National Consumer Disputes Redressal
M/S. Eggro Paper Moulds Ltd. vs New India Assurance Co. Ltd. on 19 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 475 OF 2002 1. M/S. EGGRO PAPER MOULDS LTD. ...........Complainant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Jamshed Bey, Advocate For the Opp.Party : Mr. Kishore Rawat, Advocate
Dated : 19 Nov 2015 ORDER
JUSTICE J.M. MALIK, PRESIDING MEMBER
1. M/s. Eggro Paper Moulds Limited, the complainant, obtained various policies in respect of its stock as well as building, plant and machinery, since the year 1990-91, from M/s. New India Assurance Co. Ltd., the OP. During the subsistence of the policies, on 08.05.1996, a big fire took place at the factory premises of the complainant at Jagdishpur, District Sultanpur, U.P., for which substantial loss to the stocks as well as to the building, plant and machinery took place for which the complainant lodged a claim of Rs.139.45 lakhs. The OP paid a total amount of Rs.49.53 lakhs towards the loss. The balance amount was not paid despite the request made by the complainant vide its letter dated 06.05.1998, copy of which has been placed on record as Annexure-A. The OP rejected the prayer for payment of the balance of amount of Rs.89.92 lakhs vide its letter dated 13.07.1998.
2. It is contended that the complainant is entitled to Rs.166.56 lakhs including interest @ 18% p.a. Consequently, the present Original Petition was filed before this Commission on 11.07.2000, however, the same was registered by the Registry, in the year 2002.
DEFENCE :
3. The OP has listed the following defences in its case. The claim was finally settled on 17.02.1998 after the complainant was given a full and final discharge. The case was filed beyond the expiry of two years, therefore, the same is barred by time. Secondly, the complainant has accepted the amount of Rs.54,50,892/- in 'full and final' settlement of the claim and executed a discharge voucher in 'full and final' settlement, on 17.02.1998. There is no deficiency on the part of the OP-Insurance Company. The amount so approved by the Insurance company was subject to deductions of the difference of premium which was payable by the complainant. The complainant filed a complaint before the State Commission, Uttar Pradesh, on account of deduction of difference of premium by the OP and the copy of the said complaint has been placed on record as Annexure R-1. The said complaint was dismissed in default on 05.08.2002 and the copy of the order has been placed on record as Annexure R-2. The OP deputed M/s. Mehta & Padamsey Surveyors Pvt. Ltd., and M/s. Parimal R. Shah & Co., Joint Surveyors to survey and assess the loss. The complainant took long time to provide all the necessary information / documents, required by the Surveyors. Copy of the survey report dated 12.11.1996 was placed on record as Annexure R-3. Thereafter, the Divisional Office of the OP sent the said survey report to the Regional Office, for their approval, on 18.12.1996 as there were some discrepancies in the claim, and, therefore, some delay took place. All the other allegations have been denied.
SUBMISSIONS AND FINDINGS :
4. We have heard the counsel for the parties. The argument urged by the counsel for the complainant has the following five prongs. He vehemently argued that there was a continuous cause of action. He has invited our attention towards the letter dated 06.05.1998 sent by the complainant to the OP. The following paras are relevant :-
"That the negligent and non-cooperative attitude of the Surveyor further aggravated the situation, as they were more interested in getting back their reimbursement first, rather than settling on our claim.
That for many months, we were not in a position to know the fate of the claim, despite our regular persuasion, through our various letters to settle the claims at the earliest.
That the final payment of the claim of the balance amount of Rs.101.51 lacs was also not made and our settlement of the claim was finalized by paying Rs.11.59 lacs only, in the month of Feb.'98. Thus, against the total claim of Rs.139.45 lakhs, an amount of Rs.49.53 lakhs was only paid by you. Therefore, left with no alternative, we had to accept the final amount of Rs.11.59 lakhs as the matter had already been delayed and we were in need of the finances".
5. In reply to the above said letter, the Insurance company vide its letter dated 13.07.1998, explained, as under :-
"This has reference to the earlier correspondence on the captioned subject.
On getting the details from our office, we understand that both the above claims were not only discussed in detail with you, but your written consent was obtained before settlement of the claim.
As regards interest on the claim amount, please be informed that as per terms and conditions of the policy, any consequential losses, such as interest, are not payable.
We, therefore, confirm that the settlement made by the Divisional Office is in order.
In view of the same, please note that we are treating the matter as 'closed', at our end".
6. The learned counsel for the complainant opined that the case is well within time as the limitation started from 13.07.1998 and the complaint was filed on 11.07.2000.
7. All these arguments are bereft of merit. The complainant has produced the Discharge Voucher, dated 17.02.1998, which is reproduced here, as under :-
"RECEIVED from THE NEW INDIA ASSURANCE COMPANY LIMITED the sum of Rupees Fifty-Four Lacs Fifty Thousand, Eight Hundred Ninety-Two only in full settlement of all claims upon the said Company under Policy No.11-3359 & 36... illegible for loss or damage by a Fire and/ or peril (s) insured which occurred on 08.05.1996. In consequence of which the sum insured stands reduced by the above amount, in the proportion paid under each item of the policy until the date of next renewal.
Rs. 54,50,892/- Sd/-
Please Stamp, sign and return Authorised Signatory
this voucher as it is required for
audit purposes".
8. The same is signed by the complainant and the stamp of the Company also appears thereon, the photocopy proved before us.
9. The counsel for the complainant did not pick up a conflict with this document. No immediate protest was ever raised. The protest was raised for the first time vide letter dated 06.05.1998 after the expiry of about three months. Such like correspondence do not extend the time, particularly, when the case is 'full and finally settled'. The time will start from 17.02.1998. The case was filed beyond the expiry of two years. Consequently, the case is barred by time.
10. The Hon'ble Apex Court in the case of Dolphin Offshore Enterprises (I) Ltd. Vs. United India Insurance Co. Ltd., Special Leave to Appeal (Civil) No.9307 of 2013, decided on 08.03.2013, was pleased to hold, as under :-
"We have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission, for holding that the complaint was barred by time, are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent, vide communication dated 30.10.2002, and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this court in HUDA Vs. B.K. Sood (2006) 1 SCC 164, SBI Vs. B.S.Agricultural Industries (I) (2009) 5 SCC 121, Kandimalla Raghavaiah Vs. National Insurance Co. Ltd. (2009) 7 SCC 768 and V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53".
It is also interesting to note that no application for condonation of delay was moved in the instant case.
11. The second submission which falls for consideration is the above Discharge Voucher. It stands proved that the Discharge Voucher was issued by the New India Assurance Co. Ltd., the OP, which was voluntarily executed by the complainant. There is not even an iota of plea or evidence regarding fraud, misrepresentation, undue influence, threat or coercion. The complaint is conspicuously silent about this. Again, there is only a bald allegation in the affidavit filed by the complainant, which is not bolstered by any cogent or plausible evidence.
12. Recently, this Bench has decided the case titled Garg Acrylics Ltd. Vs. United India Insurance Co. Ltd., I (2015) CPJ 185 (NC), decided on 16.12.2014, passed in CC No. 36 of 2014, wherein we placed reliance on Sara International Limited Vs. Rizhao Steel Holding Group Co. Ltd., 201 (2013) DLT 262, United India Insurance Co. Ltd. Vs. Ajmer Singh Cotton & General Mills & Ors., II (1999) CPJ 10 (SC), National Insurance Co. ltd. Vs. Sehtia Shoes, II (2008) CPJ 16 SC, while dismissing the complaint. The said judgment was upheld by the Hon'ble Apex Court in Civil Appeal No. 2811 of 2015, decided on 20.03.2015.
13. Counsel for the OP has also invited our attention towards the judgments reported in (1) Sandeep Kumar Vs. New India Assurance Co. Ltd. & Ors., II (2013) CPJ 471 (NC), (2) Jess Ram Khushi Ram Pvt. Ltd. & Anr.,Vs. National Insurance Co. Ltd. & Ors., II (2014) CPJ 280 (NC), (3) Tata AIG General Insurance Co. Ltd. Vs. Nissan Electronics Ltd., III (2014) CPJ 285 (NC) and lastly the ratio laid down in New India Assurance Co. Ltd. Vs. Genus Power Infrastructure Ltd., (2015) 2 SCC 424.
It is thus clear that the matter already stands 'full and finally settled.
14. The third submission made by the counsel for the complainant was that the complainant had insured the stock at Sector-14, A-5, Industrial Area, Jagdishpur, Sultanpur, but the OP did not consider the other premises i.e. Unit-II, at C-32 & 33, Sector-22, Industrial Area, Jagdishpur. He further submitted that the two premises are separate.
15. The counsel for the OP also invited our attention towards the survey report which mentions :-
"3.04. Insured's stocks of the above raw materials were stored in several stacks of different sizes in the open compound of the factory premises. All the stacks were stored directly on the ground.
The storage of straw (wheat/rice), bagasse and sarkanda did not exceed 700 MT in any stack. The distance between two stacks, varied from about 10% to 20% (i.e., LESS THAN 15 METERS).
Stacks of waste-paper were stored in the open compound adjacent to the main process block.
The wall of the process block facing / practically touching the property insured (waste paper) had unprotected openings".
16. These arguments lack conviction because the complainant has already entered into a full and final settlement. It also appears that this plea is raised at a very late stage. The objection should have been raised at the time when the survey was conducted. There is no mention of these grounds in the complaint itself. This appears to be an after-thought which hardly needs any consideration.
17. The next submission made by the counsel for the complainant is that vide letter dated 13.11.1997, the OP informed the complainant that as per TAC rating, following premiums were found short. This pertains to the period from 1990-91 to 1996-97, total being Rs.5,59,414/-. It was argued that it was for the OP to calculate this amount. There cannot be any protest after the expiry of so many years.
18. We see no merit in these arguments. The counsel for the complainant could not show to us that any of the demand raised by the OP is illegal or invalid. Again, the matter finally stands settled between the parties and the Commission has no power to interfere with that settlement. However, we are satisfied that the filing of the complaint before the State Commission which was subsequently dismissed in default does not affect the filing of this case before this Commission. Under these circumstances, we find that the complainant has no bone to pluck with the insurance company. The case is meritless and, therefore, the same is hereby dismissed. There shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER