DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

Consumer Complaint No. 459 of  26.06.2013

Date of Decision           :   07.09.2015 

M/s. Beri & Beri, Old Property No.1094/6 (New Property No.6813 and 6815 to 6817), St. No.1, New Hargobind Nagar, Ludhiana through its Partner Sh. Anil Beri son of Raghubar Dayal Beri.

….. Complainant

Versus

1. The New India Assurance Company Limited, Regional Office, 4^th Floor, The Mall, Surya Kiran Tower, Ludhiana through its Regional Manager.
2. Universal Sompo General Insurance Company Limited, 5^th Floor, SCO-10 & 11, Feroze Gandhi Market, Ludhiana through its Manager.

..…Opposite parties

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

QUORUM:

SH.G.K. DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :      Sh. M.K. Singh, Advocate.

For OP1                         :      Sh. R.K. Chand, Advocate.

For OP2                         :      Sh. Rajeev Abhi, Advocate.

PER G. K. DHIR, PRESIDENT

1.                          Complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter as referred as the ‘Act’) against the OPs, by alleging that it is a partnership firm, of which Sh. Anil Beri is one of the partner. Complainant firm is  manufacturing hosiery goods and readymade garments. Complainant obtained  standard fire and special pearls policy No.361700111100000170 for the period 30.05.2011 to 29.05.2012 from OP1 qua property No.1094/6. Indian Overseas Bank, Pakhowal Road, Ludhiana are the bankers of the complainant.  Even the complainant obtained standard fire and perils policy No.2114/50705848/01/000 for the period 26.05.2011 to 25.05.2012 for the property/plot No.6817 from OP2. The bankers of complainant paid the premium from the account of complainant. The entire premises along with stocks have been insured with Ops. Complainant got knowledge of the policy after suffering flood/rain loss. It is claimed that complainant is not aware of the terms and conditions of the policy. On 12/13.08.2011, the flood water due to heavy rains entered in the insured premises. The extensive damage to the stocks, machinery and building was caused. On claims being lodged with Ops, Sh. Vinod Bhan surveyor was deputed by OP1 for assessing the loss, but Sh. Parveen Goyal surveyor was deputed as surveyor by OP2 for assessing loss.  All the documents were given to Ops for early settlement of the claim. OP1 assessed Rs.2,02,623/- in respect of property No.1094/6, but paid Rs.60,786/- only without assigning any reason as to why the balance payment not made. Complainant applied for documents under RTI from OP1 and after getting the same, he got knowledge as if balance amount has not been paid by OP1 illegally. OP2 paid Rs.1,24,794/-  qua loss suffered in property No.6817. So deficiency of service on the part of Ops pleaded and directions sought against Ops for calling upon them to pay Rs.1,41,837/- along with interest. Rs.1,00,000/- on account of loss of business, mental pain and agony claimed, but litigation expenses of Rs.33,000/- also claimed.

2.                On notice, OP1 appeared and filed written statement by claiming that there is no deficiency in service or negligence on the part of Ops because amount of Rs.60,786/- paid in full and final settlement through cheque No.53117 dated 27.06.2012. That cheque had been received by complainant and thereafter, no dispute regarding settlement was raised and as such, complaint is not maintainable. After receipt of the claim, the same was duly registered, entertained and processed and after completing requisite formalities, payment was made.  M/s. Vinod Bhan and associates was deputed for survey and assessment of the loss. Said surveyor visited the spot, collected documents, took photographs and thereafter, submitted the survey and assessment report dated 27.03.2012 along with documents. That surveyor assessed the net loss of Rs.2,02,623/-. Admittedly, complainant obtained standard fire and special perils policy for assured sum of Rs.30 Lacs for period from 26.05.2011 to 25.05.2012 and the second policy was for the period from 30.05.2011 to 29.05.2012 for assured sum of Rs.9 Lacs. As per those policies, both Ops liable to pay the claim to the extent of their shares. As per contribution clause, the liability of OP1 was restricted to 23% only, but payment made on 30% share basis of amount of Rs.60,786/-. That payment has been accepted by the complainant with free consent and without protest. Moreover said payment received by complainant without any pressure, coercion and undue influence, due to which complainant now is estopped by his act and conduct from filing the complainant. It is also claimed that complainant has not approached this Forum with clean hands. Complicated questions of law and facts requiring elaborate evidence involved and as such, the complaint is not maintainable, particularly when the same being barred under Section 26 of the Act. Obtaining of the policies from Ops admitted as referred above. Each and every other averment of complaint denied by praying for dismissal of the complaint.

3.                In separate written statement filed by OP2, it is pleaded, inter alia, as if complaint is barred under Section 26 of Consumer Protection Act; complainant after receiving Rs.1,24,794/- in full and final settlement of the claim on 17.08.2012 without protest has ceased to be a consumer; this Forum has no jurisdiction; there is no deficiency in service on the part of Ops. The amount of Rs.1,24,794/- as full and final settlement has been credited to the account of the complainant on 17.08.2012 with Indian Overseas Bank, Ludhiana after deduction of Rs.204/- by way of reinvestment premium out of total loss assessed by the surveyor of Rs.1,24,998/-. After lodging of the claim by the complainant, report of approved surveyor Sh. Parveen Kumar Goyal was obtained and thereafter scrutinizing the documents, above referred amount was paid in full and final settlement of the claim. The details of the payment made on the basis of assessment of the surveyor are given below:-

Complainant is estopped by his act and conduct from filing the complaint after  receiving the amount of Rs.1,24,794/- in full and final settlement of claim without any jurisdiction and without reserving any right to recover the balance amount. Complainant is neither a registered partnership firm and nor Sh. Anil Beri is the registered partner and as such, complaint is not filed through competent person. Moreover it is claimed that complainant is a commercial organization running hosiery readymade garments business for earning huge profits and as such, the complainant is not a consumer. Admittedly, complainant obtained insurance policy in respect of property No.6817 from OP2 on payment of premium. Each and every other averment of the complaint denied with prayer for dismissal of the complaint.

4.       Earlier OP1 was proceeded against exparte and thereafter, he appeared after setting aside exparte proceedings order by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh.

5.                Complainant to prove his case tendered affidavit Ex.CA of Sh. Anil Beri along with documents Ex.C1 & Ex.C18 and thereafter, closed evidence.

6.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex. RC of Sh. R.M. Bhatnagar, Manager of New India Assurance Company Limited, Ex. RD of Sh. Vinod Bhan, Prop. of M/s.Vinod Bhan & Associates along with documents Ex. R94 to Ex. R113 and thereafter, closed the evidence of OP1. Counsel for OP2 tendered in evidence affidavit Ex. RA of Sh. Pyush Shanker, Manager (Legal) of OP2 along with affidavit Ex. RB of Sh. Parveen Kumar Goyal, approved surveyor and documents Ex. R1 to Ex. R93 and thereafter, closed evidence of OP2.

7.                          OP2 alone submitted written arguments. Oral arguments of complainant and Ops were heard and records gone through minutely. 

8.                There is no dispute qua fact that premises of properly No.1094/6 along with  lying stocks therein were insured with OP1, but premises of properly/plot No.6817 along with stocks lying therein were insured with Op2 and after suffering loss due to heavy rains, Ops appointed their surveyors and obtained reports from them. However, bone of contention remains as to whether due amount of compensation had been paid or not. It is not disputed that surveyor of OP1 assessed loss of Rs.2,02,623/- with respect to property No.1094/6, but out of that Rs.60,786/- alone were paid. However, payment of loss sustained over property No.6817 was of Rs.1,24,794/- by OP2. These  paid amounts are very less than the assessed amounts as per contentions of counsel for complainant and as such, directions sought to Ops for paying balance amount.  However, it is contended by counsel for Ops that as the complainant has received the payments in full and final settlement of the claim and as such, after acceptance of the same without protest, he has ceased to be a consumer, particularly when allegations of fraud, misrepresentation or undue influence in making of these alleged less payments not leveled. The complainant in complaint itself has admitted the due receipt of above referred amounts of Rs.60,786/- and Rs.1,24,794/- from the Ops concerned. If Ops able to prove that the amounts received by the complainant in full and final settlement of the claim amount without protest and there was no undue influence, coercion or fraud on the part of the Ops, then certainly as per cited legal position, complainant will be deemed to have ceased to be a consumer.

9.                As per law laid down in Kanta Mathur Vs National Insurance Company Ltd. & Ors. In I(2015) CPJ 151 (NC), if cheque sent by insurance company in full and final settlement of claim got encashed by complainant/claimant without protest, then claim cannot be reopened. So when amount received as compensation without allegations of coercion, misrepresentation, then complainant ceases to be a consumer, particularly  when the amount shown to be received unconditionally. This is in fact the preposition of law laid down in Vijay Stationers Vs United India Insurance Co. Ltd. In I(2013) CPJ 637 (NC).  In case the insurance company sends demand draft in full and final settlement of the claim and the same got encashed without writing back to the insurance company about inadequacy of offer, then complainant/claimant cannot be allowed to get the matter reopened by claiming that the payment received by him was less. This infact is the proposition of law laid down in Haryana State Co-operative Supply & Marketing Federation Ltd. Vs IFFCO TOKIO General Insurance Company Ltd. & Anr. in II (2013) CPJ 364(NC). Further as per law laid down in cases of Shree Balaji Woolen Mills Vs Oriental Insurance Co. Ltd. in II(2013) CPJ 366 (NC); M.L. Kathuria Vs Oriental Insurance Co. Ltd. & Anr in II(2013) CPJ 586 (NC); A.P. Jos Vs ICICI Lombard General Insurance Company Ltd. II(2013) CPJ 386(NC); Yogesh Kumar Sharma (DR.) Vs National Insurance Company Ltd. II(2013) CPJ 178(NC); Ravindra Spinners Ltd. Vs National Insurance Company Ltd. & Anr. III(2013) CPJ 539(NC); Pahuchi Lal & Ors. Vs Oriental Insurance Company III(2013) CPJ 329 (NC); Nirmal Singh Vs Oriental Insurance Company Ltd IV(2012) CPJ 641 (NC); Savitri Salt Suppliers Vs Oriental Insurance Co. Ltd. II(2009) CPJ 223, Once the insured has received the amount in full and final settlement of his claim and signed the discharge voucher, then he cannot be permitted to reagitate his claim unless he is able to establish that discharge voucher was obtained by undue influence, fraud, misrepresentation or coercion etc. However, if the cheque accepted without protest and discharge voucher signed without protest, then the complainant concerned ceases to be a consumer.

10.              Ex. R94=Ex. C7 are the payment vouchers showing that cheque No.53117 dated 27.06.2012 was received by Beri & Beri on 27.06.2012. No protest note of less payment recorded on these vouchers. This amount of the cheque has been received by Beri & Beri company through their bank  account qua which particulars endorsed on EX. R94=Ex. C7 itself. Even no record produced to show that complainant after encashment of this cheque on 27.06.2012 wrote back to OP concerned to pay the balance claimed or assessed amount by the surveyor. No allegation of fraud, coercion or undue influence leveled against any of the Ops and as such, the evidence brought on record is enough to establish as if the cheque of amount of Rs.60,500/- was duly received by complainant without any protest or unconditionally.

11.              Ex. R33 and Ex. R34 are the other vouchers signed by partner of M/s. Beri & Beri showing that Rs.1,25,000/- received as full and final payment in settlement of claim qua damage to stock lying in factory premises situate at 6817, Gali No.1, New Hargobind Nagar, Ludhiana. As endorsement in writing in this respect recorded on Ex. R33 and Ex. R34 and as such, same is enough to establish as if this amount of Rs.1,25,000/- received by complainant from OP2 in full and final settlement of the claim unconditionally. Present complaint was filed on 26.06.2013 i.e. after one year of unconditional receipt of full and final assessed payments. As the said payments were received unconditionally and without any protest sans allegations of fraud, coercion and undue influence and as such, certainly the complainant ceased to be consumer qua OP1 and 2 on receipt of these payments itself. So submissions advanced by counsel for Ops have force that complaint is not maintainable.

12.              As full and final payment received unconditionally by complainant from Ops and as such, other contentions qua sharing of responsibility in ratio of 30% or 70% or of non deduction of due amount of salvage pails into insignificance. First payment was made on 27.06.2012 through Ex. C7= EX. R94, second payment was made on 17.08.2012 and as such, with effect from these mentioned dates, complainant ceased to be a consumer.

13.              As a sequel of above discussion, present complaint is hereby dismissed with no order as to costs. Copies of the order be supplied to parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

                                      (Sat Paul Garg)                            (G.K. Dhir)

                                      Member                                       President

Announced in Open Forum.

Dated:07.09.2015.

Gobind Ram