Research › Search › Judgment

Uttarakhand High Court · body

2009 DIGILAW 480 (UTT)

A. P. GARG v. ORIENTAL INSURANCE COMPANY LIMITED

2009-09-14

C.C.PANT, IRSHAD HUSSAIN

body2009
ORDER (Per : Justice Irshad Hussain, President) This is complainant’s appeal against the order dated 15.01.2007 passed by the District Forum, Haridwar, dismissing consumer complaint No. 03 of 2006 filed by the complainant. 2. Complainant was the consignee of optical glasses (raw) 20 boxes sent by the consignor from Republic of China and by policy of insurance issued by the opposite party, all risk inland transit of the consignment was covered by it. According to the complainant, part of the consignment was damaged during transit, causing him total loss of Rs. 23,313/-, in respect of which, claim was preferred with the insurance company, which against it, settled claim at Rs. 13,598/- on sub-standard basis against the loss assessed at Rs. 19,085/- by the surveyor S.K. Agarwal & Company, which had been engaged by the complainant himself to assess the loss. Sub-standard claim was settled by the insurance company on account of the fact that the mode of delivery of the consignment finally to the complainant’s godown was bullock cart, which was not an approved / appropriate mode of transport for such valuable goods and with this explanation, letter dated 21.04.2004 was sent to the complainant. Correspondence took place between the parties in that regard and finally by letter dated 08.06.2004, complainant was asked by the insurance company to remit pre-receipted voucher to enable the company to remit the said amount of compensation at the earliest to the complainant towards full and final settlement of insurance claim. Letter dated 15.06.2004 of the complainant sent to the insurance company, indicate that in response to the letter dated 08.06.2004, complainant sent duly executed pre-receipted voucher, so that he may be sent the above-mentioned amount of compensation immediately. The voucher or sum of Rs. 13,598/- executed by the complainant and placed on record, indicate that the complainant executed the voucher / receipt in favour of the insurance company in settlement of all his claims present or future arising in respect of his insurance claim. Letter dated 17.06.2004 on the record, reveal that the insurance company, after receipt of voucher from the complainant, dispatched the cheque for sum of Rs. 13,598/- to the complainant and receipt of which had never been disputed. The complainant thereafter filed the above complaint on 26.07.2004 for award of amount of Rs. 9,715/- (23,313 – 13,598 = 9,715) with interest, with the allegations that he had received sum of Rs. 13,598/- to the complainant and receipt of which had never been disputed. The complainant thereafter filed the above complaint on 26.07.2004 for award of amount of Rs. 9,715/- (23,313 – 13,598 = 9,715) with interest, with the allegations that he had received sum of Rs. 13,598/- under protest and that the insurance company made deficiency in service in not making reimbursement of the total loss of Rs. 23,313/- suffered by him due to damage of goods in transit. 3. The District Forum, on an appreciation of the material on record, came to the conclusion that the complainant received sum of Rs. 13,598/- towards full and final settlement of his insurance claim without any protest and there being no deficiency in service on the part of the insurance company, the complainant was not entitled to any further amount of compensation and accordingly dismissed the complaint by the impugned order. 4. Having considered the respective submission of the learned counsel for the parties in the light of the facts and legal aspects of the case, we may state at the outset that the appeal being devoid of merit, is liable to be dismissed. 5. The reasons are that it is very well settled by a catena of decisions of Hon’ble Apex Court as well as the National Commission that despite execution of the discharge voucher, the consumer may be in a position to satisfy that such discharge voucher had been obtained from him fraudulently or by exercise of undue influence or by misrepresentation and if such a case is proved, the authority before whom the complaint is made, would be justified in granting appropriate relief. We have noticed that none of these ingredients, as may have satisfied the Consumer Fora about the execution of discharge voucher by fraud, misrepresentation, undue influence, coercive bargaining or the like, have neither been alleged in the complaint, nor proved by the material on record produced by the complainant. The only allegation laid in the complaint is that the amount of Rs. 13,598/- was received under protest against the insurance claim. The documents and the correspondence between the parties, which has been referred above, rule out the possibility of receiving the said amount of compensation of Rs. 13,598/- under protest by the complainant. The only allegation laid in the complaint is that the amount of Rs. 13,598/- was received under protest against the insurance claim. The documents and the correspondence between the parties, which has been referred above, rule out the possibility of receiving the said amount of compensation of Rs. 13,598/- under protest by the complainant. It would appear that the complainant had agreed to receive the said amount of compensation from the insurance company towards settlement of all his claims present or future in respect of the damage of the consignment and to enable the insurance company to remit him the said amount of compensation and sent registered letter dated 15.06.2004, enclosing therein pre-receipted voucher and in pursuance of which, the cheque of Rs. 13,598/- was sent to the complainant with covering letter dated 17.06.2004 by the insurance company. In none of the relevant documents, “under protest” endorsement has been made by the complainant and, therefore, we are of the firm view that the complainant agreed to receive the said amount of compensation in settlement of all his claims present or future arising in respect of the loss of consignment in transit. The complaint was filed with afterthought allegation, although no such allegation was even made in the notice dated 18.06.2004, dispatched on 24.06.2004 to the insurance company by the Advocate of the complainant, which was placed on record by the insurance company. It shall also be pertinent to mention that the insurance company gave reply of the said notice on 07.07.2004 through its Advocate and reiterated in it that the complainant had received the sum of Rs. 13,598/- in full and final settlement of the insurance claim and that too without any protest. Under these circumstances, the District Forum was fully justified in rejecting the allegation of the complainant and finding that no deficiency in service has been made by the insurance company, the complaint was rightly dismissed. 6. For the reasons aforesaid, this appeal fails and is liable to be dismissed, which we hereby do. No order as to costs.