Chandigarh

DF-I

CC/195/2024

S. HARVINDER PAL SINGH - Complainant(s)

Versus

THE ORIENTAL INSURANCE COMPANY - Opp.Party(s)

SANJEEV SHARMA

05 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/195/2024
Date of Institution	:	10/04/2024
Date of Decision	:	5/11/2024

S. Harvinder Pal Singh, Proprietor, New Singh Bakers, SCO No.5 (Backside), Sector-11, Panchkula.

2^nd Address : S. Harvinder Pal Singh son of Harban Singh r/o 3205, Sector 28-D, Chandigarh.

… Complainant

V E R S U S

1. The Oriental Insurance Company, Regional Office, SCO No.99-100, Sector 17-B, Chandigarh through its Regional Manager.
2. The Oriental Insurance Company, Regional Office, SCO No.99-100, Sector 17-B, Chandigarh through its Divisional Manager.
3. Devinder Pal Singh, Agent, The Oriental Insurance Company r/o H.No.393, Phase-IX, Mohali-160055.
4. Satwinder Singh, Surveyor, The Oriental Insurance Company, Flat No.106/1, Sector 45-A, Chandigarh.

… Opposite Parties

                                                                               

ARGUED BY	:	Sh. Sanjeev Sharma, Advocate for complainant
	:	Sh. J.P. Nahar, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by S.Harvinder Pal Singh, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that the complainant is the proprietor and running the business under the name and style of “New Singh Bakers” and has been earning his livelihood from the said business.  In the year 2018, agent/OP-3 of OPs 1 & 2/ insurers, approached the complainant by claiming to be best insurance company, duly approved by the IRDA, and had assured that whenever any mis-happening takes place in future, the claim would be settled within 7 days. On this, on 9.3.2023, complainant got his business located at SCO 5, Backside, Sector 11, Panchkula  (hereinafter referred to as “subject business/shop”) insured vide subject policy, which was valid w.e.f. 10.3.2023 to 9.3.2024 (Annexure C-1), by paying premium of ₹9,164/- under which the entire machinery, stocks, raw material, furniture etc. were covered with total sum insured of ₹55.00 lacs.  Unfortunately, on the intervening night of 10/11.5.2023, at around 3:00 a.m, the complainant received a telephonic call regarding fire incident in the subject shop. Thereafter the fire brigade Panchkula did its best, but, could not control the fire, as a result of which entire machinery, stocks, raw material, furniture and fixtures were destroyed.  Immediately, matter was reported to the police vide DDR (Annexure C-2) as well as to the OPs. On this, OP-4 was deputed as surveyor by OPs 1 & 2, who had given his report (Annexure
   C-3) about the total loss. In the said fire incident, complainant suffered a loss of ₹70.00 lacs and accordingly he submitted his claim with the OPs as per the insurance policy under which the loss was covered upto ₹55.00 lacs.  However, the OPs in a very illegal and arbitrary manner, after four months, paid only ₹32,61,000/- to the complainant. Thereafter the complainant repeatedly visited the office of the OPs with the request to pay the remaining sum insured as he had suffered loss of more than ₹70.00 lacs, but, the OPs failed to pay the same. Due to the aforesaid act of the OPs, complainant has suffered financial loss of ₹85,000/- per month on account of rent of the premises, ₹1,70,000/- on account of salaries paid to the employees and interest on the loan amount to the tune of ₹24,44,000/- from the date of incident i.e. 11.5.2023 onwards.  Thereafter the complainant also issued a legal notice dated 18.10.2023 (Annexure C-5) to the OPs, but, with no success. In this manner, the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint praying for directing the OPs to pay the remaining claim of ₹22,39,000/- alongwith interest and compensation etc.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and concealment of facts.  However, it is admitted that the subject policy was obtained by the complainant from the OPs which was valid w.e.f. 10.3.2023 to 9.3.2024 and the fire incident was reported by the complainant to the answering OPs and accordingly surveyor/OP-4 was deputed by OPs 1 & 2/insurers who investigated the matter and assessed the loss to the tune of ₹31,30,000/-.  It is further alleged that thereafter the complainant himself had approached the OPs for settlement of his claim in pursuance to the surveyor report and only after the consent letter dated 22.6.2023 (Ex.OP-1,2&3/1), duly signed and executed by the complainant, the claim was finally settled for ₹31,30,000/- and thereafter the aforesaid amount was disbursed in the account of the complainant on 23.8.2023. Since the aforesaid consent letter was executed by the complainant with his free will and the claim was finally settled by him with the OPs and after receiving the entire settled amount in his account he has filed the present false consumer complaint against the OPs after around 8 months, the same is liable to be dismissed.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of the OP.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant got his subject business/shop insured with OPs 1 & 2/insurers for sum insured of ₹55,00,000/- vide subject policy (Annexure C-1), which was valid w.e.f. 10.3.2023 to 9.3.2024 and on the relevant date, time and place, the subject shop/business was burnt in fire as a result of which entire machinery, stocks, raw material, furniture and fixtures were destroyed, as is also evident from the copy of DDR (Annexure C-2) and on receiving information about the incident OPs 1&2/insurers deputed surveyor who vide his report (Annexure C-3) assessed the net loss at ₹31,30,040/-, the case is reduced to a narrow compass as it is to be determined if OPs/insurers are unjustified in partially allowing the claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the present consumer complaint has been filed by the complainant by concealing material facts qua the settlement of claim by him with OPs 1 & 2 on executing the consent letter and on receiving the settled amount and the consumer complaint, being false and frivolous, is liable to be dismissed, as is the defence of the OPs.
   2. A close scrutiny of the consumer complaint clearly indicates that the complainant is silent about the consent letter, having been relied upon and placed on record by him (annexed with Annexure C-4 at page 154) as well as having been relied upon by the OPs as Ex.OP1,2&3/1.  The complainant has not whispered even a single word in his entire complaint if he ever agreed to accept the settled amount by executing the consent letter and the same was disbursed in his account by the OPs as per the consent given by him, making clear that the complainant has concealed material facts by not disclosing about the settlement with the OPs and also that he has already received the settled amount from the OPs before filing of the present consumer complaint.
   3. In this regard, learned counsel for the OPs has referred to the order passed by the Hon’ble National Commission in Patanjali Foods Ltd. Vs. Oriental Insurance Co. Ltd., II (2024) CPJ 422 (NC) and the headnote of the same is reproduced below for ready reference :-

Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Insurance — Fire accident — Losses suffered — Issuance of discharge voucher — Full and final settlement — Alleged deficiency in service — If discharge is otherwise valid and was outcome of amicable settlement, then allowing party to question same would not be appropriate — There has to be some material to show that discharge document was executed under coercion or duress and evidence has to be led in this regard — If aggrieved party is able to establish any claim on basis of adequate material, such claim would not be barred merely by issuing ‘no dues certificate’ — Amounts which were settled, for which vouchers were issued by complainants themselves there is no indication of any coercion or undue influence being exercised by Insurance Company or its officials on account of any financial distress of company — There is no averment or name of any official or agent of Insurance Company to identify as to who actually had coerced complainant and when — There is no evidence or pleading to that effect — Mere bald allegation as made is not even sufficient to raise a doubt much less establish same — Allegations seem to be a desperate attempt to overcome voluntary bargain of discharge — Letters and final settlement vouchers issued by complainants evidence that they were agreeable to full and final settlement as per survey reports tendered and which is indicated in their averments in complaint — Plea of financial distress or economic duress also does not appeal to reason as “on account” advance payments of Rs. 3 crore 40 lacs had been made by Insurance Company to complainant — Nothing on record to establish coercion, misrepresentation or undue influence on part of the Insurance Company being exercised for obtaining discharge vouchers — Discharge vouchers appear to have been signed voluntarily — Discharge vouchers having been signed and amount having been finally collected against full and final settlement of claim, cannot be said to be either deliberate delay or act amounting to undue influence on part of insurance company or even otherwise calls for award of interest on aforesaid amounts — There is neither any proof or evidence of undue influence nor there is any element of deficiency in service or unfair trade practice on part of Insurance Company.

4. It is also pertinent to mention here that surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

        “38.  A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

Further, the Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

        “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

5. In view of the foregoing discussion and the ratio of law laid down in the aforesaid judgments, as nothing has come on record to establish coercion, misrepresentation or undue influence on part of the OPs/insurer, being exercised for obtaining consent/discharge letter (Ex.OP-1,2&3/1), the same appears to have been signed voluntarily by the complainant and further when the surveyor through his report has assessed the loss, against which nothing has come on record that there is any defect in the said report, it is safe to hold that the complainant has miserably failed to prove any deficiency in service or unfair trade practice on the part of the OPs and the present consumer complaint, being not maintainable, deserves dismissal. 

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

5/11/2024	[Pawanjit Singh] President
	[Surjeet Kaur] Member