National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Shree Balaji Agencies And Anr. on 28 January, 2002
ORDER
B.K. Taimni, Member
1. This Appeal has been filed by the Appellant -- New India Assurance Company against the order passed by the State Commission allowing the complaint.
2. Brief facts of the case are that the Respondent, M/s. Shree Balaji Agencies & Anr. had obtained two Fire Policies for Rs. 6 lakh in all, from the Appellant, for his shop. The shop was looted on the night of 21st and 22nd May, 1991 during the riots consequent to the assassination of Shri Rajiv Gandhi. The Complainant filed a claim for Rs. 3,72,960/-. Based on the report of two surveyors and Chartered Accountant appointed by the Appellant, claim was allegedly settled at Rs. 1,99,051/- and a receipt for full and final report obtained. Payment was made on 17.9.93 and receipt was signed by both the Bank and the Respondent No. 1/Complainant. A document of assignment and subrogation was also obtained on 16.9.93. Not being satisfied with the amount at which the claim was settled, the complainant/1st Respondent filed a complaint before the State Commission who after hearing both the parties allowed to pay a further amount of Rs. 1,73,909/- (Rs. 3,72,960/- Rs. 1,99,051) with interest @ 18% from the date of payment of Rs. 1,99,051/- and cost of Rs. 1,000/-. It is against this order that the Appellant filed the appeal before us.
3. It is argued by the ld. Counsel for the Appellant, Shri Mirdha that the State Commission erred in awarding the further amount of Rs. 1,73,909/- as the Complainant had voluntarily and willingly accepted the amount of Rs. 1,99,051/- as finally assessed by the Surveyors as full and final settlement. After having accepted the amount, the Complainant cannot approach any forum for re-opening the case and asking for any further relief given/accepted by the Complainant/Respondent. If the details of claim -- itemwise - are seen, major differences between the amount claim and assessed by the Surveyor was on account on non-acceptance of claim in respect of two items only i.e. video cassettes and computer. After some internal discussions, views/opinion of second surveyor was obtained which is on record. The second surveyor recommended a new figure for the computer which was immediately agreed to and included in the total amount for payment arrived at. As far as video cassettes are concerned he found the valuation and method of valuation is in keeping with the principles of indemnity and the number of bills furnished by the insured against this item. Appellant cannot be faulted for any deficiency on his part. He also argued that having executed the documents of Subrogation and assignment, before acceptance of payment the Complainant now has locus, hence the appeal need to be allover and order of the State Commission be set-aside.
4. On the other hand, it was argued by the Ld. Counsel for the 1st Respondent/Complainant that he had accepted the amount as he was badly in need of finance. He had registered his protest with the Bank the very same day and then formally protested on the subject with the appellant within three weeks. The only point of disputes relates to the valuation adopted in respect of video cassettes, 50% deduction across the Board is not sustainable as is clear from the report of Chartered Accountant on record whose views were obtained by the Appellant company. He had to execute the Deed of Subrogation and Assignment but that is limited to Rs. 1,99,051/- only and this deed never stated, that the consideration received was in full and final settlement of the claim. The State Commission has already considered all the points on merits raised by the Appellant and after its due consideration has passed a reasoned order which need to be upheld/maintained and appeal be dismissed.
5. We have gone though the material on record and heard the arguments. On point of fact it is true that the dispute lies within the narrow domain of valuation of video cassettes. Against a claim of Rs. 1,63,700/- for loss and damage to video cassettes, accepted amount is Rs. 55,800/- only based on two premises - purchase rate being Rs. 180/- and depreciation of 50% on the looted and damaged cassettes. This was based on non-supply of bill/material to the surveyor by the Complainant in support of his claim. This was upheld by the second surveyor. We also find on record a report of the C.A. which states that "stock is never subjected to depreciation..... Video Cassettes which formed part of stock should not be subject to depreciation". We also see no rationale for 5(SIC) depreciation which appears to be one-sided and arbitrary. But we also (SIC) is that the Complainant had accepted Rs. 1,99,051/- as full and (SIC) settlement along with the Bank. There is no material on record to support the contention of the Complainant and accepted by the State Commission that the Complainant had registered his protest about the settlement amount with the Bank. We are in no position to sustain this contention is settled law that after having accepted an amount of settlement, it is not be agitated "encore" unless letter of protest or otherwise has been done within a reasonable period, which in this case amounted to three weeks. Before we go on to consider this, we also see on record Deed of Subrogation and assignment which reads as follows:-
"We hereby assign, transfer and abandon to you all our rights and interest in the stock of shop which was looted in the riot.
Further, we hereby subrogate to you the rights and remedies that we have in consequence or arising out of the riot of our shop and we further hereby grant to you full power to take and use all lawful ways to demand, recover and to receive possession of stock of shop which was looted in the riot, through Court, if such stock is found by police authorised.
We also hereby authorise you to use our name in any action or proceedings that you may bring in relation to any of matters hereby assigned, transferred or abandon to you."
6. In the light of above, we find the contention of the Complainant that this deed does not come in our way as the deed never stated that the consideration received was the full and final settlement of this claim - is untenable. In fact the wording of the Deed is clear that after accepting Rs. 1,99,051/- any further claim anywhere cannot be raised by the Complainant in any fora and goes onto authorise "you (the appellant - emphasis supplied) to use our name in any action or proceedings that you may bring in relation to any of the matters hereby assigned transferred or abandon to you". Undisputedly this deed was signed a day before the recept of the claim and having signed the deed and having abandoned all rights and interest any additional claim, in our view the complainant has no locus and cause not sustain himself as a consumer within the meaning of CPA before us.
7. The Appeal is allowed and the order of the State Commissioner is set aside.
No orders on costs.