complaint petition is dismissed for want of merit. The parties shall bear their own costs. |
