Haryana

Yamunanagar

CC/644/2010

M/s Assam Plywood Industry - Complainant(s)

Versus

Oriental Insurance Co.Ltd. - Opp.Party(s)

S.P.Nagla

26 Jul 2016

ORDER

                                               

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

 

                                                                                         Complaint  No.  644 of 2010.

                                                                                         Date of Institution:08.07.2010.

                                                                                         Date of Decision: 26.07.2016

 

M/s Assam Plywood Industry, Village Raipur, Khajuri Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar through its Partner Sh. Anil Gupta aged 42 years son of Sh. Telu Ram Gupta, r/o H. No. 99, Uttan Gali, Lal Dwara Colony, Yamuna Nagar. 

                                                                                                                                 ... Complainant.

                                                            Vs.

The Oriental Insurance Company Ltd. Divisional Office Opposite Madhu Hotel, Yamuna Nagar, through its Divisional Officer.  

 

                                                                                                                   ... Respondent.

 

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present:-          Sh. Harinder Kumar proxy counsel for complainant.

Sh. Parmod Gupta Advocate, counsel for respondent.  

 

ORDER:

 

1.                     Complainant has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent ( hereinafter referred as OP) be directed to make the payment of Rs. 19,60,000/- alongwith interest on account of loss of raw material i.e. face veneer, pine wooden plank (dry), pine wooden frames, electric motors and pumps, dated on 19.06.2008 due to flood water entered into the factory premises alongwith compensation and litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant firm, are that complainant is a partnership concern having its factory premises situated at Village Rairpur and has been running its business and Sh. Anil Gupta is one of its partners and is competent to file the present complaint on behalf of firm. The complainant used to get the insurance coverage from the OP Insurance Company against raw material and machinery etc. belonging to the complainant  factory which were got insured by the complainant with the OP Insurance Company vide cover note No. 194802, 194803, 194804, 558026, 558027 & 558028 dated 12.12.2007 valid upto 11.12.2008. On 19.06.2008, there was heavy rain in village Raipur, Khajuri Road, Yamuna Nagar where the factory premises  of the complainant is situated, as a result of which flood water entered into the factory premises of the complainant and water blocked in the factory. On 19.06.2008, there was stock of raw material to the tune of Rs. 40,74,700.76 as per account books maintained by the complainant in its ordinary course of business, out of which raw material to the tune of Rs. 23,89,193.30 lying in the factory premises of the complainant was damaged due to flood water entered into the factory, besides this, one electric motor of 30 HP and two motors of 7.5 HP and pumps valuing Rs. 63,140/- were also damaged. The matter was reported to the police, P.S. Sadar, Yamuna Nagar regarding damage of abovesaid raw material and electric motors and pumps and a rapat No.12 dated 23.06.2008 was recorded by the police. Halqa Patwari also made a report in Rojnamcha Vakyati regarding heavy rain in village Raipur, which falls in Patwar Circle Pansra. The complainant also intimated the OP Insurance Company and the OP Insurance Company deputed Rajan Sharda, Surveyor & Loss Assessor, who visited the factory premises of complainant and had taken photographs of the damaged raw material, electric motors, pumps and prepared the detail thereof and a sum of Rs. 48,500/- were incurred by the complainant towards loading, unloading, freight and weighing charges. The Surveyor wrote a letter dated 26.6.2008 to the complainant requiring the complainant to furnish certain documents and in compliance of the abovesaid letter, the complainant furnished requisite documents and completed all the formalities. The detail of loss suffered by the complainant for raw material was amounting to Rs. 23,89,193.30 and loss of machinery was Rs. 63,140/- and expenses incurred during survey of loss Rs. 48,500/-. In this way the complainant has suffered a total loss of Rs. 25,00,833.30.  The complainant visited so many times to the office of OP Insurance Company but they put off the matter with one pretext or the other and lastly a sent a cheque dated 04.04.2010 amounting to Rs. 2,26,929/- which has been received by the complainant towards part payment of claim amount and amount of said cheque has been got realized by the complainant. The complainant is entitled to balance claim amount of Rs. 22,73,904.30 after adjustment of part payment of Rs. 2,26,929/- through cheque but the complainant claims only Rs. 19,60,000/- as claim amount towards value of raw material, electric motors and pumps, damaged due to flood and expenses alongwith upto date interest. Hence, this complaint.   

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as claim petition is not maintainable and is liable to be dismissed; Sh. Rajan Sharda Independent Surveyor and Loss Assessor was appointed from Chandigarh who gave his fact finding calculated report dated 28.08.2009 and as per his report and by applying the average clause etc. a sum of Rs. 2,26,929/- was found payable which stands paid to the claimant on 01.04.2010 through cheque which stand received without protest by the complainant under the seal and signature and they signed a clear discharge voucher as full and final settlement of the claim. Since the complainant has once taken the claim in full and final settlement and now they cannot reagitate this issue again; the claimant has claimed more than Rs. 20,00,000/- so the claim petition before this Forum is not maintainable and on merit it has been submitted that the Op has no knowledge whether any flood had taken place, however, on receiving an intimation from the claimants vide their letter dated 19.06.2008 under policy No. 261700/11/2008/509 & 510 for an estimated loss as Rs. 5,00,000/- then an independent surveyor and Loss Assessor Rajan Sharda was appointed who after going through the account books and the material available in the premises gave his fact finding report dated 28.08.2009 by which he had observed that stock was under insured and the average clause was applied and after calculation a sum of Rs. 2,26,929/- was found payable and a cheque was prepared which stand received by the complainant under their signature on the claim payment voucher and also signed the clear discharge voucher in token of receiving the full and final settlement of the claim and denied the remaining fact that the loss suffered by the complainant was Rs. 23,89,193.30 as well as spending Rs. 48,000/- for getting the material towards loading, unloading, freight and weighing charges. Lastly, prayed for dismissal of complaint.  

4.                     To prove the case, complainant tendered into evidence his Affidavit as Annexure CX and documents such as Photo copy of Cover Note as Annexure C-1, Photo copy of detailed estimate of loss as Annexure C-2, Photo copy of voucher amounting to Rs. 2,26,929/- dated 06.04.2010 as Annexure C-3, Photo copy of letter dated 26.06.2008  as Annexure C-4, Photo copy of DDR No. 12 dated 23.06.2008 as Annexure C-5, Photo copy of Rapat Rozmacha of Patwari as Annexure C-6, Photo copy of stock report from 01.04.2008 to 19.06.2008 as Annexure C-7, Photo copy of statement of account from 01.04.2008 to 30.06.2008 on account of Electricity Expenses as Annexure C-8  and closed his evidence.  

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Sh. R. S. Kalra, Divisional Manager, Oriental Insurance Company ltd. Yamuna Nagar as Annexure RX, and documents such as photo copy of insurance policy as Annexure R-1, Photo copy of discharge voucher as full & final  loss as Annexure R-2, Photo copy of Misc. claim scrutiny Form as Annexure R-3, Photo copy of surveyor report as Annexure R-4 and closed the evidence on behalf of the OP-insurance company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. Counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the OP Insurance Company reiterated the averments made in the reply and prayed for its dismissal.

7.                     From the perusal of the documents, it is clear that the factory in question of the complainant was insured with the OP Insurance Company during the period when the incident took place. The OP Insurance Company settled the claim of the complainant to the tune of Rs. 2,26,929/- which was paid vide cheque bearing No. 110093 dated 01.04.2010 to the complainant firm and lastly prayed for acceptance of the complaint seeking direction to pay the remaining amount/balance amount of Rs. 22,73,904.30 after adjustment of the part payment of Rs. 2,26,929/-. However, in the prayer clause the complainant has claimed an amount of Rs. 19,60,000/- as balance amount/remaining amount from the OP Insurance Company. Learned counsel for the complainant argued that insurance company harassed the consumer by compelling him to sign discharge voucher in full and final settlement of the complainant and the insurer cannot be permitted to take illegal way for seeking redressal of grievances and cannot demand to sign voucher in full and final settlement of the claim and draw out attention towards another citation titled as National Insurance Company Ltd. Versus Ajay Kumar, 2008(II) CPJ page 381. Learned counsel for the complainant further referred the case law titled as V.V.Textile Versus M/s Mahavir Fabrics, 2002(1) Civil Court Cases page 475 wherein it has been held that firm- None registration- Objection not raised in written statement- Court cannot suo motu dismiss the suit on ground of non registration- Objection regarding non registration must be specifically pleaded and proved- Otherwise it must be deemed to be waived. Learned counsel for the complainant also argued that claim of the complainant has been settled by the Insurance Company after near about a period of 1 ½ years which constitute deficiency in service on the part of OP Insurance Company and prayed for acceptance of complaint.

8.                     On the other hand, learned counsel for the OP Insurance Company hotly argued that the claim of the complainant firm has been settled as per surveyor report (Annexure R-4) and the same amount to the tune of Rs. 2,26,929/- has already been paid to the complainant vide cheque No. 110093 dated 01.04.2010 being full and final payment. The complainant has not received the payment under protest rather the complainant firm was fully satisfied with the payment made by the OP Insurance Company. The complainant has also given consent and executed discharge voucher without any protest on 01.04.2010 (Annexure R-2) which was duly signed by the partner of the firm with its seal in favour of Insurance Company that he has accepted Rs. 2,26,929/- in full satisfaction and discharge all claims upon them under policy bearing No. 261700/11/2008/509 and 510. Further learned counsel for the OP Insurance Company also draw out attention towards the citation titled as New India Insurance Company versus Assam Ply Wood, 2010(1) CPC page 159 and titled as The Lala Urban Co.op. Bank Ltd. Versus United India Insurance Co. Ltd. & Others, 2015(3) CLT Page 8 and further referred the case law titled as Ankur Surana Versus United India Insurance Co. Ltd. & Others, 2013(1) CPC page 410 (NC) and also referred the case law titled as K.B Sport Wear Goods World Wide Versus New India Assurance Co. Ltd. 2013(1) CPC page 311 in which it has been held that Consumer Protection Act 1986- Section 21(a)(ii)- Insurance Claim- Full and final settlement- Complainant had signed the discharge voucher accepting full and final settlement of claim- State Commission dismissed the complaint giving rise to present appeal- it was pleaded by the appellant that he had signed the voucher as he had no means of subsistence- This plea is not acceptable- Reasoning given by the State Commission is based on valid grounds- No fault can be found with the impugned order- Appeal dismissed.

9.                     Learned counsel for the OP Insurance Company further argued that the present complaint has been filed by the firm through its one partner Sh. Anil Gupta and no registration certificate has been filed by the complainant, hence complaint of the complainant is also liable to be dismissed on this ground whereas as per the latest  law of the Hon’ble National Commission titled as Jewels Emporium Versus Chairman-cum-Managing Director, the New India Assurance Co. Ltd. 2015(3) CLT page 184 wherein it has been held that a partnership firm can file a complaint in case it is a registered partnership firm in its own name and complaint can be signed by one of its partner- A certificate of Registrar of Firm is necessary for this purpose- If it is not a registered partnership firm then all the partners of this firm were required to sign the complaint.

10                    Further, learned counsel for the OP argued that an amount of Rs 2,26,929/- was found payable which was assessed by the independent surveyor and loss assessor taking into all the circumstances and considering the facts from all corners vide his report dated 28.08.2009 (Annexure R-4). The complainant has totally failed to adduce any cogent evidence to controvert the report of the surveyor. The surveyor report is an important document and cannot be burst aside easily without valid justification whereas it is a settled law that credence should be given to the surveyor report in the absence of any ambiguity or contradiction in the report. The same view has been held in case titled as Biplab Majumder Versus Divisional Manager, United India Insurance Co. Ltd. 2015(3) CLT page 434.

11                    Further, learned counsel for the OP argued that the complainant has claimed an amount of Rs. 25,00,833.30 whereas this Forum has jurisdiction to entertain and try the complaint involving the financial value up to Rs. 20,00,000/-. In this way also the complaint of the complainant is liable to be outrightly dismissed. Lastly prayed for dismissal of complaint.

12                    After hearing both the parties, we are of the considered view that the complainant has received the claim in full satisfaction and discharged of all claims without lodging any protest with the OP Insurance Company which is duly evident from the discharge voucher Annexure R-2. The complainant has not made any complaint against the Op Insurance Company that it has committed fraud or mis-representation in releasing the claim to the complainant. From the perusal of receipt discharge voucher Annexure R-2, it is clear that complainant has received the payment of claim gladly without any protest. Besides this, the complainant has not explained the reason in the complaint that in what circumstances he has signed the discharge voucher. The complainant has also failed to prove that signature on the discharge voucher were taken by the OP Insurance Company by misrepresentation, fraud or by exercising due influence or coercion. So, in these circumstances, the complainant cannot file the complaint for payment of balance amount, if any, after receiving the full and final payment of claim. The same view has been held in citation titled as M/s Kundan Rice Mills Limited Versus United India Insurance Co. Ltd. 2015(3) CLT Page 451 wherein it has been held that Insurance Claim- Discharge voucher- Full and final settlement- Held- It is not the case of the complainant that it was in such a severe financial hardship that it had no option but to accept the offer made by the insurance company- Nothing prevented the complainant from approaching this Commission instead of executing a discharge voucher in favour of the insurance company and seeking an interim order for payment of the amount, which the insurance company had offered to the complainant- Complaint was filed about one year and five months after accepting the amount of Rs. 93,90,000/- from the insurer- Complaint dismissed.  The Authorities (supra) tendered by the counsel for the complainant are not disputed but not helpful in the present case whereas the Authorities (supra) tendered by the counsel for the OP are fully applicable in the present case because the complainant has not lodged any protest or complaint against the OP Insurance Company for committing fraud at any level in making the payment of claim. Even the complainant has not mentioned an iota of word in his complaint that the complainant received the settled amount and executed discharge voucher under protest.

13                    Even on the merit also, the complainant has totally failed to point out any discrepancy or ambiguity in the surveyor report who assessed the loss suffered by the complainant after taking into consideration all the facts and circumstances. It is a settle law that credence should be given to the surveyor report being an authentic document as only the surveyor is best person to assess the loss ( If any).

14                    In the circumstances noted above, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OP Insurance Company and the claim of the complainant firm has been rightly settled by the Op Insurance Company.

15                    Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 26.07.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER