BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Fertichem Cotspin Limited, having its registered office at 182/11, Industrial Area, Chandigarh, through its authorized representative Sh.Hemant Kumar Tiwari, Deputy General Manager (Commercial).

…..Complainant

                 V E R S U S

1]  The Oriental Insurance Company Limited, SCO No.109-111, Sector 17-D, Chandigarh, through its Zonal Manager.

2]  The Oriental Insurance Company Limited, SCO No.45, Sector 20-C, Chandigarh, through its Branch Manager.

                      ……Opposite Parties

CORAM:   SH.P.D.GOEL                    PRESIDENT

         SH.RAJINDER SINGH GILL       MEMBER

         DR.(MRS).MADANJIT KAUR SAHOTA  MEMBER

Argued by: Sh.Balbir Singh Malhi, Counsel for Complainant.

          Sh.Vinod Chaudhri, Counsel for OPs

PER P.D.GOEL, PRESIDENT

         The complainant company, doing the business of manufacturing of yarn, got themselves insured with OPs vide two insurance policies (Ann.C-4 & C-4/A) for sum insured of Rs.96.75 Crore and Rs.14.00 Crore respectively, both valid from 7.4.2011 to 6.4.2012.  It is averred that on 10.4.2011 at about 2.30 AM, fire occurred in the manufacturing unit of complainant company due to short-circuit. On informing the OPs about said incident, they appointed Sh.Sanjay Gupta, Surveyor to settle the claim.  However, the said Surveyor had approved only Rs.1,66,588/- against the total claim of Rs.9,17,122/-, after deducting the excess of Rs.5.00 lacs and a cheque of said amount of Rs.1,66,588/- was sent to the complainant company.  The matter was taken up with OPs and it was told that deducting of excess amount of Rs.5.00 lacs on the assessed claim is totally illegal and arbitrary, but to no avail.  It is asserted that as per the Clause-b of Excess/Deduction Column of the Policy, only Rs.10,000/- should be deducted as excess.  Thereafter, letters dated 11.10.2011 and 5.11.2011 (Ann.C-5 & C-6) were sent to OPs for settling the matter, but the OPs did not agree to it vide their reply dated 16.11.2011 (Ann.C-7).  Hence, this complaint alleging the above act of OPs as gross deficiency in service and adopting unfair trade practice.

2]       OPs filed reply and admitted the factual matrix of the case.  It is stated that the claim was processed in accordance with law.  After considering the report of Surveyor, dated 24.6.2011 (Ann.R-3), the claim was found to be highly exaggerated and the genuine & bonafide claim was tenable only to the extent of Rs.1,66,588/-, which was approved and paid to the complainant. Further, Clause 1.1.3 clearly stipulates that with effect from 1.4.2011, policies having sum insured INR 100 Crore and upto INR 1500 Cr. Per location – 5% of the claim amount would be deducted, subject to minimum of INR 5 lakhs. Moreover, the complainant has willingly accepted the cheque and got it encashed without any objection, whatsoever, towards the complete discharge and satisfaction of the claim. Denying rest of the allegations and pleading no deficiency on their part, the OPs have prayed for dismissed of complaint.

3]      Parties led evidence in support of their contentions.   

4]      We have heard the learned counsel for the parties and have also perused the record.

5]       Admittedly, the complainant company is the holder of two insurance policies (Ann.C-4 & C-4/A) valid from 7.4.2011 to 6.4.2012. 

6]       The ld.Counsel for the complainant argued that on 10.4.2011, fire occurred in the Manufacturing Unit of the Complainant Company due to short-circuit.  The Insurance Company was duly infirmed about the said incident, who in turn appointed a Surveyor to settle the claim.  The Surveyor approved only Rs.1,66,588/- against a total claim of Rs.9,17,122/- after deducing excess of Rs.5.00 lacs.  He further argued that a cheque of Rs.1,66,588/- was sent to the Complainant Company.  The matter was taken up with the OPs with regard to deduction of excess amount of Rs.5.00 lacs, but of no consequences.  The deduction of Rs.5.00 lacs is stated to be an arbitrarily and illegal, as the insurance company, per Clause-B of the Excess/Deduction Column of the Policy, should only deduct Rs.10,000/- as excess. The complainant company sent communication (Ann.C-5 & C-6) to the OPs, but all in vain.

7]       The ld.Counsel for the OPs contended that after considering the report of Surveyor (Ann.R-3), it was found that the complainant company is entitled to an amount of Rs.1,66,588/- only, which was approved & paid to it.  It was lastly argued that Clause 1.1.3 of the insurance policy clearly stipulates that with effect from 1.4.2011, the policies having sum insured INR 100 Crores and upto INR 1500 Crores per location – 5% of the claim amount would be deducted, subject to minimum of INR 5 lacs. It was further argued that the complainant has accepted the cheque of Rs.1,66,588/- and got it encashed without any objection, towards full & final satisfaction & settlement of the claim.

8]       The OPs have placed on record letter dated 22.9.2011 (Ann.R-I) qua which the cheque amounting to Rs.1,66,588/- has been sent to the complainant company towards full & final settlement of the claim. It has been mentioned in the said letter that if the offer is not acceptable, the cheque should be returned forthwith, failing which it would be deemed that the offer has been accepted as full & final settlement of the claim.  It has further been mentioned in this letter that the retention of the cheque and/or encashment thereof would automatically amount to acceptance in full and final satisfaction of the claim without reason. The complainant would be stopped from claiming any further relief on the subject.

9]       The learned Counsel for the complainant contended that the complainant company never received any forwarding letter dated 22.9.2011 along with cheque bearing No.632899 dated 22.9.2011 for Rs.1,66,588/- drawn on Axis Bank Ltd. in favour of the complainant company. He further contended that the aforesaid cheque was received by the complainant company in a registered post which was containing the aforesaid cheque only without any letter. He also made a reference to the affidavit of Sh.Hemant Kumar Tiwari, Deputy General Manager (Commercial) of the complainant company, filed by way of rebuttal to the additional evidence of the OPs, wherein, he has deposed that the cheque of Rs.1,66,588/- dated 22.9.2011 was received in registered post envelope without any letter.

10]      On the other hand, the learned Counsel for the OP contended that since the date on the letter dated 22.9.2011 was not legible, the Insurance Company has filed on record the affidavit of Sh.Amrish Gupta, Chief Regional Manager of the OPs by way of additional evidence, wherein, he has categorically deposed that the date on the letter – Annexure R-1 is not legible and the complainant has also denied the date in the rejoinder filed by him. He has further deposed that the letter dated 22.9.2011 was dispatched on 23.9.2011 to the complainant company. He further contended that the extract of the dispatch register is Annexure R-1/A, wherein, the entry has been made that on 23.9.2011 vide dispatch No.2425, letter No.230011/11/2012/03003 has been sent to the complainant company. Since the affidavit of the Chief Regional Manager is supported by the extract of the dispatch register, therefore, it is held that the complainant received the cheque of Rs.1,66,558/- along with letter – Annexure R-1/A.                                                                                                                                                                                                                                              

11]      It is not denied that the complainant had not received the amount of Rs.1,66,588/- from the opposite parties under the insurance policy. The complainant company had got the cheque of Rs.1,66,588/- encashed, so accepted the offer of the OPs in full & final satisfaction of the claim.  Thus, it is held that the complaint is not maintainable.  Reliance placed on 2006, CTJ , 1065( Supreme Court)(CP) National Insurance Company Ltd. vs. Nipha Exports Pvt. Ltd.

12]      The ld.Counsel for the complainant advanced the argument that the complainant did not receive the said letter dated 22.9.2011.  The said limb of argument is not available in view of the letter dated 11.10.2011 (Ann.C-5).  The perusal of the letter Ann.C-5 makes it clear that a cheque through registered post dated 22.9.2011 for an amount of Rs.1,66,588/- had been received by the complainant company.  Since the complainant company has admitted the receipt of registered letter dated 22.9.2011 through Ann.C-5, therefore, the complainant company is estopped from raising such plea that it had not received the letter dated 22.9.2011 (Ann.R-1).

13]     Since the complaint is liable to fail on this sole ground, therefore, it will be a vain attempt to go into the other aspects of the matter.

14]      As a result of the above discussion, finding the complaint to be devoid of any merits, the same is dismissed with no order as to costs.

         Certified copies of this order be sent to the parties free of charge. The file be consigned.