DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR

Complaint No.78 of 2018 Date of Instt.26.02.2018 Date of Decision: 28.09.2021

Anu Arora wife of Neeraj Arora r/o House No. 17-C/85, New Vijay Nagar, Jalandhar and Proprietor of M/s Kanhaya Utpadan, New Colony, Aman Nagar, Jalandhar.

….. Complainant

Versus

The Oriental Insurance Company Limited, Divisional Office, Opposite Bus Stand, G.T Road, Jalandhar through its Sr. Divisional Manager.

..…Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)

Present: Sh. Anuj Mehta, Adv. Counsel for the Complainant. Sh. A. K. Arora, Adv. Counsel for OP.

Order

Kuljit Singh(President)

1. The present complaint has been filed by complainant against the OPs on the averments that due to safety reason, she got insured her factory premises including its building, all types of stock and machinery from OP regularly and paid them due premium amount against the same. The officials of OP always assured her that they will reimburse all the losses during the insured period. Vide policy no.233105/11/2016/200 got insured her “stock of all kinds and types of raw material used for the manufacturing of rubber chapels, straps and allied items to trade and goods in process and finished goods including packing material worth Rs.50,00,000/- and machinery used in trade worth Rs.20,00,000/- plus for factory building worth Rs.30,00,000/- and paid premium amount of Rs.17,100/- to OP against the same. The OP assured him that they had covered the risk up to Rs. 1 Crore which includes STFI Cover, fire basic cover and earthquake cover from the period 08.08.2015 to 07.08.2016. On 11.11.2015, unfortunately fire took place in the factory of the complainant along with its adjoining factory which is also sister concern of the complainant’s firm and due to said reason whole of the factory including its machinery, all type of stock and raw material and burned completely. Due to said incident of fire, the complainant suffered a loss of Rs.65,00,000/- towards their stocks and raw material value and Rs.25,00,000/- for machinery value and in total Rs.1,30,00,000/- loss had sustained to the complainant regarding the above said factory. The complainant lodged claim with OP but instead of pay the amount of loss OP started delaying the matter. The complainant and her husband many times approached officials of OPs in this regard and lastly they had paid an amount of Rs.49,38,665/- only against the all claim to complainant. OP also further shown unfair trade practice by wrongly, illegally and unlawfully deducting 15% of the claim amount of the stock value as assessed by the surveyor in his survey report only on the ground that stock register was not maintained by the complainant, which is absolutely unreasonable ground for the said deduction. Therefore the complainant had filed the present complaint and prayed that claim Rs.7,50,000/- for unlawful deduction, remaining unpaid claim amount along with interest @ 18% per annum along with Rs.2,00,000/- for mental harassment.

2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complainant is stopped by his own act and conduct from filing the complaint. Any deficiency in service or unfair trade practice was denied by OP. The complainant has submitted a discharge voucher dated 15.12.2016 in consideration of approval of his claim by OP and accepted from OP a sum of Rs.49,38,665/- in full and final settlement of the claim for the loss of which occurred on 11.11.2015. The complainant has given consent for settlement of the claim for a sum of Rs.49,49,191/- in full and final settlement. Rest of the averments made by the complainant in the complaint was denied by OP and it prayed for dismissal of the complaint.

3. We have heard learned counsel for the parties and have gone through the record very carefully.

4. The glance of evidence is required for settlement of the case in hand. The complainant has tendered in evidence her affidavit Ex.C-A on the record. She alleged deficiency in service on the part of OP. Ex.C-1 is copy of insurance policy which is valid from 08.08.2015 to 07.08.2016 in which stock of all kinds and types of raw material used for MNFG of Rubber chappals, straps and allied items to trade and goods in process and finished goods including packing material machinery used in trade for sum assured of Rs.50,00,000/-. Ex.C-3 is letter dated 13.01.2017 vide which complainant has received partial payment of Rs.49,38,665.00 against his claim. Ex.C-5 is survey report.

5. To refute this evidence of the complainant, the OP tendered in evidence copy of letter dated 05.12.2016 in which it has been specifically mentioned by the complainant herself that “ I am ready to accept Rs.49,49,191/- for full and final settlement of fire claim no.233105/11/2017/000004.” This is a valuable piece of evidence on the record. Both parties are bound by the same and no one denied the same.

6. The learned counsel for complainant relied upon citations in support of his case on the record, the case titled as Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd SC reported in Civil Appeal no. 4487 of 2004 date of decision is 24.08.2009 that relevance of survey report. Whenever a loss is reported by insurer. Insurance Company deputes a loss adjuster known as loss surveyor who assess the loss and issues a report known as survey report. Such report forms the basis for settlement of claim in respect of loss suffered by insured. The case law National Insurance Co. Ltd vs. Rajan Sood reported in Revision Petition No. 5 of 2013 by Hon’ble National Commission, New Delhi that there is neither a formal letter offer from the petitioner company nor a prior consent given by the complainant agreeing to accept an amount which was substantially lower than his claim because the complainant encashed the cheuqe received by him after a long period of wait from the petitioner cannot be allowed to stand against him to prove that he had accept the part payment in full and final settlement of his claim.

7. On the other hand, OPs relied upon citations i.e. Super Reclamations (Pvtl) Limited Karnal vs. Divisional Manager United India Insurance Company Ltd and ors reported in 1992(2) CPJ 702 that insurance claim had accepted a sum of Rs.32,102/- in full and final settlement of their claim under policy. Later on after about four months attempted to retract the stand and sought further payments against their claim Rs.45,125/- which the company had offered to revise itself once the complainants have accepted the claim in full and final settlement. They cannot maintain their dispute against the insurer with regard to the balance amount. Further case law titled as Asha Soni vs. The New India Assurance Company reported in 2008(18) RCR Civil 2008 that full and final settlement of claim –plaintiff voluntarily accepted the payment of Rs.7,11,237/- as full and final settlement of his claim without any protest. He instituted suit after one year of receiving the payment alleging that he was compelled to sign the discharge voucher. Held payment was accepted plaintiff now cannot be permitted to resile and to detriment of insurance company.

8. From perusal of entire record on the file it has transpired that the conduct of the complainant shows that the allegations made in the complaint of coercion etc are an afterthought. The complainant is found to be lying on the plea of OPs having written full and final settlement on the discharge voucher after getting the same signed from the complainant. Ordinarily, under Sections 91 and 92 of the Indian Evidence Act a written document is the sole repository of the transaction between the parties. Ex.O-1 is the valuable piece of evidence on the record. This is receipt for payment of Rs.49,49,191/- from the OP as full and final settlement of the claim. The complainant agreeing the same without any protest. We cannot deny the same. The complainant herself stated in para no. 6 of his complaint that OP had paid Rs.49,38,665/- to her against all the claim to her. So, it appears that the complainant has received the full and final settlement of her claim from OP and nothing is due against it. On intimation of fire, OP deputed a surveyor. The loss was occurred on 11.11.2015 under policy no. 233105/11/2016/200. The discharge voucher was voluntarily given by the complainant in full and final settlement of her claim, which is Ex.O-1 placed on the record. The loss was settled on 15.12.2016 for a sum of Rs.49,38,655/- . In the policy the sum insured amount of Rs.50,00,000/-, as such, the reasonable amount of Rs.49,38,655/- was given to complainant as assessed by the surveyor. ExO-1 was signed by the complainant company that it has received a Rs.49,49,191/- as full and final payment under the policy. So, both parties are bound by the same and no one wriggle out from the same. No cogent evidence produced by the complainant to prove his case.

9. In view of plethora of judgment relied upon by learned counsel for OP and after going through the record on the file especially Ex.O-1 discharge voucher, we are of the considered opinion that complainant has received the full and final payment from OP and nothing is due against it. As such, we dismiss the complaint of the complainant without bear any cost.

10. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work.

11. File be indexed and consigned to the record room after due compliance.

Announced in open Commission

28^th of September 2021

Kuljit Singh

(President)

Jyotsna

(Member)

Jaswant Singh Dhillon

(Member)