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National Insurance Co Ltd, Fort, Mumbai v/s M/s. Patel Engineering Ltd.


Company & Directors' Information:- PATEL ENGINEERING LIMITED [Active] CIN = L99999MH1949PLC007039

Company & Directors' Information:- N M PATEL ENGINEERING PRIVATE LIMITED [Active] CIN = U28999GJ1990PTC013533

Company & Directors' Information:- V D PATEL ENGINEERING CO PRIVATE LIMITED [Active] CIN = U29100MH2008PTC184350

Company & Directors' Information:- NATIONAL INDIA ENGINEERING PVT LTD [Strike Off] CIN = U27100MH1946PTC004895

Company & Directors' Information:- THE NATIONAL ENGINEERING COMPANY (INDIA) LIMITED [Dissolved] CIN = U99999MH1935PTC002259

    First Appeal No. 589 of 2012

    Decided On, 25 November 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. DINESH SINGH
    By, PRESIDING MEMBER

    For the Appearing Parties: Kishore Rawat, Abhishek Mishra, Advocates.



Judgment Text

Taken up through video conferencing.1. This Appeal has been filed under Section 19 of The Consumer Protection Act, 1986, hereinafter referred to as the 'Act', challenging the Order dated 11.06.2012 in C. C. No. 148 of 2009 passed by The State Consumer Disputes Redressal Commission, Maharashtra, hereinafter referred to as the 'State Commission'.The Appellant herein, National Insurance Company Limited, was the Opposite Party before the State Commission, and is hereinafter being referred to as the 'Insurance Co.'.The Respondent herein, M/s Patel Engineering Ltd., was the Complainant before the State Commission, and is hereinafter being referred to as the 'Complainant Co.'.2. Heard arguments of learned Counsel for both sides and perused the material on record including inter alia the impugned Order dated 11.06.2012 of the State Commission and the Memorandum of Appeal.3. Admitted facts are that a Marine Cargo Open Policy (Declaration) was taken by the Complainant Co. The premium was paid. The policy was valid. The insured machinery (rock drilling equipment) was shipped by sea, then, during surface transportation to the project site, the trailer carrying the machine met with an accident. An F.I.R. was lodged. The Insurance Co. was intimated. Survey was conducted. The Complainant Co. claimed 'total loss'. The Insurance Co. settled on 'non standard' basis. Discharge Voucher and Letter of Subrogation were signed by the Complainant Co. The claim settlement amount was received by the Complainant Co. Thereafter the Complainant Co. contended that it was constrained to sign the Discharge Voucher 'under duress', and it claimed the balance amount. The Insurance Co. did not agree. The Complainant Co. filed a Complaint before the State Commission. The State Commission vide its impugned Order dated 11.06.2012 directed the Insurance Co. to pay the balance amount with interest and cost of litigation (para 12 of the State Commission's Order refers). The Insurance Co. appealed before this Commission.4. During the course of adjudication before this Commission, Order dated 04.04.2019 was passed. The said Order reads as below:Heard the learned counsel for the parties. It has been stated by the respondent that vide order dated 04.10.2012 of this Commission, notice was issued only in respect of interest as would be clear from the following portion of the order:-"Prima facie, on merits, we agree with the view taken by the State commission but the interest awarded @15% seems to be on higher side. Notice returnable for 6th February 2013.Subject to depositing the awarded amount of Rs.71,28,463/- before this Commission within 6 weeks, operation of the impugned order is stayed.Appellant is directed to pay a sum of Rs.10,000/- to the respondent to meet the litigation and other allied expenses, which shall be de hors the result of the appeal."On the other hand learned counsel for the appellant states that this was prima facie feeling of this Commission but there was no final order by this Commission. Therefore, all the issues are open for arguments as raised in the appeal. He further states that vide order dated 14.05.2013, this Commission had agreed to take up the issue raised by the learned counsel for the appellant in respect of the discharge voucher. It was stated that the discharge voucher has been signed by the complainant and that is why full and final discharge of insurance claim has been claimed by the appellant. Therefore, no claim can be filed after signing the discharge voucher.I have carefully considered these orders of this Commission and have also considered arguments of the learned counsel for both the parties. From the order dated 04.10.2012, it is clearly brought out that this Commission prima facie is, in agreement with the State Commission except interest granted @ 15% p.a.. The notice has been ordered to be issued after observing this fact. In my view, the notice was issued only on the point of interest granted @15% p.a. Further on 14.05.2013, this Commission has agreed to take up the issue of discharge voucher as raised by the learned counsel for the appellant. Therefore, in my view, only two issues, one interest and other discharge voucher will be taken up by this Commission. Accordingly matter be listed on 11.02.2020.5. During arguments on 15.10.2020, Mr. Kishore Rawat, Advocate, learned Counsel for the Insurance Co. and Mr. Abhishek Mishra, Advocate, learned Counsel for the Complainant Co. submitted that the Insurance Co. agitated the said Order dated 04.04.2019 before Hon'ble Supreme Court, and the Hon'ble Court was pleased to dismiss its SLP. As things obtain on date, the matter has to be adjudicated only in respect of the two issues firmed-up in the Order dated 04.04.2019.To recapitulate, the said two issues are:" - - - only two issues, one interest and other discharge voucher will be taken up by this Commission. - - -"6. Mr. Kishore Rawat, learned Counsel for the Insurance Co. argued that the Complainant Co. had unconditionally and voluntarily signed the Discharge Voucher, the same was not under protest or with objection or in any way 'under duress', it can not subsequently raise a contention of having signed the Discharge Voucher 'under duress', the rate of interest of 15% per annum is arbitrarily high, and also that the State Commission has made a clerical mistake in computing the balance amount.7. Mr. Abhishek Mishra, learned Counsel for the Complainant Co. argued that it was constrained to sign the Discharge Voucher 'under duress', the rate of interest is just and equitable, and also that there is no clerical error in computing the balance amount by the State Commission.8. The first question for consideration is the significance and consequence of Discharge Voucher; and whether or not, in the present case, the Discharge Voucher was signed 'under duress', as contended by the Complainant Co.9. Discharge Voucher, to discharge the insurance company of its liability, has the objective (inter alia) of settling the claim to the satisfaction of the insured, and closing the matter.The Discharge Voucher, but, has to be unconditional and voluntary.If Discharge Voucher is signed under protest or with objection or under duress or under circumstances as evince fraud or coercion or undue influence or misrepresentation or in any way an air of malafide, the insured is not estopped from demanding its claim in full and unquestionably retains its right to agitate before a competent court / tribunal.Whether or not, in a particular case, Discharge Voucher was not unconditional and voluntary, but signed in protest or with objection or under duress or under circumstances as evince fraud or coercion or undue influence or misrepresentation or in any way an air of malafide, is a question of fact, to be adjudged from the facts and specificities and circumstances of the particular case.10. In the instant case, it is seen that the Complainant Co., M/s Patel Engineering Ltd., is a major infrastructure and construction services company in the country. It has the wherewithal, legal cell, resources, awareness, etc., to protect its interests in its dealings with its insurance company(ies) as also in the court / tribunal.The Insurance Co. settled the claim on 'non standard' basis, on grounds that (i) there was a breach of implicit warranty as regards overloading of the trailer; the same was certified by the Surveyor and (ii) as per pre-acceptance inspection and spot survey report the consignment was not properly secured on the trailer (its letters of 07.08.2008 and 15.09.2008 refer).The Insurance Co. offered an amount of Rs. 1,43,66,370/- (75%, on 'non standard' basis) towards full and final settlement and asked the Complainant Co. to execute Discharge Voucher and Letter of Subrogation.The Complainant Co. sent the duly signed Discharge Voucher and Letter of Subrogation to the Insurance Co. (its letter of 03.03.2009 refers). Nowhere, in the letter or on the Discharge Voucher or on the Letter of Subrogation, was there any implicit or explicit mention of the same being in protest or with objection or under duress or the like.The Complainant Co. requested the Insurance Co. to handover the claim settlement cheque to its employee (its letter dated 25.03.2009 refers). Nowhere was there any implicit or explicit mention of any protest or objection or duress or the like.After thus receiving the claim settlement amount, the Complainant Co. then furthered a contention that it was constrained to issue the Discharge Voucher under duress (its letter dated 08.04.2009 refers). This was subsequent to having duly signed the Discharge Voucher and Letter of Subrogation without any implicit or explicit mention of protest or objection or duress or the like and subsequent to having received the claim settlement amount.Nothing has been placed on record by the Complainant Co. to show that it was in any financial constraints or problems or situation as may have merited anyhow accepting any amount from the Insurance Co. to tide over its constraints or problems or situation.Nothing has been placed on record by the Complainant Co. to explain as to why, rather than unconditionally signing the Discharge Voucher and Letter of Subrogation and obtaining the claim settlement amount, it did not agitate before the competent court or tribunal for its claim to be settled on 'total loss' basis with concomitant prayer for interim relief of a direction to the Insurance Co. to immediately pay the 75% amount on 'non standard' basis (which the Insurance Co. was ready and willing to pay by its own admission), with the balance amount being subject to final adjudication by the court / tribunal.11. A bald assertion, by a pan-country infrastructure and construction services company, having the wherewithal, legal cell, resources, awareness, etc., that it was constrained to issue the Discharge Voucher under duress, made after signing the Discharge Voucher, after receiving the claim settlement amount, with no evidence, either to support that it did so to tide over any financial constraints or problems or situation or to support that it made a protest or objection or the like while signing the Discharge Voucher, or to in any manner show that the Discharge Voucher was actually in fact under duress, is not acceptable in the facts and specificities and circumstances of the instant case.12. The State Commission has erred in overlooking the significance and consequence of Discharge Voucher, as also in accepting the subsequently made bald assertion of duress without any evidence in support and out of sync with the facts and specificities and circumstances of the case.13. The question re Discharge Voucher is accordingly answered, that:one: Discharge Voucher, to discharge the insurance company of its liability, has the objective (inter alia) of settling the claim to the satisfaction of the insured, and closing the matter.two : The Discharge Voucher, but, has to be unconditional and voluntary.three : If Discharge Voucher is signed under protest or with objection or under duress or under circumstances as evince fraud or coercion or undue influence or misrepresentation or in any way an air of malafide, the insured is not estopped from demanding its claim in full and unquestionably retains its right to agitate before a competent court / tribunal.four : In the facts and specificities and circumstances of the instant case, the Complainant

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Co. has failed to establish its (bald) contention that it was constrained to sign the Discharge Voucher 'under duress'.five : Having signed the Discharge Voucher unconditionally and voluntarily, with eyes open, the Complainant Co. was estopped from subsequently agitating for the balance amount.14. No ground is made out to interfere with the Insurance Co. having settled the claim with unconditional and voluntary Discharge Voucher and Letter of Subrogation, and having paid the claim settlement amount to the Complainant Co.15. The second issue, of rate of interest, becomes infructuous. It may but be said that on the face of it itself, the rate of interest of 15% per annum appears to be on the higher side. However, assessment of just and equitable rate of interest has become redundant.16. The clerical mistake in the computation of the balance amount, argued by Mr. Kishore Rawat, learned Counsel for the Insurance Co., does not require to be examined, the same also having become redundant.17. The Appeal succeeds.The impugned Order dated 11.06.2012 of the State Commission is set aside.The Complaint is dismissed.18. The Registry is directed to send a copy each of this Order to the Insurance Co. and to the Complainant Co. within three days of its pronouncement.
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