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Judgment
A. P. Sahi, President Member
This appeal arises out of the claim lodged by the complainant that was partially allowed by the Insurance Company on the strength of the surveyor’s report for which the complainant signed a discharge voucher but in close proximity, while encashing the cheque for the amount offered by the Insurance Company, raised a protest subsequent thereto and having failed in persuading the insurance authorities to enhance and pay the entire claimed amount, filed a complaint before the Haryana State Consumer Disputes Redressal Commission, Panchkula (for short “the State Commission”). The State Commission held that the discharge voucher had been signed without any undue influence, threat or coercion on the part of the Insurance Company and for that relied on the decision of the Apex Court in the case of “United India Insurance Vs. Ajmer Singh Cotton & General Mills and Ors., (1999) 6 SCC 400” and the order of this Commission in the case of “Raj Kumar Vs. United India Insurance Co. Ltd. III (2011) CPJ 354 (NC)” to affirm the decision of the Insurance Company and dismissed the complaint.
The Insurance Policy covering the risk was taken by the complainant, the duration whereof was form 20.03.2008 to 19.03.2009. Accidental fire took place on 31.08.2008, resulting in the loss of stocks and damage in respect whereof a claim of Rs.27,50,700/- was lodged by the complainant before the Insurance Company. The surveyor’s report dated 13.06.2009 upon investigation and assessment found the loss to be available for indemnification to the tune of Rs.4,70,995/-. The Insurance Company issued a cheque dated 26.06.2009 for the said amount which was accepted by the complainant towards the said claim and was encashed on 03.07.2009.
The complainant admits of having dispatched the protest in writing by registered post on 07.07.2009 even though the said protest is dated 03.07.2009. The said letter addressed to the Divisional Manager is extracted herein under:
“To
The Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office,
L.I.C. Building, Raj Guru Market, Panipat
Subject: Fire claim dated 31-8-2008 under policy no. 112000/11/07/11/00001706
It is to acknowledge that the payment of cheque no. 805585 dt. 26-6-09 on 3-7-09 for Rs. 470399/- of H.D.F.C. Bank, Panipat towards above stated fire claim. The payment is hereby received under protest and the settlement is not acceptable to me. I have given the discharged voucher for the said amount under pressure as I was left with no other option due to my financial hardship and delay in settlement of the claim from the Insurance Co. side.
In this regard it is submitted that the settlement is not acceptable due to the following reasons:-
The quantum of loss with regard to quantity / amount has never been discussed/agreed with us.
Against our claim of Rs. 2750700/-, I have been paid Rs. 470399/- only. The basis of calculation for Rs. 470399/- may kindly be provided to me.
Since the settlement of loss as not been consented by me as such the copy of surveyor loss assessment report be kindly provided to me at the earliest.
In the meantime it is submitted that since I am facing financial crisis / hardship as pointed out of earlier also so many times due to delay in settlement of the claim on the part of surveyor/insurance co., It is once again requested that the balance payment of Rs. 2280301/- along with interest till the date of payment be immediately released to me within a period of 15 days along with copy of surveyor report. Since I have to settle my banker's dues and due to non payment from your end, I am suffering from financial difficulty in settlement of bank outstanding and paying interest to the bank un-necessarily.
Please note that in case the difference of payment amounting to Rs. 2280301/- along with interest and required documents are not received within the stipulated period of 15 days from the receipt of this letter, I shall be constrained to proceed in a competent court of law for my legal remedies for which the surveyor/insurance co. will be solely responsible.
Your's
For BIMAL Textile
Vipan Goyal”
A reminder was also sent on 16.09.2009 to the same effect. Having failed to receive any response, the complaint was lodged with the State Commission being CC/29/2010. This Complaint was instituted on 22.03.2010. The complaint in para 13 and 14 proceeds to narrate as follows:
“13. That a representative of the Respondent No. 2 contacted the complainant on 1.7.2009 and informed that the Insurance Company, on the basis of report of the surveyor, and after making requisite deductions, have decided to settle the claim of the complainant for a sum of Rs.4,70,399/- and the complainant was asked to visit the office of the respondent in this regard.
The complainant was crest fallen because the actual loss suffered by him was to the tune of Rs.27.5 lacs and a period of almost one year has already elapsed since the date of fire on 31.8.08 and the entire unit of the complainant had been totally reduced to ashes because of devastating fire, which engulfed the unit of the complainant. The complainant was in dire requirement of money to rehabilitate his unit and was facing acute resource crunch. After a wait of one year, now he was being told that the settlement was only for a partly sum of Rs. 4,70,399/-. The complainant visited the office of the respondent no.2 and asked the respondents to supply him a copy of the report of the surveyor so that he could find out as to on what basis the surveyor has assessed the loss of less than 5 lacs where actual loss was more than 27.5 lacs. However acting in a purely arbitrary and despotic manner, the respondent no.2 refused to supply a copy of the report of the surveyor and further asked the respondents that he shall have to sign the discharge voucher and that too without any protest in case he wanted to take the claim amount of Rs. 4,70,399, which had been sanctioned to him.
The complainant was in a fix because he was in desperate need of finances. As he could not go even without the paltry sum being offered, the complainant being under extreme financial crunch and under duress and coercion, signed on the dotted lines of the discharge voucher and took the sum of Rs.4,70,399/-, which was offered. The requisite document dated 3.7.2009 is attached as Annexure C-11.
That however, on 3.7.2009 itself, the complainant dispatched a registered letter Annexure C-12 to the respondent No. 2 whereby while acknowledging the payment of Rs.4,70,399, it was mentioned that the payment is received under protest and the settlement is not acceptable to the complainant. It was further mentioned that the discharge voucher has been signed by the complainant under pressure and the complainant was left with no other offer due to financial hardship and delay in settlement of claim with the Insurance Company. The respondents were called upon to reassess the whole situation and disburse the balance amount of loss of Rs.22,80,301 along with interest as suffered by the complainant.”
The Insurance Company in its written version/ reply responded to the aforesaid plea raised in complaint which is contained in paragraph 13 and 14 thereof, which is extracted hereinunder:
“13. That the contents of para 13 of the complaint are admitted to be correct that the representative of the complainant met the officials of the respondents and the report of the surveyor was discussed wherein the complainant agreed to the same and made a settlement there and then in full and final. Thereafter the cheque for Rs.4,70,399/- was prepared and handed over to the complainant. The other averments made by the complainant in this para are totally wrong and denied. The complainant was having already report of the surveyor with them and according to which each and every item of the report was discussed in detail with the Insurance Company and on the basis of the report the complainant agreed and signed the discharge voucher after receiving the amount in full and final settlement. There was no threat and coercion and the same was without any protest for which the complainant agreed and accepted the amount of Rs.4,70,399/- which was recommended for payment by the competent authority. Had there been any coercion/threat given by the officials of the respondents, the complainant should have made the complaint to the higher authorities of the answering respondents or to the police. Neither any complaint was made to the higher authorities of the respondents nor to the police regarding alleged coercive method adopted by the respondents. There was no threat or pressurization as alleged in this para of the complaint. The complainant in his sweet will admitted the report and agreed to sign on discharge voucher after receiving the amount Rs.4,70,399/- in full and final settlement of his claim.
That the contents of para 14 of the complaint are admitted that the letter dated 3.7.2009 Ex.C-12 was sent. It is worthy to mention here that this letter dated 3.7.2009 (Ex.C-12) was sent on 7.7.2009 whereas full and final cheque with discharge voucher was signed on 3.7.2009 and the payment was accepted in full and final settlement of the complainant. Thus the complainant cannot wriggle out from the full and final settlement made by him after receiving the amount of Rs.4,70,399/-. The other averments made in this para are totally wrong and denied. Discharge voucher was signed by the complainant without any fear and pressure and the same was accepted without any delay. It is well settled law that once the payment has been accepted and received in full and final settlement of the claim and discharge voucher has been signed, the complainant cannot claim balance amount thereafter. The complainant knowingly and willfully. tried to mislead this Hon'ble Commission by putting the date on the protest letter dated 3.7.2009 but in fact it was dated 7.7.2009.”
The evidence by way of affidavit by the complainant and the response thereto by the Insurance Company are reproductions of the stand taken in their respective replies.
It is on this foundation that the learned counsel for the appellant contends that since the complainant was facing economic and financial distress having lost his entire establishment in the fire, and was in dire need of money he had no fair option except to register his protest after accepting the said part payment. The contention of the learned counsel through his oral submissions as well as written statement focuses on the said contentions reiterating that the discharge voucher had been signed due to the duress of the Insurance Company and the only option available was to sign the voucher and receive the amount or else the Insurance Company would not have parted with even the amount which has been ultimately given to him. It was therefore in order to survive that this almost 1/6th of the amount claimed was accepted and immediately thereafter the protest was raised through letter which was deposited on 07.07.2009.
It was further submitted that the judgment in the case of “Ajmer Singh Cotton & General Mills (Supra)” has been later considered and reiterated in the case of “National Insurance Company Limited Vs. Sehtia Shoes, (2008) 5 SCC 400” and again in “First Appeal No. 315 of 2007, Chandigarh Petro Foam Pvt. Ltd. Vs. United India Insurance Co. Ltd., decided by the NCDRC reported in 2012 NCDRC 856 SCC OnLine” and the order of this Commission in Raj Kumar (Supra) was also pressed into service. It is urged that in all these cases it was found that in the event duress is pleaded and its evidence led then in that event an inference of coercive practice can be deduced to conclude that the acceptance of the amount and the signing of the discharge voucher was under duress.
The contention of the appellant/ complainant is that mere acceptance of the amount followed by protest is of no consequence if the protest is genuine and has been bonafidely made so as to make the claim indemnifiable. He further contends that the protest was an immediate thought and not an afterthought and consequently, once the pleadings and the evidence established that the protest was lodged promptly and genuinely, then in that event the only inference that can be drawn is that the complainant facing financial hardship was under a compulsion with no option left to sign the discharge voucher which was completely under duress and coercion on the part of the Insurance Company.
Mr. Jain learned counsel for the complainant concluded his arguments by contending that the surveyor’s report was absolutely unfounded ignoring relevant material and the quantum of loss suffered by the complainant has been erroneously and incorrectly assessed which is against the norms, facts and the terms of the policy. Hence the entire claim deserves to be allowed.
The question of quantum would have to be dealt with only if one arrives at a conclusion that the discharge voucher had been issued under duress or coercion. The question as to whether such an allegation is borne out or proved will have to be seen in the light of the averments made in the evidence led. The direct allegation of the complainant is that it was the respondent no. 2, who dealt with the issue and paragraph 13 of the complaint makes the allegation against the said respondent.
The said allegations have been denied categorically in paragraph 13 of the written version where it is stated that the complainant was already aware of the surveyor’s report which was discussed in detail and it is on that basis that the complainant agreed and signed the discharge voucher after having received the cheque as full and final settlement. There was no threat or coercion and even otherwise no complaint was made either to the higher authorities or to the police regarding such coercive steps as alleged against the opposite Party no. 2. The letter of protest was sent to the opposite party no.2, only stating the reasons for not accepting the amount where the word ‘pressure’ has been used. While entailing the reasons it has been alleged that the quantum was not discussed and he was facing financial crisis as he had to face the outstanding dues of the bank.
From the recital of the aforesaid facts, it is clear that the complainant has alleged the pressure of financial hardship and there was a bald allegation of duress and coercion. There is no evidence of any coercion or duress demonstrated nor any effort was made by the complainant to examine the opposite party no. 2 or cross examine him through interrogatories when the evidence affidavit had already been filed denying these allegations. The complainant did not make any effort after exchange of pleadings and the evidence affidavits to call upon the Divisional Manager, opposite party no. 2 and raise queries regarding this allegation of exercise of coercion or influence or duress by the opposite Party no. 2 on the complainant. In the absence of any such effort nothing can be gathered to have proved the allegations made by the complainant.
Thus, coercion and duress being exercised by the Divisional Manager being absent, what needs to be assessed is the preponderance of any probability in the surrounding circumstances. The complainant immediately encashed the cheque that was handed over to him. There was no effort to reject the said offer of the amount through the cheque and to the contrary it was encashed by the complainant which is an admitted fact. It is only after encashment of the cheque that the letter of protest was dispatched on 07.07.2009. Learned counsel for the complainant has urged that the protest was not an afterthought but it was an immediate and prompt protest. In order to assess the aforesaid argument, had there been any reluctance to refuse the amount tendered by the Insurance Company, the same could have been displayed immediately by not accepting the cheque or having written to the Insurance Company of receiving the cheque under protest. The letter was prepared and is dated 03.07.2009, but the same was dispatched on 07.07.2009. This conduct on the part of the appellant/ complainant of having encashed the cheque and then after more than 5 days dispatched a letter of protest, does not reflect the genuineness or a bonafide effort to contest the payment by the complainant, as it was done after the encashment of the cheque.
The discharge voucher therefore after acceptance and encashment of the cheque clearly appears to be a voluntary act unconnected with any threat or coercion. There is nothing on record to infer that the Insurance Company exercised some undue advantage for coercing the complainant wielding its prominent position.
Coming to the judgements which have been cited at the bar all the four judgements referred to hereinabove do not come to the aid of the appellant/ complainant as on the facts of the present case the allegation of coercion or undue influence could not be established. The said judgements and the ratio thereof are clear which lay down that such an allegation if established, it is only then that a discharge voucher or any such document can be ignored and be treated to be invalid/ void for the purpose of granting relief. There is no dispute with these propositions. The leading judgement in the case of “Ajmer Singh Cotton & General Mills (Supra)” which had been followed in the subsequent decisions, it is clear that the pleadings and evidence have to be available which in that case were absent. In the present case even though the pleadings and the evidence have asserted the said fact yet it could not be established as has been found hereinabove. Consequently, the ratio of the judgements if applied do not in any way lead to the conclusion that the allegations of coercion or undue influence were established.
What appears is that the complainant did try to encash the full claim and after being dissatisfied proceeded to develop this theory of using the word “pressure” in his letter of protest and then alleging coercion and undue influence in the complaint and in the Rejoinder. This chain therefore indicates that it was a developed afterthought more so keeping in view the fact that the complaint itself was filed on 22.03.2010 after several months of the encashment of the cheque. These surrounding circumstances therefore do not make out any case against the Insurance Company having exercised any undue influence or coercion nor can it be blamed for having taken any advantage of its prominent position. The discharge voucher dated 03.07.2009, therefore was bereft of any such influence as alleged by the complainant. The State Commission therefore rightly came to the conclusion that such allegation had not been established and as indicated hereinabove this Commission is also convinced that the appellant / complainant has failed to establish the allegations made by it against the opposite Party no. 2. The protest letter dispatched on 07.07.2009 was an attempt to reopen the issue after having accepted the amount and issued the discharge voucher.
The complaint as noted above was also filed almost 8 months after the aforesaid event which also indicates that the complainant appears to have grown wiser and thereafter instituted the complaint.
On the issue of quantum the written version also indicates that the surveyor in his report dated 13.06.2009 discusses in detail all the negotiations which were made with the complainant, his brother Mr. Ajay Goyal and his elder brother Mr. Dinesh Goyal. It is not that the surveyor had submitted his report without any basis and he has given the complete breakup of the analysis made on the strength of documents and also has proceeded to make a volumetric analysis. All this therefore makes it evident that the extent of loss was assessed and was agreed upon voluntarily free from duress or coercion whereafter the payments were received by the complainant and the discharge voucher was issued. Consequently in the aforesaid background, no case has been made out for interfering with the order of the State Commission and for all the reasons given hereinabove the appeal fails and is hereby by dismissed.