F I N A L   O R D E R

The complainant has filed this case U/S 12 of the Consumer Protection Act, 1986 with the prayer directing the O.Ps. to pay the insured amount of Rs.1,47,000/- together with 9% interest, to pay Rs.30,000/- as compensation for harassment, mental pain and agony, to pay litigation cost and other relief.

In short, the case of the complainant is that the complainant was the owner of stationary shop at Dharampur Market and said shop was insured with the O.P. No.1 vide Insurance Policy No. OG-12-2414-4001-00001943 for the period covered from 28.11.2011 to 27.11.2012 and sum insured was of Rs.2,00,000/-. The policy mentioned above was covered standard fire and special perils. On 31.03.2012 due to fire incident in the stationary shop premises all the articles including sale register, stock register, invoice of sale and purchase had been destroyed. The complainant had sustained loss of Rs.2,47,000/- due to fire incident. The complainant intimated the incident to the O.P. No.2 who was the hypothecator Bank and subsequent correspondences were made with the O.P. No.2 on various occasions. The complainant was received one cheque of Rs.1,00,000/- on 29.06.2012 from the O.P. No.1 and thereafter requested the O.Ps. to pay the balance amount of total loss of Rs.1,47,000/-. But the O.P. No.1 did not pay heed for which the complainant has been suffering irreparable loss and mental agony. Finding no way, the complainant has reached before this Forum.

The O.P. No.1 by filing W.V. contested the case denying the allegations of the complainant stating inter alia that this case is not maintainable, the complainant did not intimate the incident to the O.P. within due time, did not submit purchase, sale receipt and other registers as regards stock, allegedly destroyed, to this O.P.. This O.P. has delivered the settled amount cheque of Rs.1,00,000/- with full consent of the complainant which the complainant had received and deposited the same to the Bank for clearance and got the amount and the settled amount mentioned above with full consent, full & final settlement, this claim is fictitious and devoid of any merit.   

The O.P. No.2 did not contest the case either by filing W.V. or appeared on the date of final hearing of the case. As such the case is heard ex-parte against the O.P. No.2.

DECISIONS WITH REASONS

To prove the case of the complainant, the complainant has submitted examination in chief supported by affidavit, answer of questionnaires, some photocopies of documents, like as letter addressed to the O.P. Bank, dated 31.03.2012, Gram Panchayet Certificate, letter dated 18.05.2012 addressed to the Surveyor, forwarding letter along with  cheque and Insurance Policy.

The O.P. No.1 to prove its case submitted W.V. and questionnaires. It is admitted fact of the case that the stationary shop of the complainant was insured with the O.P. No.1. O.P. No.2 was/ is the hypothecator of the shop in question, shop was destroyed due to fire incident including all articles and the complainant had also received the settled amount cheque of Rs.1,00,000/- from the O.P. No.1 through O.P. No.2 and credited the same to the account of the complainant. Now, question is that the complainant raised further claim as he has not received the total loss amount calculated of Rs.2,47,000/- and the settled paid amount of Rs.1,00,000/- was not the full and final settlement, as such this case has filed by the complainant.

On careful perusal of complaint, memo of evidence, W.V., questionnaires & answer of questionnaires and photocopies of document, we find that the complainant has stated in his complaint that due to fire incident occurred on 31.03.2012, all the articles including sale, stock register, invoices of sale & purchase were totally destroyed and as a result the complainant was sustained loss of amounting to Rs.2,47,000/- and was intimated the said incident to the O.P. No.2 on 08.04.2012 and 18.05.2012 and requested for payment of claim amount of total loss. The complainant had received one cheque of Rs.1,00,000/- vide cheque No.573597, dated 29.06.2012 and requested the O.Ps. to pay the balance amount of actual loss, but the O.Ps. did not pay heed to further claim as such the complainant sustained an irreparable loss and mental agony. The O.P. No.1 by filing W.V. denying the allegation stating inter alia of further claim of the complainant, that the petition of complaint is not maintainable, the complainant did not intimate the O.P. No.1 regarding the fire incident, also not submitted any documents regarding purchase & sale memos, stock & sale register, bank statements and also not even mentioned the names and address of the dealer, distributor etc. from where the complainant were purchased the articles for his stationary shop, for such act of the complainant, the O.P. No.1 was unable to assess the actual loss due to fire incident and as such Rs.1,00,000/- as settled amount with full consent of the petitioner was paid through cheque, which had also received by the complainant as full and final settlement without any objection. The O.P. No.1 was raised some questioned before the complainant through form of questionnaires, specifically asked questions in para No.5, 7, 8 & 11 regarding purchase, sale, stock register, bills, vouchers and encashment of cheque but in answer of questionnaires the complainant very tactfully answered in his favour which he could not established by adducing evidence or producing the documents in question before this case.

It is fact that until the insurer got the documents in case of fire incident how it possible to calculate the actual loss of business. As per banking rules in case of shopkeepers loan or such type of loan the borrower shall have to submit purchase, sale, stock statement in every month to the hypothecator bank and shall keep the copy of the same, but in the instant case the complainant failed to establish to adduce or produce such documents.  Moreover, the complainant did not try to collect the copy of receipts of purchased articles from where he was purchased the articles rather also did not disclose the name and address of the dealer, distributor or retailer to the investigator of the insurance company from where he was purchased the articles for his shop.

We find that the complainant mentioned in the complaint petition that he was sustained actual loss to the tune of Rs.2,47,000/- due to the fire incident mentioned above. But the question arises on what basis or on what method the complainant has arrived such conclusion that he was sustained total loss of Rs.2,47,000/- in his stationary shop due to the fire incident in question. The complainant also failed to establish his claim of Rs.2,47,000/- and we also do not find any iota of evidence on the part of the complainant to establish his claim that he was obtained the cheque of Rs.1,00,000/- by undue influence, fraud, misrepresentation or coercion. Moreover, the complainant had received the settled amount, cheque of Rs.1,00,000/- from the O.P. No.1 and also encashed in his account without any objection but did not returned back the said cheque to the O.P. No.1 with protest and as such it is established that the complainant had received the cheque amount as full and final satisfaction and thereafter no further claim will be entertained.

The O.P. No.1 has placed two decisions of Hon’ble Naitonal Commission, in case Shree Balajee Woolen Mills vs Oriental Insurance Company Limited and another in case Canadian 4 UR Immigration Services & Another vs Lakhwinder Singh, Hon’ble Commission observed and passed their valuable opinion that the complainant has to establish by cogent evidence that the complainant was obtained voucher/ cheque by undue influence, fraud, misrepresentation or coercion otherwise the complainant can not reagitate his claim. In the instant case the complainant has failed to prove that he was compel to receive the cheque mentioned above by undue influence, fraud, misrepresentation or coercion. The case of the complainant has no leg to stand of its own merit.

In view of the discussions hereinbefore we are of opinion that the complainant has failed to prove his case. On the other hand the O.P. No.1 and 2 had no deficiency in service as service provider.

Thus the case of the complainant fails.   

Fees paid is correct.

Hence, it is

ORDERED,

That the complaint case being No.CC-68/2014 is dismissed on contest against O.P. No.1 and ex-parte against O.P. No.2 without cost.

Copy of this order be supplied to each parties free of cost.