| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION JALANDHAR. Complaint No.328 of 2018 Date of Instt. 13.08.2018 Date of Decision:26.10.2021 Sh. Lovenainder Verma aged 33 years S/o Sh. Inderjit Verma R/o House No.5, Hardeep Nagar, Opposite Sports College, Jalandhar. ..........Complainant Versus United India Insurance Company Ltd. Registered & Head Office 24, Whites Road, Chennai – 600014 through its Managing Director. The Branch Manager, United India Insurance Company Limited, Sayal House, Lajpat Nagar Market, Jalandhar, 144001.
….….. Opposite Parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh. V. K. Sareen, Adv. Counsel for the Complainant. Sh. R. S. Arora, Adv. Counsel for the OP. Order Kuljit Singh(President) The instant complaint has been filed by the complainant, wherein alleged that complainant has purchased a Households Insurance Policy No.2013002616P115054731 for the period from 06.02.2017 to 05.02.2018 on payment of Rs.33,491/- as premium on 06.02.2017 from OP-2. Complainant got insured jewelry worth Rs.30,66,000/- besides other household goods from OPs. On 18.02.2017, complainant was going to Chandigarh via Jagron on Car for personal work to attend a marriage function on the son of their family friend which was scheduled to be held on 19.02.2017. Complainant went to Chandigarh via Jagraon to pay respect to his Jathere situated at Village Kokan District Jagroan While enroute to his destination, the complainant parked his car on the road side for answering nature’s call. When the complainant got down from the car, he was having one bag in his hand. All of sudden, two unidentified person with their faces covered with cloth, riding on a motorcycle approached the complainant from behind. The two unidentified persons snatched the bag from complainant and sped away towards Nakodar side at a high speed. Complainant was travelling alone and there was no one else present at the spot at the time of said occurrence. The bag which had been snatched from complainant contained important documents, two gold chains, one Om sign of diamond locket and another diamond locket of Ganesh besides other gold and diamond ornaments belonging to other members of complainant’s family, the detail which were not readily known to complainant at the time of recording his statement for lodging FIR as said gold ornaments had been packed in a bag by complainant’s father Inderjit Verma. Complainant lodged complaint with PS Mehatpuron the basis of which, FIR No.0013 dated 18.02.2017 U/s 379-B IPC was registered against two unknown persons. Since complete details of gold jewelry lying in the bag was not readily known, the complainant got recorded supplementary statement with the police giving details of other jewelry stolen. Supplementary statement of complainant recorded by police. Complainant also lodged claim with Ops on 20.02.2017 through email and requested the Ops to do the needful in order to indemnify the loss. He also submitted prescribed insurance claim form duly filled in with estimated loss of Rs.17,63,620/-. OPs examined the claim and appointed Ms/ Royal Associates, investigating & detective agency to investigate the claim vide email dated 14.03.2017. M/s Royal Associates recorded the statement of complainant and his father, Mrs. Sunita W/o Late Yash Pal Sharma and also visited the police station. The declaration/statement made by complainant to M/s Royal Associates on 17.03.2017 and 18.07.2017. Complainant fulfill all formalities and clarification of said Royal Associates as and when asked. M/s Royal Associates submitted their investigation report on 07.09.2017 and confirmed that the claim appeared to be genuine. OPs also appointed Sh. Rajesh Gupta as Surveyor to assess the loss who conducted the survey and assessed the quantum of loss to the tune of Rs.16,54,000/- vide his survey report dated 22.11.2017 to OPs. On the basis of FIR dated 18.02.2017, the police had submitted not traceable report on 27.04.2017 and Court of JMIC Nakodar accepted the Non traceable report vide order dated 03.02.2018. OPs examined the report dated 07.09.2017 submitted by Royal Associates and raised certain queries vide email dated 13.03.2018 followed by reminder dated 21.03.2018. Complainant sent point-wise detailed reply to such queries vide his reply dated 26.03.2018. OPs pressurized M/s Royal Associates to submit supplementary report M/s Royal Associates obliged the Ops and submitted supplementary report dated 09.04.2018 and arbitrarily reduced the assessment of loss without any justified grounds. On the basis of Supplementary report, Ops further pressured Sh. Rajesh Gupta Surveyor to reassess the loss who also obliged the OPs and submitted revised report dated 07.05.2018 and reduced the loss to the tune of Rs.11,94,000/-. The rates of gold as per India.com as on 17.02.2017 and 18.02.2018 and 19.02.2018 submitted by Rajesh Gupta Surveyor. The Ops finally settled the claim for a sum of Rs.11,94,000/- after making deduction of 30% a sum of Rs.8,35,800/- has been paid to the complainant on 08.06.2018 through NEFT to his bank account. The complainant is entitled for full value of gold ornaments snatched from him which were duly insured by OPs. The OPs have wrongly paid amount of Rs.8,35,800/- thereby causing loss to the tune of Rs.9,27,800/-. In this way, the Ops are deficient in providing consumer services. Lastly prayer has been made that OPs be directed to pay a sum of Rs.9,27,820/- being difference of value of lost gold ornaments/jewelry items. Further, he sought direction for Ops to pay interest @18% P.A. w.e.f. 20.02.2017 till realization of the claim and directed to pay Rs.5,00,000/- for harassment and also claimed for litigation. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that complainant had consented to payment of Rs.8,35,800/- and was paid this amount. As per consent letter, the payment was in full and final settlement of his claim being the amount to “my entire satisfaction” and he had undertaken “not to proceed further in any manner” in the matter. Complainant cannot approbate and reprobate. It is not case that the complainant has the memory of all the documents including his emails but his mental retention has failed him of his consent letter and letter subrogation which were of as recent a date as of date 04.06.2018. Complaint is abuse of process of law; Complainant has not come to the court with clean hands; even otherwise on the allegations over the quantum as made out in the complaint, complainant is liable to relegated to the Civil Court for a decision. On merits, complainant gave the consent letter out of his free volition and in all awareness of his interest and consequence. The consequences were the closure of his claim case finally and holding by complainant himself not to proceed in the matter in any manner whatsoever against the OPs. It is submitted that in lodging the FIR the complainant seems to making out a case for raising a claim on insurance company, otherwise in the FIR of such nature, the informer would have ordinarily focused on the description of snatched articles and not on their valuation given to the insurance company. Somewhere, to the query that why did he carry the bag with him from his car and did not allow it to remain in the car itself, the complainant made the reply that in the bag he had the full size pump of detail sanitizer for sanitizing his hands which generally uses after going to toilet, so I carry the bag with me, raises the question why did he omit mentioning the theft of his full size pump of detail sanitizer as well when the bag was snatched suddenly after his coming out of the car. Theft is theft be it of any item, not alone of the insured articles. The snatching of his detail sanitizer along with other, would have corroborated his allegation of snatching of ornamental articles. Snatching is alleged to have taken place at distance of 2 kilometers from the intended destination and he was carrying precious diamond and gold items, any reasonable man of stature of complainant would have thought it to cover first 2 kilometers before going in for urinating on the road side and exposing himself to all the well-known perils. It was beyond comprehension that a person carrying precious ornaments with him would not be aware of what he had been carrying with him? When there was stealing of ornaments from the car of complainant 7-8 years back and he had obtained insurance claim, why would he carry ornaments again of diamond and gold, highly valuable items, all alone driving the car himself, come out for urinating with the bag in hand, when he knew snatchings do take place on highways by the eagle-eyes. All precautions were thrown to the winds. The complainant did not exercise proper care, first all alone carrying large amount of jewelry and then taking the bag in open on the wayside. FIR of complainant gives out the delay of 4 hours and does not give out, the time of occurrence, whether it was in the morning, noon or in the evening for reasons best understandable to avoid doubting the version of the complainant on material points. Sun sets early in the end of the month of February and there is early nightfall and much darkness in the evening. The exact place of occurrence is not given out by complainant so to avoid verification and investigation. Surprisingly, nobody knew in the vicinity of complainant about such big happening to the complainant. The complainant, 31 years of age, did not try to snatch the bag from the hand of snatchers and chase them (otherwise, this could have been mentioned in his statement to the police and to the investigator, he simply says he could not note the number of the motorcycle!), is remarkable of a young man. If he pleads that there could be threat to his life, then the corollary is that threat to his ornaments in the bag was no less in his taking the bag while urinating in a non-man land, - which supported the allegation of insurance company that the complainant threw all precautions to the wind. What kind of search complainant been making after the occurrence when the faces of the snatchers were muffled and the motorcycle number was not known – was beyond ones comprehension. The snatchers in such an occurrence would snatch the key of car so as to immobilize the victim from chasing them and secondly snatch the mobile from him for understandable reason; neither of these was done by snatchers. The complainant cannot plead that they were raw. The complainant has to tell why didn’t he chase them when he was snatched of jewelry of many lakhs of rupees, or immediately sent the message to police on mobile? He waited, be coming into action, - for some “unknown person” – to come and tell him the “telephone number of PS Mehatpur”. Even then the information to the PS is nowhere shown to be through mobile but in person. Occurrence was not supported by any Newspaper. The Press possibly didn’t believe it. Such story could be made any one. The scope of filing supplementary statement with police was kept open by complainant to sell up the loss of Gent Kara and Lady’s set. The video footage of alleged marriage function was not given to investigator which means the insured was hiding vital information to reach the truth. Complainant refused to record the statement of his spouse which led the believe that the wife of complainant did not support the version of complainant. To the query to complainant why these two items were added later on the police, the answer came that those were put in the bag by the father of complainant as the father was told by complainant’s wife “to keep matching ornaments with clothes in the bag. It was found extraordinarily unusual that the wife would tell the father of complainant, and not the complainant, her husband, to match the ornaments with her clothes. The complainant was 31 years of age, young man, educated, holding high position in an educational institution would not give his consent unless satisfied. The consent given voluntarily by him was given after having due discussion with the surveyor and to his entire satisfaction in his full awareness. The complainant also gave to the Ops the letter of subrogation and undertaking mentioning therein the amount accepted by him for payment of Rs.8,35,800/- to finally put curtain on his claim. The police expressed their total inability and was content only in obtaining from the court the order of the closure of the case. Complainant could not explain why he would go via the jurisdiction of PS Mehatpur to reach Chandigarh when there was direct route from Jalandhar to Chandigarh. Complainant had agreed to the payment of an amount to him after adjusting all difference of opinions and agreed the amount in full and final settlement of the claim, only then the company transferred the agreed amount to his bank account. The amount has been paid to complainant as per consent letter given by him when his senses were fully intact and in full awareness. Other averments of the complaint are denied and prayed for dismissal of complaint with costs. OPs have further argued that only the Civil Court could have the jurisdiction to try the case since the claim involved misrepresentation, manipulation and making of a false claim of theft on the opposite insurance company. That the letter of repudiation is quite elaborate and detailed, therefore, no complaint lies. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied those of the written statement. In order to prove their respective versions, both the parties produced on the file their respective evidence. We have heard the learned counsel for the respective parties and have also gone through the case file very carefully. It is admitted case that the ornaments in dispute were insured with OPs as per insurance policy Ex.C-1. The insurance was valid till 05.02.2018. The present case is a typical case, where the Complainant wants to have the cake and eat it too. The key controversy swirls around the short question, “whether the insured is estopped from making any further claim from the insurer after accepting the insurance claim, in full and final settlement of all the claims by executing the discharge voucher willingly and voluntarily without any protest or objections”? Having bestowed our anxious consideration to the matter, we are of the opinion that in the light of the material on record, answer to the question posed has to be in the affirmative. Admittedly, the claim of the Complainant was approved by the Opposite Parties as Ex.O-1 for an amount of Rs.8,35,800/-. It is also an admitted position that the approved amount was duly encahsed by the Complainant. It was only when all the desperate efforts, made by the Complainant, for getting the balance amount, failed to fructify, he has instituted the present Complaint. It is the case of the Opposite Parties that, they have already paid the claim and the same was agreed to by the Complainant as full and final settlement. Therefore, there is no deficiency in service or unfair trade practice on their part. Annexure O-1 (colly) are the discharge voucher and the consent letter dated 04.06.2018 placed on record by the Opposite Parties to fortify their stand. The onus was upon the Complainant to satisfy this Forum/Commission that the discharge voucher had been obtained from him under the circumstances which can be termed a coercive or exercise of undue influence or by mis-representation or the like. However, no case of coercion, undue influence or misrepresentation is made out by the Complainant since there is no such allegation in the entire Complaint so as to cause the Complainant to enter into any settlement. It is noteworthy that the Complainant has also voluntarily executed Subrogation Letter and Undertaking (Ex.O-3) acknowledging the amount of Rs.8,35,800/- and never raised any murmur. It is thus safe to deduce that once the Complainant has submitted the Discharge Voucher voluntarily, the Opposite Parties are fully discharged from any further liability. Learned Counsel for the Complainant argued that since the Complainant was in serious financial difficulty on account of loss suffered, he was left with no option, but to accept the offer made by the Opposite Parties and as such an acceptance cannot be said to be voluntary and without any pressure. We do not find merit in this limb of argument, as no compelling financial hardship has been established by the Complainant by producing on record any cogent, convincing and reliable piece of evidence. At any rate, once the Complainant (Insured) accepts a particular amount in full and final settlement of his claim, he is estopped from claiming any further amount from the Insurance Company (Opposite Parties), since the settlement constitutes a binding contract between the parties unless it was shown that it was influenced by use of coercion, undue influence, mistake or misrepresentation. In the present case, no such factor could be established by the Complainant. Law on this subject has been clearly laid down by Hon’ble Supreme Court of India in United India Insurance Vs. Ajmer Singh Cotton & General Mills and others (1999) 6 Supreme Court Cases 400, in which 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. However (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. There mere execution of discharge voucher and acceptance of the insurance would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints”. As per consent letter placed on record and the Complainant had admitted that he received a sum of Rs.8,35,800/- in full and final settlement of his claim. There is nothing on record to show that Complainant was compelled by any of the officials of the Opposite Parties at any stage to settle the claim at a lesser amount. There is not an iota of evidence on record to show as to which official of the Opposite Parties, compelled the Complainant to settle its claim at a lesser amount. Admittedly, Complainant received the sum of Rs.8,35,800/-However, the filed this complaint by the complainant only on 13.08.2018, that is, after a period of more than 02 months. There is no explanation at all on behalf of Complainant as to why he remained silent for more than 02 months after accepting the sum of Rs.8,35,800/. Further, it is manifestly clear from the record that Complainant had intentionally and willingly signed the discharge voucher for full and final settlement of his claim. Now, Complainant is estopped from repudiating the consent signed by him. This clearly shows mala fide intention on behalf of the Complainant in filing the consumer complaint. Complainant had been enjoying the sum of Rs.8,35,800/- for the last three years. Moreover, if Complainant had received the sum of Rs.8,35,800/- under duress and pressure, then why did he received said amount. In such circumstances, Complainant ought to have returned the same to the OPs forthwith along with her protest. It is well settled that the provisions of the Consumer Protection Act, are not meant for enrichment of the consumer. Once Complainant had received the amount unconditionally, under such circumstances Complainant cease to be a ‘Consumer’ as per the Act. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment Complainant accepted the amount unconditionally. Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any deficiency in service on the part of the Opposite Parties or that the Opposite Parties adopted any unfair trade practice. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear with their own costs.However, complainant is at liberty to avail other remedy available to him, if so advice and as per law, in case of need.
21. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work. File be indexed and consigned to the record room after due compliance. Announced in open Commission 26th of October 2021 Kuljit Singh (President) Jyotsna (Member) | |
