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2003 DIGILAW 161 (JK)

United India Insurance Co. Ltd. v. Sonaullah Dar

2003-05-24

SYED BASHIR-UD-DIN

body2003
1. Respondent Sonaullah Dar obtained insurance policy No. 111404/57/1/910/94 through J&K. Branch Achabal, Sopore in respect of stocks and merchandise goods in his shop situated at Achabal Sopore. The insurance policy was valid from29.4.1994 to28.4.1995.Ontheintervening night of 20/21st January, 1995 the shop alongwith stocks and goods was gutted. After the insured took up the matter with the petitioner United Insurance Company, this insurer Co. appointed one Vinod Sharma, surveyor and loss adjusters to survey, estimate and report the damages to the insured stock of Kiryana and general merchandise goods in the gutted shop covered by the insurance cover. On estimation of loss by Vinod Sharma, insured was paid sum of Rs.99,600/-the assessed loss/damages through J&K Bank in December, 1997.The insured claimant executed disbursement voucher for the amount on 26.12.1997 drawn on the bank. So far so good. But, hereafter starts the controversy. While the insurance company claims that the voucher for the amount was executed in full and final settlement of the claim. The insured respondent claims that the discharge voucher was executed under protest as even the two letters"AP" under his signatures on voucher would indicate that the payment was received After protest. The matter went to Divisional Consumer Forum. The forum accepted the complaint of the insured and awarded additional payment of Rs. 1,50,000/- with 12% interest to the respondent-claimant after relying on the voucher, statements recorded and the surveyors report. Against this order of the Divisional Consumer Forum dated 18.9.2000, respondent took appeal before State Consumer Protection Forum. Then again decision in this appellate forum went against the insurance company. Both the forums found that the discharge voucher in question has been executed expressly under protest and is not a documents to show full and final settlement of the claim as alleged by the insurance Company. The commission while confirming the findings of Divisional Consumer Forum in the matter of award, reduced the award of Divisional Forum by Rs.10,000/- on account of salvage and dead stock and further provided remission of rate of interest from 12% to 10%. 2. Both orders are impugned in this writ petition. The commission while confirming the findings of Divisional Consumer Forum in the matter of award, reduced the award of Divisional Forum by Rs.10,000/- on account of salvage and dead stock and further provided remission of rate of interest from 12% to 10%. 2. Both orders are impugned in this writ petition. The main ground urged is that the execution of the voucher is by way of full and final settlement of the claim once the respondents executed the discharge voucher and appended his signatures, he cannot be heard to say that the voucher is executed under protest and is not a document to prove that the insured accepted the claim settled by insurance Co. as full and final settlement of his insurable claim against the Insurance Co. The petitioner has executed the voucher out of his own volition without any influence, misrepresentation or force. There has been no coercive bargaining to get the voucher from insurer. In such circumstances petitioners claim could not have been up-held by the Forums under the Consumer Protection Act. Reply has come on record. 3. In counter it is stated that the voucher has been executed under protest for which the discharge voucher also bears the two letters "A/P". For this the reason advance is that the surveyors report was held back from the insurer,who was not even shown the report. Having failed to get the report of the survey to gaug the actual damage estimated and assessed by surveyor, with a view to exclude any mischief qua payment of due claim, he signed the discharge voucher after protest. Petitioner Insurance Co. despite opportunities has not lead any evidence before the forums. It did not even produce any record. Petitioner lead evidence. The writ petition merits to be dismissed. 4. A few admitted facts need to be noted. Admittedly on the material date when the stock and merchandise goods in the shop were gutted and stolen, insurance cover was granted by the petitioner Insurance Co.to cover the loss and damage by fire and theft. The Insurance Policy in the sum of Rs,2,50,000/- was taken in respect of the goods in question. The insurance policy was current for the period 29.4.1994 to 28.4.1995. Fire and theft took place in the shop in the intervening night20/21SI Jan. 1995. Vinod Sharma was appointed by the Insurance Company to assess the loss and damages. Mr. The Insurance Policy in the sum of Rs,2,50,000/- was taken in respect of the goods in question. The insurance policy was current for the period 29.4.1994 to 28.4.1995. Fire and theft took place in the shop in the intervening night20/21SI Jan. 1995. Vinod Sharma was appointed by the Insurance Company to assess the loss and damages. Mr. Vinod Sharma filed report in two parts in October, 1995 and July, 1997. The total loss on account of theft and fire as assessed by the surveyor and reported was in the order of Rs.2.63.423/- out of which amount deduction for dead stock and salvage was made, to leave in all Rs.99,600/-as payable actual loss. This amount was paid to the claimant through the bank as he had taken fire insurance policy through Bank. The Divisional Forum on evidence and after giving opportunities to parties to lead evidence on participation in the proceedings and upon hearing parties held that the discharge voucher was not on account of full and final settlement of respondents claim. The execution of discharge voucher was held to have been executed After protest. lt also found that there is no evidence or circumstance on record to conclude that the discharge voucher was voluntary and totally free from blemish to be regarded as full and final settlement voucher of insurable claim of petitioner. The forum has also found that the survey report, the basis of the claim, was suppressed from the insurer, and that the report showed much higher figure having been assessed as loss and damages to the stocks in the shop. The survey report is stated to be cancealed and suppressed from the petitioner. The Divisional Forum disallowed deduction estimated by surveyor on account of dead stock and on account of proximation. In the facts and circumstances of the case, it instead allowed the claim as assessed by the surveyor within the para meters of actual sum assured minus the actual payment. 5. In appeal the commission has also affirmed these findings of the Divisional Forum and come to the conclusion that "....the discharge voucher from the face of it does not appear to have-been executed voluntarily. The respondents while signing voucher has categorically written words AP which admittedly he means against protest. 5. In appeal the commission has also affirmed these findings of the Divisional Forum and come to the conclusion that "....the discharge voucher from the face of it does not appear to have-been executed voluntarily. The respondents while signing voucher has categorically written words AP which admittedly he means against protest. So it is evident that the discharge voucher has not voluntarily been executed by the respondents at the time of accepting money from the Insurance Company.. ."The Commission has also noted that the whole stocks in trade were burnt to ashes and looted and that stocks in the trade at the time of fire accident was assessed at Rs. 2.63 lacs. The Commission has also taken notice of the fact that the respondent-complainant was not shown the surveyors report till his signature on the discharge voucher were obtained.Complainant suspecting the Company, signed the voucher under protest. 6. In the above circumstances is it open for the insurance Company to deprive the petitioner claimant of the Insurance claim in full only because petitioner has executed the discharge voucher for a lesser amount which he has actually received through Bank and even then not foregetting to record payment after protest. It is not a universal rule that in all case where a discharge voucher is executed by the insured claimant, then such claimant cannot lay claim to the deficiency in service and to the compensation to which he may be entitled. 7. In United India Insurance Vs. Ajmir Singh Cotton & General Mills &Ors.( I999(3)CPR 53(SC) it is observed:- "..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 mis-representation or the like. 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 mis-representation or the like. If in a given case the consumer satisifies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances: the authority before whom the complaint is made would be justified in granting appropriate relief...." "..The mere execution of the discharge voucher and acceptance of the insurance claim would not estopp the insured from making further claim from the insurer but only 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. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act." 8. Here the relief prayed for is a writ of certiorari. The writ court is not to substitute its views, if it may have so. The impugned order(s) is/are within legal parameters. Neither a case of order(s) being vitiated for want of jurisdiction nor legal infirmity is made out. In T.C.Basappa, appellant Vs. Nagappa and another respondent"(AIR 1954 SC 440) it is pointed out:- "In granting writ of certiorari the superior court does not review or weigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolished the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal." Viewed thus the writ petition is dismissed.