State Consumer Disputes Redressal Commission
Rajiv Kumar Son Of Shri Nand Kishore, ... vs M/S New India Assurance Company ... on 13 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.30 of 2009 Date of Institution: 20.10.2009 Date of Decision: 13.09.2012 Rajiv Kumar son of Shri Nand Kishore, Proprietor of M/s Madhu Enterprises, Resident of Mohna Road, Ballabgarh, District Faridabad. Complainant Versus M/s New India Assurance Company Limited, having Corporate Head Office at 87, M.G. Road, Fort, Mumbai-400001 Branch Office at: No.1 and 2 Chowk, NIT, Faridabad. Opposite Party BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Arind Sood Advocate and Shri Tarun Singla, Advocate for complainant. Shri P.S. Saini, Advocate for opposite party. O R D E R
B.M. Bedi, Judicial Member:
The facts of the present case which may be noticed in a narrow compass are that the complainant established proprietary concern under the name and style of M/s Madhu Enterprises for carrying on business of manufacturing/processing and trading of all types of pulses, food grains, oil, oil seeds etc. Rajiv Kumar is the sole proprietor of M/s Madhu Enterprises.
Complainants grand-father Bidhi Chand son of late Shri Trilok Chand owned premises measuring 3 Kanals 10 Marlas forming part of total land measuring 7 Kanals. Bidhi Chand had leased out the aforesaid premises to his two grandsons namely Rajiv Kumar (complainant) and Pradeep Kumar in equal shares for a period of 99 years vide lease-deed dated 6.7.1995 which was duly registered with the Sub-Registrar, Ballabgarh on 10.7.1995 as document No.2050. Bidhi Chand had bequeathed his entire estate , moveable and immovable, in favour of Rajiv Kumar and Pradeep Kumar in equal shares vide Will dated 14.8.1995 duly registered with Sub-Registrar, Ballabgarh on 14.08.1995. Bidhi Chand died on 3.8.2005 and after the death of Bidhi Chand, the complainant and his brother Pradeep Kumar entered into a family settlement whereby they divided the aforesaid premises and decided to continue to possess as owners same portion which was under their respective possession as lessees.
In the year 1994, complainants brother Pradeep Kumar established a proprietary concern under the name and style of M/s Madhu Traders and started business of trading in oil seeds, pulses and food grains from his share/portion of the said premises and thus the business of both the concerns namely M/s Madhu Enterprises and M/s Madhu Traders was separate and distinct.
Complainant purchased Fire and Special Perils Risks Insurance Policy from the opposite party for the period 25.6.2007 to 24.6.2008 for Rs.80lacs. On 20.02.2008 fire broke in the insured premises. According to the complainant in the fire, mill building, plant and machinery and stocks were badly damaged. Complainant has further stated that immediately prior to the aforesaid incident of fire, the complainant had stocks worth Rs.80,04,325/- out of which stocks worth Rs.59,26,320/- were destroyed/damaged in the fire. The complainant alleged that there was loss of Rs.15,27,000/- to the building and loss of Rs.25,08,075/- to the plaint and machinery. The complainant submitted claim with the opposite party for Rs.99,73,723/- out of which the opposite party paid a sum of Rs.21,04,219/- to the complainant on 21.10.2008 and a sum of Rs.4,48,182/- was to be released to the complainant on account of loss to the building.
The grievance of the complainant is that the opposite party did not pay any further amount for the loss of building and also that his claim was not settled as per the actual loss suffered by him and thus prayed for releasing the amount as detailed in the prayer clause of the complaint.
Upon notice, the opposite party appeared and contested the complaint by filing written statement wherein it has been stated that the policy was obtained by M/s Madhu Enterprises. On receipt of the information, the opposite party had deputed an independent surveyor and loss assessor namely M/s HRC Associates, Rohini, Delhi, duly licensed by the Insurance Regulatory and Development Authority of India (in short IRDA) to conduct the survey, who after investigation assessed the loss of Rs.23,67,562/- vide report dated 01.07.2008 but the same was not acceptable by the insured and for that reason after detailed discussions with the insured-complainant, the aforesaid surveyor had revised the assessment of the loss and submitted a fresh revised assessment of loss vide letter dated 3.10.2008 to the extent of Rs.25,54,411/-. The complainant had submitted a written consent vide letter dated 3.10.2008 (Annexure R-5) and a sum of Rs.21,04,219/- was paid to the complainant vide Discharge Voucher dated 21.10.2008. The amount of Rs.4,48,182/- was withheld by the opposite party in respect of building for want of title/ownership documents. Thus, the amount of Rs.21,04,219/- was received by the complainant in full and final settlement of complainants claim and thus the complainant is not entitled for any further claim. It has been prayed that the complaint merited dismissal.
Both the parties led evidence in support of their respective claims. Complainant Rajiv Kumar tendered his affidavit and documents Ex.C-1 to Ex.C-17. On the other hand, the opposite party tendered affidavit of K.B. Bindal, Manager, NIAC and affidavit of Hans Chauhdary, Surveyor and documents Ex.R-1 to Ex.R-11.
We have heard learned counsel for the parties and perused the case file.
On behalf of the complainant it is contended that in fact the total loss suffered by the complainant was of Rs.99,73,723/- but the opposite party had assessed the loss of Rs.25,08,075/- out of which only a sum of Rs.21,04,219/- was paid to the complainant. Learned counsels for the complainant has further argued that the complainant had received the amount of Rs.21,04,219/- because the opposite party had informed that the additional amount of Rs.4,48,182/- was to be released to the complainant on account of loss of building. The complainant had accepted the aforesaid amount of Rs.21,04,219/- towards part settlement and the opposite party is liable to pay the balance amount of claim.
Rebutting the contention raised on behalf of the complainant, it is argued by Shri P.S. Saini, Advocate that the complaint has been filed by Rajiv Kumar and not by M/s Madhu Enterprises whereas the Insurance Policy was taken in the name of M/s Madhu Enterprises and the name of Rajiv Kumar has nowhere been mentioned in the Insurance Cover Note. In support of his argument learned counsel for the opposite party has drawn our attention towards the Insurance Cover Note Ex.C-6.
The other contention of the learned counsel for the opposite party was that the complainant had given the consent to receive the amount assessed by the surveyor subject to the terms and conditions of the policy. Learned counsel for the opposite party has referred to Consent letter written on behalf of Madhu Enterprises Annexure R-5.
Having considered the rival contentions of the learned counsel for the parties and after perusing the case file, we find that the complaint filed by Rajiv Kumar is not maintainable as the Insurance Policy was taken by M/s Madhu Enterprises and not by Rajiv Kumar. Secondly, it is admitted case of the parties that a sum of Rs.21,04,219/- has already been paid to M/s Madhu Enterprises as per the assessment made by the surveyor and the amount was received by Madhu Enterprises in full and final settlement as per consent letter Annexure R-5 produced on the record. The plea of the complainant that the amount of Rs.4,48,182/- was wrongly retained by the opposite party, is not sustainable because the title/ownership of the building was not proved to be in the name of M/s Madhu Enterprises. More so, undisputedly the amount of Rs.21,04,219/- was paid vide Discharge Voucher dated 21.10.2008 and the complaint was filed on 20.10.2009 i.e. after one year which is not sustainable in view of the judgment rendered by Honble National Consumer Commission in case cited as Raj KUMAR versus UNITED India INSURANCE CO. LTD., III(2011) CPJ 354 (NC) wherein the facts were that the claimant had claimed the amount of Rs.2,81,663/- but as per surveyors report the loss was assessed to the extent of Rs.1,41,417/-. The claimant had received the amount of Rs.1,41,417/- by signing the Discharge Voucher. Thereafter, the complainants claimed the balance amount of Rs.1,40,246/- by invoking the jurisdiction of District Consumer Forum after two years. District Consumer Forum allowed the complaint and issued direction to the Insurance Company to pay Rs.1,27,414/- to the claimant alongwith interest @ 9% per annum from 19.5.1998 till the date of payment along cost of litigation of Rs.500/-. The appeal filed by the opposite party Insurance Company against the order of the District Forum was allowed by State Commission and the order of the District Forum was set aside. Aggrieved against the order of the State Commission, Rajasthan, Circuit Bench, Jaipur, claimant filed revision petition before Honble National Consumer Commission, New Delhi which was dismissed with the following observations:-
4. We do not find any infirmity or irregularity in the view taken by the State Commission in the impugned order. Learned Counsel for the petitioner/complainant has relied on the judgment of this Commission in the case of Singureddy Ramana Murthy v.
National Insurance Co. Ltd. & Ors., I(2003) CPJ 37 (NC). We have gone through this judgment by which this Commission after convincing itself that the consent letter for full and final settlement from the complainant was obtained by the Insurance Company by misrepresentation, fraud or coercion or by exercising undue influence and applying the law laid down by the Honble Supremd Court in the case of United India Insurance Company v. Ajmer Singh Cotton & General Mills & Ors., II(1999) CPJ 10 (SC)=VI(1999) SLT 590=(1999) 6 SCC 400, allowed the claim of the complainant against the insurance Company. We, however, find that the facts and circumstances of this case are different and as rightly observed by the State Commission in its impugned order, the petitioner has not been able to show that the discharge voucher in question was obtained by the Insurance Company by undue influence, threat or misrepresentation. In the circumstances, the ratio laid down by the Apex Court in the case of Ajmer Singhs case (supra) and the decision of this Commission based thereon in the case of Singureddy Ramana Murthy (supra), cannot provide any comfort to the petitioner. Having considered the submissions the submissions made by the Counsel for the petitioner, we do not find any reason to interfere with the well-reasoned and detailed order passed by the State Commission.
The facts of the instant case are fully attracted to RAJ KUMAR versus UNITED India INSURANCE CO. LTDs case (Supra). In the instant case the amount of Rs.21,04,219/- was paid to M/s Madhu Enterprises on 21.10.2008 whereas the complaint has been filed on 20.10.2009. The complainant has admitted that after writing letter dated 26.11.2008 to the opposite party, the copy of the surveyor report was supplied to the complainant in the month of December, 2008. But still the complainant remained silent for a period of about ten months. Thus, it has to be presumed that the amount of Rs.21,04,219/- was paid to M/s Madhu Enterprises in full and final settlement and no case for further payment to M/s Madhu Enterprises is made out.
As a sequel to our aforesaid discussions, we are of the confirmed view that M/s Madhu Enterprises is not entitled for any further amount as claimed in the complaint. it is also held that the complaint filed by Rajiv Kumar is not maintainable.
Hence, this complaint is dismissed being devoid of any merit.
Announced: Justice R.S. Madan 13.09.2012 President B.M. Bedi Judicial Member