Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 91 (ORI)

Divisional Manager, the New India Assurance Co. Ltd. , Cuttack v. Prasanna Kumar Sahu

2013-04-04

R.N.BISWAL, SMARITA MOHANTY

body2013
ORDER R.N. BISWAL, J. In First Appeal No. 130 of 2008, the appellant has challenged the order dated 9.1.2008 passed by the learned District Consumer Disputes Redressal Forum, Cuttack (hereinafter referred to as District Forum) in C.D. Case No. 155 of 2006 directing it to pay respondent No.1 compensation of Rs. 9,00,000/- less Rs. 4,45,485/- which has already been received by him along with interest at the rate of 12% per annum on Rs. 9,00,000/- from the date of filing of the Consumer Complaint, i.e. 19.12.2005 till the date of payment and litigation cost of Rs. 5,000/- within one month from the date of receipt of the order. In First Appeal No. 92 of 2008, the appellant has challenged the same order passed by the learned District Forum as it impliedly rejected its prayer to adjust the awarded amount against the loan dues of the complainant-respondent No.1. Since the appellants in the two appeals challenged the same order dated 9.1.2008, both the appeals were heard analogously and the following common order is passed thereon. In First Appeal No. 130 of 2008, the appellant was opposite party No.1, respondent No.1 was complainant and respondent No.2 (the appellant in First Appeal No. 92 of 2008) was opposite party No.2 before the District Forum. As per the case of the complainant, to earn his livelihood, he opened a shop after the name M/s. Jagannath Orthosurgical at Mangalabag, Cuttack in the year 2002 by taking loan of Rs. 7,00,000/- from Indian Overseas Bank, Mangalabag Branch, Cuttack, which (the loan) was subsequently taken over by Canara Bank, Mangalabag Branch, Cuttack. He basically sells surgical and orthopedic handicapped goods and instruments in the aforesaid shop. The said shop room, along with goods was insured with the appellant-Company against fire and allied perils for an amount of Rs. 11,00,000/- with premium of Rs. 6,004/- vide policy bearing No.550301/48/05/00253, which was valid from 13.9.2005 to 12.9.2006. As ill luck would have it, on 2.12.2005, at wee hour, fire broke out in the said shop. The complainant immediately informed the matter to the Fire Station, in response to which, the Firemen rushed to the spot and doused the fire. But in the meantime, fire gutted the shop room along with the goods. This matter was intimated in writing to opposite party No.2 Bank, which in turn sent it to opposite party No.1-Insurance Company. The complainant immediately informed the matter to the Fire Station, in response to which, the Firemen rushed to the spot and doused the fire. But in the meantime, fire gutted the shop room along with the goods. This matter was intimated in writing to opposite party No.2 Bank, which in turn sent it to opposite party No.1-Insurance Company. On 19.12.2005, after making due calculation of loss, complainant lodged a claim for Rs. 10,00,000/- with opposite party No.1-Insurance Company. Accordingly, Er. A.K. Mishra, Surveyor-cum-assessor was deputed to the spot for survey and assessment of the loss, if any. After verifying the shop room, the surveyor demanded different documents at different times, which were supplied to him by the complainant. As the matter was not settled, the complainant was compelled to make a representation to the Senior Branch Manager of opposite party No.1-Company on 21.4.2006 and finally, on 18.5.2006, a payment voucher for Rs. 4,45,485/- towards full satisfaction of the claim was tendered to him, but he was not allowed to receive it with protest. He was threatened that if he received the payment voucher with protest, then the settled amount would not be released in his favour. As he was running short of money for last 6 months, finding no way out, he received the payment voucher without protest on compulsion. But on the same date, i.e. on 18.5.2006, stating all these facts, he sent a protest letter by Speed Post to opposite party No.1-Insurance Company. It is the further case of complainant that due to delay in selling the claim, he had to pay Bank interest for 6 months without running any business. He lost all his stocks and furniture and other valuable things, but all those were not taken into consideration properly while settling the claim. Under such circumstances, the complainant filed the aforesaid C.D. Case with prayer to direct opposite party No.1-Insurance Company to pay Rs. 9,80,000/- more on different heads along with pendente lite interest at the rate of 18% per annum thereon. Opposite party No.1-Insurance Company in its written version admitted that fire broke out in the shop of the complainant causing damage to a part of the stock. According to this opposite party, complainant refused to submit the essential documents like, item wise sale, purchase and stock registers before the surveyor-cum-assessor on the pretext that the same were destroyed in the fire. According to this opposite party, complainant refused to submit the essential documents like, item wise sale, purchase and stock registers before the surveyor-cum-assessor on the pretext that the same were destroyed in the fire. In absence of the required documents, opposite party No.1-Insurance Company settled the claim on non-standard basis at Rs. 3,27,409/-. Then, a meeting was convened in the Official Chamber of Senior Branch Manager of the Insurance Company in presence of the surveyor and assessor and the complainant on 6.3.2006. A sum of Rs. 3,27,409/- was offered to the complainant, which he out-right refused to accept. Then, the Insurance Company asked the complainant to submit the relevant documents, viz. purchase, sale and stock registers with supporting documents so that the claim could be settled on standard basis. On 13.3.2006, he submitted only a computer generated statement of stock without supporting documents. However, the said document was sent to the surveyor-cum-assessor to reconsider the assessment. Accordingly, taking into account the statement of stock submitted by the complainant, the surveyor-cum-assessor reassessed the loss at Rs. 4,45,485/-. Opposite party No.1-InsuranceCompany, thereafter, processed the claim afresh and settled it at Rs. 4,45,485/- on 15.5.2006 and dispatched the loss voucher to the complainant on the same date for discharge and return, Complainant returned the loss voucher duly discharged by himself and his financier M/s. Canara Bank, Mangalabag Branch, Cuttack in acknowledgment of full and final settlement of the claim and accordingly, Insurance Company handed over the cheque bearing No. 241454 dated 18.5.2006 for Rs. 4,45,485/- drawn on the Corporation Bank, Cuttack to the complainant. All these show that the Insurance Company was diligent in settling the claim. Accordingly, it prayed to dismiss the C.D. Case. Opposite party No.2 Bank in its written version supported the claim of the complainant and prayed to direct the complainant to deposit the awarded amount directly with it. Complainant filed an affidavit on evidence so also the surveyor-cum-assessor. The parties also filed documents in support of their respective pleas. After hearing the learned counsel for the parties and assessing the evidence on record, the learned District Forum held that the report of the surveyor-cum-assessor was defective and directed opposite party No.1-Insurance Company to pay the complainant Rs. 9,00,000/- less Rs. 4,45,485/-, which he had already received along with interest at the rate of 12% per annum on Rs. After hearing the learned counsel for the parties and assessing the evidence on record, the learned District Forum held that the report of the surveyor-cum-assessor was defective and directed opposite party No.1-Insurance Company to pay the complainant Rs. 9,00,000/- less Rs. 4,45,485/-, which he had already received along with interest at the rate of 12% per annum on Rs. 9,00,000/- from the date of filing of the C.D. Case till its payment and litigation expenses of Rs. 5,000/-. Being aggrieved with the said order, opposite party No.1-Insurance Company has preferred First Appeal No.130 of 2008. As no order was passed directing the complainant to deposit the awarded amount with opposite party No.2-Bank, it preferred First Appeal No.92 of 2008. Learned counsel appearing for the appellant-Insurance Company at the outset submits that since respondent No.1 executed the voucher accepting the claim of Rs. 4,45,485/- to his full satisfaction, he could not have again filed the C.D. Case for further amount. In support of his submission, he relies on the decisions in the case of National Insurance Company Limited vs. Nipha Exports (P) Ltd. (2006) 8 Supreme Court Cases 156, M/s. P.K. Ramaiah and Company vs. Chairman and Managing Director, National Thermal Power Corporation 1994 Supp (3) Supreme Court Cases 126, State of Maharashtra vs. Nav Bharat Builders 1994 Supp (3) Supreme Court Cases 93 and M/s. Bhagwati Prasad Pawan Kumar vs. Union of India AIR 2006 Supreme Court 2331. Learned counsel for the appellant next submits that the learned District Forum ought not to have turned down the report of the surveyor-cum-assessor whimsically without assigning sufficient reason for the same. In support of his submission, he relies on the decisions in the case of United India Insurance Co. Ltd. and others vs. Roshan Lal Oil Mills Ltd. and others (2000) 10 Supreme Court Cases 19, National Insurance Cop. Ltd. and others vs. Mrs. Aleyamma Verghese & others 2006 (1) CPR 235 (NC), New Horizon Sugar Mills Ltd. vs. United India Insurance Co. Ltd. 2003 (3) CPR 136 (NC) and United India Insurance Co. Ltd. vs. Jadhav Kirana Stores 2005 (1) CPR 96 (NC). Learned counsel for the appellant next submits that claim of the complainant could not be settled in an early date because of non-supply of required documents by him in time. In other words, the claim could not be settled earlier because of laches on the part of complainant. Ltd. vs. Jadhav Kirana Stores 2005 (1) CPR 96 (NC). Learned counsel for the appellant next submits that claim of the complainant could not be settled in an early date because of non-supply of required documents by him in time. In other words, the claim could not be settled earlier because of laches on the part of complainant. So, the learned District Forum ought not to have arbitrarily imposed interest at the rate of 12% per annum on the entire amount of Rs. 9,00,000/- from the date of filing of the C.D. Case till its payment. Learned counsel appearing for the appellant in First Appeal No.92 of 2008 (respondent No.2 Bank) supports the order of the learned District Forum so far making the award, but contends that it ought to have directed the respondent-complainant to deposit the awarded amount with the appellant-Bank towards repayment of the loan. Learned counsel for the respondent-complainant supports the order passed by the District Forum. In the case of National Insurance Company Limited, M/s. P.K. Ramaiah and Company, State of Maharashtra and M/s. Bhagwati Prasad Pawan Kumar (all supra), it has been held that if a party accepts any amount in full satisfaction and discharges his claim by signing the voucher, then he cannot claim any further amount. But it has been further. held in the case of National Insurance Company (supra) that in case of allegation that the discharge voucher or receipt had been obtained fraudulently or by exercising undue influence or by misrepresentation or the like or coercive bargaining, claim for any further amount can be made. It has also been held by the Hon'ble Apex Court in the case of United India Insurance vs. Ajmer Singh Cotton and General Mills and others (1999) 6 Supreme Court Cases 400 that mere execution of discharge voucher and acceptance of insurance claim 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 Consumer Protection 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. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Consumer Protection 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 complaint is made would be justified in granting appropriate relief. Similarly, in the case of National Insurance Company Limited vs. Sehtia Shoes 2008 AIR SCW 1905, the Hon'ble Apex Court held that if a particular amount was accepted under coercion, filing of a Consumer Complaint for further amounts is not barred. In the case at hand, respondent No.1-complainant in his complaint petition has taken the plea that he was not allowed to receive the payment voucher with protest. He was threatened that if he protested, then the settled amount would not be released in his favour. As he was running short of business for last six months and was in need of money for his survival, he accepted the payment .voucher without protest on 18.5.2006, but on the same date, he sent a protest letter to the appellant-Company under Annexure 9. This part of his pleading has been supported by him in the evidence given on affidavit. Annexure 9 clearly shows that respondent/complainant signed the payment voucher of Rs. 4,45,485/- under coercion. As found from the record, the surveyor-cum-assessor first assessed the loss at Rs. 3,27,409/- on non-standard basis since respondent/complainant could not produce the required documents. When he out-right denied to accept the assessed amount of Rs. 3,27,409/- then a meeting was held in the Official Chamber of Senior Branch Manager of appellant-Insurance Company in presence of the respondent/complainant and the surveyor-cum-assessor on 6.3.2006 and thereafter, some documents were produced by the respondent/complainant on the basis of which the surveyor-cum-assessor assessed the loss at Rs. 4,45,485/-. When he out-right denied to accept the assessed amount of Rs. 3,27,409/- then a meeting was held in the Official Chamber of Senior Branch Manager of appellant-Insurance Company in presence of the respondent/complainant and the surveyor-cum-assessor on 6.3.2006 and thereafter, some documents were produced by the respondent/complainant on the basis of which the surveyor-cum-assessor assessed the loss at Rs. 4,45,485/-. No doubt as per the decision in the case of United India Insurance Company Limited and others, New Horizon Sugar Mills Ltd., United India Insurance Company Ltd. and National Insurance Company Limited (all supra), the report of the surveyor-cum-assessor cannot be brushed aside without sufficient evidence to the contrary, but in the present case, the learned District Forum in paragraphs 6 to 10 of the judgment assigned the reasons why it could not persuade itself to accept the report of the surveyor-cum-assessor. Mainly relying on the sales tax assessment orders and returns of preceding four years, the surveyor-cum-assessor held that the stock of all items on any given day varied from Rs. 3.43 lakhs to maximum Rs. 5.11 lakhs contrary to the stock statement under Annexure III showing Rs. 8,31,319.90 as closing stock on 1.12.2005. Learned counsel for respondent/complainant at this stage contends that if the stock of all items on any given day varies from only Rs. 3.43 lakhs to maximum Rs.5.11 lakhs, then how the appellant-Company, who inspected the shop of the respondent/complainant during the time of granting the policy insured the shop for Rs. 11,00,000/-. Moreover, as per the stock statement of opposite party/Bank (appellant in First Appeal No. 92 of 2008) the stock in the shop as on 31.10.2005 was of Rs. 10,48,550/-. So, we do not find any reason to interfere with the order of the learned District Forum so far directing payment of Rs. 9,00,000/- less Rs. 4,45,485/- to respondent/complainant. But we differ with the order of imposition of interest at the rate of 12% per annum on the total amount of Rs. 9,00,000/ - from the date of filing of the complaint till payment. In our view, the claim could not be settled in an early date because of delay in submitting different documents by respondent/complainant before the surveyor-cum-assessor. A sum of Rs. 9,00,000/ - from the date of filing of the complaint till payment. In our view, the claim could not be settled in an early date because of delay in submitting different documents by respondent/complainant before the surveyor-cum-assessor. A sum of Rs. 4.45,485/- was paid to the respondent/complainant on 18.5.2006, so the appellant-Insurance Company at best would have been made liable for payment of interest thereon from the date of filing claim application, i.e., 19.12.2005 to 18.5.2006 and not thereafter. Again in the case of Dharampal and others vs. U.P. State Road Transport Corporation 2008 (4) Supreme 348 and T.N. State Transport Corporation Ltd. vs. S. Rajapriya and others, (2005) 6 Supreme Court Cases 236, the Hon'ble Apex Court have held that rate at which the interest is to be awarded depends upon the Bank rate prevailing at the relevant time. In the case at hand, the prevailing Bank rate of interest at the relevant time would not be more than 9% per annum. It would meet the ends of justice, if interest is reduced from 12% to 9% per annum and the appellant-Insurance Company is directed to pay the same from the date of the impugned order, i.e. from 9.1.2008 till payment on Rs. 4,54,515/- only. Under such circumstances, the appeal is dismissed only with modification of the order of interest, the date from which and the quantum on which it is to be paid and the appellant is directed to pay Rs. 4,54,515/- more with interest at the rate of 9% per annum thereon from the date of passing of the impugned order i.e. on 9.1.2008 till payment to respondent/complainant along with cost of Rs. 5,000/- within two months hence. Respondent/complainant would pay Rs. 4,00,000/- to respondent No.2-Bank within seven days of receipt of the aforesaid amount from the appellant-Insurance Company towards the pending loan dues. Accordingly, both the appeals are disposed of. Records received from the District Forum, Cuttack be sent back forthwith. Appeals disposed of.