Haryana

StateCommission

A/27/2015

THE NEW INDIA ASSURANCE CO.LTD. - Complainant(s)

Versus

KRISHAN DEV NARANG - Opp.Party(s)

J.P.NAHAR

08 Jan 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.27 of 2015

Date of Institution: 12.02.2015

                                                               Date of Decision: 08.01.2016

 

The New India Assurance Company Limited, 6269, Nicholson Road, Ambala Cantt. Through its Branch Manager. Now through its authorized signatory, R.N.Gupta, Regional Manager, Regional Office, SCO NO.367-37, Sector 17-A,Chandigarh.

….. Appellant

Versus

 

Krishan Dev Narang S/o Sh.Harbhagwan Narang, prop. M/s Daulat Ram Har Bhagwan, Saudagar Bazar, Ambala Cantt.

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri J.P.Nahar, Advocate for appellant.

                             Shri Brijender Kaushik, Advocate for respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          Complainant got his godown/shop insured from the opposite party (O.P.) vide insurance policy bearing NO.353501/1/04/00415.  On 03.08.2004 there was heavy rain in that area and water entered the shop are remained stagnated upto 12 noon of 04.08.2004.  Information was given to O.P. immediately and surveyor came to the spot.  He took photographs of the site and details given to him were noted down.  At that time stock worth Rs.36,98,326/- was lying in the shop.  The loss was to the extent of Rs.5,62,678/-, but, surveyor assessed the loss to the tune of Rs.88,485/- which was paid by O.P. through cheque alongwith letter dated 22.06.2005 which was accepted under protest.  As the compensation was too low, legal notice dated 01.08.2005 was sent for paying remaining amount  of Rs.4,74,193/-, but, to no use.

2.      O.P. filed reply controverting his averments and alleged that he was running business and was not covered by the definition of consumer.  As per surveyor the loss was to the tune of Rs.88,780/-. After deducting premium of Rs.295/-, Rs.88,485/- were paid to complainant which were duly received as full and final settlement.  Initially complainant alleged that loss was to the tune of Rs.Three lacs, but, lateron he increased loss to the tune of Rs.5,62,678/-. He was trying to make fortune out of mis-fortune.  Surveyor assessed loss after affording proper opportunity to complainant.  Objections about jurisdiction, maintainability of complaint, concealment of true facts, etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Ambala (In short “District Forum”) allowed the complaint and directed as under:-

“i.       to release to the complainant a sum of Rs.4,74,193/- (difference of claimed amount minus already paid amount by OP vide cheque No.892247/- dated 22.06.2005 i.e. Rs.5,62,678/- minus Rs.88485/-) alongwith simple interest @ 9% per annum from the date of institution of complaint to till its realization after making statutory deductions, if any, as per compulsorily deductible clause as per terms of insurance policy.

2.      To pay Rs.10,000/- as compensation on account of harassment,, mental agony including cost  of litigation etc.”

4.      Feeling aggrieved therefrom O.P.(appellant) has preferred this appeal.

5.      Arguments of both the parties are heard and file is perused.

6.      Learned counsel for the appellant-O.P. vehemently argued that  cheque of Rs.88,485/- dated 22.06.2005 was received by the complainant without any objection as full and final settlement.  Thereafter he has no right to file the complaint.  Notice dated 01.08.2005 Ex.C-3 was sent after more than one month and is an after thought version.  After withdrawal of money there is no relationship of consumer and service provider and complaint cannot be filed under the provisions of Consumer Protection Act, 1986.  Even otherwise as per report of surveyor Ex.R-4 the loss was to the tune of RS.88780/-.  He took into consideration every aspect from every angle.  Report of surveyor is having great evidentiary value and cannot be brushed aside lightly.  Learned District Forum failed to appreciate all these aspects. So impugned order dated 20.11.2014 be set aside.  In support of his arguments he placed his reliance upon the opinion of Hon’ble Supreme Court expressed in National Insurance Company Ltd. Vs. Sehtia Shoes II (2008) CPJ 16 (SC).  Opinion of Hon’ble National Commission expressed in consumer complaint No.36 of 2014 titled as Garg Acrylics Ltd. Vs. United India Insurance co. Ltd. decided on 16.12.2014 and  revision petition No.4014 of 2011 titled as M/s M.K. Enterprises Vs. National Insurance Company Ltd. & others decided on 13.04.2015.

7.      On the other hand learned counsel for the complainant vehemently argued that the cheque was received by insured under protest. He immediately sent notice dated 01.08.2005 Ex.C-3. Even in report Ex.R-4 it was mentioned that complainant was not willing to accept the compensation.  So it cannot be presumed that cheque was received under full and final settlement.  The surveyor has assessed the loss without any basis and has not given any cogent reason.  In the beginning it was thought that the loss was to the tune of Rs.Three lacs, but, when verified it was found to be Rs.5,62,678/-.  Learned District Forum rightly granted the compensation and appeal be dismissed.

8.      However there is no dispute that the O.P. has miserably failed to show that complainant accepted the cheque without protest as full and final settlement.  The O.P. has not produced any discharge voucher in the evidence.  It is specifically mentioned in surveyor’s report Ex.R-4 that the loss of Rs.88,780/- was discussed with insured and was advised to give consent, but, he did not come forward for the same.  It shows that complainant never agreed to accept this amount as full and final settlement.  The appellant cannot derive any benefit from the cited case laws about this fact because in those cases discharge voucher was signed by the insured and amount was withdrawn.  In the present case the O.P. has not produced any discharge voucher.  Had the complainant singed discharge voucher and there would not have been any note about disagreement in the report of surveyor then it could have been a different matter.  Note in surveyor’s report supports the stand of complainant.

9.      Now the question comes about the loss suffered by the complainant.  It is not disputed by the complainant that initially loss was told to the tune of Rs.Three lacs and lateron it was enhanced to Rs.5,62,678/-, after verification.  Complainant produced detail of claim bills Ex.C-10 and C-11 about the loss.  If we scan this report and go through the bills Ex.C-14 to Ex.C-46 it will be clear that the stand of the complainant is not free from doubt.  Normally complainant used to purchase files 10” IInd Cut sowrd worth Rs.7,000/- or Rs.8,000/-, but, in the month of July he has shown the purchase of files worth Rs.1,30,600/- + 49,500=1,80,100/-, but, there is no bill of KDN tools Pvt. Ltd. to this effect. The bills Ex.C-42 to Ex.C-44 of KDN tools Pvt. Ltd. are pertaining to different sales.  What was the necessity to purchase such heavy number in this month, just before the flood, is not properly explained.  Likewise purchase of emery papers worth Rs.59,650/- are shown vide bill Ex.C-11 whereas in the month of December 2003 emery paper valuing Rs.7,156/- were purchased.  Bill Ex.C-17 is also having cutting on the date and it appears that digit “two” has been changed to digit “three”.  It shows that complainant tried to increase the amount just to get more compensation.  Surveyor has discussed all the items in his report Ex.R-4.  It is specifically mentioned therein that some of the articles were very old and there was rust upon them in routine, so it cannot be presumed that he lost all the items due to flood.  The surveyor assessed loss to the tune of Rs.1,17,971/- and after reducing salvage value it came to Rs.1,15,971/-.  He has also decreased Rs.10,975/- on the basis of average correction factor and Rs.10,000/- qua excess clause.  This seems to be on higher side.  As per this assessment complainant can be given Rs.1,15,971/- and is not entitled for Rs.4,74,193/- as opined by learned District forum. 

10.    It is well settled that report of surveyor cannot be brushed aside  without sufficient cause and carries value. Hon’ble National Commission has opined in case cited as D.N.BADONI versus ORIENTAL INSURANCE CO. LTD., I (2012) CPJ 272 (NC) as under:-

“It is well settled law that a Surveyor’s report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so the instant case.”

          Similar view is also taken by Hon’ble National Commission in  New India Assurance Co. Ltd. Vs. Pave Infrastructures Pvt. Ltd. 2015 (2) CPR 577 (NC).

11.    As a sequel to above discussion impugned order dated 20.11.2014 is modified to the extent that complainant is entitled for compensation to the tune of Rs.1,15,971/- minus Rs.88485/- (which is already paid to him)=Rs.27,486/- round figure Rs.30,000/- alongwith interest and compensation qua mental harassment etc. assessed by the District Forum.  Appeal is decided accordingly.

12.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

January 08th, 2016     Urvashi Agnihotri                    R.K.Bishnoi,                                                                           Member                                  Judicial Member                                                                     Addl. Bench                            Addl.Bench