State Consumer Disputes Redressal Commission
M/S Atika Food Products vs The Oriental Insurance Co. Ltd. on 5 June, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND DEHRA DUN FIRST APPEAL NO. 179 / 2006 M/s Atika Food Products ......Appellant Versus The Oriental Insurance Co. Ltd. .....Respondent None for the Appellant Sh. Deepak Ahluwalia, Learned Counsel for the Respondent Coram: Hon'ble Justice Irshad Hussain, President Ms. Luxmi Singh, Member Dated: 05.06.2007 ORDER
(Per:
Justice Irshad Hussain, President):
This appeal is directed against the order dated 05.07.2006 passed by the District Consumer Forum, Nainital, dismissing the consumer complaint No. 120 / 2005 on the ground that the complainant had received Rs. 1,86,766/- as claim amount vide cheque No. 50685 dated 17.08.2005 as full and final settlement of her fire claim under the policy without any protest.
2. We have heard the learned counsel for the respondent and carefully perused the material on record.
3. Consumer complaint was filed in the month of September, 2005 after the above payment had already been made to the complainant. Complainant's flour mill with stock of wheat etc. insured for sum of Rs. 11,00,000/- was damaged in a fire on 13.03.2005 and as per allegation of the complaint, stock worth Rs. 7,29,400/- and plant worth Rs. 3,00,000/- were damaged. In the complaint, there is absolutely no allegation of undue influence, fraud or misrepresentation in the matter of execution of discharge voucher and receiving of payment of Rs. 1,86,766/- by cheque towards full and final settlement of the claim under the policy by the complainant. We also could not lay our hands upon any such material on record as may have raised some suspicion in the genuineness of the settlement of the claim for sum of Rs. 1,86,766/-. Learned counsel for the respondent led us through the report of the surveyor and loss assessor Sh. Manoj Joshi (Paper Nos. 35 - 43) to bring home his point of view that the settlement of the claim was the result of conscious and fair application of mind by the complainant and that there was absolutely no element of coercive bargaining in having the claim settled and payment having been accordingly made by cheque to the complainant. The discharge voucher (Paper No. 46) acknowledge that the complainant received the said amount towards full and final settlement of her claim without any protest. We find it relevant to mention that as per surveyor's report, the unit of the complainant had not been registered for the purposes of sales tax, mandi tax and till date, no PAN card had been obtained and no income tax return was filed by the complainant. No record for purchases of the wheat etc. was produced and it was stated that the grains were purchased from villagers in cash and the cash memos were also burnt in the incident. Although in the complaint, it is alleged that the fire fighting department assessed the loss to the tune of Rs. 4,00,000/-, the survey report objectively indicate that the fire brigade was informed about the fire but it could not arrive at the scene, as roads were closed, as they were under repairs at that time and meanwhile the fire was put off. If any report was submitted by fire fighting department regarding the loss sustained, the same must have been based on hearsay evidence and, as such, the claim made in that regard cannot safely be taken to assail the settlement arrived at between the parties to the contract of insurance. Further, the surveyor poignantly observed that the grain near the processing plant looked relatively safe; the quantum of loss could not be informed by the insured and that the quantity of grain, flour and wheat husk (choker) could not be ascertained. The surveyor on the basis of physical count, value of stocks, salvage and required repair of the plant assessed the loss and after making deduction of policy excess clause, assessed the loss at sum of Rs. 1.87 lacs. After adjusting sum of Rs. 234/- as reinstatement premium, the parties settled the claim at residue of Rs. 1,86,766/- and discharge voucher was executed by the complainant. The District Forum considered the case in proper prospective and rightly accepted the insurer's version that the complainant accepted the above amount of compensation towards full and final settlement of her claim without any protest.
4. In the memo of appeal, the complainant with a view to assail the legality of the impugned order referred reported decisions as under:
Seema Devi Vs. Punjab National Bank; IV (2005) CPJ 102 (NC) United India Insurance Vs. Ajmer Singh Cotton and General Mills & Others; VI (1999) SLT 590 National Insurance Co. Ltd. Vs. New Patiala Trading Company; I (2003) CPJ 33 (NC).
5. On the face of the facts of the case, the ratio of these reported decisions cannot be taken to help the complainant in regard to her allegations. In the first mentioned case, the insured whose shop was damaged in fire was found to have been maintaining stock worth a particular sum every month, which was proved by purchase bills and bank statements and these were, therefore, taken into account to enhance the compensation. In the instant case, the facts were, as stated above , at variance. There being no allegation of fraud, undue influence, misrepresentation or the like in having the discharge voucher executed by the insured, the reported decision at Sl. No. (ii) above is not applicable to the instant case. The third decision concerned second survey report having been obtained by the insurer without there being material to justify the claim that the first survey report was faulty. It is not so in the instant case and there is nothing to indicate that second surveyor was appointed to assess the loss occasioned to the insured.
6. For the reasons aforesaid, there being no merit in this appeal, the same is liable to be dismissed.
7. Appeal is hereby dismissed. No order as to cost.
(MS.
LUXMI SINGH) (JUSTICE IRSHAD HUSSAIN)