BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.296 of 2015
Date of Instt. 14.07.2015
Date of Decision :24.11.2015
M/s One Stop Enterprises, Model Town, Jalandhar through its partner Smt.Anita Kalra wife of Kulwant Singh Kalra, R/o 462-L, Model Town, Jalandhar.
..........Complainant Versus
M/s United India Insurance Co.Ltd, through its Managing Director/ Chairman, Regd.& Head Office:- United House, 24 Whites Road, Chennai-600014, Regional Office:-136, Feroze Gandhi Market, Ludhiana, Branch Office, Divisional Office, Syal House, Lajpat Nagar Market, Jalandhar-144001.
.........Opposite party.
Complaint Under the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.AK Walia Adv., counsel for complainant.
Sh.RS Arora Adv., counsel for opposite party.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite party on the averments that the complainant is a registered partnership concern and Smt.Anita Kalra wife of Kulwant Singh is one of its partners. The complainant in the month of November 2013 on the payment of Rs.10076/- got insured the stock of cloth items and furniture & fixture at shop at Model Town Market, Jalandhar for Rs.53,00,000/- (Rs.40,00,000 + Rs.13,00,000) with the opposite party at Jalandhar under fire policy bearing No.201300/11/13/11/00000682 for the period 23.11.2013 to 22.11.2014. Unfortunately on 28.1.2014 in the night at about 00.15 hrs the building of the shop caught fire accidentally and furniture & fixture and the stock and all the papers of records kept at the insured premises was reduced into ashes. The complainant reported the incident to the opposite party and to the police immediately on the next morning i.e 29.1.2014. The opposite party got the spot survey, appointed the surveyor to assess the loss and also appointed investigator for assessing the loss and the cause of damage etc. The complainant had got CC limit from HDFC Bank Ltd, Model Town, Branch Jalandhar, GT Road, Jalandhar and got the finance/loan for the other sources for running the business and the complainant is paying heavy interest on the advances/loans. After assessing the loss the complainant filed a claim for Rs.71,94,286/- to the opposite party and submitted all required and demanded documents to the opposite party directly and through the appointed surveyors and investigators as per their requirements and in support of the claim of the complainant. The opposite party had appointed investigator M/s Royal Associates, Investigating & Detective Agency, Head Office:- SCF 132, 2nd Floor, Sector-13 Market, Urban Estate, Kurukshetra (Haryana)- 136118 and Loss Assessor M/s Mack Insurance Surveyors & Loss Assessors (P) Ltd., 14-A, Factory Road, D Block Basement, Near Safdarjung Hospital, Ring Road, New Delhi-110029 for investigating and assessing the loss of the complainant of dated 29.1.2014 against the fire insurance policy bearing No.201300/11/13/11/00000682 of the complainant. The complainant replied immediately to all letters of the opposite party and of their surveyors, investigators etc as and when received by the complainant. The complainant only in the last month of January 2015 from her banker, HDFC Bank came to know that the opposite party has settled the above mentioned claim of the complainant by releasing an amount of Rs.43,23,342/- by transferring the amount in the A/c No.03408970000360 with HDFC Bank account of the complainant directly without any information in writing to the complainant against the total insured amount of Rs.53,00,000/- and against the loss of Rs.71,94,286/- as claimed by the complainant. Later on the complainant through RTI representation in the month of May 2015 on getting the documents came to know that investigator M/s Royal Associates, Investigating & Detective Agency, Head Office:- SCF 132, 2nd Floor, Sector-13 Market, Urban Estate, Kurukshetra (Haryana)- 136118 and Loss Assessor M/s Mack Insurance Surveyors & Loss Assessors (P) Ltd., 14-A, Factory Road, D Block Basement, Near Safdarjung Hospital, Ring Road, New Delhi-110029 had submitted their reports in the month of April 2014, but the opposite party failed to pay the compensation to the complainant till January 2015 that too less to the total insured amount of Rs.53,00,000/- and against Rs.48,63,765 as assessed by the surveyor and against Rs.71,94,286/- as claimed by the complainant. From the RTI representation the complainant came to know that investigator M/s Royal Associates, Investigating & Detective Agency, Head Office:- SCF 132, 2nd Floor, Sector-13 Market, Urban Estate, Kurukshetra (Haryana)- 136118 had submitted its report dated 14.4.2014 in the month of April 2014 to the opposite party through its regional office at Ludhiana and observed and reported that “Total shop get burnt. Detail of stock i.e stock register, sale/purchase bills, stock statement to bank were not provided to us. So quantity of loss could not be observed, but it is clear that total stock get burnt. Surveyor may see assessment of loss but it is clear that fire broke out suddenly, cause of fire is not known. So claim seems to be genuine. Insurer may deal with claim as per terms and conditions of policy, keeping in view of above said finding. This report is issue without prejudice”. From the RTI representation the complainant also came to know that Loss Assessor M/s Mack Insurance Surveyors & Loss Assessors (P) Ltd., 14-A, Factory Road, D Block Basement, Near Safdarjung Hospital, Ring Road, New Delhi-110029 had submitted its report dated 25.4.2014 to the opposite party at its Jalandhar office and observed and reported that “summary of loss-damage to stock and damage to stock-Rs.54,58,889.05 – Rs.14,59,161.04 = Rs.39,99,728-01 and damage to FFF (Furniture & Fixture) Rs.11,42,375 – Rs.22,350 = Rs.11,20,025 + Rs.51,19,753-01”. The Loss Assessor M/s Mack Insurance Surveyors & Loss Assessors (P) Ltd., 14-A, Factory Road, D Block Basement, Near Safdarjung Hospital, Ring Road, New Delhi-110029 in its report dated 25.4.2014 illegally deducted 5% “Summary of loss-damage to stock- Rs.39,99,728-01 and damage to FFF (Furniture & Fixture) – Rs.11,20,025 = Rs.51,19,753-01 and less excess clause 5% of Rs.51,19,753.01 i.e Rs.2,55,987.65 and loss is adjusted to Rs.48,63,765.36/- payable to the insured and is subject to terms and conditions of the policy of insurance issued to and held by the insured reserving our rights to alter/amend unintended error, if any”. Due to the non payment of illegal demand of bribe to settle the claim reasonably, illegally, arbitrarily, without application of mind to the terms and conditions of the policy paid less compensation to the complainant. Before filing the above captioned complaint, the complainant has served a legal notice dated 26.5.2015 to the opposite party at their Chennai, Ludhiana and Jalandhar offices through registered post/speed post but of no use. On such like averments, the complainant has prayed for directing the opposite party to pay her Rs.20 Lacs as compensation.
2. Upon notice, opposite party appeared and filed a written reply, inter-alia, pleading that pursuant to the consent letter dated 23.5.2014, the complainant received, agreeing to the full and final payment i.e Rs.43,23,342/- (Rs.43,30,036/- minus Rs.6721/- reinstatement premium), therefore, the present complaint is an abuse of the process of law. It is submitted that courts have invariably held that it is against the public policy to disturb the agreements reached between the parties. It is wrong that the complainant in the last month of January 2015 came to know from her banker that the opposite party settled her claim by releasing an amount of Rs.43,23,342/- by transferring the amount to her account No.03408970000360 with HDFC Bank without her information against a total amount of Rs.53 Lacs and against the loss claimed by the complainant of Rs.71,94,286/-. The surveyor assessed the loss of stocks as Rs.39,97,728/- which stood allowed in toto as such. In so far as the assessment made in respect of fitting and fixtures of Rs.11,20,025/-, what was not taken into account were (a) the depreciated amount as on 31.3.2013 Rs.6,38,003/-, (b) depreciation charged @ nine percent from 1.4.2013 to 29.1.2014, Rs.57,420/-, (c) salvage value Rs.22,350/- which gave the figure Rs.5,58,233/-. Accordingly, the total loss thereof came out to be Rs.39,97,728/- + Rs.5,28,233/- = Rs.45,57,961/- minus the policy excess (5%) i.e Rs.2,27,898/-. All these calculations and figures were examined and worked out by the complainants themselves and after considering all these factors, agreed and consented to receive in full and final the sum of Rs.43,30,036/- supra. It is submitted that the complainant by giving the consent letter, was in complete knowledge of the amount which had become payable, and had agreed to, after entering into full discussion on all aspects, including over the replacement cost. It was agreed that it was always more because the things existing and things replaced in place of the old ones were always according to the latest needs of the owner, but the insurance is to indemnify not for the upgraded qualities of fixtures but against the value of those which existed before the event. It denied other material averments of the complainant.
3. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and closed evidence.
4. On the other hand, learned counsel for the opposite party has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 to Ex.O4 and closed evidence.
5. We have carefully gone through the record and also heard the learned counsels for the parties.
6. The facts involved in the present case are not much disputed. It is not disputed that complainant had obtained insurance policy Ex.C3 from the opposite party insurance company. The stock was insured for Rs.40 Lacs and furniture & fixture for Rs.13 Lacs. It is not disputed that a fire broke out during the night of 28.1.2014 and the stock and furniture & fixture were burnt. The complainant lodged claim with opposite party insurance company and opposite party insurance company paid the claim of Rs.43,23,342/- to the complainant by transferring the amount to her account on 8.1.2015. This fact is evident from the statement of account Ex.C6. The above said payment was made by way of NEFT. Counsel for the complainant contended that the above said amount was transferred in the account of the complainant without any information to her. He further pleaded that the insurance was for Rs.53 Lacs and whereas the amount has been transferred less and insured is entitled to the remaining claim amount. He further contended that the opposite party insurance company has not produced the reports of investigator and surveyor and loss assessor. He further contended that entire stock lying in the shop and furniture & fixture fitted in it was burnt and as such complainant is entitled to the total insured amount. On the other hand, it has been contended by learned counsel for the opposite party insurance company that complainant, vide consent letter dated 23.5.2014 Ex.O1, agreed to accept the above said amount in full and final settlement of her claim. Counsel for the complainant contended that signatures of the complainant were obtained on blank consent letter and amount was filled by the insurance company later on. Counsel for the opposite party insurance company contended that the above version of the complainant is an after thought one and she has no where pleaded this fact in the complaint. He further contended that after receiving the above said amount in full and final settlement of her claim, the complainant is estopped from claiming any other amount from the insurance company. We have carefully considered the contentions advanced by learned counsels for both the parties. Ex.OP1 is consent letter wherein it is mentioned as under:-
“Subject:- Reg: Loss due to fire that occurred on the night between 28/29, Jan 2014 under Policy No.201300/11/13/11/ 00000678, A/c M/s One Stop Shop, Jalandhar.
Dear Sir,
We hereby giving our consent to our claim under subject policy and I have agreed to accept the sum of Rs.43,30,063/- as mutually negotiated full & final settlement for our claim.
In this respect your are requested to please issue us the cheque of the above mention amount as soon as possible. For One Stop Shop
Sd/-
Anita Kalra.
(Partner.)”
7. The version of the complainant that she gave consent letter without filling the amount can not be accepted. In the complaint she has no where mentioned that she gave signed consent letter without mentioning any amount in it. The consent letter is dated 23.5.2014 and whereas present complaint was filed on 13.7.2015 i.e after more than one year but still in the complaint she has no where alleged that she gave signed consent letter without mentioning amount in it. Further the amount was transferred to her account on 8.1.2015 by way of NEFT. For transferring the amount by way of NEFT, the account holder is required to give blank crossed signed cheque and in this case the complainant gave blank signed crossed cheque Ex.O2 to the opposite party insurance company. In case she was not interested in transfer of the amount by way of NEFT in her account then complainant would not have given the above said cheque Ex.O2 to the insurance company. So in our opinion, the complainant has accepted the above said amount in full and final settlement of her claim by giving consent letter dated 23.5.2014 Ex.O1. Once the insured has accepted the amount in full and final settlement of her claim, she is estopped from claiming the remaining insured amount. In Mjrj Medichem Surgicals Vs National Company Limited & others 2015(1) CPJ (NC) 681, the Hon'ble National Commission after discussing the various authorities has held as under:-
"It is well settled that the provision of this Act, are not meant for enrichment of the consumer. Once petitioner had received the amount unconditionally, under such circumstances petitioner cease to be consumer as per the Act. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment petitioner accepted the amount unconditionally".
In Jess Ram Khushi Ram Pvt. Ltd. & Anr. Versus National Insurance Co. Ltd. & ors. 11 (2014) CPJ 280 (NC), the Hon'ble National Commission in somewhat similar circumstances has recently held as under:-
"The counsel for petitioner admitted that due to the pressure of the market creditors, the very existence of the petitioners was in danger the complainant had accepted the amount under compelling circumstances. He further contended that, complainant had protested and the "Protest Letter" by way of legal notice was sent to OP two days later. Also, the complainant approached District Forum on 05.12.2005 i.e. less than a period of one month from the date of receipt of the last payment on 09.11.2005, hence, filing of complaint can also be considered as a protest against, so called full and final settlement. Therefore, it was not a voluntary acceptance of claim and final settlement.
We do not find any force in such argument. Sending a legal notice, filing complaint before District Forum are the legal steps taken by the complainant. It is not as such a protest.
We are unable to substantiate as to why the complainant signed the settlement voucher, blindly? He has signed the discharge voucher for full and final settlement in October, 2005, received the amount by three cheques and the last payment was made on 09.11.2005. Thereafter, on 11.11.2005, he has sent a notice to OPs. Hence it is clear that the complainant was not vigilant and prudent enough, he is responsible for his wrongs, and woke up from sleep on 11.11.2005 after i.e. one month after signing document in October, 2005.
He would have in his handwriting written about protest on the same voucher or returned back the cheques to the OPs. He would have not deposited the cheques issued by the OP. Hence we are of the considered view that the complainant being an owner of his private company and he must have signed the consent letter with full knowledge after going through the contents mentioned therein and therefore, question of any pressure tactics by the opposite party upon the complainant does not arise.
In Swan Energy Limited Versus New India Assurance Co. Ltd. 2012 (1) CLT 247, the Hon'ble National Commission has cited with the approval authority of Hon'ble Supreme Court by observing as under:-
"The counsel for the opposite party, New India Assurance Co. also drew our attention to the decision of Hon'ble Supreme Court in (2000) 10 SCC 334, New India Assurance Co. Ltd. Vs. Sri Venkata Padmavathi R&B Rice Mill. In this case, the facts of the case were that rice mill stock of the complainant had suffered severe damage due to cyclone and heavy rain. One of the Surveyors appointed by the Assurance Company assessed the loss Rs.23.30 Lakh and the other Surveyors assessed it at Rs.5,25 Lakh. The assurance Company, therefore, appointed third Surveyor, who assessed loss at Rs.14.80. The complainant reportedly agreed to accept Rs.14.16 Lakh in full and final settlement, but later approach the National Commission seeking full amount of Rs.23.30 Lakh. This was allowed by the National Commission, but the order was set aside by the Hon'ble Apex Court. It was observed that:-
"Where assured agrees to accept a certain amount in full and final settlement of his claim, held, such an assured is bound by his commitment. In particular where there are no allegations before any Forum that the agreement was vitiated by fraud or undue influence-National Consumer Disputes Redressal Commission erred in allowing respondent Mill's claim for an amount higher than the payment amount agreed between respondent and appellant insurance company."
In the case before us, though allegations of coercion are made, the complainant has failed to substantiate them."
8. To the same effect is the law laid down by Hon'ble National Commission in Jagrut Nagrik & Anr Vs. New India Assurance Co.Ltd IV (2015) CPJ 170 (NC) and Natraj Handlooms Pvt Ltd Vs. New India Assurance Co.Ltd II (2015) CPJ 2014(NC).
9. The ratio of above cited authorities is fully applicable on the facts of the present case.
10. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
24.11.2015 Member Member President
