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Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 06.01.2014, passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short "the State Commission") in First Appeal No. 1208 of 2011 preferred by the Complainant. By the impugned order, the State Commission has allowed the Appeal and set aside the order of the District Consumer Disputes Redressal Forum, Dausa (in short "the District Forum") and directed The New India Insurance Co. Ltd. (hereinafter referred to as "the Insurance Company") to pay interest @ 9% p.a. on the claim amount from June 2004 till the date of payment.
The facts in brief are that the Complainant-Company, producing mustard oil had taken an Open Marine Policy for the period from 31.03.2003 to 30.03.2004 for an amount of Rs. 2,10,00,000/-. On 17.07.2003, the tanker carrying mustard oil of 243.05 quintal to Tinsukiya, Assam met with an accident and about 22885 kg oil was destroyed in the accident. The Insurance Company appointed a Spot Surveyor Sh. Manoj Kumar Agarwal and Marine Surveyor - Sh. Biman Moy Dasgupta, prepared the report. On 22.10.2003, the Complainant submitted a claim form the bill of documents, the weight of the tanker through which the keys were sent, the declaration No. 16 and the weighing receipt at Dausa, weighing of tanker at Tinsukia weighing receipt, fee bill receipt paid to the surveyor, copy of consignee debit note, copy of registered notice issued to the carrier and the short delivery certificate all other documents which were called for by the Insurance Company was handed over on 22.10.2003. It is averred that the goods vehicle carrying capacity issued by Transport Authority was also sent to the Insurance Company vide letter dated 12.12.2003. It is further averred that prior to this accident the Insurance Company issued policy Declaration No.1 dated 02.04.2003. Thereafter, the Complainant sent repeated requests on 25.03.2004 and on 22.10.2003 to the Insurance Company for release of the claim. It is pleaded that on 22.08.2008, the second Opposite Party had sent a letter to the Complainant seeking for Stamped Letter of Authority, Stamped Letter of Subrogation, Stamped Special Power of Attorney enclosed with the prescribed performa duly signed for the payment of claim. The same was sent to the second Opposite Party in the prescribed performa vide letter dated 25.08.2008. It is averred that the second Opposite Party issued an account payee cheque No. 620601 for an amount of Rs. 12,41,720/- to the Complainant but did not pay any interest. Thereafter the Complainant issued a Legal Notice dated 19.09.2008 through registered AD demanding interest@ 12% p.a. on the amount of Rs. 12,41,720/- from 22.10.2003 to 25.08.2008, but there was no response.
It is stated that the Insurance Company has to pay the claim amount within a maximum period of two months after submission of all the documents but the Insurance Company despite repeated reminders did not settle the claim thereby putting the Complainant-Company to severe loss and hence Complainant seek interest @ 12% p.a. on the amount of Rs. 12,41,720/- for the period of five years from 22.10.2003 to 25.08.2008.
The Insurance Company filed their reply stating that the Complainant had received an amount of Rs. 12,41,720/- on 25.08.2008 towards full and final payment vide cheque No. 620601 out of his own free will and now cannot claim any extra amount having been fully satisfied with the settlement. It is further averred that the Complainant filed Civil Suit No. 67/2005 in the Court of Additional District and Session Judge, Jaipur Nagar, Jaipur on 03.05.2005, which was decided by the Hon'ble Court vide order dated 03.01.2008 and has held in para 7 of the judgement that the claim of the Complainant was premature.
The District Forum has observed that since the Civil Suit has been filed the Complaint is not maintainable and dismissed the Complaint.
On an Appeal preferred by the Complainant the State Commission has awarded interest @ 9% p.a. from January, 2004 till the date of realization.
The brief point that falls for consideration is whether the Complainant is entitled for any interest for the delay, which has occurred on account of the claim not being settled within the time frame stipulated under Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002.
The facts not in dispute are the issuance of the issuance of the Policy, the occurrence of the accident on 17.07.2003; the appointment of the surveyor; the assessment made by the surveyor and the discharge voucher signed by the Complainant on 26.08.2008. It is observed from the record that the first Surveyor had recommended allowing of the claim on 04.08.2003 itself. The second Surveyor Bimon Moy Dasgupta gave his report on 03.09.2003 assessing loss and requested the insurer to treat the claim on non standard basis. There was also a joint declaration signed by the Surveyor, Spot Surveyor and loss assessor and also the driver stating that the loss of mustard oil was 22855 kg. This joint declaration shows that the loss was assessed on the following basis :
"Gross Weight of the Vehicle : 12275 KGS
Tare Weight : 10825 KGS
Net Weight : 1450 KGS
Therefore the actual loss due to accident of oil Tanker No. RJ-14G-1G/8073 is as under:
Total weight of Mustard oil as per Invoice : 24305 KGS
Actual Weight delivered to the Consignee : 1450 KGS
Loss of Mustard Oil due to accident : 22855 KGS"
It is also seen from the record that the Insurance Company had asked for the documents only on 24.05.2004 and the documents on record evidences that the Complainant had submitted all the details required by the Insurance Company and also got issued a Legal Notice dated 26.05.2004 seeking settlement of the claim.
Learned Counsel appearing for the Insurance Company relied on the following citations:
M/s Grasim Industries Ltd. Vs. Aggarwal Steel (2010) 1 SCC 83, in which it was stated by the Hon'ble Apex Court that:
"when a person signs a document, there is a presumption, unless there is a proof of force or fraud, that he had read the document properly and understood and only then he has affixed a signature thereon, otherwise no signature on a document can be accepted."
Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) 5 SCC 311, wherein it was held by the Hon'ble Supreme Court that:
"Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the appellant laying down the condition 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 April 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 upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a different 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 non acceptance must be conveyed before the cheques are encashed. If the 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."
M/s. Ravindra Spinners Ltd Vs. National Insurance Company Ltd., III (2013) CPJ 539 (NC), wherein this commission has held that:
"the above facts would by themselves indicate that it is a case of action as an afterthought. The arguments of learned counsel for the appellant would indicate that the Consumer Complaint was filed in the background of the information that the Surveyor had assessed the loss to be Rs.70.5 lakhs while the insured had accepted Rs.51.89 lakhs, in 'full and final' settlement. It is thus a case where, as rightly observed by the State Commission, the insured is seeking to reopen his claim for further relief. No evidence was led before the State Commission to show that the acceptance of the appellant/Complainant was obtained by any acts of fraud or misrepresentation or coercion on the part of the respondent/Insurance Company."
The facts in Bhagwati Prasad (Supra) are not applicable to the facts of the instant case as the time period i.e. inordinate delay of 5 years is not the subject matter. The principle that is laid down in that case is that if cheques are encashed without protest then it must be held that the offer stood unequivocally accepted. At the cost of repetition, the delay in the instant case and the financial loss suffered has led to the Complainant signing the discharge voucher and immediately thereafter has filed a Consumer Complaint before the District Forum.
The facts in M/s Ravindra Spinners (Supra) are also not applicable to the facts of this case as the Surveyor had assessed the loss at Rs. 70.50 lakhs while the insured had accepted Rs. 51.58 lakhs in full and final settlement in the instant case no such offer was made and there were no partial amounts paid to the Complainant and therefore this case relied upon by the learned Counsel for the Insurance Company also does not apply to the facts of this case.
Learned Counsel appearing for the Insurance Company vehemently contended that the delay occurred only because of the negligence of the Complainant as the documents were submitted only on 25.08.2008. There are no substantial reasons given as to why when the accident occurred on 17.07.2003 and the Spot Surveyor gave the report on 04.08.2003 and the second Surveyor report is dated 08.09.2003, the Insurance Company had written seeking some additional documents only on 22.08.2008 almost 5 years subsequent to the first Surveyor's Report, hence the contention of the learned Counsel that the documents were submitted only on 25.08.2008 and that the delay was on account of the Complainant's negligence cannot be accepted. As per the Regulation 9 of IRDA, the Insurance Company after Survey Report ought to settle or reject the claim within a period of 30 days, the said clause is reproduced as hereunder:
"Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.
On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be."
(Emphasis supplied)
From the aforenoted Regulation it is clear that it is mandated that the Insurance Company should settle the claim within a period of 30 days after receipt of the Survey Report. In the instant case even the second Survey Report was received on 08.09.2003, therefore the inordinate delay of 5 long years is totally unjustified and for a Company to sustain a loss of this amount, which was ultimately paid by the Insurance Company on 26.08.2008, 5 years after the date of accident, cannot be undermined. The Insurance Company is in a dominant position and taking 5 years to settle the claim in full and final satisfaction construes that the Complainant had accepted the amount only under financial pressures, which they had to undergo on account of the delay. It is pertinent to mention that the amount was paid to the Complainant on 26.08.2008 and the Consumer Complaint was filed on 03.11.2008, without much delay.
The State Commission has also awarded only a reasonable interest @ 9% p.a. from January, 2004 till the date of realization. We do not see any illegality or infirmity in the order of the State Commission, which would warrant our interference and hence this Revision Petition is dismissed accordingly, no order as to costs.
Needless to add, the amount deposited by the Petitioner in compliance of the order dated 26.08.2014, stands released to the Complainant- Company i.e. Mahabir Extraction Pvt. Ltd. along with accrued interest, if any.