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Batra Garments Pvt. Ltd. v/s New India Assurance Co. Ltd.

    Consumer Case No. 549 of 2018
    Decided On, 21 December 2018
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Appearing Parties: Sonia Sharma, Vijay Chandra Jha, Advocates.

Judgment Text

The complainant company obtained a Fire Floater policy from the opposite party for the period from 27.8.2014 to 26.8.2015 in respect of its stock, furniture and fixtures etc., to the extent of Rs.12.5 crores. A fire having broken out in the showroom of the complainant in the night intervening 31.3.2015 / 01.4.2015, a claim was lodged with the opposite party which deputed a surveyor to inspect the site and assess the loss. According to the complainant, the surveyor had initially assessed the loss at Rs.4,29,75,166/-, which he later reduced to Rs.4,14,97,757/-. The insurer however, approved the claim to the extent of Rs.3,80,30,879/- and conveyed the same to the complainant vide email dated 18.7.2016, requesting it to give full and final discharge. The said email to the extent it is relevant, reads as under:

'Please note that the Competent Authority has approved RS.3,80,30,879/- as full and final settlement of the claim subject to Agreed Bank Clause, collection of Reinstatement of premium, deduction towards audit query, if any, and the insured giving full and final discharge.

Please note that the difference in the amount recommended by RO and approved by HO is due to the following reasons:

1. After discussion, surveyor has revised the assessment to Rs.4,14,97,757/-.Copy of surveyor’s revised assessment is enclosed.

2. The method of bifurcation of stock, furniture, fixture sum insured is not acceptable. Hence, we have re-worked the claim amount as per Annexure and claim is approved accordingly.'

2. The aforesaid approval was conveyed to the complainant vide letter dated 26.7.2016 whereby it was inter-alia required to execute a Joint Discharge Voucher, along with the banker. The said Joint Voucher was duly executed by the complainant, and its banker and they also supplied details of the bank account of the complainant to the insurer. The Joint Discharge Voucher to the extent it is relevant reads as under:

'Received from the New India Assurance Company Limited, the sum of Rs.3,80,30,879/-, (In words Rs.(Thee crore eighty lacs thirty thousand eight hundred seventy nine only)towards full and final settlement of the fire loss which occurred to the subject matter on dated 01.4.2015 covered under policy No.36090111140300000013.

We give the unconditional discharge receipt to the company in full and final settlement of all claims present or future arising directly / indirectly in respect of the above said fire loss.'

3. After about six months of the receiving the payment of Rs.3,80,30,879/-, from the opposite party, the complainant sent a letter dated 12.1.2017, expressing its dissatisfaction with the amount received by it. The said letter, to the extent it is relevant, reads as under:-

'As against the total loss of Rs.5,55,97,538/-, your office had paid us Rs.3,80,12,000/- as insurance claim. While going through the documents received from your office through RTI, we had observed that insurance surveyor vide his report Ref. No. 2015-2016 NIA,F.25 dated 22.1.2016 had assessed the total gross loss of Rs.5,39,65,862/- and net loss of Rs.4,55,94,153/-. Thereafter, after making various deductions, surveyor had assessed the claim of Rs,4,29,75,166/-.

Thereafter, the said loss was duly approved and recommended for Rs.4,29,75,166/- by your Branch, your Divisional Office and regional office after making enquiries and verifications for four months. Later on our claim which was earlier assessed by surveyor at Rs.4,29,75,166/- was drastically reduced to Rs.3,80,30,879/- by taking fresh assessment from surveyor for Rs.4,14,97,575/- for the reasons as per your convenience, without having any valid reasons which are beyond our imagination.

In view of the above discussion, we dispute the loss amount of Rs.3,80,12,000/- paid by you to our company as you company had paid lesser amount as against our Gross loss of Rs.5,39,65,862/-.'

4. The complainant sent an identical letter to the insurer on 17.2.2017, which was practically a reproduction of the earlier letter dated 12.1.2017.

5. The complainant sent yet another letter dated 15.6.2017 to the insurer without taking any new plea in the said letter, which also was a reproduction of the letter dated 12.1.2017.

6. The complainant also sent a letter dated 24.11.2017 to the insurer, but the said letter was also a reproduction of the letter dated 12.1.2017.

7. The complainant then sent a legal notice dated 17.1.2018 to the insurer through its counsel Ms. Sonia Sharma, demanding an amount of Rs.1,75,66,559/- along with interest. Since no payment pursuant to the said notice has been made to the complainant, it is before this Commission, by way of this consumer complaint.

8. By executing the Joint Discharge Voucher accepting the amount of Rs.3,80,30,879/-, in full and final settlement of all its claims in respect of the loss due to fire, the complainant is estopped from claiming any additional amount from the opposite party in respect of the said loss. The Discharge Voucher constituted a valid and binding agreement between the insurer and the insured and the insured cannot back out of the said agreement, unless it shows that the agreement was void ab-initio or that it was got executed by exercise of fraud, misrepresentation, coercion or undue influence.

9. The learned counsel for the complainant submits that the discharge voucher was got executed by the insurer by exercise of undue influence upon the insured, which was hard pressed for the finances on account of loss due to fire. However, the facts and circumstances of the case do not make out a case of the fraud, misrepresentation, coercion or undue influence on the part of the insurer which is a Public Sector Company.

10. ‘Undue influence’ is defined in Section 16 of the Contract Act, whereas ‘coercion’ is defined in Section 15 of the said Act. The aforesaid Sections read as under:

'16. Undue influence defined – (1) A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another –

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other ; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.

Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).'

'15. ‘Coercion’ defined – ‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

Explanation – It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed.'

11. Admittedly, the amount of Rs.3,80,30,879/-, was received by the complainant on 26.7.2016. No communication, soon after the said receipt either by email or by way of a letter was sent by the complainant to the opposite party, alleging therein that the Joint Discharge voucher was got executed by exercise of undue influence or that the complainant was compelled to execute the said voucher and accept payment of Rs.3,80,30,879/-, on account of its financial constraints. In fact, the first communication, demanding additional payment from the insurer was sent only on 12.1.2017, about 5 months after the complainant had received Rs.3,80,30,879/-, from the insurer, on execution of the Joint Discharge Voucher, accepting the aforesaid amount in full and final settlement of its claim. Had the complainant accepted the aforesaid amount of Rs.3,80,30,879/- on account of financial constraints, or being compelled by its alleged financial difficulties, the least it would have done was to write a letter or send an email to the insurer soon after 26.7.2016, alleging therein that the payment of Rs.3,80,30,879/- was not voluntarily accepted and that the complainant was compelled by its financial circumstances to accept the said amount. The failure of the complainant to send any such communication to the insurer is a clear indicator that the Joint Discharge Voucher was voluntari

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ly executed by it, along with its Banker. 12. As noted earlier, the letter dated 12.1.2017 from the complainant to the insurer was followed by letters dated 17.2.2017, 15.6.2017 and 24.11.2017. The subsequent letters were verbatim reproduction of letter dated 12.1.2017. Thus, even till 24.11.2017, about one year and four months, after receiving the amount of Rs.3,80,30,879/-, from the insurer, the complainant did not claim that the said amount had been accepted by it on account of its financial constraints. 13. I am therefore, satisfied that the Discharge Voucher was executed and payment of Rs.3,80,30,879/- was accepted by the complainant voluntarily and without any fraud, misrepresentation, coercion or undue influence from the insurer. Therefore, a consumer complaint seeking additional payment from the insured for the loss, subject matter of the Discharge Voucher executed by the complainant is not maintainable. 14. The complaint is accordingly dismissed, with no order as to costs.