National Consumer Disputes Redressal
Mira Sea Foods vs New India Assurance Co. Ltd. on 3 October, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 197 OF 2017 (Against the Order dated 05/12/2016 in Complaint No. 53/2009 of the State Commission Gujarat) 1. MIRA SEA FOODS THROUGH ITS PROPRIETOR MOHANBHAI M VADHAVI, R/O. AT: 2008, GIDC ESTATE, AT VERAVAL, DISTT: JUNAGADH-362369 ...........Appellant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. RES: NEAR PUBLIC LIBRARY, BUNDER ROAD, VERAVAL, DIST: JUNAGADH-362265 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Varshal M. Pancholi, Advocate For the Respondent : NEW INDIA ASSURANCE CO. LTD.
Dated : 03 Oct 2017 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
The appellant / complainant is engaged in the business of exporting processed seafood which is a perishable item. The appellant / complainant obtained two insurance policies from the respondent, one in respect of the building where he was carrying business and the machinery installed therein and the other in respect of the stock of seafood processed by him. The case of the appellant / complainant is that rain water entered his premises due to heavy rains on 07.8.2007, resulting in spoiling the seafood stock worth Rs.96,91,478/-, besides damaging the building and machinery. The appellant/complainant lodged two claims, one for the loss of the seafood and the other for damage to the building and machinery. M/s. Rakesh Narula & Company was appointed as the surveyors to assess the loss suffered by the complainant. The surveyor assessed the loss at Rs.19,53,665/- for the seafood stock and Rs.2,78,510/- for the damage to the building and machinery. The aforesaid amount was duly paid to the complainant after he had executed a full and final settlement voucher in favour of the respondent. After taking payment in terms of the said discharge voucher, the complainant approached the concerned State Commission by way of a consumer complaint, seeking the balance payment of Rs.77,38,093/- for the damage to the seafood and Rs.17,89,292/- for the damage to the building and machinery.
2. The right of the respondent to file written version to the complaint was initially closed by the State Commission vide order dated 08.12.2008. The complaint was then allowed vide an order dated 31.1.2013. Being aggrieved from the order passed by the State Commission, the insurer approached this Commission by way of an appeal. Vide order dated 09.7.2014, this Commission set aside the order passed by the State Commission and remanded the complaint back to the State Commission for fresh disposal. Pursuant to the order of this Commission, the respondent filed its reply, justifying the assessment made by the surveyor and the payment made to the complainant. It was also submitted in the said reply that the payment to the complainant was made in terms of a final settlement between the parties. It was also pointed out that earlier vide letter dated 11.8.2007, the complainant had agreed to accept a sum of Rs.16.00 lacs and therefore, he was now estopped from claiming a higher amount. The State Commission, relying upon the letter dated 11.7.2008 of the complainant and the letters dated 18.9.2008 written by the insurer, dismissed the complaint. Being aggrieved, the complainant is before this Commission by way of this appeal.
3. The alleged loss to the complainant happened on 07.8.2007. The inspection of the premises of the complainant was carried out on 08.8.2007. Thereafter, a letter dated 11.8.2007 was written by the complainant to the surveyor on his letterhead. The aforesaid letter to the extent it is relevant reads as under:
"With reference to our earlier letter today in which we have written10% and 90% but after rechecking all the stocks damaged by flood water, we have come to the conclusion that we have suffered a loss of Rs.16.00 lacs due to flood water which is verified in your presence. Kindly let us have your acceptance of Rs.16.00 lacs (Rs.16,00,000/-) and arrange to release the same at the earliest".
The aforesaid letter dated 11.8.2007 also bears the endorsement of the surveyor which reads as under:
"Agreed that Rs.16.00 lacs is the loss suffered to lower portion of physical stocks verified which is directly damaged by flood water".
Sd/-
For Rakesh Narula & Co.
11.8.2007
4. It would thus be seen that the complainant himself restricted his claim to Rs.16.00 lacs, as far as loss due to flood water was concerned. There is no averment in the complaint that the aforesaid hand written letter was written by the complainant under any kind of coercion or due to any inducement offered to him. Even otherwise, the surveyor could not have been in a position to use any kind of coercion on the complainant just four days after the loss had happened. The complainant cannot even say that since his claim was getting delayed, he had no option but to accept the amount mentioned in the said letter. Having restricted his claim to Rs.16.00 lacs, the complainant was not entitled to a higher amount. However, despite the complainant having restricted his claim to Rs.16.00 lacs, the insurer paid a higher amount of Rs.19,53,655/- for the loss of stock and Rs.2,78,510/- for damage to the building and machinery. Before accepting the aforesaid payments, two discharge vouchers one for Rs.2,78,510/- and the other for Rs.19,53,655/- were executed by the complainant, pursuant to two letters, both dated 18.9.2008 were sent to the complainant, one letter forwarding a cheque of Rs.19,53,655/- in full and final settlement of the claim for loss of stock and the other in full and final settlement of the claim for damage to the building and machinery. The aforesaid letters, to the extent they are relevant read as under:
"We are enclosing herewith our Cheque No.9736462 dated 18.9.2008 for Rs.19,53,655/-(Rupees nineteen lakhs fifty three thousand six hundred and fifty five only) drawn on Dena Bank Veraval in full and final settlement of your above claim.
Please note in case the above offer is not accepted to you, the cheque should be returned forthwith to this office, failing which it will be deemed that you have accepted the offer in full and final satisfaction of your claim. The retention of this cheque and / or encashment thereof will automatically amount to acceptance in full and final satisfaction of your above claim without reason and you will be estopped from claiming any further relief on the subject".
"We are enclosing herewith our Cheque No.97364632 dated 18.9.2008 for Rs.2,78,510/-(Rupees two lacs seventy eight thousand five hundred and ten only) drawn on Dena Bank Veraval in full and final settlement of your above claim.
Please note in case the above offer is not accepted to you, the cheque should be returned forthwith to this office, failing which it will be deemed that you have accepted the offer in full and final satisfaction of your claim. The retention of this cheque and / or encashment thereof will automatically amount to acceptance in full and final satisfaction of your above claim without reason and you will be estopped from claiming any further relief on the subject".
5. Though, the letters written by the complainant to the insurer after he had written the letter to the surveyor dated 11.8.2007, show that he was not accepting the amounts of Rs.19,53,655/- and Rs.2,78,510/- offered by the insurer based upon the report of the surveyor, the fact that he did not return the cheques sent to him along with the letters dated 18.9.2008 clearly show that the complainant had at a later date changed his mind and accepted the offer made by the insurer to receive the aforesaid amount in full and final settlement of his claim. If the aforesaid amounts were not acceptable to him, he would not have encashed the cheques when the insurer had expressly written to him requiring him to return the cheque in case the offer was not acceptable to him and expressly informing him that retention of the cheque will amount to acceptance of the said amount in fill and final satisfaction of his claim and he would be estopped from claiming any further relief. Having accepted the cheques received by him with such an unequivocal forwarding letters, the complainant / appellant in my view is estopped from claiming any additional amount from the respondent and therefore, the order passed by the State Commission does not call for any interference by this Commission in exercise of its appellate jurisdiction.
6. For the reasons stated hereinabove the appeal is hereby dismissed, with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER