Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This is an appeal filed by the Insurance Company against the judgement and award passed by District Consumer Forum, South Mumbai in consumer complaint No.195/2006 decided on 18/09/2008.  By the said judgement and award, District Consumer Forum partly allowed the complaint and directed the O.P./Insurance Company to pay the balance amount of `1,90,646/- to the complainant and also directed to pay `25,000/- as compensation for mental hardships and stress and `10,000/- towards cost to the complainant.  As such, org. opponent has filed this appeal.

          The facts to the extent material may be stated as under :-

          Complainant-Mr.Ashok Sancheti, Proprietor of M/s.Sancheti & Sons of Zaveri Bazzar, Mumbai, had taken Jewellers Block policy for the period 21/08/2002 to 20/08/2003 for the loss or damage of the property insured on various specified grounds including robbery, theft, etc. Total sum assured was `33 Lakhs and `32 Lakhs respectively under Section I and Section II of the policy.  According to the complainant, the policy also included loss of jewellery in possession of his employee.  It was the case of the complainant in the District Consumer Forum that his employee Mr.Sudhir Jain was attacked by unknown third person 03/05/2003 and deprived him of jewellery worth `7,55,000/- belonging to the insured.  Despite the best efforts made he could not recover the said goods.  F.I.R. was lodged by the complainant.  Thereafter, complainant lodged insurance claim with the Insurance Company.  Insurance Company appointed Surveyor M/s.Parima R. Shah, who carried out extensive investigation and ultimately, surveyor submitted its report dated 28/03/2004 assessing the net adjusted loss at `7,55,139/- incurred by the insured.  However, Insurance Company did not immediately pay the said amount.  They went on dragging their feet and ultimately, it was the case of the complainant in the District Consumer Forum that because of undue influence and coercion exercised by the Insurance Company’s officials causing delay in settling the claim, the complainant was forced to sign indemnity bond and letter of subrogation and full & final settlement voucher and only thereafter the Insurance Company sanctioned the amount of `5,64,354/- and handed over the cheque of that amount.  Not being satisfied with the way he was dealt with by the Insurance Company, complainant filed consumer complaint against the Insurance Company.

          In response to the notice, opponent filed written version.  Complaint is hit by the commercial purpose.  It pleaded that the complainant cannot be said to be a consumer since he had taken policy for his business.  The Insurance Company also pleaded that the complainant had not approached the District Consumer Forum with clean hands because he had suppressed the legal notice issued by his Advocate as well as reply given to the said notice by the Insurance Company.  Opponent pleaded that it was not legally bound to give compensation as per the recommendation made by the Surveyor in his report.  According to the opponent, complainant accepted `5,64,354/- without any coercion, fraud, by way of full and final settlement and therefore, complainant is estopped from challenging the settlement between the respondent and the Insurance Company.  Opponent pleaded that by way of an afterthought they had filed consumer complaint for getting remaining amount of `1,90,646/- which was difference of amount recommended by the Surveyor and the actual amount received by the complainant.  Opponent further pleaded that they were justified in part repudiation of the claim because under the caption of Book Keeping, the insured was required to maintain stock of each and every items, but he had not maintained stock register on daily basis and therefore, Insurance Company tried to justify the repudiation of the amount recommended by the Surveyor to the complainant.

          Upon considering the rival claims and upon perusal of the documents and after hearing both the parties, District Consumer Forum held that execution of discharge voucher or indemnity bond or letter of subrogation was hit by undue influence and coercion exercised by the insurance officials on the complainant and therefore, District Consumer Forum held that the amount reduced by the Insurance Company compared to the recommendation made by the Surveyor was payable and accordingly, complaint was partly allowed.  Aggrieved by this order, the Insurance Company has filed this appeal.

          We heard Ms.K.R. Trivedi, Advocate for the appellant/Insurance Company and Mr.D.P. Guchiya, Advocate for the respondent/org. complainant.

          We are finding that the Surveyor had recommended the amount of `7,55,139/- in his detailed report.  Acting on the survey report, it was the duty of the Insurance Company to pay the said amount to the complainant.  The Insurance Company has not made out any case as to how for want of day-to-day Book Keeping and Accounting, they had arrived at figure of `5,64,354/- as damages or loss occasioned by the theft or extortion made by the unknown person to the employee of the complainant.  They had not repudiated the claim on the ground that the complainant had not maintained daily stock of jewellery items or gold items.  After the detailed survey, surveyor had recommended loss of the complainant to the extent of `7,55,139/-.  It was not proper on the part of the Insurance Company/appellant herein to reduce the claim to `5,64,354/- and thereby to save the amount of `1,90,646/-.  This sort of conduct on the part of the Insurance Company/appellant herein is deprecatory and cannot be accepted to be a good commercial trade practice.  When the Surveyor had recommended amount of `7,55,139/-, the Insurance Company should have allowed the claim to that extent or should have altogether repudiated the claim on the ground that the respondent had not maintained Books of Accounts on day-to-day basis.  Had there being repudiation on this ground, we would have accepted the case of the Insurance Company in toto, but they had forced the respondent herein to accept the amount of `5,64,354/- in place of `7,55,139/- as recommended by the Surveyor.  They had exercised undue influence and coercion on the complainant/respondent herein.  They had waited for much time to elapse, so that complainant would come to their terms and accept reduced amount offered by the Insurance Company.  This is unfair on the part of the Insurance Company/appellant herein.  In the circumstances, since in the affidavit and complaint, respondent had clearly made out the case that he was forced to accept the reduced amount than recommended by the Surveyor, we hold that the contention of the respondent in this behalf was reliable, just and proper.  We hold that because of coercion exercised on the respondent he was forced to accept the lesser amount of `5,64,354/- than the amount recommended by the Surveyor.  In the circumstances, in our view, District Consumer Forum very rightly allowed the complaint and directed the Insurance Company to pay remaining amount of `1,90,646/- together with cost and compensation.  Thus, we are finding that the appeal is devoid of any substance and same is liable to be dismissed.  Hence, we pass the following order :-

                   -: ORDER :-

1.       Appeal stands dismissed.

2.       Parties are left to bear their own costs.

3.       Copies of the order be furnished to the parties.