Shri J. Sangma, President – The complainant is a dealer in lime and lime stone products. His stock-in-trade was at Garikhana, Shillong was insured with the defendant for Rs.4.00.000/-. The Insurance policy No. 3322406/11/91/0293 dated 31.8.90 was valid upto 20.8.91.

 

Fire broke out in the night of 20.5.91 and gutted the entire stock.The Defendant appointed surveyor to ascertain the loss. Complainant submitted his claim for Rs.4,00,000/- before the assessor, stating that he suffered a total loss. Alleging that even after delay for 27months the defendant paid Rs.3,97,500/- only, he filed this complaint on 4.6.94 for directing them to pay the balance amount of Rs.2,500/- with interest at the rate of 18% per annum on Rs. 4,00,000/-. He also made claim on other account. The total claim made in the complaint is Rs. 5,01,678.00.

 

In the counter affidavit the defendant contested the complaint on three grounds : (1) that the defendant did not delay for 27 months , because the complainant himself took 1 year 10 months in furnishing necessary papers to the surveyor. (2) That they deducted Rs.2,500/- as policy excess under term of the policy. (3) That the complainant received Rs. 3,97,500/- in full discharge of the claim for Rs.4,00,000/- without protest.

 

In reply affidavit the complainant virtually admitted his delay for 1 year 10 months in furnishing necessary papers to the Surveyor. He did not reply on the deduction of Rs.2,500/- and receiving Rs.3,97,500/- without protest.

 

Mr.Sharma submitted that delay is a deficiency in service and therefore the complainant is entitled to interest on Rs.3,97,500/-. But we find that complainant admitted his delay for 1 year 10 months. In that case the delay on the part of defendant was 5 months only.

 

The next point urged by Mr.Sharma is even if the complainant received Rs.3,97,500/- without protest he can maintain the complaint because there was deficiency in service. To support this he relies on Sachanand Versus New India Insurance co. 1995(1) CPR 79 (Bhopal). There it was held even if a person received the payment without protest, he can bring a complaint if the payment was made under duress or coercion. It can been seen that the complainant made allegation of duress coercion in the complaint and convinced the State Commission. In the present case no such allegation is made. The decision therefore does not help the contention of Mr.Sharma.

 

We hold that where a person received the payment without protest and yet he filed a complaint he must make allegation that he had received it under duress or coercion or that fraud was practiced upon him. Without such allegation the complaint is not maintainable.

 

There is no dispute that surveyor found that complaint suffered a total loss and recommended payment of Rs.2,500/- as policy access. We direct that the defendant will now pay the deducted amount of Rs.2,500/-. With direction the complaint is rejected.