Decided on August 12,2010

Vallabhbhai Naranbhai Dobaria Respondents


- (1.) BEING aggrieved by and dissatisfied with the order and judgment dated 29.4.2009, passed by the Consumer Disputes Redressal Forum, Rajkot in Consumer Case No. 271 of 2005, the appellant who is original Opponent has preferred this appeal on the grounds as stated in the appeal memo. The appellant is original opponent and the respondent is original complainant and as such they are referred to in their original nomenclature for the sake of convenience.
(2.) THE main grounds for challenging the impugned order are that part amount had been accepted by the complainant as full and final settlement of his claim. The complainant, therefore, was estoped from agitating his claim further by way of Complaint. The complainant has not proved that the settlement was by pressure, coercion, fraud etc. played by the insurers. The complainant had taken policy for commercial purpose, hence he was not a consumer.
(3.) AS early as in 1986 Hon'ble Supreme Court has discussed and pointed out the concept of coercive bargaining in the case of Central Water Transport Corporation Ltd. V/s. Tarun Kanti Sengupta, 1986 3 SCC 156, and held that where a man has no choice or rather no meaningful choice, but to give his consent to contract or sign on the dotted line in a prescribed or other form or to accept a set of rules as part of contract, however, unfair, unreasonable and unconscionable a clause in that contract may be the Courts will enforce and will, when called upon to so strike down as unfair and unreasonable clause in a contract entered into between the parties who are not equal in bargaining power. Yet in another case of United India Insurance Company Ltd. V/s. Ajmer Singh Cotton and General Mills Ltd., 1999 6 SCC 400, the Hon'ble Apex Court has observed that mere execution of discharge voucher and acceptance of insurance claim would not stop insured from making further claim from the insurer under the circumstances which can be termed as exercise of undue influence or coercion or the like, Hon'ble National Commission relying on the aforesaid judgments of Hon'ble Supreme Court has been inter alia held in the case of Oriental Insurance Company Ltd. V/s. Government Tool Room and Training Centre,2008 1 CPJ 2667, that it is a wrong practice followed by insurance companies in not paying single pie without having discharge voucher. It is a coercive bargaining as insured has no optionbut to sign the discharge voucher. Mere execution of discharge voucher and acceptance of insurance claim will not estop the insured from making further claim. Similar view has been re -affirmed by the National Commission in the case of National Insurance Company Ltd. V/s. Vasavi Traders, 2008 1 CPJ 487, and S.M. Herbals Ltd. V/s. New India Assurance Co. Ltd.,2009 4 CPJ 50. In the present case with which we are concerned the complainant had protested about the so called full and final settlement on the very next day. Hence also the full and final settlement clause will be of no help to the insurer. Mr. M.J. Shelathas cited the case of New India Assurance Co. Ltd. V/s. Venkata Padmavati R and B Rice Mill, 2000 10 SCC 334. In this case the CBI had written to the insurers head office that some staff of the insurer had colluded with the insured claimant in these peculiar circumstances Hon'ble Supreme Court took a particular view in regard to alleged estopel. This ruling, therefore, will not help the insurers on facts. Mr. Shelat has also argued that the complainant was not a consumer as the policy was taken for commercial purpose. An answer to the argument of Mr. Shelat can be had in the case of Ritu Gram Udyog Satnity V/s. New India Assurance Co. Ltd., 2008 3 CPJ 180, wherein Hon'ble National Commission relying on its own earlier judgment has held that the insurance policy is for indemnification of actual loss, not to generate profit and, therefore it cannot be said to be for commercial purpose. Mr. M.J. Shelat, learned Advocate for the Insurance Company has also cited the case of National Insurance Company Ltd. V/s. Nipha (P) Ltd., 2006 8 SCC 156, wherein it has been held in view of the facts of the case that due date for payment was the date on which quantum was settled and not the date on which correspondence ensued between the parties. In our case with which we are concerned the due date was the date when the claim was required to be settled by the insurer as per IRDA Regulations or the date of no claim, whichever is earlier. Only because part claim is paid after very long delay, the payment of such claim at belated stage cannot be said to be the date of payment of interest. We, therefore, do not agree with Mr. Shelat that the interest should be paid from the date on which part claim was paid. A mention may be made here that the part claim was paid after more than two years of no claim.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.