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Bajaj Allianz General Insurance Co. Ltd. v/s M/s. MPT Amtek Automotive Ltd.


Company & Directors' Information:- BAJAJ INDIA PVT LTD [Strike Off] CIN = U74899DL1976PTC008210

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

    First Appeal No. 411 of 2014

    Decided On, 25 February 2020

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, THE HONOURABLE MR. ANIL SRIVASTAVA
    By, MEMBER

    For the Appellant: Virender Prabhakar, Advocate. For the Respondent: Bhasker Nayak, Advocate.



Judgment Text


1. The order dated 14.02.2014, passed by the Consumer Disputes Redressal Forum-VI (District New Delhi) in CC-894/2009 in the matter of M/s MPT Amtek Automotive Ltd. versus M/s Bajaj Allianz General Insurance Co. Ltd., holding the insurer guilty of deficiency and directing them to pay the balance sum of Rs. 5,51,915/- which has been short paid to the complainant with interest at the rate of 9% per annum from the date of its payment of earlier amount paid as also Rs. 50,000/- as damages and Rs. 30,000/- as litigation charges, has been assailed before this Commission by way of an appeal under Section 15 of the Consumer Protection Act 1986, the Act, by the Insurance Company, for short appellant against the M/s MPT Amtek Automotive Ltd., hereinafter referred to as respondents, alleging that the impugned order suffers from infirmity as they have not considered the vital point that the matter has already attained finality, full and final payment having been accepted and praying for setting aside the order with cost.

2. Facts of the case necessary for the adjudication of the appeal are these.

3. The complainant/respondent took a Marine Insurance Policy bearing No. OG-08-1104-1001-00000090 for Double Crank Presses, which was being imported from Taiwan and the said machine was insured for a sum of Rs. 40,65,600/- to cover the risk of damage and loss during transit. The risk undertaken was subject to the limit of indemnification and the clauses, endorsements, exclusions, conditions and warranties in the schedule and attached wordings which form part of the policy. The said machine while being transported in a vehicle from Mumbai to Dharuhera was damaged in an accident as the vehicle carrying the said machine reportedly overturned near Manesar. The complainant/respondent lodged a claim with the appellant/insurance company. The appellant company immediately appointed M/s Adarsh Associates, IRDA licensed surveyors to assess the loss. The appellant however came to know that the said machine was double insured by the complainant/respondent i.e. it was insured with the appellant as also with Iffco-Tokio General Insurance Company Limited but the complainant/respondent did not inform the appellant/insurance company about the double insurance. The fact came to the knowledge of the appellant only upon investigation done by the Surveyor. The complainant/respondent had deliberately insured the goods twice with two different insurance companies.

4. Secondly, the complainant/respondent also concealed the fact that the insured machine was carried on truck of inadequate carrying capacity from ICD, Tughlakabad, Delhi to Dharuhera. The under carrying capacity of the truck carrying the insured machine contributed to the cause of accident resulting in damage to the insured machine. The vehicle could carry a load of 23,470 kg., but was loaded with goods weighing 37,400 kgs., thereby overloading the vehicle by about 60%. Moreover, the recommended use of the vehicle was for carriage of Dry Bulk Powders only. The entire risk and damage was due to overloading and non-recommended use of the carrying vehicle. This amounts to breach of condition of the policy.

5. The appellant/insurance company later informed the complainant/respondent on 19.03.2009 about the violation of the terms of the policy and gave an account of the deductions in the sum payable to the complainant/respondent. Upon the complainant/respondent consenting to the deductions in the sum payable to the complainant/respondent, the appellant issued a cheque no. 298507 dated 02.04.2009 in the sum of Rs. 3,04,579/- and delivered the same to the complainant/respondent in full and final settlement of its claim and the complainant/respondent on his part accepted the said cheque and encashed it.

6. The appellant has averred that the complainant/respondent after having consented to the settlement made by the appellant/insurance company and having received the Cheque, the issuance of legal notice date 20.04.2009 challenging the deductions made by the appellant was an afterthought and deliberate act.

7. The appellant having not accepted the claim for the total amount the complaint was filed before the District Forum which complaint stood disposed of with directions to the appellant, leading to filing of appeal on the ground inter alia that the District Forum ignored that the complainant has breached the terms and conditions and secondly the full and final settlement having been arrived at they are estopped from the agitating the issue afresh.

8. The respondents were noticed and in response thereto they have filed reply resisting the appeal both on technical ground and on merit stating, that the appellant has taken new facts in the appeal which is not permissible under the law of pleadings and also contrary to the law settled. Secondly the objection is that the appeal being time barred is liable to be dismissed. Thirdly no substantial legal ground has been taken to agitate his grievances in the appeal. Finally while disputing the averments made in the appeal the respondents have stated that the orders passed by the District Forum suffers from no infirmity and deserves to be upheld.

9. This matter was listed before this Commission for final hearing on 17.02.2020 when the counsel for both sides appeared and advanced their arguments, the appellant for dismissal of the complaint, the complainant having settled the matter and received the amount as agreed to, is estopped from raising the issue a fresh and the respondents for the payment of the unpaid amount as per the directions and orders of the District Forum. I have perused the records of the case and given a careful consideration to the subject matter.

10. I may advert to at this stage the contents of the reply filed by the respondents. Firstly I do not find anything in addition to the defence taken by the insurer while filing this appeal. Infact they have restricted to their defence as taken before the District Forum. Secondly this Commission in exercise of the authority vested with it under proviso to Section 15 of the Act has already condoned the delay in filing the appeal as per the proceedings recorded on 20.07.2015 and thus this objection is not sustainable. Third on merit, their objection would be deliberated upon hereinafter.

11. The fact that an amount of Rs. 3,04,579/- was paid by the insurer to the insured in pursuance of the settlement as one time full and final settlement is undisputed. Short question for adjudication in this appeal is whether on receipt of the settled amount as full and final payment the complainant is entitled for more as argued by the ld. Counsel for the complainant/respondent or, in the alternate, as argued by the ld. Counsel for the appellant/OPs the complainant is estopped from asking for more.

12. The Hon’ble NCDRC in the matter of Haryana State Co-operative supply and Marketing Federation Ltd. and Anr. As reported in II [2013] CPJ 364 (NC) has held as under:-

“Petitioner should not have encashed demand draft in case the offer in full and final settlement was not acceptable to them and they should have written back to respondent about inadequacy of offer. Petitioner by his own conduct forfeited its right to plead that it did not accept offer in full and final settlement of its claim against OP. petitioner cannot be allowed to accept the offer of respondent only in part which suited their convenience and reject the condition subject to which offer was made.”

13.The Hon’ble NCDRC in yet another matter- Eggro paper Moulds Ltd. vs. New India Assurance Co. Ltd.- as reported in I [2016] CPJ 404 (NC) is pleased to hold that the Commission has no power to interfere with once the matter finally stands settled between the parties.

14. From the above authorities it would be manifestly clear that once full and final settlement has been arrived at between the parties, and in furtherance to the settlement payment has been made, it is not open to either party to go back, much less the complainant as they would be estopped from raising the issue afresh. No averment has been made to the effect that the full and final settlement has been arrived at under compulsion by influence or fraud. This is yet another ground warranting no interference.

15.The Hon’ble Supreme Court of India is pleased to hold in the matter of ONGC Mangalore Petrochemicals Ltd. versus ANS Constructions Limited and another as reported in (2018) 3 SCC 373 that if the party which executes discharge agreement/discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud/coercion/undue i

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nfluence practised by the other party but is not able to establish such a claim or appears to be lacking in availability, then it is not open to the courts to refer the dispute to arbitration at all. 16.Having regard to the discussion done and the legal position explained, I am of the considered view that the settlement between the insurer and insured having arrived at and in furtherance thereto the payment having been made by one and encashed by the other, the complainant cannot be allowed to agitate the matter afresh. Consequently the appeal is allowed and the orders impugned are set aside leaving the parties to bear the cost. Having done, so, the complaint is ordered to be dismissed. 17. Ordered accordingly. 18. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. 19. File be consigned to records.
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