Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 11.9.2009 passed by District Consumer Forum-II, U.T. Chandigarh whereby its complaint bearing No.1564 of 2008 was dismissed. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. In nutshell, the facts as set out in the complaint are that the Complainant got his Beauty Parlour and Hair Saloon insured from OP insurance company by way of purchasing a Standard Fire Policy bearing No.111604/11/06/11/00000277 for a sum of Rs.25 lacs which was valid for the period from 10.01.2007 to 09.01.2008, covering all types of furniture, fixtures and fittings, ACs, Gen-set, Electrical and Electronic fittings, glass mirrors and accessories and stocks of all types of cosmetics under in Beauty Parlour. On 24.04.2007 early in the morning the partners of the Complainant firm received a telephone call from the Manager of Gopal Sweet, nearby shop of the complainant , that the smoke was coming out of parlour. The Complainant immediately rushed to the spot where the Fire Brigade had already reached and was extinguishing the fire and with great effort, the fire was brought under control. During the fire, no loss of life was reported except loss of stock, fixture, furniture etc. The Chief Fire Officer vide its letter dated 17.12.2007 reported that the cause of the fire was due to short circuiting. The matter was then reported to Police vide DDR No.41 dated 26.04.2007. The Complainant also intimated OPs regarding the incident of fire on 24.04.2007 and also lodged the claim of Rs.23,85,083.99. OPs deputed Sh. Rajan Sharda as Surveyor and Loss Assessor who assessed the loss for Rs.4,22,026/- toward stock and Rs.4,99,440/- as loss towards furniture and fixture totaling to Rs.9,21,466/- and after deducting Rs.10,000/- as excess clause, the net assessed loss amount was for Rs.9,11,466/- against the claim of Rs.23,85,083.00. OPs issued the cheque bearing No.822845 dated 27.03.2008, amounting to Rs.8,98,879/- in favour of Bank of Baroda A/c United House, which was accepted Under Protest and signed the settlement intimation voucher on 28.03.2008. The OPs then pressurized the complainant that the cheque would be encahsed only on the condition if complainant accepted the cheque as full and final settlement, so there was no option for the complainant to accept the cheque . It was alleged that complainant had suffered a huge loss in business so a representation was made but to no effect. Hence, alleging deficiency in service on the part of OPs, complainant filed complaint before the District Forum seeking payment of remaining amount of Rs.14,86,204.99/- alongwith interest @15% per annum from the date of lodging the claim till the date of realization besides compensation and costs etc. 4. OPs contested the complaint before the District Forum and in their written statement by way of affidavit it was stated that once the claim had been settled, the same could not be re-opened and the unfolding of events clearly revealed the malafide intentions of the Complainant. A surveyor was promptly deputed to assess the loss and after detailed and thorough scrutiny, the surveyor assessed the loss and prompt payment was made, which was duly received by the Complainant against the receipt. The complainant had inflated the loss to get hefty compensation from the insurer as there was difference of sales as per stock register and as per balance sheet. The purchases were also shown on higher side. It was pleaded that the complainant had given a valid discharge in token of having received the claim amount in full and final settlement , so, there was no deficiency in service on its part and a prayer was made for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties came to the conclusion that there was no merit in the complaint and dismissed the same. Still dissatisfied, complainant has come up in this appeal. 6. We have heard learned counsel for the parties and gone through the file carefully. It has been argued on behalf of the complainant that the learned District Forum erroneously relied upon the report of surveyor wherein the loss suffered by the complainant firm had been illegally and arbitrarily deflated while ignoring the documentary evidence. On the date when incident of fire took place in its premises, stock for a value of Rs.12,60,330/- was stored/displayed in its premise and the specific details of the products manufactured by various companies which were stocked in the premises were submitted to the surveyor and also placed on the record. However, the surveyor despite taking cognizance of the stock details supplied to it at the time of assessing the loss and damage caused due to the fire, illegally and arbitrarily relied upon technicalities in recording the loss suffered by the appellant firm on account of damaged stock at a mere amount of Rs.4,22,026/- which was clearly on the lower side. The surveyor while assessing the loss/damage caused to the furniture installed in the premises of appellant firm had erroneously declined to consider its cost. It was further argued that the learned District Forum erred in returning a finding to the effect that the complainant firm on account of having accepted the cheque without raising any protest or objection, was not entitled to institute the complaint. The learned counsel submitted that the amount was received under protest and not on account of free will, so complainant was entitled to claim the balance amount. To support his contention, he placed reliance upon following two authorities namely ; (i) National Insurance Company Ljtd. Vs Sehtia Shoes 2008(3) Civil Court cases 207(SC) (ii) United India Insurance Co. Ltd. Vs K.Gangadharan 2002(2)CLT 128(NC) 7. On the other hand, above arguments have been repelled by the learned counsel for OPs who submitted that complainant could not prove that the earlier claim on the basis of full and final settlement was based upon any fraud or misrepresentation, so he was not entitled to file complaint after receiving the settled amount. In support of his contention he placed reliance upon following authorities ; (i) Champalal Verma Vs Oriental Insurance Co. Ltd. 2008(2)CLT 662 (ii) United India Insurance Co. Ltd. Vs Deen Dayal 2009(2)CPC 133 8. It is pertinent to mention here that immediately after receiving intimation about the loss, OP insurance company deputed surveyor who visited the spot promptly and after taking into account each and every item the loss was assessed. The report of the surveyor is quite a detailed one. It covers all the items burnt in the fire. It is also mentioned therein that two chairs lying in the bridal room were burnt but there was only quotation of said chairs for Rs.45,000/- each. However, insured had purchased 10 chairs in 2005 @ Rs.4500/- each, so, on the basis of said bill, complainant was allowed Rs.9000/- for two chairs. It is to add here that the bill/receipt of 10 other chairs which were purchased in the year 2005 for a sum of Rs.4500/- each was produced then why the bill of other two chairs which were claimed to have purchased @ Rs.45000/- each was not produced before the surveyor. However, only quotation for the said two chairs was shown to the surveyor. In the given facts and circumstances it is not understandable that when quotation was carefully retained by the complainant then bill/receipt of other two chairs could also be kept safely alongwith the said quotation. In this view of the matter, we do not find any reason to deviate from the report of surveyor which is based on sound footing. 9. Further the discharge voucher C-8/C-9 receiving the amount of Rs.8,98,879/- was signed on 28.3.2008 whereas representation C-10 was made after more than 5 months which was received by OP on 7.8.2008 and was replied on the next date i.e. 8.8.2008 stating therein that the policy in question was subject to Agreed Bank clause and the bank had also given the full and final discharge. As per settled law, the complainant was to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which could be termed as fraudulent or exercise of undue influence or by misrepresentation. However, in the instant case the discharge voucher was signed on 28.3.2008 and the protest letter was given on 8.8.2008,so it is not proved on record that there was any coercion. Had complainant been coerced to signed the discharged voucher, he should have made protest immediately within a day or so. Since the case involved the quantum dispute, the surveyor report is to be given due weightage and cannot be brushed aside unless there is some discrepancy in the report. The facts of the cases cited by learned counsel for complainant are at quite variance from the facts of the case in hand, so no benefit can be derived from the observations made therein by their lordships. 10. In view of the foregoing discussion, we are of the considered opinion that there is no illegality in the impugned order which is well reasoned and justified. Accordingly the appeal fails and same is hereby dismissed, leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
