Punjab

StateCommission

A/11/389

M/s Saraswati Cotton Ginning and Agro Industry PVt. Ltd. - Complainant(s)

Versus

NIAC Ltd. - Opp.Party(s)

Tribhawan Singla

19 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                       First Appeal No.389 of 2011

 

                                                          Date of Institution: 01.03.2011  

                                                          Date of Decision : 19.02.2015

 

M/s Saraswati Cotton Ginning and Agro Industry Pvt Ltd., Fatehgarh Chhanna Road, Handiaya, Tehsil and District Barnala through Yash Paul, Managing Director

 

                                                                                                                                                   …..Appellant/Complainant.

         

                                      Versus

 

1.       The New India Assurance Company Ltd., Sadar Bazar, Barnala through its Branch Manager.

2.       The New India Assurance Company Ltd., Regd., Office, New India      Assurance Building, 87, Mahatma Gandhi Road, Fort, Mumbai      through its Managing Director.

 

                                                                                                                                    ….Respondents/Opposite Parties.

 

         

First Appeal against order dated 07.01.2011 passed by the District Consumer Disputes Redressal Forum, Barnala.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant              :         None

          For the respondent :         Sh.Rahul Sharma, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellant (the complainant in the complaint) has directed this appeal against the respondent of this appeal (the OPs in the complaint) assailing the order of the District Forum dated 07.01.2011, dismissing the complaint of the complainant. The instant appeal has been preferred against the same now appellant.

2.      The appellant/complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that it purchased one comprehensive insurance policy from the OPs for the period from 19.05.2009 to 18.05.2010 for factory, running in the name and style of M/s Saraswati Cotton Ginning and Agro Industry Pvt. Ltd by paying premium of Rs.64,856.00 on 19.05.2010. That on account of  thunder storm with heavy rain, the boundary wall thereof collapsed. The complainant intimated the OPs about the loss and surveyor was deputed by the OPs to assess the loss thereto. Sh.Rakesh Bansal, Surveyor assessed the loss to the tune of Rs. 4,16,000/- whereas, the actual loss was Rs.5,59,000/-. The complainant received a cheque of Rs.71,400/- bearing no.87338 dated 13.05.2010 drawn on Central Bank of India, Barnala  from the OPs. The complainant accepted it under protest as part payment. The complainant has accordingly filed the complaint directing the OPs to pay the amount of Rs.4,87,600/- along with interest @ 18% p.a from the date of accident i.e. 30.07.2009 till actual payment besides costs of litigation Rs.10,000/-

3.      Upon notice, OPs filed written reply and contested the complaint of the complainant. It was averred in the legal objections by the OP that the complaint is not maintainable. That complainant has come to the Forum by suppressing the material facts. That the matter in controversy cannot be decided in a summary manner, as complex question of law and facts involved. On merits, it was admitted that complainant took policy and intimated the OPs on 30.07.2009 and regarding loss, the surveyor was deputed by the OPs. On 31.07.2009, the surveyor went to the premises of the complainant and found the loss of Rs. 87030/-. The length of total wall was 446 ft and damage of the wall at the time of loss was 150 ft. The total bricks required for 446 ft, complete wall were 1,40,000 in numbers, so bricks required 180 ft wall 56502 in numbers. About 75% of the old bricks were used for reinstatement of the damaged wall i.e. 42377 in numbers. The cost of one brick was Rs.2,70 paise, so cost of 42377 bricks were Rs.1,14,418/-, so total loss issued by the surveyor was Rs.87030/-. The OPs further averred that the complainant has accepted the claim of Rs. 71400/- and, thus, prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence, policy document  Ex.C-1, consignment note/receipt Ex.C-2, copy of legal notice Ex.C-3, copies of letters written from complainant to OP, affidavit of Er.Rakesh Bansal Ex.C-7, copy of assessment report Ex.C-8, affidavit of complainant Ex.C-9 , copy of calculation receipt Ex.C-10.  

As against it, the opposite parties tendered in evidence copy of investigation report of surveyor of insurance company Ex.R-1, copy of policy Ex.R-2, photograph of damaged boundary wall Ex.R-3, affidavit of J.K.Walia, Divisional Manager, New India Assurance Company Ltd. Ex.R-4, affidavit of Yashwinder Goyal, Surveyor and Loss Assessor Ex.R-5, copy of auditor's report Ex.R-6 and closed the evidence. On conclusion of evidence and arguments, the District Forum Barnala, dismissed the complaint of the complainant. Dissatisfied with the order of the District Forum, the complainant now appellant has preferred this appeal against the same.

5.       We have heard Ld. Counsel for the respondent in this appeal as none appeared for the appellant to argue the matter. We have examined the record of the case and proceed to decide the case on merits. Vide policy Ex.C-1, the complainant paid the premium of Rs.64856/- and took the insurance policy coverage and this fact is not disputed in this case. Ex.C-3 is the legal notice sent by the complainant. Ex.C-4 to Ex.C-6 are letters to Gram Panchayat, Barnala in regard to demolition of the wall. The complainant tendered affidavit of Sh.Rakesh Bansal, Surveyor & Engineer Ex.C-7 to the effect that reconstruction cost of the wall would be Rs.4,16,000/-. Ex.C-8 is the report of the Engineer. Affidavit of Yash Paul, Managing Director of the Company Ex.C-9 on the record to the effect that complainant suffered a loss to the extent of Rs.4,16,000/- regarding demolition of the boundary wall. The total loss was of Rs. 5,59,000/-. He further stated in this affidavit that the OPs sent insurance claim of Rs.71400/- vide cheque no.87338 dated 13.05.2010 of Central Bank of India, Barnala, which was never issued for full and final payment and voucher was not final dishcarge. That complainant served a legal notice dated 03.09.2010 against this cheque, which was received on 13.5.2010 by the OPs.

6.       To counter this affidavit, the OPs relied upon Ex.R-1 the survey report of Yashwinder Goyal and Company. He assessed the total loss of Rs.87030/- to the wall in dispute. As per terms and conditions of the policy, surveyor is appointed statutorily under the Insurance Act and his report carries weightage. The surveyor found the loss of Rs.87030/- vide his report Ex.R-1 on the record. Copy of photograph is Ex.R-3 on the record. Affidavit of J.K. Walia, Divisional Manager is Ex.R-4 and Yashwinder Goyal, Surveyor submitted his report Ex.R-1, as appointed by the OP.  Affidavit of Yashwinder Goyal Surveyor and Loss Assessor Ex.R-5, Auditor's Report Ex.R-6 on the record.

7.       On conclusion of above-referred evidence on the record, we find that report of the surveyor is Ex.R-1, which has been proved on record by means of affidavit of surveyor.  Affidavit of Yashwinder Goyal Surveyor & Loss Assessor Ex.R-5 has established on the record that the total loss to the wall was of Rs.87030/-. The report of surveyor carries weightage, we find that affidavit of Rakesh Bansal Ex.C-7 is exaggerated one. We further find that on the basis of the report of surveyor, the OPs settled the claim of the complainant and sent cheque to the complainant for the amount of Rs.71400/- after adjusting due damages, depreciation charges, vide cheque bearing no.87338 dated 13.05.2010, which was received by the complainant on 13.05.2010. There is nothing on the record to establish by the complainant. That complainant has not returned it being inadequate.  The complainant accepted this cheque and duly encashed it and there is nothing on the record to prove that complainant was not satisfied with it and it returned it to the OPs The amount was received by the complainant through cheque on 13.5.2010 and surprisingly the complainant sent notice to the OPs after four month therefrom. This notice could be to extract more amounts, which was sent after more than four months to the OPs. Consequently, we find that complainant has finally accepted the amount of the loss by accepting compensation without returning the cheque. We are fortified in this  regard by law laid down by the Hon'ble Apex Court in case titled as  M/s Bhagwati Prasad Pawan Kumar Vs. Union of India reported in 2006 AIR (SC) 2331,   wherein it was held that : cheque was accepted and encahsed, thereafter, sending protest letter. The Apex Court held in such circumstances that by encashing the cheque, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer and cannot be permitted to change the mind after the unequivocal acceptance of the offer. The Apex Court further held in Nathani Steels Ltd.. Versus.  Associated Constructions  in Civil Appeal No.1995, Arising out of SLP ( C) No.2153 of 1995 decided on 27.03.1995, wherein it was held that : that since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent to unilaterally  treat the settlement as non est. We find that the complainant accepted the amount towards the full and final settlement and by not returning the cheque, the complainant duly encahsed the cheque sent by the OPs to him as final settlement of the claim. Consequently, the District Forum dismissed the complaint of the complainant on this point that by not returning the cheque and also by  encashing it, the complainant has accepted the full and final settlement of the claim amount. Therefore, order of the District Forum is found to be sustainable in this appeal by us. 

8.       In the light of our above discussion, we find no merit in the appeal and same is hereby dismissed.

9        Arguments in this appeal were heard on 16.02.2015 and the order was reserved. Now the order be communicated to the parties.

10      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February 19  2015.                                                                  

(ravi)