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Judgment
Dr. Sadhna Shanker, Member
This appeal has been filed under section 19 of the Consumer Protection Act, 1986 in challenge to the Order dated 13.08.2014 of the State Commission in complaint no. 12 of 2011, whereby the complaint of the complainant was dismissed.
We have heard the learned counsel for the appellant (hereinafter referred to as the ‘complainant company’) and the learned counsel for the respondent (hereinafter referred to as the ‘insurance company’) and perused the record including the State Commission’s impugned Order dated 13.08.2014.
The brief facts of the case are that the complainant company took a contract work from Chhattisgarh Government for construction of road at Gariaband site under Prime Minister Gram Sadak Yojana. For the said work, the complainant company obtained an insurance policy, namely, Contractors All Risk Insurance Policy. The policy was valid for the period from 31.05.2008 to 30.05.2009. During the subsistence of the insurance policy, in September 2008, there was heavy rain and due to heavy rain, the constructed road got damaged and the complainant company suffered heavy loss. The complainant company intimated about the said loss to the insurance company on 19.09.2008. The insurance company appointed a preliminary surveyor, who inspected the site of construction and submitted his report observing that the site was not approachable as the site of construction was still under water and most of the area was not approachable due to big pot holes. The insurance company constantly pursued the complainant company to submit the claim form and estimate the loss. The complainant company sent letter dated 24.09.2008 stating that until and unless the flood water recedes and the whole damaged road is measured by leveling instruments, it is not possible to properly assess the loss or to prepare the estimate. Therefore, the complainant company requested the insurance company for appointment of a final surveyor as the complainant company had to start the construction activities but the insurance company had not appointed the final surveyor immediately. The complainant company sent another letter dated 13.10.2008 giving a figure of loss to the tune of Rs. 2 crore approximately. On receipt of the said estimate, the insurance company appointed a final surveyor, who visited the spot and submitted the survey report. After receipt of the survey report, the insurance company started scouting suitable persons to scrutinize the said report. The insurance company gave a long list of several demanded documents and the complainant company vide their letter dated 21.08.2009 submitted all required documents. When the complainant pursued with the insurance company to settle the claim, the surveyor submitted a revised survey report. In the earlier report, he assessed the loss to the tune of Rs. 1,32,69,400/- but subsequently in the second report he reduced the loss suffered by the complainant to the tune of Rs. 71,34,518/- and a cheque for this amount was received by complainant company and submitted discharge voucher in full and final settlement.
Being aggrieved, the complainant company filed a complaint before the State Commission.
The complaint was contested by the insurance company by filing written statement before the State Commission on the ground that the complainant company is not a consumer within the meaning of section 2(1)(d) of the Act as the complainant is engaged in commercial activities and therefore, the transaction is commercial and the dispute is not a consumer dispute. It is also alleged that the complaint involves not only complicated questions of fact and law but also involves voluminous documentary evidence of highly technical nature, therefore, the complaint cannot be decided by this Commission in summary proceedings. It is further stated that the complainant company has received the amount and signed the discharge voucher in full and final satisfaction, therefore, the complaint is not maintainable and same was liable to be dismissed.
The State Commission vide impugned Order dated 13.08.2014 dismissed the complaint being not maintainable.
Aggrieved by the said Order of the State Commission, the complainant company filed the instant appeal before this Commission.
Learned counsel for the complainant company has argued that the complainant company was compelled by way of undue influence and coercive bargaining to receive the said amount and to execute a clear disbursement voucher. He further argued that as the complainant company was facing acute financial crisis, therefore, it was constrained to execute a disbursement voucher in full and final satisfaction and as per the procedure adopted by the insurance company, a disbursement voucher duly signed by the insured is received in advance by the insurance company and then the cheque was issued and also the insurance company did not allow the complainant company to make any adverse endorsement on the disbursement voucher, otherwise, the claim cheque would be withheld. He furthermore argued that immediately after receiving the cheque towards the claim amount, the complainant company lodged its protest by letter dated 17.01.2011. He furthermore argued that no plausible reason has been given for obtaining addendum survey report and therefore the revised survey report is totally incorrect and wrong. He also argued that even after executing a clear disbursement voucher, the complainant company is entitled for compensation under the Act, 1986 for the deficiency in service on the part of the insurance company. In support of his contention, he placed reliance on the decision rendered by Hon’ble Supreme Court in the case of United India Insurance Company Ltd. vs. Ajmer Singh Cotton & General Mills reported in II (1999) CPJ 10 wherein it has been held as under:
“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 mis-representation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under 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, 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 relied under the circumstances of each case.”
Learned counsel further argued that in the present case, the complainant company was compelled and forced to accept the amount and execute a disbursement voucher, therefore, the findings of the Hon’ble Supreme Court squarely applies to the facts and circumstances of the present case. He further submitted that the insurance company has violated section 64UM(2), (3) and (4) of the Insurance Act, 1938 by calling the surveyor to submit addendum survey report. In this regard, he also placed reliance on the decision rendered by Hon’ble Supremd Court in the case of United India Insurance Co. Ltd. vs. Sindhi Sweets & Ors. reported in IV (2007) CPJ 322, wherein it has been held that “accepting or rejecting surveyor’s report is only within the jurisdiction of Controller of Authority. No arbitrary and unilateral decision to impose decision of insurer on insured would be imposed Report of first Surveyor if not rejected by the Authority, the Insurance Company bound by the Report of First Surveyor. Second Surveyor appointed without any direction of Controller/Authority”.
Learned counsel for the insurance company has argued that the complainant company accepted the amount of Rs. 71,34,518/- from the insurance company in full and final satisfaction of the claim and willfully executed discharge voucher in the full and final satisfaction of the claim and the laws laid down by Hon’ble Supreme Court in the decisions referred by the complainant company, have already been considered by the State Commission and it has been observed that the consumer has to satisfy the commission that the discharge voucher was obtained under the circumstances, which can be terms as fraudulent or exercise of undue influence or by misrepresentation or alike but in the present case, the complainant company has not been able to prove that the discharge voucher was obtained by fraud or undue influence or by misrepresentation. A mere passing reference has been given with respect to a letter dated 13.10.2010 but the same has not been filed with the present appeal. He has further argued that the complainant company had consented freely and accepted the same on his free will.
The only question in this appeal that arises for consideration is whether the discharge voucher was executed in unavoidable circumstances or under coercion or he was in need of money.
It is seen that through letter dated 21.10.2010 which was written by the complainant company to the Sr. Divisional Manager, Oriental Insurance Co. Ltd. it was stated that “2. Your Surveyor has deducted excess clause twice, normal as well as additional Excess, which is not as per the standard regulation of the Contractor all risk policy. As we have opted additional excess clause, which is in multiplication of normal excess clause, as such we would request you to deduct only additional excess clause i.e. Rs. 10.00 only”. It is clear from the said letter that the complainant company had only objected to the original additional amount but had admitted without any protest that the amount of Rs. 71,34,578/- was commercially acceptable to it. A discharge voucher has also been voluntarily signed at the time of payment. Thereafter a letter was sent on 17.01.2011 claiming additional amount as per the original losses assessed by the surveyor. The protests, if any, in the matter was lodged more than two months after the letter dated 21.10.2020. The decision of the Hon’ble Supreme Court in the case of Ajmer Singh Cotton & General Mills (supra) has been relied by learned counsel for both the sides. In that case, it has been categorically held that despite execution of the discharge voucher, a consumer can make a claim for any excess amount if it is in a position to satisfy the commission that such discharge voucher was obtained from him through fraud, mis-representation, under influence and the like but in the instant case, the complainant company had neither before the State Commission nor before this Commission has brought any material on record to prove any such misdoing on the part of the insurance company at the time of giving the letter dated 21.10.2010 along with discharge voucher. Nor has he brought any material on record to prove financial distress at the time of signing of discharge voucher. The issue of correctness of the addendum survey report would arise only if the discharge voucher was signed under protest. The complainant company has failed to prove that the discharge voucher was signed under protest.
In view of the foregoing, we find no reason to interfere with the impugned Order dated 13.08.2014 of the State Commission warranting our interference.
The appeal fails and the same is accordingly, dismissed.