Haryana

Karnal

CC/365/2020

M/s Aarti Yarnfab Private Limited - Complainant(s)

Versus

The Oriental Insurance Company - Opp.Party(s)

S.S. Moonak

07 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 365 of 2020

                                                      Date of instt.14.09.2020

                                                      Date of Decision:18.10.2023

M/s Aarti Yarnfab Private Limited, village Alipur Khalsa, tehsil Gharunda, District Karnal through its Director Shri Sudhir Kumar son of Shri Raj Kumar. (Aadhar no.2995 4478 9885). Mobile no.94163 69325.

                                               …….Complainant.

                                              Versus

 

1. The Oriental Insurance Company through its Divisional Manager, G.T. Road, Karnal.

 

2. The Oriental Insurance Company through its Zonal anager, 4^th floor, Rear Portion, Jeevan Vihar Building, New Delhi: 110 001.

 

3. M/s Secure now Insurance Broker Private Limited, sarhaul Abadi village, plot no.68, Ground floor, Sector-18, Gurgaon: 122 001.

 

…..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

              Dr. Rekha Chaudhary……Member

          

Argued by:  Shri S.S. Moonak, counsel for the complainant.

                    Sh. Ramesh Chaudhary, counsel for the OPs no.1& 2

                    Ms. Seema Bhardwaj, counsel for the OP no.3

 

                    (Jaswant Singh, President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant has purchased the insurance policy from the OP no.1, vide its policy no.51000/11/2019/185, valid from 14.06.2018 to 09.06.2019 under the Standard fire and Special Perils Policy Schedule. The premium of Rs.2,75,255/- was paid by the company. The policy was a package insurance policy with Reinstatement Value Clause. The said policy covers the Plant and Machinery, Stock of Raw Material of Rugs Waste Yarn, packing material, finished goods, furniture, fixtures and fittings and building including stock under process i.e. WIP (work in process).  The premium regarding the aforesaid policy was paid through RTGS/NEFT to the OP. The policy was obtained through OP no.3 who is authorized agent, broker of the OP no.1 and 2. At the time of obtaining the policy, it was assured and told by the OP no.3 that the policy covers WIP as it was being covered by the previous policy which were perused and seen by the OP no.3 before issuing the present policy. After getting assurance from the OP no.3 the complainant felt assured that the present policy is the same as the previous policy/s which were obtained by the company from time to time from the New India Assurance Company. Prior to this policy, the complainant has been getting the insurance policy from the other insurance company regularly. The complainant is paying the GST and other taxes to the concerned department/authority regularly. There is nothing due towards the complainant company. There is no loan/lien against the complainant company. On 21.09.2018 at about 1 O’clock there was sudden fire in the premises of the company, in which the building, stock of raw material, finished goods, plant and machinery, other equipments and other electronic gadgets, raw material, finished yarn were damaged/burnt including packing material, stock of raw material due to short circuit. In this regard, the matter was reported to the local police and DDR was recorded with Police Station Gharaunda, (Karnal). The fire brigade was called and the fire was extinguished after great effort by the officials/workers of the Fire Brigade. The matter was reported to the OPs. Surveyor was appointed who visited the spot and inspected the burnt material and factory premises, who prepared the report. A sum of Rs.1,55,900/- was paid to the Fire Brigade Department by the complainant company. Thereafter, the claim was processed by the OPs but OPs unnecessarily prolonged the matter and did not settle the claim intentionally and deliberately. The complainant visited the office of OPs so many times and the official of the OPs pressurized the complainant to settle the matter as per the amount assessed by the OPs. Since the complainant was under heavy financial constrains and under the compelled circumstances, he accepted the payment of Rs.4,82,83,032/- under protest. However, OPs no.1 and 2 did not pay the amount of Rs.59,56,333/- i.e. WIP (work in progress claim) and also a sum of Rs.9,33,568/- as refund of GST.

2.             It is further averred that the company has paid a sum of Rs.15,12,523/- from the account of the company to the GST Department. Out of which the OPs no.1 and 2 has paid only Rs.5,74,765/-, as such the balance amount of Rs.9,33,568/- has not been paid by the insurance company intentionally and deliberately with some ulterior motive. The surveyor of the company has also assessed the amount of damages on the lower side, but the depreciation of the stock material etc. was assessed on the higher side, the company has also paid the expenses of lifting of the damaged machinery etc. by spending huge amount, which in total amounts to the sum of Rs.20 lakhs. The salvage material was sold by the insurance company from its own source. Complainant requested the OPs to pay the balance amount but the OPs did not pay any heed to the request of complainant. Due to the said act and conduct of the OPs, complainant could not restart his work properly due to the financial loss as well as delayed payment. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to pay Rs.68,89,901/- as WIP and GST refund and a sum of Rs.20,00,000/- on account of higher depreciation value and Rs.5,00,000/- on account of compensation/damages alongwith interest @ 24% per annum from the date of accident till its final realization.

3.             On notice, OPs no.1 and 2 appeared and filed its written version, raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant has already been settled and paid Rs.4,82,83,032/- to the complainant and the complainant has been issued discharge voucher dated 03.08.2019, vide which he accepted the abovesaid payment as full and final settlement of the claim. The abovesaid amount has been received by the complainant without any protest. It is denied that at the time of obtaining the policy it was assured and told by the OP no.3 that policy cover WIP. OP no.3 assured that the present policy is the same as the previous policies which were obtained by the complainant time to time from New India Assurance Company. Infact stock in process/WIP is not covered under the policy terms and conditions. On perusal of under writing docket and initial placement slip submitted by the broker i.e. OP no.3, the stock in process/WIP (work in process) stock was not found to be mentioned and hence it was not covered in the policy. It is denied that the amount of Rs.59,56,333/- i.e. WIP claim and also a sum of Rs.9,33,568/- as refund of GST are payable to the complainant. WIP claim is not covered under the policy terms and conditions, hence OPs did not consider WIP claim for assessment of loss. Regarding the GST component in claim items, the insured/complainant provided the GST reversal proves. The surveyor has calculated the GST components only for the raw materials based on provided purchase bills and compared with the reversal proofs Rs.15,12,523/- and GST as purchase bill is of Rs.5,74,265/- hence GST Rs.9,38,258/-not considered. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 appeared and filed its separate written version stating therein that OP no.3 is an insurance broker. The insurance policy issued by the insurer and not by the OP no.3. OP no.3 is not a necessary party for the purpose of adjudication of the present dispute. It is further stated that the given the nature of the claim, complainant should avail of the remedy to initiate appropriate civil proceedings before the Arbitrator/Civil Court as applicable. A bare look at the complainant’s prayer exemplifies the submission as the complainant has sought a payment of Rs.68,89,901/- as WIP and Rs.20,00,000/- on account of higher depreciation value and Rs.5,00,000/- as compensation/damages on account of deficiency in service, mental pain, agony as well as harassment suffered by the complainant. It is further pleaded that the allegations with regard to reinstatement value is concerned, the complainant vide email dated 19.12.2018 had agreed specifically to proceed with the loss assessment on the market value basis, and in any case no relief has been sought in the present complaint as regard to RIV basis as such. It is further stated that after accepting a payment of Rs.4,82,83,032/- as full and final settlement with the insurance company, without any protest and having signed the discharge voucher in favour of the insurance company, the complainant has instituted these proceedings malafide and solely with the intent to unfairly entangle and extract money. 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.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of Sudhir Kumar, Director of M/s Aarti Yarnfab Private Limited Ex.CW1/A, board resolution Ex.C1, copy of insurance policy Ex.C2, copy of premium receipt Ex.C3, copy of emails by broker i.e. OP no.3 Ex.C4 to Ex.C6, copy of FIR Ex.C7, copy of report of Municipal Corporation, Karnal Ex.C8, copy of report of Municipal Corporation, Assandh Ex.C9, copy of report of Municipal Corporation, Taraori Ex.C10, copy of report of Municipal Corporation, Panipat Ex.C11, copy of report of Municipal Corporation, Gharaunda Ex.C12, copy of insurance policy for the year 2017-2018 Ex.C13, copy of insurance policy for the year 2016-2017 Ex.C14, copy of insurance policy for the year 2015-2016 Ex.C15, copy of draft working Ex.C16, copy of GST Reverse Ex.C17 and closed the evidence on 09.12.2021 by suffering separate statement.

7.             On the other hand, learned counsel for the OPs no.1 and 2 has tendered into evidence affidavit of Sanjeev Madaan Senior Divisional Manager Ex.OPW1/A, copy of insurance policy Ex.OP1, copy of endorsement schedule Ex.OP2, copy of terms and conditions of the insurance policy Ex.OP3, copy of note regarding assessment of loss Ex.OP4, copy of discharge voucher Ex.OP5, copy of Annexure-2A calculation for stock Ex.OP6, copy of calculation for GST Ex.OP7, copy of loss assessment report (survey report) Ex.OP8 and Ex.C9 and closed the evidence on 17.10.2022 by suffering separate statement.

8.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Kapil Mehta Ex.OP3/A, board resolution Ex.OP3/1, email dated 19.12.2018 Ex.OP3/2, certified copy of resolution passed through circulation by the Board of Directors Ex.OP3/3, copy of insurance policy for the year 2020-2021 Ex.OP4, copy of discharge voucher Ex.OP5 and closed the evidence on 12.05.2022 by suffering separate statement.

9.             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.

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a Standard fire and Special Perils Policy from the OPs no.1 and 2 through OP no.3. Prior to this policy, the complainant has been getting the insurance policy from the other insurance company regularly. On 21.09.2018 at about 1 O’clock there was sudden fire in the premises of the company, in which the building, stock of raw material, finished goods, plant and machinery, other equipments and other electronic gadgets, raw material, finished yarn were damaged/burnt including packing material, stock of raw material due to short circuit. Complainant reported the matter to the local police and DDR was recorded with Police Station Gharaunda (Karnal). The fire brigade was called and the fire was extinguished. The matter was reported to the OPs.  OPs appointed a surveyor, who inspected the burnt material and factory premises and prepared his report. The surveyor of the OP assessed the loss to the tune of Rs.4,82,83,032/- and OP pressurized the complainant to accept the said amount as full and final settlement of the claim. Since the complainant was under heavy financial constrains and under the compelled circumstances, he accepted the payment of Rs.4,82,83,032/-under protest. However, OPs no.1 and 2 did not pay the amount of Rs.59,56,333/- i.e. WIP (work in progress claim) and also a sum of Rs.9,33,568/- as refund of GST. Complainant requested the OPs to pay the balance amount but the OPs did not pay any heed to the request of complainant and due to this act and conduct of the OPs, complainant could not restart his work properly due to the financial loss as well as delayed payment and lastly prayed for allowing the complaint.

11.           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 paid Rs.4,82,83,032/- to the complainant and the complainant has been issued discharge voucher dated 03.08.2019, vide which he accepted the abovesaid payment as full and final settlement of the claim. The abovesaid amount has been received by the complainant without any protest. He further argued that the amount of Rs.59,56,333/- i.e. WIP claim and also a sum of Rs.9,33,568/- as refund of GST are not payable to the complainant. WIP claim is not covered under the policy terms and conditions, hence OPs did not consider WIP claim for assessment of loss. Regarding the GST, the surveyor has calculated the GST components only for the raw materials based on provided purchase bills and compared with the reversal proofs Rs.15,12,523/- and GST as purchase bill is of Rs.5,74,265/- hence GST Rs.9,38,258/-not considered and lastly prayed for dismissal of the complaint.

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

13.              Admittedly, complainant purchased a Standard Fire and Special Perils Policy from the OPs. It is also admitted that a fire occurred in the insured premises of the complainant during the subsistence of the insurance policy. It is also admitted that the claim was lodged with the OPs. It is also admitted that an amount of Rs.4,82,83,032/- has already been paid to the complainant.

14.           As per version of the OP, an amount of Rs.4,82,83,032/- as loss assessed by the surveyor has already been paid to the complainant and in this regard complainant submitted the consent letter as full and final settlement of the claim.

15.           The complainant has taken a plea that consent letter had been obtained under pressure. The onus to prove his version was relied upon the complainant but complainant has miserably failed to prove the same by leading any cogent and convincing evidence. There is nothing on the file to prove that discharge voucher/consent letter Ex.OP5 dated 03.08.2019 has been obtained by the OPs no.1 and 2 under pressure. It is evident from the said letter that complainant has received the amount of Rs.4,82,83,032/- from the OPs. Said discharge voucher/consent letter bears the signatures of the complainant and the same has not been denied by the complainant.

16.            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 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.

17.           Keeping in view that the ratio of the law laid down in the aforesaid judgments, facts and circumstance of the case, the complainant, after issuing discharge voucher/consent letter accepting the amount of Rs.4,82,83,032/- as full and final settlement of the claim, cannot revive his claim. Thus, the complainant is not entitled for the remaining amount as claimed by him.

18.           Thus, in view of the above, the present complaint is devoid of any merits and deserves to be dismissed and same is hereby dismissed.
No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:18.10.2023

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

Member                         Member