National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Shiv Khanna on 12 February, 2004
Equivalent citations: II(2004)CPJ51(NC)
ORDER
B.K. Taimni, Member
1. Appellant was the opposite party before the State Commission, where the respondent/ complainant had filed a complaint alleging deficiency in service on the part of the appellant.
2. Brief facts leading to filing of the complaint were that the complainant had a valid policy covering the risk of fire, along with other risks. There was a fire incident in the premises of the complainant in the intervening night of 18th/19th March, 1999. Complainant's unit was hypothecated as security with Canara Bank, Panchkula. After the incidence of fire, the incident was reported to the Police as also to the appellant claiming a loss of Rs. 16,84,388/-break-up of which is as follows:
"1. Loss of stock of timber/wood Rs. 15,50,739/-
2. Loss of machinery, building/ premises Rs. 1,33,649/-"
3. On receipt of the report about fire, appellant appointed a Surveyor, who after survey assessed the loss at Rs. 8,35,183/-, after deducting Rs. 10,000/- under excess clause, break-up of which is as under :
"(i) Value of loss of timber/wood Rs. 6,02,567/-
(ii) Value of the loss of machinery,
etc. Rs. 22,516/-
(iii) Value of loss to the building
premises Rs, 17,260/-
--------------------------------
Rs. 8,45,183/-(--) Rs. 10,000/-
Rs. 8,35,183/-"
4. This amount was allegedly offered on 28.6.1999 as full and final settlement, which was accepted and amount credited against the account of the complainant. Not being satisfied with this, the complainant protested against settlement on 14.7.1999. When this protest was not heeded to by the insurers, a complaint came to be filed before the State Commission, who after hearing the parties, directed the appellant to pay Rs. 8,52,045/- (being the difference between the loss claimed by the complainant at Rs. 16,84,388/- minus Rs. 8,32,342/- already paid to the complainant), along with interest @ 9% from 28.6.1999 along with cost of Rs. 5,000/-. Aggrieved by this order the appellant has filed this appeal.
5. We heard the parties and perused the material on record. Two points have been made; first, that as per settled law the complainant once having accepted the amount in full and final settlement the matter cannot be agitated unless fraud or coercion is shown and proved and secondly, the State Commission had no ground to award the amount more than the loss assessed by the Surveyor.
6. On the first point, we see that there is a letter dated 28.6.1999, on record, which is produced in toto :
"RE Fire Claim No. 98/0008 against Pol. No. 11/50475-048, DOL-18/19.3.1999 Please refer to the above, it is intimated that your claim is approved for Rs. 8,32,343/-. We have already released a sum of Rs. 5,00,000/- vide our cheque No. 803881 dated 28.6.1999 of Canara Bank, 35-B, Chandigarh. Now we are enclosing herewith the balance amounting to Rs. 3,32,343/- vide our Ch. No. 803882 dated 28.6.1999 of Canara Bank, 35-B, Chandigarh as full and final settlement of the above claim. Kindly acknowledge the receipt."
7. We also see that the receipts obtained from the complainant nowhere mentions this being a full and final settlement and what we find more intriguing is that one of the receipt is signed by the Manager giving us the impression that the cheques were sent to the Bank with whom the goods were hypothecated and the Bank accepted the same. We also see that there is no date on the two receipts signed by the complainant. An affidavit of the appellant has been produced on record in which it is stated that the two separate cheques were issued which were handed over to respondent and vouchers were simultaneously signed by the appellant on 28.6.1999. The said cheques were cleared for payments by the bank on 29.6.1999 and 1.7.1999 respectively. The receipt of this amount has been accepted under protest as per the complainant's letter dated 14.7.1999. There is no disputing the fact that cheques were issued on 28.6.1999 and protest about the quantum of relief of settlement was made on 14.7.1999, i.e., within 2 weeks. In the complaint itself, complainant clearly mentions that since he had suffered huge loss because of the fire and there was delay in settling the claim, the complainant had no option but to accept this amount. The complainant had accepted these cheques under protest and without prejudice to his right. It is true that this Commission and Hon'ble Apex Court have held that unless there is fraud or coercion, we should not generally entertain the complaints in this regard, but in the instant case, in our view, the protest was lodged within a reasonable period of 2 weeks from the date of receipt of these cheques, which itself is a clear indication of the circumstances in which it was accepted. A person, who has lost his everything has no option but to accept what has been offered to him but if settlement is protested within a reasonable period, then there is a ground to reopen the issue. In the present case undisputedly protest was lodged within two weeks which we find to be a quite reasonable. The complainant is very much within his right to accept whatever is offered to him. Complainant has been pleading the case in person and he may not be familiar with the niceties of drafting complaint but he was at pains to explain before us that he had accepted the amount under protest. Under these adverse circumstances in our view complainant was within his right to prefer a claim alleging deficiency in service. Keeping in view the facts and circumstances in this case as enumerated above, we see no merit in the plea raised by the appellant that this complaint could not be filed as the matter has been settled in full and final settlement.
8. Coming to the second point of the relief granted by the State Commission, we find that sufficient, grounds have not been shown by the State Commission for grant of the amount, which has been directed to be paid to the complainant. We have carefully gone through the reasoning given by the State Commission as also report of the Surveyor. While the State Commission has granted the amount claimed by the complainant, the Surveyor in our view has messed up the estimate of the loss by averaging the price of timber, which had different price ranges. We do not appreciate this averaging of the different variety of timber, especially when material was available. As per report under the Head 'Assessment of Loss', the Surveyor has following observations to make:
"The books and records of the insured were verified and it was found that the insured purchased his entire stocks from Rajpura. We visited Rajpura and verified the purchases and entire purchases were found genuine. From the account books of the insured we have calculated the entire quantity and worked out the average purchase rate. As the quality of burnt timber could not be verified, therefore, average purchase rate has been applied for assessment of the loss. The average purchase rate applied for the assessment of the loss is lower than the the prevailing market rates on the data of fire almost for all the brands of the wood available with the insured. Moreover, the description on the purchase bills is not clear, therefore, rates of different brands could not be ascertained individually. The loss of partly damaged stocks has been assessed on the percentage basis after ascertaining the quantity of wood retrievable."
9. We find that the Surveyor had access to the details. He had also the details to work out the loss individually. As per the report of the surveyor itself the damages were physically verified and quantity was ascertained as under :
"Partal 160 Cft.
Tahli 194 Cft.
Hollack 600 Cft.
Nepali Tahli 294 Cft.
Tahli 242 Cft.
M.P. Teak 50 Cft.
Mixed wood 200 Cft.
Teak Wood 480 Cft. (Badly burnt) 2220 Cft."
10. The price of each variety was with the insurers and also with the Surveyor by way of Bank statement sent by the insured to the Bank as part of regular routine in which the rate per quantity in Cft has clearly been mentioned. After assigning the rates as given by the complainant to the Bank against the quantity of loss estimated by the Surveyor, we find that the total loss will come to Rs. 12,02,200/- and after providing for 12% of salvage value, the net value of timber will be Rs. 10,58,200/-. There is no dispute about the assessment made with regard to damage to plant and machinery and building amount to Rs. 42,626/-. Thus, in our view the complainant is entitled to relief of Rs. 11,00,816/-. It is this amount to which the complainant shall be entitled to only and to this extent the appeal is allowed. The complainant shall be entitled to payment of Rs. 2,77,473/-being the difference between the loss assessed by us minus the amount already paid, along with interest @ 9% from 3.8.1999, i.e., two months after the receipt of the report of the Surveyor.
11. Keeping in view the facts and circumstances, no order as to costs.