Punjab

Ludhiana

CC/15/48

Ajaib Singh - Complainant(s)

Versus

New India Ass.Co.ltd. - Opp.Party(s)

Jydeep Bansal Adv.

23 Nov 2015

ORDER

Before the District Consumer Disputes Redressal Forum, Ludhiana.

                                                                 CC No. 48/19.1.2015                    

                                                                 Decided on : 23.11.2015

 

Ajaib Singh son of Sh. Giyan Singh, Prop. of M/s. Indo Canadian Departmental Super Store, Jagraon.

… Complainant  

Vs.

The New India Insurance Company, Regional Office : 4^th Floor, Surya Tower, 108, The Mall, Ludhiana.

                                                                              … Opposite Party

Complaint u/S 12 of the Consumer Protection Act, 1986.

Quorum: Sh. G.K. Dhir, President,

                 Sh. S.P. Garg, Member.

 

Present:       Sh. Jagdeep Bansal, advocate for complainant.

                     Sh. Hemant Kalia, advocate for  opposite party.

ORDER:

(Per G.K. Dhir, President)

1.       Complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as the ‘Act’)  filed by Ajaib Singh by claiming that he insured his Store with OP  under insurance policy No. 36110111130100000008. All of a sudden, fire took place in that store known as “M/s. Indo Canadian Department Super Store, Jagraon” on 18.5.2013 due to electric short circuit. Loss by the surveyor of the OP was assessed to the tune of Rs. 1,39,68,133/-  after all deductions.  However, the opposite party  paid Rs. 1,32,68,521/- only after wrongly deducting an amount of Rs. 6,98,343/- on account of excess 5% of the claim amount.  That deduction of Rs. 6,98,343/- is improper due to which legal notice dated 22.12.2014 was issued through counsel, Sh.Jagdeep Bansal, Advocate.  Directions sought for refund of Rs.6,98,343/- with interest @ 12% per annum and compensation amount of Rs. 1,25,000/-.  Litigation expenses also claimed.

2.       In written statement filed by the OP, it is claimed that complaint is not maintainable before this Forum because complainant has not approached this Forum with clean hands.  Even, it is claimed that complainant is estopped by his act and conduct from filing this false complaint.  No cause of action has accrued to complainant to file the present complaint.  Admittedly, insurance policy was issued in the name of complainant, Ajaib Singh being Proprietor of M/s. Indo Canadian Departmental Super Store, Jagraon.  After appointment of the surveyor loss caused in the Store on 18.5.2013 due to fire was assessed of  amount of Rs. 1,32,68,521/-, which was duly paid to complainant after deducting Rs. 6,98,343/- .  That deduction was made on account of loss to the old building owned by Mrs.Paramjeet Kaur. Said building bearing  No. 164/2 was not insured because complainant was having no insurable interest in the said building.  Complainant was intimated about that and he accepted the assessed amount after issue of written letter dated 22.12.2014.  Addendum report dated 22.7.2014 was issued by Sh. Atul Kapoor, surveyor and after due deduction the amount of Rs.1,32,68,521/- was found payable and the same was paid. No deficiency of service on the part of the opposite party is there. Complaint alleged to be barred by limitation and this Forum has no jurisdiction.

3.       Counsel for the complainant closed evidence by suffering statement on 15.6.2015 without producing any evidence.

4.       On the other hand, counsel for the OP tendered in evidence affidavit Ex. OPA of Sh. R.M. Bhatnagar, Manager, New India Assurance Company Ltd., Ludhiana and documents Ex. OP1 to Ex. OP6 as well as Mark-A to Mark-D and thereafter closed the evidence.

5.       Written arguments submitted by the OP, but not by complainant. Oral arguments of both counsel for the parties were heard.

6.       It is vehemently contended by Sh. Jagdeep Bansal, advocate representing complainant that perusal of page 13 of the document produced by the complainant shows that deduction of Rs. 7,35,165/- on account of 5% of claim amount under Head “Policy Excess” has already been done and as such, withholding of amount of Rs. 6,98,343/- is illegal. Perusal of page 4 of the document produced by the complainant shows as if an amount of Rs. 6,98,343/- has  been deducted. On the other hand, counsel for the opposite party vehemently contends that said deduction has rightly been made because old building No. 164/2 exclusively owned by Mrs. Paramjeet Kaur. After considering the pros and cons of rival contentions of counsel for the parties, in the light of produced evidence, we find force in the submissions advanced by counsel for the OP. Perusal of Mark-A and Mark-B reveals that property bearing MCJ No. 1642/2 has been purchased through two sale deeds by Paramkit Kaur wife of Ajaib Singh S/o Gian Singh resident of Jagraon from Smt. Jaswinder Kaur on 6.6.2000 and 22.5.1995 respectively.  Mark-C and Mark-D are the photocopies of the registered sale deeds and reliance thereon rightly placed in letter Ex. OP3 dated 22.12.2014. It is on account of this that subsequent addendum report Ex. OP-4 was submitted by Sh. Atul Kapur, who earlier submitted report Ex. OP-1.  In the earlier report Ex. OP1 mention regarding owning of the building by wife of the insured was not made, but in report Ex. OP4 the same has been made for assessing the loss of the insured at Rs. 1,32,68,521/- .  It was after receipt of this report that letter Ex. OP-3 was sent to insured and payment of Rs. 1,32,68,521/- was made to complainant through letter Ex. OP-5.  So, present is not a case of double deduction, but it is a case in which after rectification of the mistake, the surveyor assessed the loss at Rs. 1,32,68,521/-.

7.       Complainant received the assessed amount of Rs. 1,32,68,521/- in full and final settlement of his claim through letter Ex. OP-5 dated 25.8.2014, after submission of addendum report Ex.OP-4 dated 22.07.2014 by the surveyor Atul Kapoor & Company.  After acceptance of the full amount, complainant ceased to be a consumer.  It is not the case of complainant that he received the above said amount under protest or his consent for settlement Ex. OP5 obtained by misrepresentation or fraud and as such, virtually the complainant accepted the above said amount  in full and final satisfaction of his claim. In view of that complainant ceased to be a ‘consumer’.  In holding this view, we are fortified by law laid down in cases Kanta Mathur vs. National Insurance Company Ltd. I(2015) CPJ 151 (NC); Vijay Stationers vs. United India Insurance Co. Ltd., I(2013) CPJ 637 (NC)’; Haryana State Co-operative Supply & Marketing Federation Ltd. Vs. Iffco Tokio General Insurance Company Limited and other, II(2013) CPJ 364 (NC); M.L. Kathuria vs. Oriental Insurance Co. Ltd., and another, II(2013) CPJ 586 (NC); A.P. Jos vs. ICICI Lombard General Insurance Company Limited, II(2013) CPJ 386 (NC); Yogesh Kumar Sharma (Dr.) vs. National Insurance Company Limited, II(2013) CPJ 178 (NC); Ravindra Spinners Ltd. vs. National Insurance Company Limited and another, III(2013) CPJ 539 (NC) ; Nirmal Singh vs. Oriental Insurance Company Limited, IV(2012) CPJ 641 (NC) and Rajendra Panigrahy vs. Oriental Insurance Company Limited and another, II(2010) CPJ 589 (Hon’ble Orissa State Consumer Disputes Redressal Commission, Cuttack). Ratio of all these cases lays that when complainant got encashed the cheque sent by the insurance company in full and final settlement of claim qua insurance without protest and no coercion or fraud or undue influence pleaded or alleged, then complainant ceased to be a consumer, particularly when protest not raised at the time of encashment of the cheque. Same is the position before us and as such, complainant ceased to be a ‘consumer’ after issue of letter of settlement Ex. OP5.

8.       Insurance Company certainly has the right to get the report of the surveyor rectified after finding genuine fault and the same has been got done in view of contents of Mark-A and Mark-D through addendum report Ex. OP-4 dated 22.7.2014.  It was after receipt of his report dated 22.7.2014 that full and final settlement of Rs. 1,32,68,521/- was accepted by complainant, Ajaib Singh as Proprietor of the concern through letter Ex. OP-5 and as such, complainant is estopped by his act and conduct from filing the complaint, particularly when the complaint not maintainable before this Forum because, the assessment of the overall claim was of Rs. 1,39,68,133/- through earlier report Ex. OP-1. Same surveyor, Sh. Atul Kapur left amount of Rs. 6,98,343/- out of claimed amount in respect of the loss caused by fire to the Store of the complainant because property of Mrs.Paramjit Kaur (none insured) was also taken in consideration in earlier report Ex.OP-1 erroneously. Cause of action for filing this complaint accrued on account of the incidence of fire which engulfed Store of complainant  on 18.5.2013.  As per Section 11 of the Consumer Protection Act, 1986, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs. However, total claimed compensation in this case is of Rs. 1,39,68,133/-, out of which Rs. 1,32,68,521/- had already been received by the complainant through Ex. OP-5 and as such, virtually the cause of action in this case is based on report Ex. OP-4 read with report Ex. OP-1.  So, pecuniary jurisdiction for the purpose of this complaint to be taken as more than Rs. 1 crore and as such, this Forum has no pecuniary jurisdiction even.

9.       It is contended by counsel for complainant that sale deeds of Ajaib Singh have not been produced and through Ex. OP-3, it is erroneously found as if old building No. 164/2 is not joint ownership property of complainant with Mrs.Paramjeet Kaur. Complainant, Ajaib Singh claiming himself to be the owner and as such, if the insurance company has not produced the sale deeds, then complainant himself could have produced those sale deeds in his favour, being in power and possession thereof. That has not been done by complainant and as such, for withholding best available evidence also, it has to be held that complainant suppressing material facts qua proof of his ownership of the property considered to be that of Mrs. Paramjit Kaur by insurance company on the basis of the sale deeds – Mark-C and Mark-D.   So, complainant himself is at fault in not producing the sale deeds. In view of all this, deficiency of service on the part of the OP certainly is not there.

10.     As a sequel of the above discussion, complaint merits dismissal and the same is hereby dismissed without any order as to costs.  Copies of the order be supplied to the parties free of cost. File be indexed and consigned to the record room.

Announced in open Forum.

23.11.2015                                                          

 

( S.P. Garg )                                              ( G.K. Dhir )

Member                                                     President