Haryana

Karnal

CC/515/2021

M/s Juneja Tent House - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Balwan Singh

28 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.515 of 2021

                                                        Date of instt.24.09.2021

                                                        Date of Decision: 28.08.2024

 

M/s Juneja Tent House, Kissan Basti Road, Nilokheri through Proprietor Mr. Gagan Aneja. Age 43 years.

 

                                                                        …….Complainant.

                                              Versus

 

The New India Assurance Co. Ltd. Divisional office, opposite Bus Stand, Old G.T. Road, Karnal through its Divisional Manager.

 

                                                                  …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Balwan Singh Dhaunchak,

    counsel for the complainant.

                    Shri Suraj Tanwar, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant got insured the Tent House stock and stock in process including on stock of All kinds of Tent House material including utensils, crockery, cutlery, iron Rods and such other similar goods of like nature for a sum insured of Rs.20,60,000/- by paying a premium of Rs.4741/- under the policy no.35350311180100000427, valid from 30.08.2018 to 29.08.2019. Hypothecated with UCO Bank Nilokheri. The policy was taken by the complainant’s firm from Branch office Yamuna Nagar on godown containing the stock, built approximately on 1000 sq. yards, Kissan Basti Road, opposite Gurudwara, Nilokheri. Most of the stock was kept under shed/covered area but some stock was lying in open area in-side and alongwith the outside of boundary wall of the godown. The loss as mentioned in the intimation took place on 19.11.2019 around 10.00 p.m. when the smoke and fire was seen coming out from the godown. The fire occurred due to short circuit inside the covered portion of godown. Most of the stock stored inside the locked portion of the godown was completely burnt. Intimation was given to the insurer on 10.11.2018 in response to which survey was conducted on 13.11.2018. The value of stock before loss was assessed Rs.19,18,140/-, whereas the stocks purchased and including the opening stock was Rs.19,20,778/-.  As per survey report of surveyor Mr. Karnal Goyal has shown dead stock to the tune of Rs.1,48,146/- details of the same has not been provided. Hence the same is not relevant and is without justification.  Depreciation of Rs.79,852/- computed @ 15% applied on opening stock of Rs.5,32,347/- as on 31.03.2018 and a depreciation of Rs.1,04,132/- @ 7.5% has been computed on the purchases from 01.04.2018 to 08.11.2018 being worth Rs.13,88,431/- by the Chartered Accountant, but complainant is not satisfied with the application of rate of depreciation. The depreciation in the calculation schedule as stated to the tune of Rs.4,36,683/- is irrelevant, unnecessary and baseless, because of the fact that the stock was fresh one and was purchased during the currency period of the policy. Hence, the policy has been taken on the value of fresh stock. Moreover, the opening stock as on 31.03.2018 of Rs.5,32,347/- is already depreciated. The claim settled ad paid by the OP Branch Yamuna Nagar to the tune of Rs.12,25,646/- on 27.09.2019 but it has been paid less by Rs.5,84,829/- (Rs.1,48,146+4,36,683). Complainant requested the OP several times to release the said remaining amount but OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

 2.            On notice, OP appeared and filed their written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and suppression of true and material facts.  On merits, it is pleaded that the claim of the complainant has already been settled and he accepted the amount in full and final settlement of claim without any protest. So, he is not entitled to any relief. As a matter of fact after getting intimation of loss, OP deputed IRDA approved Independent Surveyor and Loss Assessor Er. Karan Goyal, who conducted the surveyor after collecting all the relevant documents from the complainant and submitted his report as per the documents provided by the complainant and as per the terms and conditions of the policy, he assessed the loss to the tune of Rs.12,25,646/- and after that the claim of complainant has been settled and a sum of Rs.12,25,646/- has been paid by the OP in full and final settlement of the claim. So, it does not lie in the mouth of the complainant that OP had paid lesser amount to him. The complainant had given his consent in writing and accepted the amount as full and final settlement and that the complainant had never raised any objection. It is further pleaded that the OP paid the claim as per the terms and conditions of insurance policy. It is wrong and denied that depreciation is irrelevant and unnecessary and baseless as alleged. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of letter of Juneja Tent House dated 14.03.2019 Ex.C2,  Details of Stocks and Bills of purchase Ex.C3, copy of surveyor letter dated 06.03.2019 Ex.C4, copy of statement of stock from 24.01.2018 to 31.03.2018 and 01.04.2018 to 08.11.2018 Ex.C5, copy of fire claim form Ex.C6, copy of DDR Ex.C7, copy of Fire report no.424 dated 26.11.2018 Ex.C8, copy of survey report Ex.C9, copy of newspaper cutting Ex.C10, copy of consent letter dated 28.08.2019 Ex.C11, copy of surveyor report dated 01.09.2019 of Karan Goel Surveyor alongwith photographs Ex.C12, copy of payment voucher dated 27.09.2019 of Rs.12,25,646/- Ex.C13, copy of approval sheet Ex.C14, copy of G8 receipt Municipal Committee Tarori Ex.C15 and closed the evidence on 16.08.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Raj Kumar Mittal working as Manager Ex.OP1/A, copy of survey report Ex.R1, copy of consent letter Ex.R2 and closed the evidence on 14.12.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of insurance policy, a fire occurred in the insured premises of complainant. The intimation was given to the OP and on receipt of intimation, OP appointed a surveyor and after survey, surveyor submitted his report and assessed the loss to the tune of Rs.19,18,140/- but after made unnecessary deduction OP has paid only Rs.12,25,646/-. The complainant received said amount and approached the OP several times and requested to disburse the remaining claim amount of Rs.5,84,829/- but OP did not pay the same. The deduction made by the OP, is totally illegal and unjustified and lastly prayed for allowing the complaint.

8.             Per-contra, learned counsel for OP, while reiterating the contents of written version, has vehemently argued that the claim of the complainant has already been settled and OP has already paid an amount of Rs.12,25,646/- to the complainant and complainant accepted the said amount in full and final settlement of claim without any protest and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.              Admittedly, a fire took place in the premises of complainant during the subsistence of the insurance policy. It is also admitted that an amount of Rs.12,25,646/- has already been paid to the complainant.

11.           Complainant has alleged surveyor has assessed the loss to the tune of Rs.19,18,140/- but paid only Rs.12,25,646/-. The depreciation made by the OP is irrelevant and unjustified. On the other hand, OP has alleged that a sum of Rs.12,25,646/- has already been paid to the complainant and in this regard complainant submitted the consent letter Ex.C11/Ex.R2 as full and final settlement of the claim.

12.           The complainant issued the consent letter Ex.C11/Ex.R2 to the OP and in view of said consent letter, OP has already paid Rs.12,25,646/-.  There is nothing on the file to prove that consent letter Ex.C11/Ex.R2 has been obtained by the OP under pressure. Said consent letter bears the signatures of the complainant and the same has not been denied by the complainant. No doubt, the surveyor of the OP has assessed the loss for the tune of Rs.19,18,140/-. The surveyor of the OP has rightly made the deduction in the assessed amount.

13.            Further, it is well settled proposition of law that where one of the parties to contract issues full and final settlement voucher confirming that he has received the payment in full and final settlement of all claims without any protest and he has no outstanding claim, that amounts to discharge of contract by acceptance of performance and the party issuing discharge voucher/ certificate cannot thereafter made any fresh claim or revive any settled claim. In this regard, we place reliance the following judgments:-

 National Insurance Company Versus Boghana Poly Pvt. Ltd. 2009(1) SCC 267; New India Assurance Co. Ltd. Vs. Genus Power Infrastructure Ltd. 2015 AIR SCW 67; Andhra Fabrics Pvt. Ltd. Vs. United India Insurance company Ltd. 2015(2) CPR 482 (N.C.); A.P.Jos Versus ICICI Lombard General Insurance Company Ltd. 2013(2) CPC 391 (N.C.); Shri Ram General Insurance company Ltd. Versus Bhag Singh of Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in first appeal no.288 of 2016; United India Insurance Vs. Ajmer Singh Cotton and General Mills 1999(2) CPC page 601 (Supreme Court); Haryana State Cooperative Supply and Marketing Federation Ltd. Versus Iffco Tokio General Insurance in Revision petition no.4713 of 2012 decided on 05.04.2013 (NC). In all the judgments, Hon’ble Courts held that when the complainant had accepted the payment in full and final settlement of the claim, he cannot make any fresh claim or revive the settled claim.  Further, it is not a case of the complainant that he has issued the consent letter under pressure, if the consent letter was given by the complainant under protest then the position would have been otherwise.  

14.           Hence, keeping in view that the ratio of the law laid down in the aforesaid judgments, facts and circumstance of the case, the complainant is not entitled for the remaining amount as claimed by him in the present complaint.

15.           Thus, in view of the above, the present complaint is devoid of any merit and deserves to be dismissed and same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 28.08.2024   

                                                            President,

                                                 District Consumer Disputes

                                                 Redressal Commission, Karnal.

 

                        (Sarvjeet Kaur)

                            Member