w w w . L a w y e r S e r v i c e s . i n



National Insurance Co. Ltd., National Legal Vertical (Legal Cell), New Delhi v/s Biswadeb Koley & Others


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

    First Appeal No. 1917 of 2018

    Decided On, 12 March 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Appellant: Varun Singh, Rishabh Rana, Advocates. For the Respondents: R1 & R2, Ved Sharma, Uday Ch. Jha, R3 & R4, Tessy Varghese, Advocates.



Judgment Text


Oral:

The Complainants had taken a Standard Fire and Special Perils Policy from the Appellant for the period from 22.08.2006 to 21.08.2009 in respect of their plant and machinery as well as in respect of the stock comprising egg and chicken. The policy is stated to have been taken through Respondent Bank of India from which a loan had been taken by the Complainants. There was damage to the live stock as well as to the building shed and plant and machinery of the Complainants, in a cyclone which struck their premises on 25.05.2009. On intimation being given to the insurer, a surveyor was appointed to assess the loss to the Complainants. The surveyor assessed the loss to the Complainant at Rs.8,97,284/-. The insurer, however, made its own assessment and based on that, offered only an amount of Rs.4,33,872/- to the Complainants in full and final settlement of their claim. The Complainant executed a discharge voucher in favour of the insurer on 23.02.2011, whereupon the aforesaid amount of Rs.4,33,872/- was paid to the Bank for being credited in the loan account of the Complainants.

2. Alleging deficiency in service on the part of the Bank as well as on the part of the insurer in rendering service to them, the Complainants approached the concerned State Commission by way of a Consumer Complaint.

3. The Complaint was resisted by the Bank as well as by the insurer. It was inter alia stated in the written version filed by the insurer that the Complainants having accepted payment of Rs.4,33,872/- in full and final settlement of their claim and therefore, were precluded from claiming any additional payment from the insurer.

4. Vide the impugned order dated 07.08.2018, the State Commission has directed as under:

“The complaint case stands allowed on contest against the OPs. OP Nos. 1&2 are debarred from staking further claim in terms of their letter dated 01-02-2013 and release all pledged securities/documents and handover the same to the Complainants within 40 days from today. They shall also pay a compensation of Rs. 1,00,000/- for causing unwarranted harassment, stress and agony to the Complainants, i.d., simple interest @ 9% p.a. over this amount shall accrue for the entire period of default. OP No. 3 shall release balance payable amount as narrated hereinabove in favour of the Complainants within 40 days from this day along with simple interest @ 9% p.a. over the balance claim amount payable to the Complainants from 27-05-2013 till full and final payment is made. Complainants shall also be entitled to litigation cost to the tune of Rs. 50,000/- to be equally paid by the OP Nos. 1&2 and OP No. 3 within the aforesaid period.”

5. Being aggrieved from the order passed by the State Commission, the insurer is before this Commission by way of this Appeal.

6. The discharge voucher executed by the Complainants dated 23.02.2011 to the extent it is relevant reads as under:

“REF.: D. V. No.: FORM No.B-17

Date 23/02/2011

Received from National Insurance Company Limited

DO-11 0100

433872

_______Regional Office Division Branch the sum of Rupees Four Lakhs Thirty Three Thousand Eight Hundred Seventy Two only

Rs.4,33,872/- sd/-

23-2-2011

7. It is not in dispute that the discharge voucher is executed by the Complainants. The case of the Complainants is that since they were in financial difficulties, their loan account had been declared NPR, the Bank was seeking to recover the loan by issuing a notice under Section 13 of the SARFAESI Act and there was threat of their securities being sold by the Bank in order to recover the loan, they were left with no option but to accept the offer made by the insurer. In other words, the case of the Complainants is that the execution of the discharge voucher by them was not a voluntary act and they were compelled to execute the discharge voucher on account of their being in financial stress at that time including threat from the Bank to enforce the loan by selling their securities.

8. Thus, the only question which arises for consideration in this Appeal is as to whether the divorce voucher was executed voluntarily or it was a product of any kind of duress, compulsion, coercion etc. Admittedly, the payment to the Bank on behalf of the Complainants was made in February 2011. Not a single letter was written by the Complainants to the insurer soon after receiving the settlement amount of Rs.4,33,872/- or even thereafter, till they filed the Consumer Complaint on 27.05.2013 after more than two years and three months of executing the discharge voucher. If the discharge voucher was not executed voluntarily and the Complainants were compelled to execute the same on account of threat from the Bank to sell their securities in order to recover the loan, the least expected from the Complainants was to write to the insurer after receiving the settlement amount of Rs.4,33,872/-, stating therein that the discharge voucher had been executed and the payment of Rs.4,33,872/-, had been accepted by them under coercion or due to financial stress and the said execution was not a voluntary act on their part. The conduct of the Complainants in remaining silent for more than two years after executing the discharge voucher clearly indicates that the discharge voucher was executed voluntarily and was not on account of the Complainants’ having been no option left with them except to execute the discharge voucher and accept the amount offered to them by the insurer.

9. The issue involved herein recently came to be examined by this Commission in “M/s Pankaj Trading Company vs. National Insurance Company Limited, Revision Petition No.2771 of 2017” decided on 19.02.2020 and the following view was taken:

“8. The issue involved in this case came up for consideration of this Commission recently in CC No.285 of 2013 M/s Elastrex Polymers Pvt. Ld. Vs. M/s New India Assurance Co. Ltd., decided on 16.08.2019 and the following view was taken:

(13) The learned counsel for the complainant refers to the Circulars dated 24.09.2015 and 07.06.2016 issued by IRDA which to the extent they are relevant reads as under :

Circular dated 24.09.2015

“The Insurance Companies are using ‘discharge voucher’ or “settlement intimation voucher” or in some other name, so that the claim is closed and does not remain outstanding in their books. However, of late, the Authority has been received complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policyholders extinguish their rights to contest the claim before the Courts.

While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurers shall not use the instrument of discharge voucher as a means of estoppel against the aggrieved policy holders when such policy holder approaches judicial fora.

Accordingly insurers are hereby advised as under :

Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts. However, it should be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law.

All insurers are directed to comply with the above instructions.

Circular dated 07.06.2016

1. Wherever there are no disputes by the insured/s claimant/s to the amount offered by the insurer towards settlement of a claim, the present system of obtaining the discharge voucher may be continued. However, the insurers must ensure that the vouchers collected must be dated and complete in all respects while obtaining the signature/s of the insured/s or claimant/s.

2. If the amount offered is disputed by the insured/s or claimant/s, insurers would take steps to pay the amount assessed without waiting for the voucher discharged by the insured/s or claimant/s.

3. Under no circumstances the Discharge vouchers shall be collected under duress, by coercion, by force or compulsion.

Insurers are directed to comply with the above with immediate effect.

(14) It is seen that after issuance of the circular dated 24.09.2015 the insurers represented to IRDA that the said circular was not in the line with the IRDA (protection of policyholders interests) Regulation, 2002 and the provisions of Indian Contract Act. On receipt of representation from the insurers IRDA reviewed the matter in the light of the provisions of Contract Act, P.P.I. Regulation and the judgements of the Hon’ble Supreme Court and issued the directions contained in the Circular dated 07.06.2016.

(15) It would be seen that vide subsequent Circular dated 07.06.2016 IRDA will permitting the continuance of the practice of obtaining discharge voucher it, only instructed the insurers not to obtain such vouchers under duress, by coercion, by force or compulsion. None of these circumstances however have been established in this case. Though IRDA Circular enjoins upon the insurer to pay the amount assessed by it without waiting for the discharge voucher in case the offer made by them is disputed by the insured, in the present there is no evidence of any kind of protest by the insured before sending the discharge voucher to the insurer on the very same day on which it received the same alongwith a forwarding letter. Therefore, it cannot be said that there was a non-compliance of the aforesaid circulars though the contention of the learned counsel is that both the circulars came to be issued by years after the payment was accepted in this case.

(17) The issue involved in this complaint came up for the consideration of the Hon’ble Supreme Court in United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. (1999) 6 SCC 400 and the following view was taken :

“4………… 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 misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complainant is made would be justified in granting appropriate relief. However (sic so), 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 relief under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher.”

This issue also came up for consideration of the Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Genus Power Infrastructure Ltd. (2015) 2 SCC 424, and the following view was taken:

“7. The question that arises is whether the discharge in the present case upon acceptance of compensation and signing of subrogation letter was not voluntary and whether the claimant was subjected to compulsion or coercion and as such could validly invoke the jurisdiction under Section 11 of the Act. The law on the point is clear form following decisions of this Court. In National Insurance Co. Ltd. V. Boghara Polyfab (P) Ltd. in paras 26 and 51 it was stated as under (SCC pp. 284-85 and 294)

26. when we refer to a discharge of contract by an agreement signed by both the parties or by execution of a full and final discharge voucher / receipt b one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed. If the party which has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud / coercion / undue influence practised by the other party and is able to establish the same, then obviously the discharge of the contract by such agreement / voucher is rendered void and cannot be acted upon.”

8. …………….. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such a plea must prima facie establish the same by placing material before the Chief Justice / his designate. If the Chief Justice / his designate funds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an afterthought, make-believe or lacking in credibility, the matter must be set at the rest then and there.”

9. It is therefore, clear that a bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up a plea, must prima facie establish the same by placing material before the Chief Justice / his designate.”

10. In our considered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion. Given the fact that there was no protest or demur raised around the time or soon after the letter of subrogation was signed, that the notice dated 31.3.2011 itself was nearly after three weeks and that the financial condition of the respondent was not so precarious that it was left with no alternative but to accept the terms as suggested, we are of the firm view that the discharge in the present case and signing of letter of subrogation were not because of exercise of any undue influence. Such discharge and signing of letter of subrogation was voluntary and free from any coercion or undue influence.”

10. In fact even the Consumer Complaint to the extent it was directed against the insurer was barred by limitation on the date it was filed. In terms of Section 24A of the Consumer Protection Act, 1986, a Consumer Complaint is required to be instituted within two years of the date on which the cause of action accrues to the Complainant. The cause of action to file a Consumer Complaint against the insurer accrued on the date the payment was received by the Bank on behalf of the Complainants. The payment having been received in February 2011 and the Consumer Complaint having been filed in May 2013, it was clearly barred by limitation. No application seeking condonation of delay in terms of the proviso to Section 24A of the Consumer Protection Act, 1986 was filed by the Complainants. Even if the plea of limitation is not taken in the written version, this Commission is mandated by law to ensure that a Complaint barred by limitation is dismissed unless the delay in filing the Consumer Complaint is condoned. Reference in that regard can be made to the following view taken by the Hon’ble Supreme Court in “State Bank of India Vs. B.S. Agriculture Industries (I) (2009) 5 SCC 121”.

“7. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

"24A. Limitation period - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub- section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be en

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tertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay." 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. 11. For the reasons stated hereinabove, the impugned order to the extent it is directed against the insurer cannot be sustained and the same is hereby set aside. The Consumer Complaint against the insurer is consequently dismissed. It is, however, made clear that dismissal of the Consumer Complaint against the insurer will not affect the impugned order to the extent it is directed against the Bank of the Complainants.
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