Per Hon’ble Mr.Dhanraj Khamatkar, Member
M/s.M.K.Textile Industries through its Proprietor Mr. Amarlal Tharumal Chhabria had filed consumer complaint under section 12 of Consumer Protection Act, 1986 on 03/07/2009. The complaint is registered as consumer complaint no.CC/09/128.
It is the contention of the complainant that they have taken a Standard Fire and Special Perils policy from the opponent Insurance company. The policy number is 140700/11/08/11/00000421 and the period of insurance was from 16/05/2008 to 15/05/2009. In the policy the risk covered was for Factory shed, Compound wall, Plant- machinery & accessories, Furniture, Fixtures and Fittings, Stock and Stock in process of own and held in Trust. Total sum insured was `2,25,00,000/-. Accordingly, the premium was paid and building and stock was hypothecated with the Union Bank of India. The firm has availed cash credit facility limit of `70 lakhs and term loan of `64 lakhs from the Union Bank of India, Ulhas Nagar, District Thane.
Complainant further contended that on 07/12/2008 around 9.30 p.m. there was a major fire on second floor of the factory due to electric short circuit. The Fire brigade was called. Fire came under control after 2-3 hours. Accordingly, intimation was given to the opponent Insurance company on 08/12/2008 and claim amounting to `85,65,690/- was filed with the Insurance Company for the loss occurred due to fire.
Opponent appointed Surveyor Mr.Kaushal Kishore to assess the loss. The surveyor visited the premises of the complainant and complainant has supplied all the documents as per the requirement of the Surveyor and the Surveyor assessed the loss of `20,92,654/-. It is contended that the opponent/Insurance Company sent a Discharge voucher of `20,92,654/- and did not give the complainant sufficient opportunity to justify his claim and asked the complainant to accept the amount.
Complainant further contended that the opponent had transferred the claim amount to the bank. On 16/03/2009 complainant protested about the less assessment of the claim made by the surveyor in collusion with the opponents. Though he protested on 16/03/2009, the opponents sent a cheque of settlement amount of `20,92,652/- through the complainants’ bankers on 23/03/2009 without considering the objection by the complainant.
Complainant further submitted that the opponent and surveyor appointed by them have not followed the guidelines of IRDA under the product of insurance policy. The complainant had produced the details about the loss of `45,63,515/- and this fact is admitted by the surveyor in the survey report alleging that this amounts to deficiency on the part of the opponent. Complainant filed consumer complaint praying that the opponents be directed to pay an amount of `31,55,982/- along with interest @ 9% p.a. from 23/03/1999, `50,000/- for the mental harassment and `2500/- for misc.expenses. Along with the complaint, complainant had filed statement of claim amount, insurance policy, panchanama conducted by the police, certificate issued by the Fire Brigade by the Ulhasnagar Mahanagar Palika.
The opponents have filed written version and contested the complaint contending that the complaint is false, frivolous and vexatious, bad in law and not maintainable. They have admitted that they have issued a policy to the complainant and it was in force from 07/06/2008 to 06/06/2009. They further contended that the terms and conditions of the policy are binding on both the parties. They have also admitted the incidence of fire. They further submitted that on receiving the claim from the complainant they have appointed Mr.Kaushal Kishor surveyor for the assessment of the loss. Surveyor assessed the loss and submitted his Final Report on 11/02/2009.
They further contended that the surveyor has assessed the loss on verification of the documents, audited Balance Sheet, Profit and Loss account, Income-tax return, Police panchanama, Fire Brigade report and the conclusions of the surveyor are based on physical inspection, local enquiry, photographs, photo shooting and insured’s explanation. Surveyor assessed the loss at `14,07,583/- and as per the survey report they have settled the claim and have paid `14,07,583/- by cheque and the complainant has discharged the settlement voucher for receipt of the said amount towards the full and final settlement and the same is signed by the complainant. At the time of receiving the said amount, the complainant did not raise any objection to the report as well as to the amount of settlement. As the complainant has received the compensation as full and final settlement, the complainant has no right to file the claim again and there is no deficiency on the part of opponent. The complainant is not entitled to prey the award as prayed in the complaint. Therefore, opponent prayed for dismissal of complaint. Along with the written version they have filed following documents:-
1. Survey report by surveyor dated 11/02/2009.
2. Letter dated 16/03/2009 by complainant to the opponent accepting settlement prayer
3. Letter of complainant acknowledging receipt of cheque.
4. Claim disbursement voucher collectively two along with acknowledgement.
Both the parties were directed to file their evidence on affidavit. Accordingly, both the parties have filed their evidence on affidavit. Along with affidavit, complainant had filed Trading Profit & Loss Account for the year ended on 31/03/2008, Trading account from 01/04/2008 to 07/12/2008, Stock statement. Both the parties have filed pursis for closing their evidence. They have also filed a short note of their arguments. We have gone through the complaint, written version filed by the opponent, evidence on affidavit filed by both the parties and the pleadings of both the advocates.
Heard Mr.A.B.More-Advocate for the complainant and Ms.Varsha Desai-proxy Advocate for Ms.Kirti Patil-Advocate for the opponent.
Admittedly, complainant had taken a Standard Fire & Special Perils policy from the opponent for the period 07/06/2008 to 06/06/2009. Admittedly, risk is covered for Factory shed, Compound wall, Plant- machinery & accessories, Furniture, Fixtures and Fittings, Stock and Stock in process of own and held in Trust. Total sum insured was `1,50,00,000/-. Admittedly, on 07/12/2008 there was a fire. The complainant informed the incidence to the opponents on next date. To control the fire, Fire Brigade was called. Police has also carried out panchanama of the incidence. Admittedly, the complainant filed insurance claim to the opponent -Insurance Company and the Insurance Company had appointed the surveyor. Admittedly, surveyor has carried out assessment of loss and submitted the survey report assessing loss of `14,07,534/- and recommending the net liability of the insurer at `14,07,534/-.
The point of dispute is that the complainant contends that the loss assessed by the opponent is less than the actual loss. However, since the industry is suffering loss due to lack of funds and having no alternative, he has accepted the same and informed the opponents about the same vide its letter dated 16/03/2009. In the complaint papers there is a letter written by the complainant to the opponent dated 16/03/2009. As against this, it is the contention of the opponent Insurance Company that they have settled the claim for `14,07,534/- as full and final settlement. It is signed by the complainant and representative of the bank from which complainant had taken loan. The voucher date is 23/03/2009. There is a claim disbursement voucher where the complainant has signed and it is dated 23/03/2009. The complainant had received a cheque on 24/03/2009 and the complainant had signed the same on the company’s letter head. The complainant is banking on the letter written by him dated 16/03/2009. However, the letter is received by the opponent on 24/03/2009. From the aforesaid facts it is clear that this letter is an after thought. After receiving the amount towards full and final settlement, the complainant has written this letter to the opponent showing it at an earlier date. The complainant has relied on the authority reported in II (2004) CPJ 51 (NC) in the case of New India Assurance Co.Ltd. v/s. Shiv Khanna decided by the Hon’ble National Commission, However, facts and circumstances of the authority quoted by the complainant are different from the facts and circumstances of the present complaint. Here the complainant had accepted the loss amount under full and final settlement and thereafter he had given the letter to the opponent saying that the amount offered is lesser amount.
We have also gone through the survey report and gone through the observations of the surveyor. In the survey report the surveyor has observed that Stock Turnover is very poor and has not a uniform trend because of higher stocking. It seems that some old stock has been carried forward year after year. When huge old stock was lying why further purchases were made without any significant increase in sales and production? Insured has given no satisfactory answer to this question.
Again the surveyor has observed that from the bank account statement it was found that the transaction is very poor looking at the limits availed. Most pertinent observation is M/s.M.K.Textiles and M/s.Arti Textiles have claimed loss in the fire occurred in same godown. M/s.M.K.Textiles is owned by Mr.Amarlal Chhabaria and M/s.Arti Textiles is owned by his son Mr.Shyamlal A. Chhabaria. No separate identification of area was made for keeping stock. Both the firms have also not maintained stock and production records. In absence of separate identification, we have divided total stock calculated as being burnt by us on the basis of insured’s claim of stock. These observations of the surveyor are very very important from the point of settlement of the claim of the complainant. We observe that the opponent has rightly settled the claim on the basis of survey report which is prepared by the third independent agency. We do not find any deficiency on the part of the opponent. We hold accordingly and pass the following order:-
ORDER
Consumer complaint stands dismissed.
No order as to costs.
Inform the parties accordingly.
Pronounced on 31st January, 2012.
