Per Mr.P.N. Kashalkar, Hon’ble Presiding Judicial Member This appeal is directed against the judgement and award passed by District Consumer Forum, Thane in consumer complaint No.101/2009 on 17/04/2010. By the said judgement and award, Forum below allowed the complaint partly and directed the O.P./Insurance Company to pay cost of `1,000/- and also to pay `9,36,165/- with interest @ 9% p.a. for the flood claim and also directed to pay `2,000/- for mental harassment. As such org. O.P./Insurance Company has filed this appeal. The facts to the extent material may be stated as under :- The org. complainant/M/s.Suresh Pharma Agency/respondent herein had filed consumer complaint against the Insurance Company with allegation that for their shop and godown, they had taken ‘Standard Fire and Special Perils Policy’ covering damage upto `15 Lakhs and it was in force from 21/04/2005 to 20/04/2006. According to the complainant/firm on 26th & 27th July2005 there was heavy rain in Thane and Mumbai area. In the said unprecedented rain due to flood, in his godown flood water had entered upto 8-9 ft. and therefore, his stock of medicines was destroyed and he suffered total loss of `12 Lakhs and he then intimated the loss to the Insurance Company. O.P./Insurance Company appointed Surveyor M/s.Shilan & Co. The complainant had given all the co-operation and case documents to the Surveyor and then the Surveyor submitted the report to the Insurance Company. Talathi Office had also carried out post-flooding inspection with the help of Municipal Corporation and Revenue Department, calculated the loss to the tune of `12,12,994/-. The complainant thereafter, with the help of Municipal Dumper No.MH-04-AM/149 disposed of the damaged medicines by carrying it to the dumping ground and certificate to that effect has been issued by the authority concerned. According to the complainant, he had suffered total loss of `10,17,300/-, but O.P./Insurance Company gave a cheque of `81,135/- towards settlement of the claim. Complainant accepted said cheque under protest and filed consumer complaint for remaining amount of `9,36,165/-. In response to the notice, O.P./Insurance Company appeared and filed written version. They admitted that they had appointed Surveyor/M/s.Shilan & Co. for inspecting and assessing the damage caused to the complainant’s godown due to flood. Surveyor Company gave report and ultimately, looking to the assessment of damage done by the Surveyor-Company, they had paid amount of `81,135/- towards full and final settlement of the claim, but not satisfied with the amount given, consumer complaint has been filed by the complainant alleging deficiency in service on their part. Relying on the affidavits and documents placed on record, Forum below held that since damaged goods were mostly medicines, salvage value was zero and Surveyor had simply assessed the loss of `91,361/- when the goods worth `12,12,994/- were spoiled in the flood as per report of Revenue Authority and Municipal Employees. According to the Forum below, it was not looking just and proper that for claim of `10,17,300/-, Insurance Company should pay paltry amount of `81,135/- and therefore, Forum below held that they were guilty of deficiency in service and as such passed the aforesaid award. Aggrieved by the said award, O.P. has filed this appeal. We heard Mr.A.S. Vidyarthi, Advocate for the appellant and Mr.A.B. More, Advocate for the respondent. We are finding that the award passed by the Forum below is erroneous, bad in law and cannot be allowed to sustain in law. What is pertinent to note is the fact that the Surveyor in its Survey Report clearly held that net assessed loss was `91,361/-. They had considered the loss assessed in the right perspective and they have given reasons why they could not agree with the complainant/firm’s claim for total loss of items worth `13,17,300/-. What is pertinent to note is the fact that after reading the Survey Report, Insurance Company issued a voucher for `81,135/- which was settlement voucher in which the complainant-proprietor of M/s.Sureshr Pharma Agency categorically agreed to take amount of `81,135/- by way of full and final discharge of his claim. This amount was accepted by the complainant and in the appeal compilation at page-50 there is letter of complainant addressed to the Branch Manager, United India Insurance Company, Bhiwandi, pertaining to flood claim policy in which he had categorically written that with reference to the above claim, “I agree with the claim amount given by the respected Surveyor against our flood claim. I request you to settle my claim and issue the cheque as early as possible. Further, I request you to reopen the claim file”. Discharge Voucher and this letter dated 10/12/2008 leave us in no doubt that the complainant accepted said amount by way of full and final settlement and therefore, there is no matter of doubt that the O.P./Insurance Company/appellant herein was not guilty of deficiency in service of any kind. When the amount offered was voluntarily accepted by the complainant, there was no reason for the Forum below to allow the complaint partly and to direct payment of `9,36,165/- with interest @ 9% p.a. Forum below has clearly ignored the settlement voucher and letter of the complainant dated 10/12/2008. These two documents clearly go to prove that the Insurance Company had paid the insurance claim as per their Rules and Regulations in force relying on the Survey Report. Surveyors are independent body and they assess the loss independently and therefore, their report has to be given due weightage. As per Survey Report, full amount was paid by the Insurance Company to the respondent in settlement of flood claim, still not satisfied with said amount, consumer complaint came to be filed, but it was erroneously allowed by the Forum below overlooking these material documents on record. In the circumstances, we are of the view that the appeal will have to be allowed to quash and set aside the order passed by the District Consumer Forum, Thane in consumer complaint No.101/2009. Hence, we pass the following order :- -: ORDER :- 1. Appeal is allowed. The impugned order dated 17/04/2010 is quashed and set aside. The consumer complaint No.101/2009 stands dismissed. 2. Both parties are left to bear their own costs. 3. Copies of the order be furnished to the parties. |
