PRESENT

                   Complainant by Representative Adv.Smt.Nikita Timbadia present.      

                    Opponent by Representative Shri.Prakash  Kasable present.

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President.)

1.                The complainant a registered partnership firm is carrying the business of manufacturers, importers and exporters of diamonds and gold jewellery  in Mumbai. The opposite party is an insurance company. The complainant had availed “JWELERS BLOCK INSURANCE POLICY NO.00001015-000-00” for Rs.5 crores from opposite party for a period 24/07/2008 to 24/07/2009.

2.                During insurance period i.e. on 12/09/2008 solitaire diamond worth US $ 232531.20 was stolen from the custody of Mr.Kulpesh Shah who was employee at complainant's office. The criminal case was filed. The insurance claim was filed for  the loss to the amount of Rs.1,23,80,277/- The opposite parties made payment of Rs.50,00,000/- on 04/12/2009/- and stated that remaining amount will be paid after decision in criminal case.

3.                The insurance company issued a cheque of Rs.68,44,092/- in addition to the cheque of Rs.50,00,000/- as against the total surveyed loss of Rs.1,23,90,277/- leaving a balance of Rs.5.36,185/-. It is stated that opposite party wrongly got the letter of subrogation assigned by the complainant.

4.                The complainant repeatedly requested opposite party to make payment of  balance amount of  Rs.5,36,185/- with 18%  interest per annum. The opposite party falsely claimed in letter dated 22/04/2010 and 21/06/2010 that there was breach of (warranty) contract by complainant due to which offer of 75% of the claim was allowed towards full and final settlement.

5.                The complainant claimed that opposite party is guilty for deficiency in service and claimed compensation of Rs.5,00,000/- (Rupees  five lakh)   plus costs of Rs.1,00,000/- and remaining amount of Rs.5,36,185/- with interest.

6.                The insurance company filed written version on 21/03/2012 and resisted the claim on the various grounds denying each allegation made in complaint. The opposite party stated that in view of cordial relations and as a special case the entire assessed amount was paid and complainant accepted  the claim towards full and final satisfaction of its claim.

7.                The opposite party stated that complainant made protest only  after receipt of Rs.68,44,092/- plus (Rs.50,00,000/- paid earlier). It is averred that complainant has been paid full amount as assessed by surveyor though the amount of Rs.90,00,000/- was offered on non-standard basis due to breach of contract.

8.                The opposite party stated that claim was expeditiously processed and there were  serious breaches of the terms of contract besides claim was not payable under policy, however, as a special case, the amount of rupees ninety lakhs was  offered  ignoring the breaches at the discretion of the insurer in exceptional cases. It is stated that there is no question of making any further payment or admitting any further liability.

9.                The complainant and opposite party filed  affidavit of evidence and synopsis of written arguments. We have carefully perused policy documents, survey report, police report, discharge voucher, letters of complainant to insurance company etc.

10.              Admittedly the incident of theft took place during insurance contract and the criminal case is pending before Metropolitan Magistrate. The surveyor  assessed the loss and submitted report. The complainant had admittedly received Rs.50,00,000/-and Rs.68,44,092/-.

11.              The complainant admitted that he signed letter of subrogation. The discharge voucher shows that M/s.Star Brilian received from CHOLAMNDALAM M/s.General Insurance Company Ltd., the sum of Rs.1,18,44,092/-(Rupees one crore, eighteen lacs, forty four thousand, ninety two only) in full and final satisfaction of claim, in respect of claim for theft of one polished diamond 3.20 weights which occurred on 12/09/2008.

12.              The complainant in para-9 of complaint stated that opposite party conveniently used complainant's money for almost two years without interest. The complainant was already suffered loss due to delayed payment by insurance company, to avoid further delay, which might have caused refusal of payment were forced to accept the offer under protest.

13.              We have perused the correspondence between the complainant and opposite party. The incident took place on 12/09/2008, the opposite party paid Rs.50,00,000/-(Rupees fifty lacs ) on 04/12/2008 towards part  payment for claim. The surveyor submitted report on 10/04/2009. The record shows that opposite party also made proposal for statement for Rs.90,00,000/-(Rupees ninety lacs) which appears to have  not accepted by complainant. The proposal of settlement for Rs.1,18,44,092/- was made and same was accepted and accordingly the said amount was accepted towards final settlement of the entire claim.

14.              We have carefully perused entire record and found that surveyor assessed  net  loss to the amount of Rs.1,18,44,092/- and opposite party paid the said amount in view of mutual understanding which resulted into giving of discharge voucher by complainant stating that amount is received towards full and final settlement of claim.

15.              We have not noticed that there was any circumstance vitiating that the terms of settlement agreed between the parties rendering the same voidable at the option of complainant.

16.              In the result, the complainant is not justified to claim the amount as well as costs and compensation.

17.              We pass the following order.                               

                              ORDER

1.    RBT complaint No.102/2011 is dismissed.                                 

2.   No order as to costs.