For the Complainant : Mr. H.R. Ahmed, Advocate
For the Opposite Parties: Mr. S. Bhuyan, Advocate
Date of Hearing: 03-09-2019
Date of Judgment: 19-09-2019
By Dr. (Mrs.) Justice Indira Shah, President,
Heard Mr. H. R. Ahmed, learned counsel, appearing for the complainant. Also heard Mr. S. Bhuyan, learned counsel, appearing for the opposite parties.
2. The facts leading to filing of this complaint are that the complainant had insured his cloth shop with the Oriental Insurance Company Ltd. for a sum of Rs. 25,00,000/- (Rupees twenty five lakh) only and also paid premium thereof. On 05-05-2013, the said shop caught fire and according to the complainant he suffered loss of Rs. 25,00,000/-. The incident was intimated to the Branch Office of the insurer and the insurance company through surveyor conducted investigation and allowed the claim of Rs. 7,74,940/- only and the payment was made thereof to the complainant. The contention of the complainant is that the aforesaid amount was paid by the insurer without proper inquiry and the insurance authority had assured him that it was only part payment, rest of the amount would be paid very soon. The complainant’s representation to the insurer for rest of the amount was not considered. Then the complainant through his lawyer issued legal notice but since opposite parties insurer did not reply, he has filed this complaint, claiming the entire insured amount i.e. Rs. 25,00,000/- with interest @ 16% per annum.
3. The opposite parties have contested the claim by filing joint written statement alleging inter-alia that on receipt of the intimation of fire, they appointed an independent IDRA Licensed and technically competent Surveyor to carry out the preliminary survey. Subsequently, another independent IRDA licensed and technically competent Surveyor was appointed for final survey. On the basis of survey report, the claim was settled at Rs. 7,74,940/- and accordingly payment of the said amount was made to the insured who received the payment after duly discharging the voucher. The discharge voucher was signed by the complainant without any coercion or misrepresentation. The claim of the complainant has been rightly settled and there was no deficiency of services. Upon the pleading, following issues have been farmed;
- Whether the complaint is maintainable ?
- Whether there is any cause of action for the complaint ?
- Whether there was any deficiency in service ?
- Whether survey report is acceptable in fact and law ? If not, than what is the loss occurred to the complainant which is needed to be indemnified by the Insurance Company ?
- Whether the amount paid was a part payment or full payment and is in consonance with extant law and in terms and conditions of the policy ?
- Whether there was any fraud, misrepresentation or coercion at any point of time by the Insurance Company leading to the discharge voucher being signed by the insured discharging their claim upon the company ?
- Whether the complainant is entitled to get any relief(s) ?
4. The complainant adduced evidence of four witnesses including himself in support of his case. No witnesses were examined by the opposite parties.
5. Issue Nos. 4,5 and 6 are the core issues and these issues are interlinked. Therefore, we propose to decide the issue Nos. 4,5 and 6 together.
6. Issue Nos. 4,5 and 6: Requirement for assessment by approved surveyor is provided in Sub-Section 4 of Section 64-UM of the Insurance Act. The issue involved herein is, although assessment of loss by approved Surveyor is a prerequisite for payment of settlement of claim of twenty thousand rupees or more by insurer, whether the surveyor’s report can be conclusive and final.
7. It is admitted fact that IRDA licensed and technically competent Surveyor carried the survey and submitted their report.
8. The complainant in his evidence stated that the survey was conducted in his absence. However, he admitted the vouchers, challans and approval slips annexed with the final survey report. He further admitted that none of them have VAT and Sale Tax number except for few exhibits. He also admitted that he does not issue cash memos to the customers but he issues challans and that he does not have a VAT or Sale Tax Registration relating to his shop. As per the survey report, the insured had filed Income Tax return for the Trading Account of the Financial Year2011 before the fire. However, the said Trading Accounts were not supported with bills/cash memos for purchases.
9. Learned counsel appearing for the complainant relying on the case of New India Assurance Company Ltd vs Pradip Kumar (2009) 7 SCC 787 submitted that Surveyor’s report is not the last and final word. It was held in the cited case that the approved surveyor’s report may be the basis or foundation for settlement of the claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer or the insured. In the cited case, claim of the complainant was accepted as it was duly supported by original vouchers, bills and receipts. It was not the case where claim was settled and the claimant accepted the settled amount without any objection. Moreover, there was glaring discrepancy between the first survey report and the subsequent survey report.
10. In the present case, the estimated loss suffered by the claimant, the reports of both the surveyors are in tune. There is no such discrepancy in the reports. That apart, the claimant signed the discharge voucher without any protest. He has admitted in his evidence that he signed it without any coercion.
11. In the case of Ankur Surana Vs United India Insurance I (2013) CPJ 440 (NC) and United India Insurance Vs Ajmer Singh Cotton Mills, the issue was whether the insured is stopped from making any further claim amount, his full and final settlement of all the claims by executing discharge voucher willingly and voluntarily without any protest or objection. It was held as under-
“Discharge voucher singed by the petitioner indicates that he has received amount by way of full and final settlement. Petitioner can not approach Consumer Fora for balance amount treating the payment as only part payment against claim unless he established that the accepted the amount under influence, misrepresentation or fraud played by the insurance company”.
12. The complainant in his cross-examination admitted that he signed the vouchers while receiving an amount of Rs. 7,75,000/- According to him, at the same time of signing the vouchers, he was told that this was the first installment and the balance will be paid later on. But he failed to disclose the name and designation of the person who said that.
13. The complainant in his cross-examination admitted that most of the Exhibits are vouchers/challans/approval slip and none of them have VAT and valid Sale Tax number except Exhibits-31 F, G, H, I,J, K,L and M.
14. Learned counsel appearing for the complainant has cited the case of M/s Saharanpur Cloth Merchant Vs The New India Assurance Company Ltd. of State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow, in Complaint Case No. 25/2010. In the cited case the stock of the complainant was, from time to time verified by his banker. But this is not the fact in this case.
15. The complainant initially made a representation to the Divisional Manager, Oriental Insurance Company Ltd. vide letter dated 12-05-2014 wherein he alleged that without proper enquiry and assessment of the actual loss suffered, the insurance company arbitrary settled the claim to the tune of Rs. 7,74,940/-. The assessment of loss and the damages and the settlement of claim have been grossly inadequate. Nowhere in the said letter, the complainant alleged that the opposite parties insurance company assured him that payment of Rs. 7,74,940/- was only a part payment and the balance would be paid, nor there was any such allegation made in the subsequent legal notice dated 13-06-2014 by the advocate of the complainant. Therefore, the allegation of the complainant in the complaint petition that he was misrepresented that it was a part payment of the claim, is not true. The claim of the complainant was settled on the basis of the report of the surveyor and the claimant received the settled amount executing the vouchers to the effect that he has received the amount as full and final settlement of his demand. Therefore, he can not turn around and allege that there was misrepresentation on the part of the opposite parties and the amount paid was only a part payment in respect of his claim.
16. In view of the discussion and decision of the foregoing issues, we find that there was no deficiency in service and the complainant is not entitled to get any relief. The complaint filed by the complainant is liable to be dismissed. We refrained from discussing the other issues since the complainant is not entitled to get any relief. This complaint is dismissed and disposed of accordingly.
