Delhi

StateCommission

CC/12/461

UNITEX POLYMERS (I) CO. - Complainant(s)

Versus

ORIENTAL INSU. CO.LTD. - Opp.Party(s)

10 May 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision: 10/05/2019   

   

 

Complaint Case No.461/2012

 

 

M/s. Unitex Polymers (India) Company,

Through its Proprietor,

Shri Nand Gopal Aggarwal,

A-187/1, Shastri Nagar,

Delhi.

                                                       …. Complainant

 

Versus

 

 

1. Oriental Insurance Company Limited,

Oriental House, A-25/27,  Asaf Ali Road,

New Delhi -110002.

Through Chairman cum MD/GM,

 

 

2. The Divisional Manager,

Oriental Insurance Co. Ltd.,

D.O. No.22, 28/12,

East Punjabi Bagh, Ring Road,

Delhi -110026.

… Opposite Parties

 

CORAM

Justice Veena Birbal, President

 

 

 

1. Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

 

1. Complainant is a proprietorship concern dealing in the job work of industrial thread reels etc. Shri Nand Gopal Aggarwal is its proprietor. Complainant had taken an insurance cover vide policy No.271900/11/2010/254 for the period 09.10.2009 to 08.10.2010 for Rs.28,00,000/- i.e. Rs.5,00,000/- for stock, Rs.22,00,000/- for plant and machinery, Rs.1,00,000/- for furniture and fixtures. The risk covered under the said policy was basic cover, terrorism and earthquake. Complainant had also taken another policy No.271900/11/2010/338 for the period 04.12.2009 to 03.12.2009 for Rs.12,00,000/- in respect of Building for Standard Fire and Special Peril Policy extended to include earthquake cover, terrorism cover etc. It was alleged that valuation of plant, machinery etc. was first obtained from approved valuer and thereafter the policy was given. The stock of the complainant i.e. raw material, finished, unfinished goods on trust used in manufacturing thread reel etc. were also insured. The complainant was having insurance cover in respect of building, stocks, plant and machinery, furniture and fixtures etc.
2. On the night of 08.05.2010 a fire had occurred in the complainant’s complex as well as in other area of the building as a result of which plant and machinery and stocks were reduced to ashes. The premises were also engulfed by the fire. Fire brigaded was called and ultimately the fire was controlled, however, stocks, building, plant and machinery, furniture and fixtures could not be saved. The matter was reported to police. OP was also informed. On receipt of the information, OP had deputed M/s. Adarsh Associates as Surveyors and Loss Assessor for assessment of loss. Surveyor had inspected the premises and examined the record. Complainant also produced its record from different departments and other sources to the surveyor. The surveyor submitted report dated 16.09.2010 wherein net loss in respect of plant and machinery was assessed as Rs.5,36,899/-. The surveyor also assessed the loss in respect of stocks to the tune of Rs.1,05,845/-. Further, the surveyor assessed the net loss in respect of building to the tune of Rs.1,98,114/-.
3. It is alleged that surveyor had assessed the loss without any basis in a mechanical manner. It is alleged that requisite material/documents were provided to the surveyor despite that he was bent upon to assess the loss at a very lower side. It is stated that OP had paid Rs.6,48,783/- on 05.03.2011 towards loss assessed in respect of plant, machinery & stocks and Rs.1,88,000/- on 25.11.2011 towards loss assessed in respect of building. It is stated that the assessment has not been properly done, therefore, complainant has filed present complaint wherein following prayers are made:

 

1. To pay Rs.28 lakhs towards stocks, plant and machinery (less the amount paid towards claim) with interest @18% per annum from the date of fire alongwith Rs.1 Lakh towards the delay in settling the claim and hardship faced by the complainant, till the date of realisation.

 

2. To pay an amount of Rs.12,00,000/- towards building, with interest @18% per annum less the amount already paid from the date of fire in favour of complainant and against the OP alongwith Rs.1 lakh towards the delay in settling the claim and hardship faced by the complainant, alongwith Rs.44,000/- towards the costs of litigation, in the interest of justice minus Rs.1,88,000/-

 

 

 

4. Complaint was opposed by the OP by filing written statement wherein it is admitted that complainant had taken aforesaid two policies from the OP. The incident of fire as alleged is also admitted. It is stated that on the basis of scrutiny of various information and documents provided by the insured and observation made at the site and discussion had with the surveyor, the surveyor submitted its report dated 16.09.2010. It is stated that vide said report the surveyor has stated that the insured had claimed Rs.12,00,000/- towards cost of repair of building, Rs.5,00,000/- towards cost of damaged stocks, Rs.22,00,000/- towards loss for plant and machinery and Rs.1,00,000/- for loss of FFF. It is stated that while assessing the loss to the building, the surveyor had observed that the insured neither had ownership rights nor insurable interest in the building and thus accordingly, the surveyor observed that the estimate of Rs.12,97,194/- prepared on total loss basis was not payable. In order to calculate the loss, the surveyor considered the cost of repair/damage to building at 2^nd floor and assessed the loss of Rs.2,49,517.74 and thereafter deducted 20% towards depreciation i.e. 49,903.51 as the building was constructed in 2001 and Rs.1500/- as salvage. The surveyor thus assessed net adjusted loss in respect of building as Rs.1,98,114.03.  It is stated that while assessing loss in respect of plant and machinery, surveyor observed that the complainant was not having any record for capitalisation/original bills for the purchase of plant and machinery and accordingly  worked out replacement cost of entire plant and machinery as per quotations/estimates made available by the insured and thereafter adjusted 10% negotiation margin and added 5% for freight, commissioning etc. and assessed to loss to be tune of Rs.19,34,774.10 and thereafter deducted 70% depreciation and 7.5% towards salvage and calculated the net loss of Rs.5,36,899.81.
5. It is stated that while assessing the loss in respect of furniture, fixtures and fittings for which insured claimed a sum of Rs. 1,00,000/-, the surveyor observed that insured did not provide any details/quotations for the same. The surveyor carried out assessment of loss on estimation basis keeping in mind damage quantity of physical verified items and cost as per prevailing rates, the surveyor assessed loss of Rs. 30,195/- and after deducting 35% towards depreciation, calculated loss as Rs.10,586.25/-. While assessing loss in respect of stock it is stated that surveyor had given a detail analysis in the report and assessed loss of Rs.1,05,346/-.
6. It is stated that in terms of surveyor report, OP has settled the claim of complainant for Rs.6,48,783/- with respect to loss in respect of plant and machinery and FFF and stock and Rs.1,88,114/- as loss assessed for building. It is stated that complainant has accepted aforesaid amount by duly executing discharge voucher in full and final settlement of all the claims and said amount has already been realized by the complainant in full and final settlement of his claim and has filed false and frivolous complaint which is liable to be dismissed.
7. Complainant has filed rejoinder to the written statement of OP wherein he has stated that due to fire accident he had come under heavy debts and the bankers were pressing for recovery of loan amount. He was having no option but to accept the cheques under compelling circumstances. After receiving the amount, he had issued a protest letter and sought re-assessment also by some other surveyor.  Complainant has controverted the allegations of the OP about the assessment being done on the basis of material provided by the complainant and has reiterated the facts as are stated in the complaint. 
8. Both the parties filed evidence in the form of affidavits. Complainant filed his own affidavit reaffirming the complaint case on oath.  Complainant has proved on record, copy of policy bearing No.271900/11/2010/254 Ex. CW -1/1; copy of policy bearing No.271900/11/2010/338 Ex.CW -1/2; copy of police report Ex.CW -1/3; photographs Ex.CW -1/4(Colly); copy of surveyor report Ex.CW -1/5; copy of list of machinery Ex.CW -1/6(Colly); copy of letter dated 14.05.2010 of Shri Hanuman Textiles Ex. CW -1/7; notice issued under Section 13(2) of SARFAESI Act from Canara Bank for recovery of loan Ex. CW -1/8 (Colly) and copy of opinion taken by OP from their advocates Ex. CW -1/9 (Colly). 
9. OP has filed evidence by way of affidavit of its Regional Manager, Shri Subhash Sharma, wherein contents of written statement are reiterated on oath. He has also placed on record copy of both the policies Ex.OPW1; copy of discharge vouchers and vouchers of OP for disbursement of claim amount Ex.OPW2 (Colly).
10. Parties have also filed written arguments. We have heard the counsel for the parties as well as gone through the written arguments including material on record.
11. It is admitted position that complainant has taken aforesaid two policies from the OP. The fire incident at the complex of complainant is also admitted. The amount of Rs.6,48,783/- and Rs.1,88,114/- respectively having been received by the complainant from OP is also admitted. Accordingly to complainant the surveyor has not assessed the loss properly. The stand of OP is that the complainant after having voluntarily received an amount of Rs.836,897/- in full and final settlement from the OP is precluded from raising any further demand from OP. It is contended that discharge vouchers are executed by the complainant without any force, coercion, misrepresentation etc. OP has relied upon the discharge vouchers executed by the complainant wherein it is stated that complainant is voluntarily giving discharge receipt to the company in full and final settlement of all his claims present or future arising directly/indirectly in respect of the said loss/accident and also subrogating all his rights and remedies to the company.
12. It may be mentioned that the complainant has no where mentioned in the complaint about full and final settlement and execution of discharge vouchers as is stated by the OP. However, when the aforesaid averments were made by the OP in the written statement, complainant in the rejoinder has stated that due to fire incident he was under heavy debt and the bankers were pressing for recovery of loan as such he was having no option but to accept the cheques. However, no such plea is stated in the complaint, rather in the complaint, complainant has concealed the material fact of execution of discharge vouchers in full and final settlement. Though in the rejoinder plea is taken that he raised protest and written subsequently requested for re-assessment, however, no such document in this regard is placed on record by the complainant. The plea raised is an afterthought.
13. The law on the question whether or not an insured is stopped from making any further claim after accepting the amount offered by the Insurer in full and final settlement of all the claims, by executing the discharge voucher, is well settled. It is trite that if the consumer can satisfy a Fora that the discharge voucher or receipt had been obtained from him by fraud, coercion, undue influence, etc., mere execution of a discharge voucher/receipt would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amout paid in default of the service rendered. If the concerned Forum is satisfied that the said document was signed under any of the circumstances, it would be justified in ignoring such voucher etc. and in granting appropriate relief. However, if such voucher or receipt is found to have been executed voluntarily, the claimant will be bound by it, resulting in rejection of complaint. Reliance is placed on the judgments of Hon’ble Supreme Court titled United India Insurance Co. Ltd. V. Ajmer Singh Cotton & General Mills and Ors., II (1999) CPJ 10 (SC) and National Insurance Co. Ltd. v. Nipha Exports (P) Ltd., IV (2006) CPJ 17 (SC).

 

14. In the present case complainant has not approached this Commission with clean hands. Complainant has not even disclosed about execution of discharge vouchers in the complaint or in the evidence filed by way of affidavit. The payment of Rs. 8,36,897/- by OP to complainant is admitted. There are no allegations that the OP had pressurized complainant or exercised undue influence for acceptance of aforesaid amount. There is no evidence of protest having been raised by complainant at any point of time prior to filing present complaint. The acceptance is voluntary. Once the insured has accepted the amount in full and final settlement of all his claims, he is estopped from raising any further claim and settlement constitutes a binding contract between the parties unless it is shown that the same was influenced by use of coercion, fraud, undue influence etc. Complainant has not alleged any kind of such allegations against the OP in complaint/evidence by way of affidavit. In rejoinder complainant has alleged about his own compelling circumstances. Even the same are not stated in complaint case or evidence by way of affidavit. The allegations in this regard are also afterthought. In any event, it is not his stand that respondent/OP was not ready to pay him without signing the discharge vouchers. Further, it may be mentioned that complainant had received the aforesaid amount on two different dates i.e. 05.03.2011 and 25.11.2011 respectively and the complaint is filed on 22.12.2012 i.e. after a gap of substantial period. The complainant has also concealed material facts from this Commission also about having settled the claim and receiving the payment in full and final settlement. The complainant has not approached this Commission with clean hands and withheld important information which goes to the root of the matter. In Amar Singh v. Union of India (UOI) & Ors. (2011) 7 SCC 69, it has been held as under:
    1.  

 

15. In view of above discussion, we find that insurance claim has been finally settled by OP by paying a sum of Rs. 8,36,897/- by way of two cheques as stated above. Complainant has already accepted the same in full and final settlement by executing discharge vouchers voluntarily. The complainant is not entitled of any relief. Accordingly, the complaint stands dismissed.
16. A copy of this order as per statutory requirements be sent to the parties free of charge.  Thereafter the file be consigned to record room.

(Justice Veena Birbal)​

President