1. The present Complaint is filed under Section 21(a)(i) of the Consumer Protection Act, 1986. 2. The Complainant is a Partnership Firm running a Dal Mill C-36/4, Lawrence Road, Delhi-110034. The Complainant had obtained two Policies (i) Burglary – Standard Policy bearing No. 271400/48/2014/574 and (ii) Standard Fire & Special Perils Policy bearing No.271400/11/2014/170 valid from 01.05.2013 to 30.04.2014, for insured sum of Rs.2,75,00,000/- each. The Policies covered the risk on stock of raw-material, finished and unfinished goods, stocks in process, material used for packing and manufacturing of dal lying/held in trust or in joint account. 3. The case of the Complainant is that on 11.07.2013 at about 10:30 PM fire broke out in the factory of the Complainant resulting in heavy damage to the stock of finished goods, goods under process, unfinished goods, material used for packing of dal lying in the factory. The Complainant intimated the fire incident to the Opposite Party on telephone followed by an e-mail, dated 12.07.2013. The Opposite Party appointed M/s Ravi Singhal & Associates Pvt. Ltd. as Surveyor to investigate and assess the loss. The Surveyor visited the site of fire on 12.07.2013, 13.07.2013 and 14.07.2013 for inspection and assessment of loss. The Complainant submitted a Claim Form, dated 15.08.2013, with estimate of loss of Rs.2,36,36,830/-. The Opposite Party, vide letter dated 28.03.2014, informed the Complainant that the Competent Authority had approved the claim of Rs.1,54,00,000/-. Alongwith the said letter, the Opposite Party also sent a blank discharge voucher for full and final settlement. The Complainant, vide e-mail dated 09.04.2014, protested the manner of settlement of claim and deduction of Rs.21,22,892/- from the assessment of Rs.1,75,22,892/- made by the Surveyor. The Opposite Party, vide letter dated 22.05.2014, asked the Complainant to accept the claim in full and final settlement and execute the discharge voucher. Being hard pressed and in dire need of money, the Complainant accepted the claim of Rs.1,54,00,000/- and signed the discharge voucher under protest. The Opposite Party returned the conditional discharge voucher to the Complainant and sought them to send discharge voucher without mentioning their protest. The Complainant, under coercion, signed the unconditional discharge voucher. Thereafter on 27.05.2014, the Opposite Party released an amount of Rs.1,53,76,039/- to the Complainant through RTGS. On 27.05.2014, the Complainant sent a representation raising objections to the Surveyor Report seeking payment of 85 lakhs with interest. In the representation the Complainant stated that the Surveyor deducted an amount of Rs.4,30,408/- towards salvage, whereas there was no salvage as the destroyed commodity was dumped with zero salvage. The Complainant also objected to the deduction of the safe stock from the amount claimed, which should have been deducted from the total stock before the incident of fire i.e. from Rs.2,75,04,37.37/- (as per the Audited Balance Sheet). The Surveyor further deducted Rs.9,93,602/- towards dead stock, though there was no dead stock, as they are fast moving items. On 26.06.2014, the Complainant sent a legal notice on the Opposite Party calling upon them to pay an amount of Rs.85 lakhs with an interest of 18% p.a. on the amount of Rs.2,36,,36,830/- for delayed partial payment. The Opposite Party, vide reply dated 11.07.2014, justified the settlement of claim in full and final settlement at Rs.1,54,00,000/- and asked the Complainant to withdraw the said notice. Aggrieved by the response of the Opposite Parties, the Complainant invoked Arbitration Clause and appointed Shri D.K. Jain as Arbitrator. Since, Opposite Party did not raise any objection to the appointment of the sole Arbitrator, the Complainant, vide letter dated 02.09.2014, requested the Sole Arbitrator Shri Jain to proceed with the matter and decide the dispute between the parties. The Arbitrator issued the notice to the Opposite Party fixing 11.10.2014. The Insurance Company then, vide letter dated 20.09.2014, objected to the appointment of Sole Arbitrator. The Complainant filed a petition under section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator, before the High Court. The said petition, Arb. P. No. 536 of 2014 was dismissed by the Hon’ble High Court. The Complainant challenged the said order before the Supreme Court of India in SLP (C) No. 19156 of 2015. Hon’ble Supreme Court, vide order dated 07.09.2015, dismissed the SLP. This led to filing of the instant Consumer Complaint with the following prayer:- “a] direct the Opposite Parties to pay to the complainant the balance amount of Rs.82,60,791/-; b] direct the Opposite Parties to pay to the complainant, interest at the rate of 24% p.a. on the said unpaid amount of Rs.2,36,36,830/- with effect from the date of lodging of claim till its realization ; c] direct the Opposite Parties to pay to the complainant, interest at the rate of 24% p.a. on the amount of Rs.1,53,76,039/- with effect from the date of lodging of claim till it was paid on 27.05.2014; d] direct the Opposite Parties to pay to the complainant, an amount of Rs.1,00,000/- towards mental torture and harassment, etc.; e] direct the opposite parties to pay to the complainant Rs.2,00,000/- as costs of litigation; f] direct the Opposite Party to pay interest at the rate of 24% upon the above said amount and/or g] pass such other order or orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.” 4. The Opposite Party resisted the Complaint by filing written statement contending that the Opposite Party had approved the claim as per the Survey Report. The claim of Rs.1,53,76,309/- was paid through RTGS in the account of the Complainant on 27.05.2014. Hence, there was no deficiency in service on the part of Opposite Party. It was stated that the competent authority of the Opposite Party had approved the payment taking into consideration the final assessment made by the Surveyor and claim bills as forwarded by the Complainant mentioning the value of stock in amount only and not in quantity. The amount of Rs.1,54,00,000/- was finally paid subject to deduction of reinstatement premium, recovery from co-insurers, if any, payment to be made as per Agreed Bank Clause and completion of usual formalities. The IRDA Circular dated 24.09.2015, relied on by the Complainant was not applicable in this matter, as the Circular would not have retrospective effect. Further, no material was placed on record by the Complainant to show practice of fraud, coercion, duress or undue influence to get the Complainant to accept Rs.1.54 crores. The Opposite Parties stated that the Complainant himself consented and finalized the claim amount and gave a clean discharge without any qualification, accepting receipt of the amount in full and final settlement of the claim. 5. It was also stated that the Complainant did not fall within the definition of person under the Consumer Protection Act, 1986, hence cannot qualify to be a ‘Consumer’ within the meaning of Section 2 (1) (d) of the Act. The Complaint was, therefore, not maintainable. Also, the amount of Rs.82,60,791/- claimed by the Complainant was much less than the pecuniary jurisdiction of this Commission. 6. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for Complainant submitted that the stock available with the Complainant on the date of the incident was Rs.2,75,04,307/- and the Insured had submitted a claim for Rs.2,75,04,307/-. The Surveyor submitted his report dated 16.01.2014, whereby he assessed the loss to the tune of Rs.1,98,72,048/- and thereafter erroneously deducted amounts under heads of “dead stock” and “salvage”. However, there was no dead stock in the process of Dal. The Complainant provided the documents relating to the price of Dal. The Opposite Party, however, took random cost price for different varieties of Dal and settled the claim at Rs.1,54,00,000/- to which the Complainant strongly resisted and sent a protest letter. The Opposite Party also failed to show how they arrived at the figure of Rs.1,54,00,000/-. 7. Learned Counsel for the Opposite Party submitted that the Complainant is not a “Consumer” under Section 2 (1) (d) of the Consumer Protection Act, 1986. The Learned Counsel further submitted that the claim made by the Complainant was much less than the pecuniary jurisdiction of this Commission. The Complaint is, thus, not maintainable for want of pecuniary jurisdiction. 8. On merits, the Learned Counsel for the Opposite Party submitted that the Opposite Party approved the claim of the Complainant taking into consideration the final assessment made by the Surveyor and the claim bills submitted by the Complainant mentioning the value of stock. In the estimate provided to the Surveyor, the Complainant indicated the value of the stock, without mentioning the quantity thereof. The Opposite Party took the quantity as per the stock register. It was also submitted that as far as settlement of the claim is concerned, the Complainant approached Hon’ble High Court at Delhi for appointment of an Arbitrator. Hon’ble High Court went into the issue of settlement of claim and dismissed the petition filed by the Complainant. The Complainant challenged the said order in SLP before Hon’ble Supreme Court and the Supreme Court dismissed the SLP. The instant Complaint is, thus, barred by the principle of res judicata. The Learned Counsel placed its reliance on the judgments of this Commission in Ajay Verma vs United India Insurance Co.Ltd. (RP No. 2911/2010) decided on 28.04.2011; National Insurance co. ltd. vs. Kuka Rice General Mills {2008(1) CPC 28 (Haryana)}; M/s Markande Textile vs. New India Assurance Co. Ltd. & Ors. (RP No. 3320-3321 of 2010, decided on 12.05.2011). 9. Admitted facts of the case are that the Complainant is running a Dal Mill, which was insured vide two Policies, viz. (i) Burglary – Standard Policy bearing No. 271400/48/2014/574 and (ii) Standard Fire & Special Perils Policy bearing No.271400/11/2014/170 valid from 01.05.2013 to 30.04.2014 with an insured sum of Rs.2,75,00,000/- each. A fire broke out in the factory of the Complainant at C-36/4, Lawrence Road, Delhi at 10:30 P.M on 11.07.2013 causing damage to the property, plant, machinery and stock of the Complainant. The Opposite Parties after being intimated about the fire on 12.07.2013, appointed M/s Ravi Singhal & Associates as Surveyor to assess the loss. The Complainant submitted claim for loss aggregating to Rs.2,36,36,830/- on 15.08.2013. Since the Opposite Party did not settle the claim, the Complainant approached the High Court for appointment of an Arbitrator, which was dismissed. While dismissing the Petition, Hon’ble High Court observed as follows: - “In the considered view of the Court, a conscious decision was taken by the Petitioner on 22nd May, 2014 to sign the discharge voucher and accept the amount of Rs.1.54 crores as full and final settlement of its claim. It appears to the Court that the plea set up by the Petitioner that it was subjected to “fraud, coercion, duress or undue influence” by OICL and compelled to sign the discharge voucher is indeed a bald one and not convincing.” Against the order of the High Court, the Complainant filed SLP before Hon’ble Supreme Court, which was also dismissed. 10. As far as maintainability of the Complaint is concerned, this Commission in Harsolia Motors v National Insurance Company Ltd. [I (2005) CPJ 26 (NC)] has held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The Complainant is a “Consumer” and the Complaint is maintainable. 11. The Opposite Parties have also challenged the Complaint on the ground of pecuniary jurisdiction. In the prayer clause of the Complaint, the Complainant has claimed an amount of 82,60,791/-, alongwith interest @ 24% p.a. alongwith compensation of Rs.1 lakh and litigation cost of Rs.2,00,000/-. As the total amount claimed in the Complaint exceeds Rs.1 crore, the Complaint is maintainable. 12. On merits, it is noted that the Complainant had accepted the amount in full and final settlement of the claim. Admittedly, the Complainant also signed the discharge voucher. In M/s Bhagwati Prasad Pawan Kumar v. Union of India [2006-03 PLD 76 (SC)] Hon’ble Supreme Court held that the protest of non-acceptance must be conveyed before the cheque is encashed. After signing the discharge voucher and accepting the amount in full and final settlement, the Complainant is not permitted to raise the plea that the amount was accepted under protest. In the instant case the discharge voucher was executed and the Complainant had not alleged any fraud, undue influence, misrepresentation or the like, though, the Complainant alleged that the discharge voucher was signed under coercion. The Complainant had not produced any evidence oral or documentary to prove that there was any coercion on the part of the Opposite Party. The Complainant alleged that the Opposite Party, vide letter dated 22.05.2014, pressurized the Complainant that in case the Complainant did not accept the amount in full and final settlement, the amount would not be released. Letter dated 22nd May, 2014 issued by the Opposite Party reads as follows: - “1. The points raised by you relate to reporting by the final surveyor. At this juncture it is difficult for us to request the surveyor to revisit the issues raised by you e.g. ascertaining stock position as on the date of loss, evaluating its correlation and confirmation through various documents, value of salvage etc. 2. Regarding deduction of several quantity from the Total Stock, you have indicated the stock position at the time of loss for different varieties of Dal in the claim bill. As per claim bill saved quantity was nil which meant that the entire stock was lost in the fire and/or fire fighting operation and claim was made for entire stock valued at Rs.2,36,36,830.00. 3. Though you have stated in the claim bill that nothing was saved after the incident, the surveyors have reported that some quantity of Dal was saved viz 1024 qtl Malka, 521 qtl dal and 342.10 qtl Masoor friction etc. This quantity was deducted from the total stock shown in the claim bill and the balance was approved for final settlement. 4. Salvage of Rs.4,30,408/- was deducted from the assessment as per the recommendations of the final surveyors. 5. Hence, the amount offered to you i.e. Rs.1,54,00,000/- towards full and final settlement is in order. Kindly submit the Discharge Voucher duly signed and completed to enable us to release the payment.” 13. Reading of the aforesaid letter shows that there is not even a whisper about pressurizing the Complainant to accept the amount in full and final settlement as alleged by the Complainant. Rather the Opposite Party had clarified the issues raised by the Complainant. In the discharge voucher dated 22nd May, 2014 signed by the Complainant, the Complainant accepted the amount in full and final settlement of the claim. The word “UNDER PROTEST” is written at the bottom of the discharge voucher below the signature of the Complainant and the stamp of the Bank. Another discharge voucher filed by the Complainant, is undated and unconditional, signed by the Complainant in full and final settlement of the claim. It is not the case of the Complainant that they did not sign second discharge voucher. After signing the discharge voucher and accepting the amount in full and final settlement, the Complainant is not permitted to raise the plea that the amount was accepted under protest. 9. In view of the foregoing discussion, we find no merit in the Complaint and the same is hereby dismissed with no order as to costs. |
