Date 27/09/2012

Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.

 1.       This appeal is directed against the judgment and order dated 14/06/2007 passed by the Dist. Forum, Dhule in compliant case No. 76/2007.

2.       Facts in brief giving to present appeal are as under.

          The appellant herein filed the complaint before the Dist.Forum, Dhule with the allegation in brief that he runs the shop at Shirpur. He had taken insurance policy for the period from 05/09/2005 to 04/09/2006  in respect of the goods, furniture and other articles stored by him in his shop and godown, by making payment of premium of Rs 2650/- to the respondent herein.  On 06/08/2006 due to excessive rain there was flood in village Shirpur and therefore the watre of that flood entered in to the said shop and godown and caused great damage to his goods, furniture and other articles. He therefore sustained total loss of Rs 2,08,780/-. He submitted claim to the respondent for the said loss. Shri J.C.Bhansali one of the surveyor appointed by the respondent inspected the said damaged goods and articles. However, the respondent granted compensation of Rs 16,800/- only and sent the cheque of that amount to the appellant. The appellant received the same relying on the words of the respondent that it will pay more amounts later on. The appellant then served notice dated 18/12/2006 to the respondent claiming compensation of Rs 2,00,000/-. It is not paid to the complainant. Therefore, the complainant prayed that respondent may be directed to pay him said compensation of Rs 2,00,000/- with interest.

3.       The respondent filed written version. It admitted that the complainant had obtained the policy for the period from 05/09/2005 to 04/09/2006  to cover the risk of the goods , furniture and other articles  of the shop and godown of the complainant. It also admitted that premium of Rs 2650/- was paid by the complainant to it for that purpose. It also admitted that the surveyor Shri.J.C.Bhansali had inspected the goods and articles of the complainant and submitted report. It is the defence of the respondent that  said surveyor submitted the report that complainant is entitled to  an  amount of Rs 16,800/- only and accordingly the cheque for that amount was sent to the complainant and he received it and issued acknowledgment receipt to it. Therefore it is submitted that complaint may be dismissed.

4.       The Dist. Forum below after considering the evidence brought to its notice by both the sides and hearing advocates of the both sides passed impugned judgment and order. It observed that the complainant has not proved any deficiency in service provided by the respondent to the complainant and therefore the complainant is not entitled to any relief and hence it dismissed the complaint.

5.       We have heard Adv.S.P.Tiwari who appeared for appellant and Adv. R.H.Jobanputra who  appeared for the respondent. We have also perused the papers placed  before us. It is submitted by the advocate of the appellant that the amount of Rs 16,800/- was received by the complainant under protest as  there is  wrong assessment of loss sustained by the complainant. He contended that the complainant sustained heavy loss of Rs 2,80,780/- and there was  sufficient material for granting compensation of Rs 2,00,000/- but  the Dist. Forum mainly relied on the surveyors reports to dismiss the complaint. He therefore submitted that the complaint may be allowed and compensation may be granted.

6.       On the other hand advocate of the respondent submitted that the report of the surveyor is exhaustive and Dist. Forum has rightly relied upon the said report. He further submitted that the complainant i.e. appellant herein received the cheque for  Rs 16,800/- and issued the receipt towards full and final settlement of his  claim. He brought to our notice the receipt signed by the complainant to that effect. He relied upon the observation made by the Hon’ble Supreme Court in the case of  “National Insurance Company Ltd – Versus – Nipha Exports Pvt.Ltd 2007 (1) CPR 80 (SC)  in support of his submission. In that case the claim was finally settled on 08/04/1994 and  amount Rs 70,38,038/- was paid to respondent on 08/06/1996 who received the amount and gave discharge. In the said facts and circumstances the Hon’ble Supreme Court held that the respondent could not raise the consumer dispute in such case.

7.       In the instant case admittedly the complainant i.e. appellant herein received an amount of Rs 16,800/- towards  loss sustained by him as  covered under the policy. It is also not disputed that on receiving the said amount, the complainant i.e. appellant herein issued  the discharge receipt. The said receipt shows that on receiving the said amount towards full and final settlement  of the claim, the appellant had signed. It  does not show that the said amount of Rs 16,800/- was accepted by the appellant under protect. The appellant did not file affidavit to deny the correctness of the said discharge receipt and the case put forth by the respondent in written version. The respondent on the contrary filed affidavit of one of the branch manager in support of its defence raised in the written version. Therefore it can not be accepted that the aforesaid amount of Rs 16,800/- was received by the complainant under any  protest. The facts and circumstances of the present case are identical to those of the aforesaid case relied upon by the advocate of the respondent. Therefore the said decision is applicable to the facts and circumstances of the present case. We therefore hold that as the complainant i.e. appellant herein has received Rs 16,800/- towards full and final settlement of the claim without any protest, it can not be said that there is any deficiency on the part of the respondent in service provided by it to the complainant. Moreover, the complainant has not filed his affidavit in support of the claim. It can be therefore  said that he has not proved his case for claim of Rs 2,00,000/-. On this ground  we hold that he is not entitled to any relief. We thus hold that impugned judgment and order is legal, correct and proper. There is no any merit in this appeal and it  deserves to be dismissed.

                   O   R    D    E  R  

1.       The appeal  is dismissed.

2.       Both the parties to bear their own costs of this appeal.

3.       Copies of this judgment and order  be sent to both the parties.

Mrs.K.B.Gawali                                           B.A.Shaikh

     Member                                 Presiding Judicial Member

A.H.Patil

Steno H.G.