State Consumer Disputes Redressal Commission
Sh. Pratap Chand Justa. vs Oriental Insurance Co. Ltd. on 20 July, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 28/2017
Date of Presentation: 24.01.2017
Order Reserved On : 11.05.2017
Date of Order : 20.07.2017
......
Pratap Chand Justa son of Shri Ram Dass resident of Village
Bareon Post Office Panog Tehsil Kotkhai District Shimla H.P.
...... Appellant/Complainant
Versus
Oriental Insurance Company Limited Mythe Estate Kaithu
Shimla H.P.
......Respondent /opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Diwakar Dev Sharma Advocate.
For Respondent : Mr. Jagdish Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 06.01.2017 passed by Learned District Forum in consumer complaint No.192/2014 title Pratap Chand Versus Oriental Insurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Pratap Chand Versus Oriental Insurance Company Ltd. Brief facts of Case:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant constructed a residential house situated at Village Bareon Post Office Panog Tehsil Kotkhai District Shimla H.P. It is pleaded that building was insured qua paril of fire w.e.f. 21.04.2013 to 20.04.2014. It is pleaded that house of the complainant was gutted in fire on 30.01.2014 and complainant sustained loss to the tune of Rs.25.00 lac.
It is pleaded that residential house was gutted into fire due to electric short circuit. It is pleaded that report was lodged in police station and information was also given to insurance company. It is further pleaded that surveyor was appointed by the insurance company. It is pleaded that insurance company paid only Rs.8.00 lac to complainant and complainant received Rs.8.00 lac under protest. It is pleaded that opposite party was liable to pay a sum of Rs.16.00 lac. Complainant sought a relief for payment of Rs.8.00 lac alongwith interest @ 18 % per annum.
3. Per contra version filed on behalf of opposite party pleaded therein that claim filed by the complainant was duly investigated and assessed by surveyor. It is pleaded that claim was settled for Rs.834557/-(Eight lac thirty four thousand five hundred fifty seven). It is pleaded that complainant vide discharge voucher annexure OP-4 had 2 Pratap Chand Versus Oriental Insurance Company Ltd. received an amount of Rs.834557/-(Eight lac thirty four thousand five hundred fifty seven) as full and final settlement. It is pleaded that complainant has received an amount to the tune of Rs.834557/-(Eight lac thirty four thousand five hundred fifty seven) without any undue influence as full and final settlement. It is pleaded that complainant is estopped due to his own act and conduct to file present complaint. Prayer for dismissal of complaint sought. Complainant filed rejoinder and reasserted the allegation mentioned in the complaint.
4. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arises for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. Shri Pratap Singh filed affidavit by way of evidence. There is recital in affidavit that deponent has 3 Pratap Chand Versus Oriental Insurance Company Ltd.
constructed a residential house in Village Bareon Post Office Panog Tehsil Kotkhai District Shimla. There is further recital in affidavit that residential house was insured with the opposite party w.e.f. 21.04.2013 to 20.04.2014. There is further recital in affidavit that house of deponent was gutted in fire on dated 30.01.2014. There is further recital in affidavit that deponent sustained loss to the tune of Rs.25.00 lac. There is further recital in affidavit that opposite party was liable to pay Rs.16.00 lac. There is recital in affidavit that opposite party did not pay the amount due to the deponent.
8. Opposite party also filed affidavit of engineer Rajneesh Kumar Dhiman by way of evidence. There is recital in affidavit that deponent is qualified surveyor and loss assessor. There is recital in affidavit that licence has been issued to the deponent by IRDA vide licence No.SLA-33247 valid up to 24.07.2016. There is further recital in affidavit that deponent has conducted survey of more than 3000 losses of Motor, Fire and of other natures. There is recital in affidavit that services of deponent were hired by the opposite party and after careful spot inspection in the presence of the complainant and after scrutiny of documents furnished by the complainant deponent has submitted survey report to the opposite party.
9. Submission of learned advocate appearing on behalf of appellant that appellant is legally entitled for loss to 4 Pratap Chand Versus Oriental Insurance Company Ltd. the tune of Rs.16.00 lac as per insurance policy and on this ground appeal filed by appellant be allowed is decided accordingly. We have carefully perused the insurance policy Annexure-C1 placed on record. It is proved on record that residential house of complainant was insured for a sum of Rs.16.00 lac out of which the insurance of building was Rs.13.00 lac and insurance of house hold goods was Rs.3.00 lac. It is proved on record that insurance company has also received the premium from complainant. It is also proved on record that insurance policy was operative w.e.f. 21.04.2013 to 20.04.2014.
10. It is also proved on record that insurance company appointed surveyor cum loss assessor namely Vinod Bhan and surveyor submitted the assessment report. The surveyor cum loss assessor assessed the loss of building to the tune of Rs.818181/-(Eight lac eighteen thousand one hundred eight one) and surveyor cum loss assessor assessed the loss of house hold goods to the tune of Rs.60300/-(sixty thousand three hundred). Surveyor cum loss assessor assessed total loss to the tune of Rs.878481/-(Eight lac seventy eight thousand four hundred eight one) and deduct 5% as per deduction clause to the tune of Rs.43924/-(Forty three thousand nine hundred twenty four). Surveyor cum loss assessor assessed net loss to the tune of Rs.834557/-(Eight 5 Pratap Chand Versus Oriental Insurance Company Ltd. lac thirty four thousand five hundred fifty seven) as per assessment report Annexure-C2 placed on record.
11. It is also proved on record that complainant has signed discharge voucher Annexure-OP4 placed on record. As per discharge voucher signed by complainant in English complainant has received full and final settlement to the tune of Rs.834557/-(Eight lac thirty four thousand five hundred fifty seven). There is recital in discharge voucher Annexure- OP4 signed by complainant in English that complainant has voluntarily given discharge receipt to the opposite party as full and final settlement. There is no evidence on record in order to prove that signature of complainant was obtained by the opposite party with coercion or undue influence upon discharge voucher. Complainant did not file any complaint against insurance company to the effect that his signature was obtained by the opposite party by way of coercion or undue influence. Complainant also did not adduce any independent evidence on record that signature of complainant upon discharge voucher was obtained with coercion or undue influence by the opposite party. In view of above stated facts it is held that discharge voucher signed by complainant is binding upon complainant and complainant cannot be allowed to approbate or reprobate. See 2013(1) CPJ 440 NC Ankur Surana Versus United India Insurance Company. See 2013(1) CPJ 73 NC K.B. Sport Wear Goods world Wide Versus 6 Pratap Chand Versus Oriental Insurance Company Ltd. New India Assurance Company. See 2009 (2) CPC 436 NC National Insurance Company Ltd. versus M/s. Vasanthi Marine Food Ltd. See 2009 (3) CPJ 158 NC Sadra Rama Versus United India Insurance Company. See 2010 (4) CPJ 35 NC New India Assurance Company Ltd. versus C.P. Mathur. See 2012 (3) CPJ 281 NC Avon Automobiles versus National Insurance Company Ltd.
12. It is also proved on record that surveyor & loss assessor was appointed by the insurance company and surveyor has assessed loss to the tune of Rs.834557/-(Eight lac thirty four thousand five hundred fifty seven) as per report Annexure-OP3 placed on record. It is well settled law that report of surveyor cum loss assessor is important piece of evidence. There is no evidence on record in order to prove that surveyor cum loss assessor has hostile animus against the complainant at any point of time. Complainant did not file any application for cross examination of surveyor cum loss assessor before learned District Forum. Complainant also did not file any counter loss assessment report. Assessment report submitted by Vinod Bhan surveyor cum loss assessor remained unrebutted on record. State Commission is of the opinion that report submitted by Vinod Bhan is trustworthy reliable and inspires confidence of State Commission. Licence was issued to surveyor cum loss assessor under section 64UM of Insurance Act 1938. There is no reason to disbelieve 7 Pratap Chand Versus Oriental Insurance Company Ltd. assessment report submitted by surveyor cum loss assessor Vinod Bhan. See 2009(1) CPC 166 NC Pradeep Kumar Versus National Insurance Company Ltd. See 2010 (3) CPJ 401 NC New India Assurance Company Ltd. Versus Pushpa. See 2010(1) CPC 696 NC Champa Lal Verma Versus Oriental Insurance Company Ltd. See 2012(1) CPJ 420 NC H.C. Saxena Versus New India Assurance Company. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2009(3) CPJ 194 NC Nand Kishore Versus National Insurance Company Ltd. In view of above stated facts State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order of learned District Forum. Point No.1 is decided accordingly. Point No.2: Final Order
13. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum announced in consumer complaint No.192/2014 dated 06.01.2017 title Pratap Chand Versus Oriental Insurance Company Ltd. is affirmed. Discharge voucher Annexure-OP4 signed by complainant in English and loss assessment report Annexure- C2 submitted by Vinod Bhan surveyor cum loss assessor will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned 8 Pratap Chand Versus Oriental Insurance Company Ltd. District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 20.07.2017.
KD* 9