NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1924 OF 2011
(From the order dated 27.4.2011 in First Appeal No.702/2010
of the State Commission, Chhattisgarh, Raipur)
Nirmal Singh
S/o Shri Jagdish Singh,
R/o Tatibandh, Raipur (C.G.)
2nd Address: C/o B.N. Road Lines,
Lift & Sift Complex, Ring Road No.2,
Gondwara, Raipur (C.G.) ….Petitioner
Vs.
The Oriental Insurance Company Ltd.
Through: Senior Divisional Manager
Division Office No.2,
Chawla Complex, Devendra Nagar Road,
Raipur (C.G.) ...Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner : Mr. R.K. Bhawnani, Advocate
For the Respondent : Mr. Rahul Sharma, Advocate
Pronounced on: 5th November, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner by way of present revision has challenged order dated 27.4.2011, passed by State Consumer Disputes Redressal Commission, Raipur (for short, ‘State Commission’).
2. Brief facts are that petitioner/complainant being the owner of Truck No.C.G.17-H/8111, had insured the same with respondent/O.P. under Policy No.61602 for period from 22.06.2007 to 21.06.2008, having Insured value of Rs.7,00,000/-. Said vehicle met with an accident on 12.07.2007 resulting in its extensive damage due to collusion with another truck. Intimation about loss caused to the truck, was sent to the respondent, which appointed an Investigator/ Surveyor, who conducted spot survey of the site of accident. Intimation of accident was also given to the Police. Petitioner averred that claim form along with relevant documents was subsequently filed with respondent which entrusted M/s Sunil & Company for assessment of loss caused to the vehicle. Petitioner cooperated with the Surveyor in assessment of loss and also provided him relevant bills, who submitted his report to the respondent on 31.10.2007. Petitioner averred that he had suffered loss of Rs.5,79,137/-, whereas respondent without any proper reason assessed the loss as Rs.3,10,000/-only. It is further alleged by the petitioner that on 21.7.2008 he wrote a letter to the respondent and raised objection that the total loss in the vehicle is of Rs.5,79,137/-. Even thereafter, respondent has sanctioned Rs.3,10,000/- and in this way this amount was not accepted by the petitioner. Further, petitioner in his letter has clearly stated that since he has suffered heavy loss in the vehicle and financial also, therefore by keeping his rights reserved, he is accepting the said amount under protest. Since, respondent did not settle the complete amount of loss as per the bills submitted by him, it amounted to deficiency in service and unfair trade practices. Thus, petitioner prayed that respondent be directed to pay balance claim of Rs.2,79,137/- alongwith compensation of Rs.1,00,000/- for mental agony and costs of the proceedings.
3. Respondent, while resisting the complaint, averred that it had entrusted M/s Sunil & Company for assessment of loss caused to the vehicle, which after inspecting the vehicle on 01.08.2007, submitted its report. Said surveyor initially had assessed the estimated loss of Rs.4,50,000/- and finally assessed the loss as per actual bills. Respondent averred that Surveyor in its final report dated 31.10.2007 had assessed salvage value of Rs.7,500/-, which was subsequently reassessed for Rs.15,000/-. Further, as per final assessment of Surveyor, a discharge voucher for Rs.3,10,000/- was sent to the petitioner on 27.06.2008, who executed the same independently under full and final settlement of claim. Hence, respondent settled the claim for Rs.3,10,000/- and as such it had not committed any deficiency in service.
4. District Consumer Disputes Redressal Forum, Raipur (for short ‘District Forum’), vide its order dated 2.11.2010, allowed the complaint and directed the respondent to pay a sum of Rs.2,69,137/- to the petitioner along with interest @ 6% p.a. from the date of filing of the complaint i.e. 31.10.2008 and also to pay compensation of Rs.5,000/- for mental agony with cost of litigation Rs.1,000/-.
5. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission, which vide its impugned order, modified the order of District Forum and passed the following directions;
(i) The appellant will pay Rs,36,430/- (Rupees Thirty Six Thousand Four Hundred Thirty only) in lieu of the amount as awarded in the impugned order.
(ii) Other part of the order of Learned District Forum will remain unaltered.
6. Dissatisfied with the order of the State Commission, petitioner has filed the present petition.
7. I have heard the learned counsel for the parties and have gone through the record.
8. It is contended by learned counsel for the petitioner that State Commission has not gone through the documents and affidavit filed by the petitioner and has passed the order which is against law.
9. Further, State Commission overlooked the important fact that all the bills were produced before the surveyor and the respondent, but same were not accepted by them. The said bills were presented before the District Forum which after considering all the facts have awarded the balance amount of Rs.2,69,137/-. The State Commission on imaginary ground reduced the amount without any reason.
10. It is further contended that the State Commission rejected the various items claimed by the petitioner without any reason and has not even considered the amount which was spent by the petitioner. Therefore, the order of the State Commission deserves to be modified.
11. On the other hand, it has been contended by learned counsel for the respondent that amount of Rs.3,10,000/- has been sanctioned as per the surveyor’s report. Further, discharge voucher was signed by the petitioner voluntarily and without any force or pressure and principle of estoppel will apply in this case. The present complaint filed by the petitioner is an after-thought and there is no ambiguity in the impugned order.
12. The State Commission in its impugned order has held as under;
“Undisputedly, the questioned vehicle was insured with the appellant company, and its accident claim was settled for Rs.3,10,401/- as per surveyor’s report and after collecting discharge voucher from the respondent”
13. As per record, respondent vide its letter dated 14.7.2008 (page 62 of the paper book) informed the petitioner that his claim have been approved for Rs.3,10,000/- and he was requested to sign the discharge voucher. In response to this letter, petitioner vide his letter dated 21.7.2008, stated that sum of Rs.3,10,000/- offered by respondent is not acceptable to him. However, since his vehicle has suffered the damage and he has suffered financial loss, subject to his rights, he is willing to accept that amount.
14. In response to petitioner’s letter dated 21.7.2008, the respondent sent him letter dated July 28, 2008, relevant portion of which reads as under;
“The discharge voucher sent to you has however not been returned duly signed by your side. In absence of which the company can not proceed further to make payment towards the subject claim.
The sum arrived at is most reasonable as it is solely based on the bills of repairs submitted by you, and the company being indemnifier can only be liable to indemnify the actual loss (supported with bills) suffered by the insured. You should therefore have no objection regarding acceptance of the amount assessed by the company in full and final satisfaction of the claim.
You are, therefore, requested to send the discharge voucher duly signed as acknowledgement of acceptance of amount, to enable the company to settle the claim as early as possible.”
15. Thus, it is manifestly clear that respondent vide its letter dated 28.7.2008, again brought to the notice of the petitioner that sum of Rs.3,10,000/- would be towards full and final settlement. The petitioner, knowingly and willingly signed the discharge voucher in full and final settlement of his claim. Now, petitioner is estopped from repudiating the discharge voucher duly singed by him.
16. 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, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints”.
17. In Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 Supreme Court Cases 311, Apex Court has observed;.
“18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 74.1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling uponthem to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An “offeree” cannot be permitted to change his mind after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the “offeree” was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the “offeree” had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act”.
18. In the present case, there is nothing on record to show that petitioner was compelled by the respondent at any stage to settle the claim at lesser amount than the claim made by him. There is also not an iota of evidence on record to show that any official of the respondent compelled the petitioner to settle the claim at lesser amount. Interestingly, petitioner after having received the sum of Rs.3,10,000/- as far as back in the year 2008, has been enjoying the aforesaid money for more than four years. Now petitioner wants to repudiate the discharge voucher duly signed by him. This clearly shows malafide intention on the part of the petitioner in filing the present complaint. It is well settled that the provisions of the Consumer Protection Act, 1986 are not meant for enrichment of the consumer. Once petitioner has received the amount unconditionally, under these circumstances petitioner cease to be ‘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 petitioner accepted the amount unconditionally.
19. Thus, there is no merit in the present petition and same is accordingly dismissed with cost Rs.5,000/- (Rupees Five Thousand only).
20. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today.
21. In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.
22. List on 14th December, 2012 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
