Delay of 33 days in filing the appeal is condoned. Complainant/appellant set up a service station at ‘Kunplate, Post Office Galot, Swaraghat Road, District Solan, H.P.’, for which he constructed a building worth Rs.27 Lac and also purchased equipment, tools and stocks in trade worth Rs.9 Lac. He got the building and the stocks insured with the respondent for a sum of Rs.25 Lac (i.e. Rs.16 Lac for the building and Rs.9 Lac for the stocks). Duration of the insurance policy was from 13.07.2010 to 12.07.2011. On 30.07.2010, there was a heavy rain which caused landslide on the hill side of the building, as a result of which the entire building together with stocks kept therein got completely damaged. Respondent settled the claim for Rs.15,91,035/- which was accepted by the appellant. Appellant filed the complaint before the State Commission seeking payment of the balance amount. According to him, nothing had been assessed or paid for the loss caused to the tools, furniture, fixtures etc. Respondent on entering appearance took the stand that the loss had rightly been assessed at Rs.15,91,035/- by the Surveyor which was accepted by the complainant/appellant in full and final satisfaction; that since the appellant had accepted the amount in full and final settlement, the complaint filed by him for balance of amount was not maintainable. -3- State Commission dismissed the complaint on three counts and held that the appellant had accepted the sum of Rs.15,91,035/- voluntarily without any undue pressure or coercion; that since the appellant had accepted the aforesaid amount voluntarily the complaint filed by him was not maintainable; that the value of the building had been assessed at Rs.28,92,349/- whereas the appellant had got the building insured for Rs.16 Lac. Applying the Average Clause of Under Insurance, appellant was entitled to Rs.13,96,705/- towards the loss to the building. It was further held that the appellant had got only saleable stocks insured and not the tools, furniture and fixtures etc. The State Commission assessed the loss on account of stocks at Rs.2,81,587/-. The State Commission in its order has observed as under: 7. It is not the case of the complainant that while receiving amount of `15,91,035/-,some pressure or coercion was exerted by the opposite parties or he himself was in urgent need of money, and, therefore, he accepted the aforesaid amount of money without raising any protest. Opposite parties have placed on record two receipts Annexures OP-1 & OP-2 and one consent letter Annexure OP-3. Receipt Annexure OP-1, is furnished by the complainant and Annexure OP-2, by the banker of the complainant. In both these receipts, it is written that the amount of `15,91,035/-, had been accepted -4- in full and final satisfaction of the claim. Of course, words “full and final settlement” in both the receipts are part of the printed format of the receipts, but in the consent letter, Annexure OP-3, which is hand written and is duly signed by the complainant, words full and final settlement are written in hand, presumably by the complainant himself, because he is silent about the aforesaid two receipts, as also this consent letter in his pleadings. Now, when the complainant had accepted the aforesaid amount of money in full and final satisfaction of his claim, it does not lie in his mouth to say that the opposite parties are guilty of deficient service. 8. Above stated position apart, one of the documents, relied upon by the complainant himself namely statement of cost of the structure shows that on the construction of building a sum of `28,92,349/- was spent. The document is Annexure C-2. Surveyor deputed by the opposite parties, who submitted report Annexure OP-9, assessed value of the building at `30,50,250/-, which is very close to the figure mentioned in Annexure C-2. By applying average clause, the assessor has worked out the adjusted loss at `13,96,705/-. Value of the stock at the time of the mishap was `2,81,587/-, as per vouchers submitted by the complainant to which there is a reference in the aforesaid report Annexure OP-9. 9. Complainant does not dispute that the value of the stock in trade was `2,81,587/-, but his plea is -5- that besides the stock in trade, there were tools, furniture, fixtures, etc., but nothing has been paid for their loss. Opposite parties have placed on record the proposal form, Annexure OP-4, which had been filled in by the complainant at the time of purchase of the policy and as per this form, what had been got insured in addition to the building, was stocks and stocks in process for `9.00 lacs. 10. Plant & machinery, and furniture & other contents, to which there is specific reference in column No.8 of the proposal form, had not been insured. Only two, out of the four items printed in column No.8, had been tick marked. The same are (i) building and (iii) stocks and stocks in process. Building was insured for `16.00 lacs and stocks and stocks in trade for `9.00 lacs, as per this proposal form. Since, the plant and machinery, which in the present case were supposed to include tools, equipment and other items, required for running the service station, had not been tick marked and furniture and other contents were also not tick marked, nothing is payable to the complainant for the loss of tools, equipment, furniture etc. I agree with the view taken by the State Commission. Value of the building had been assessed at Rs.28,92,349/- whereas the appellant got the building insured for a sum of Rs.16 Lac only. Applying Average Clause for under insurance policy appellant has rightly found to be -6- entitled to Rs.13,96,705/- for the loss to the building. I have perused the proposal form ‘P-8’. In column no.8, appellant had tick marked against ‘YES’ against two out of four items provided in the column. Since the appellant did not get other items insured the appellant would not be entitled to any compensation for the loss caused to the items which were not insured. No ground for interference is made out. Dismissed. |
