State Consumer Disputes Redressal Commission
M/S Marry Enterprises, vs The United India Insurance Company ... on 20 December, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 84 of 2010
Date of institution: 23.11.2010
Date of Decision: 20.12.2013
M/s Marry Enterprises, Plot No. 5, Industrial Area-A, Exten. Ludhiana
Punjab through its Proprietor Nawab Haider.
.....Complainant
Versus
1. The United India Insurance Company Limited having its
registered & Head Office at 24-Whites Road, Chennai through its
Chairman-cum-Managing Director.
2. The United India Insurance Company Limited, Branch Office,
818, Industrial Area-B, Ludhiana, Punjab through its Branch
Manager.
3. The United India Insurance Company Limited, Pratap Chowk,
Ludhiana. Punjab.
.....Opposite Parties
Argued By:-
For the complainant : Sh. S.C. Thatai, Advocate
For the Ops : Sh. Munish Goel, Advocate
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member
Shri Jasbir Singh Gill, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties on the allegations that the complaint has been filed through its Proprietor Nawab Haider. The complainant is duly registered under the Factory Act, Punjab VAT Act, Central Sales Consumer Complaint No. 84 of 2010 2 Tax and Employees State Insurance. The complainant obtained one insurance policy from OP No. 2 for a sum of Rs. 55 lacs, which was divided in two parts i.e. Rs. 40 lacs on stocks, on cloth of all kinds including Garments and semi finished goods, un-finished goods and raw material etc. and Rs. 15 lacs on the entire machinery of all kinds and all ACs, Computer lying in the premises vide No. 201003/11/09/11/00000046 valid for the period 18.5.2009 to 17.5.2010 and had paid a premium of Rs. 9,341/- to the opposite party.
2. It was further alleged on 2.7.2009 at about 8.30 p.m. his factory had got fire. By the time he reached there, it had spread all around the factory. He immediately informed the fire brigade on phone and full team of fire brigade with 6-7 Fire Tenders alongwith his team and took 5-6 hours to extinguish the fire. Photographs were taken. On 3.7.2009, the matter was reported to the Police Division No. 6 and it was recorded in Roznamcha at serial No. 32. It was also reported by the Newspapers in Dainik Jagran, Dainik Bhaskar, Times of India etc.. The matter was also reported to the opposite party vide latter dated 3.7.2009 and opposite party appointed Mr. Vinod Sharma, Surveyor and Loss Assessor, who assessed the loss occurred to the complainant. The Surveyor visited the premises on 4.7.2009 for survey and assessment of the reported loss. Vide letter dated 8.7.2009, asked the complainant to submit certain documents, which was replied by the complainant vide letter dated 6.8.2009. He suffered a loss to the tune of Rs. 60,00,212/- i.e. Rs. 18,62,690/- and Rs. 41,37,522/- on account of stock against insured amount of Rs. Consumer Complaint No. 84 of 2010 3 55,00,000/-. However, the OP vide letter dated 14.8.2009 intimated the complainant that the documents received from the complainant are incomplete and further documents are required. Although the information was almost complete but he again sent to the Surveyor the documents required by him vide letter dated 24.8.2009. However, the Surveyor did not submit his survey report. Therefore, he visited the office of the Surveyor at New Delhi on 12.9.2009. But vide letter dated 16.9.2009 he called for some more documents to finalise his report and vide letter dated 12.10.2009 he had sent the documents asked by the Surveyor. The complainant again received letter dated 13.10.2009 from the Surveyor, however, the documents were sent to the Surveyor and he was harassing and humiliating the complainant on one pretext or the other and as per the guidelines of IRDA to finalize the claim. However, again he received the letter dated 4.12.2009 from the Surveyor wherein certain new queries were raised and documents were called for. These were also supplied vide letter dated 10.12.2009. The complainant also visited to the branch office of the opposite party to release the claim of loss and ultimately, he received a cheque of Rs. 19,17,000/- on 13.7.2010 against the loss of Rs. 60,00,212/- and not suitable reply was given by the officers of the opposite party for paying this meagre amount, therefore, there is deficiency in services on the part of the opposite parties and Ops are directed to compensate, pay the balance amount of Rs. 35,83,000/- alongwith interest @ 18% per annum from the date of occurrence till the date of actual realization, Rs. 5 lacs on account of delay, Rs. Consumer Complaint No. 84 of 2010 4 50,000/- as costs or any other relief which can be awarded to the complainant.
3. The complaint was contested by the opposite parties, who filed written statement taking preliminary objections that the complaint before the State Commission is not maintainable for want of jurisdiction, the complainant is not a consumer as defined under the Act as the insurance policy was taken for commercial purposes; the complicated questions of law and facts are involved, therefore, the matter be relegated to the Civil Court; the claim filed by the complainant is manipulated, forged and fictitious; the Surveyor recommended the claim to the tune of Rs. 19,17,829/- after applying its mind and proper verification and the Ops had offered a sum of Rs. 19,17,000/- and the complainant after going through the survey report admitted to be correct assessment of his loss and gave his consent for acceptance of Rs. 19,17,000/- as full and final settlement of the claim and duly signed the claim disbursement voucher dated 12.7.2010 and also signed settlement intimation voucher dated 12.7.2010 and accepted Rs. 19,17,000/- as full and final settlement without any reservation and that the complainant is now barred to raise any dispute. On merits, taking of the policy by the complainant has been admitted. The whole stock of the factory of the complainant got fire is concocted one and seems to be improbable. It has been denied that the fire took place due to electric short circuit in the premises. It has been denied that there was total loss of the goods and the machinery. It has been admitted that Mr. Vinod Sharma, Surveyor and Loss Assessor was appointed and had visited the Consumer Complaint No. 84 of 2010 5 premises on 4.7.2009. He had called for number of documents from the complainant, who did not send its reply till 31.7.2009 and tried to avoid sending of documents to the Surveyor and when the letter was sent to the complainant to submit the documents within 10 days, failing which report of "No Claim" will be submitted then he supplied the documents. It has been denied that the complainant suffered a loss of Rs. 60,00,212/- on account of machinery and stock whereas the opposite parties had made a payment of Rs. 19,17,000/- to the complainant as per the loss assessed by the Surveyor and the complainant had accepted the same as full and final settlement. It has been stated that although insurance policy was Rs. 15 lacs for machinery and Rs. 40 lacs for stocks whereas the complainant had only machinery worth Rs. 13.31 lacs and stock only Rs. 9.29 lacs. Therefore, once the complainant had received the payment of Rs. 19,17,000/- as full and final settlement of his claim then he cannot raise any consumer dispute before the Consumer Fora, therefore, there is no merit in the complaint and the same be dismissed.
4. The parties were allowed to lead evidence alongwith the complaint and written statement.
5. In support of his allegations, the complainant had filed in evidence Ins. Cover note Ex. C-1, photographs Ex. C-2, Fire certificates Ex. C-3 & 4, copy of roznamcha Ex. C-5, newspaper cuttings Ex. C-6, intimation letter dt. 3.7.09 Ex. C-7, letter dt. 8.7.09 Ex. C-8, reply dt. 6.8.09 Ex. C-9, documents Ex. C-10, letter dt. 14.8.09 Ex. C-11, letter dt. 24.8.09 Ex. C-12, documents Ex. C-13, letter dt. 16.9.09 Ex. C-14, reply dt. 12.10.09 Ex. C-15, letter dt. Consumer Complaint No. 84 of 2010 6 13.10.2009 Ex. C-16, letter dt. 21.10.09 Ex. C-17, courier receipt Ex. C-18, letter dt. 4.12.09 Ex. C-19, reply dt. 10.12.09 Ex. C-20, cheque dt. 12.7.10 Ex. C-21, letter dt. 18.9.2010 Ex. C-22, Surveyor dt. 28.12.2009 Ex. C-23, legal notice dt. 3.11.2010 Ex. C-24 and evidence by way of affidavit of Nawab Haider. The opposite parties had filed in evidence affidavit of G.S. Ghuman, Dy. Manager, Surveyor Report Ex. R-1, claim disbursement voucher Ex. R-2, settlement intimation voucher Ex. R-3, cheque dt. 12.7.2010 Ex. R-4, affidavit of Surveyor Ex. R-5, copy of the terms and conditions of the policy Ex. R-5A, letter dt. 31.7.2009 Ex. R-6, letter dt. 4.8.09 Ex. R-7, letter dt. 25.8.09 Ex. R-8, letter dt. 22.9.09 Ex. R-9.
6. We have heard the counsel for the complainant Sh. S.C. Thatai, Advocate and counsel for the opposite parties Sh. Munish Goel, Advocate and have carefully gone through the allegations in the complaint, written reply filed by the opposite parties, evidence, documents and replication brought on the file.
7. Before going through the merits of the case, some preliminary objections taken by the opposite parties are required to be dealt with. The first objection taken is with regard to jurisdiction of the State Commission. The factory of the complainant was located at Ludhiana, which got fire and he suffered damages and claim of the complainant as claimed in the complaint is to the extent of Rs. 35,83,000/- and Rs. 5 lacs as compensation and Rs. 50,000/- as litigation costs, certainly, it exceeds Rs. 20 lacs, in that way, the territorial jurisdiction vests with the State Commission, therefore, we Consumer Complaint No. 84 of 2010 7 hold that the State Commission has pecuniary as well as territorial jurisdiction to entertain the complaint.
8. The next point is that the complainant does not fall within the definition of 'consumer' as defined Section 2(1)(d) of the Act because the complainant was running commercial activity i.e. manufacturing of the Cloth. No doubt that the complainant was running the business of manufacturing Cloth, which is commercial in nature but what were the services availed by the complainant from the Ops. The stock and machinery of the complainant was got insured with the Ops for safety, therefore, the services availed by the complainant from the Ops was just the insurance of his stock and machinery and by taking the insurance policy in which he has paid the premium of Rs. 9,341/-, the complainant was not to earn any profit and the claim was to get by the complainant only in case there is damage to his stock and machinery, therefore, we do not subscribe to the view taken by the Ops that the complainant does not fall within the definition of 'consumer'. Since the complainant has availed the insurance service of the Ops and in case the Ops are deficient in their services then certainly, the complainant falls within the definition of 'consumer' as defined under Section 2(1)(d) of the Act.
9. Whether the complainant is entitled to the amount claim for in the complaint or whether he is estopped by his act and conduct to file the complaint on the principle of waiver?
10. It has been contended by the counsel for the complainant that the complainant had suffered a loss of Rs. 60,00,212/- as per the report of the Surveyor, as per claim lodged by him. The report of the Consumer Complaint No. 84 of 2010 8 Surveyor is Ex. R-1 in which he has calculated the loss on account of stock as Rs. 10,11,175/- and net loss as Rs. 9,07,736/- and that if the machinery as Rs. 10,20,093/- and in all Rs. 19,17,829/-. He has contended that the report of the Surveyor is not final because the Surveyors are on the pay-rolls of the insurance company, therefore, they always will prepare the report favouring the insurance company. He has placed various bills and stock register. As per his stock register his stock was to the extent of Rs. 41.37 lacs as on 2.7.2009. The same has been rejected only on the ground that he was heavy purchases during the period 31.3.2009 to 2.7.2009 when all the bills were placed on the record and those were verified by the Surveyor and VAT was also paid then, the Surveyor was not competent to decrease the stock on the basis of previous stock. Whereas the counsel for the opposite parties has contended that the complainant has received Rs. 19,17,000/- as full and final payment vide his receipt dated 12.7.2007 Ex. R-2, which is Claim Disbursement Voucher and Ex. R-3 Settlement Intimation Voucher in which he has stated that he has agreed to accept full and final claim upon the policy No. 201003/11/09/11/00000046. In such a situation, in view of the latest judgment of our Hon'ble National Commission "Haryana State Co- operative Supply & Marketing Federation Ltd. versus Iffco Tokio General Insurance Company Limited", 2013 (3) CPC 356. In that case, it was contended by the Hon'ble National Commission "if the petitioner has challenged the order of full and final settlement claim then he should not have encashed the demand draft. From his act it is clear that he has waived his right to claim enhanced amount. He Consumer Complaint No. 84 of 2010 9 should have written back to the OP that payment was inadequate." In the present case also, there is no evidence that after receipt of his payment, he has not encashed this amount. There is no letter on the record produced by the complainant that after receipt of this claim, he has referred to the Ops that his claim is inadequate. The documents placed on the record Ex. C-1 is insurance policy, Ex. C-2 are photographs, Ex. C-3 is the letter dated 5.7.2010, Ex. C-5 is DDR, Ex. C-6 newspaper cuttings, Ex. C-7 letter dt. 3.7.09, Ex. C-8 letter dt. 8.7.09, Ex. C-10 claim form, Ex. C-11 particulars of detail of machinery for the year ending 3/2007 alongwith bills, details and correspondence of with the Surveyor, Ex. C-21 is the cheque issued by the Ops in the name of the complainant firm alongwith copy of the Surveyor report, Ex. C-24 is the legal notice dated 13.11.2010, therefore, the documents placed on the record does not disclose that after receiving this amount, he has raised any objection with the opposite party that the amount paid to him is inadequate. However, the counsel for the complainant stated that it was not in the notice of the complainant that this payment was full and final payment because letter Ex. R-3 was not with him and he has come to know from the written statement that this payment has been made as a full and final payment. It does not seem to be reasonable in case he has signed the document Ex. R-3 then certainly, he will be in the knowledge of this document and may be the document is in his possession but the same has not been placed on the record. Certainly, in case the complainant is claiming for more amount, he will not placed such document, which is going against him. He says that this document Consumer Complaint No. 84 of 2010 10 does not bear his signature. In case the complainant is taking the plea that this document does not bear his signature then he has examined some expert to say that this document does not bear his signature but he has not examined any expert to say so, therefore, there is a specific document placed on the record by the Ops by which the complainant received this payment as full and final payment. There is observation of the Hon'ble Supreme Court given in case "Grasim Industries Ltd. Vs. Aggarwal Steel", 2010 (1) SCC 83 wherein it was observed by the Hon'ble Supreme Court that 'when a person signs the document, there is presumption, unless there is proof of force or fraud that he has read the document properly and understood it and only then he has affixed his signature thereon, otherwise no signature on a document can ever be accepted.' He has not explained that in case he did not receive the payment then under what circumstances he signed that document. Even otherwise after receiving of a sum of Rs. 19,17,000/-, he did not raise any objection with the Ops, on what basis this amount has been paid to him when his claim is more than that, therefore, once the complainant has received a sum of Rs. 19,17,000/- as full and final payment according to document Ex. R-3, then he is estopped by his act and conduct to raise any question with regard to inadequacy of the compensation.
11. In view of the above discussion, we do not see any merit in the complaint and the same is dismissed. No order as to costs.
12. The arguments in this Consumer Complaint were heard on 5.12.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
Consumer Complaint No. 84 of 2010 11
13. The Consumer Complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member December 20, 2013. (Jasbir Singh Gill) as Member