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Judgment
HEARD the learned Counsel for the petitioner.
THE complainant had obtained fire and burglary insurance for shop M/s. Sanjay Saree Emporium in village Palhera Chopla Modipuram, Meerut for Rs. 18,50,000 from the Opposite Party. The said policy was valid from 18.4.2007 to 17.4.2008 The stock in the show room of the complainant was checked by Opposite Party and only after that the insurance for a sum of Rs. 18,50,000 was done. On 17.5.2007 at about 4.30 a.m. fire took place in the shop and entire stock kept in the shop was burnt and reduced to ashes. The report was lodged with the police station. The stock register, bill books, etc. got burnt. The intimation of fire was also given to the Opposite Party immediately. According to the complainant, goods worth Rs. 20 lakh had been burnt and reduced to ashes. The complainant had lodged claim with the Opposite Party but only a cheque of Rs. 8,50,000 was given which was taken under pressure because cloth had been purchased on credit from the market. The complainant, therefore, filed claim for the balance amount of Rs. 10 lakh with 24% interest, besides Rs. 50,000 for mental agony and Rs. 10,000 as costs.
THE main contention raised by the Opposite Party was that the amount of Rs. 8,46,000 has been accepted by the complainant as full and final settlement. The District Forum recorded the below mentioned findings in respect of the plea of the Opposite Party that the amount has been paid in full and final settlement: "Opposite party has also not filed Survey Report and affidavit of the Surveyor. Non -filing of settlement letter, not replying to notice of complainant, non -filing of Survey Report and non -filing of affidavit of Surveyor, all these facts go against the opposite party. Non -filing of these documents will lead to legal implication that there was no final settlement between the parties and that the opposite party must have inspected goods of the complainant at the time of complainant insuring the said damage or loss and opposite party must have insured goods based on valuation done by the opposite party. Fire took place in the said shop within one month of insurance and, therefore, it is not likely that in one month''s period the loss would have been only rupees eight lakh or eight and a half lakh. From above discussion, the version of the complainant seems to be true that complainant would have suffered a loss Rs. 18,50,000 and the cheque for Rs. 8,44,137 sent to the complainant was not in full and final settlement."
THE District Forum came to the conclusion that the opposite party had unilaterally handed over cheque of Rs. 8,44,137 to the complainant and that he was entitled to another sum of Rs. 10 lakh. The District Forum accordingly allowed the claim of the complainant to the extent of Rs. 10 lakh with 12% interest from six months after date of fire within one month. Besides this, opposite party was directed to pay Rs. 5,000 as compensation and Rs. 4,000 as costs. This order was challenged by the opposite party before the State Commission.
THE State Commission dismissed the appeal on the ground of limitation and also on merits. On the question of limitation, it was held that no sufficient explanation has been furnished though an affidavit has been filed for justifying explanation of delay. It was observed that the appeal is heavily barred by limitation. The certified copy which had been filed is a second copy, which means the knowledge of the order already was there with the appellant and still no care was taken to file the appeal in time. On merits, the State Commission referred to the observation made by the Surveyor and came to the conclusion that in the light of the findings of the Surveyor, it is clear that the estimated loss was about 21 lakh but consent letter was obtained for Rs. 8,45,000 which on the face of it shows that it is compulsive bargain.
THE report of the Surveyor shows that all the sale bills and some of the purchase bills kept in the shop were completely burnt in fire; the entire stock comprising of suiting, shirting, sarees, ladies suits, etc. lying and or stored in the shop was completely burnt, gutted damage adue to fire, heat , smoke and water used during fire fighting operation; a considerable quantity of stocks had completely burnt and converted into ashes and were not in identifiable state; the physical inventory of the identifiable damage stocks was prepared; that during visit to some of the suppliers of the insured, on verification it was confirmed by most of the suppliers that the same are genuine and authentic bills and the Surveyors were satisfied with the purchase bills submitted by the insured; that it was not possible to identify and carry out the physical inventory of the damage stocks as per quality and cost of material as the affected material was badly burnt/damaged and got mixed up with each other; the trading account for the period 1.4.2007 till the date of loss and closing stock worked to about Rs. 20.64 lakh after considering relevant material (Annexure -1). However, the Surveyor did not agree with the insured and suggested to settle the claim on the average rates of the items for physically available damaged stock plus certain percentage of completely burnt stocks converted into ashes. This in fact was not a part of the job of the Surveyor. The survey report further states that the insured initially did not agree but after prolonged discussion, they were able to convince the insured to agree on the same. This, by itself, would also show that the complainant was not willingly agreeable for the settlement and he accepted the amount since he had huge liability to pay. The Surveyor had adjusted 50% as depreciation in the absence of original purchase invoices. The Surveyor had taken average rates only. The Surveyor had erred in settling the claim on the basis of average rate of items shown in Annexure -2 at page -63. The Surveyor had prepared the loss and damage due to fire on 17.5.2007 which is at pages 63 to 95 on record. The total loss was stated to be Rs. 24.60 lakh which was prepared on the basis of various factors referred to at page -59 of the record. There was absolutely no justification for adjustment of 50% as depreciation since the Surveyor had verified the bills with suppliers and most of whom confirmed that the same are genuine and authentic bills and that the Surveyor was satisfied with the purchase bills submitted by the insured. The Surveyor had obtained consent letter from the complainant which is Annexure -3 at page -98. The said consent letter was obtained by the Surveyor after prolong discussion even though the complainant did not initially agree for settlement and the Surveyor convinced him for agreement.
THE two Fora have found that the amount which was received by the complainant was not in full and final settlement of claim. The State Commission has further held that the so, called settlement is a compulsory bargain. It appears that the Surveyor and the petitioner had pressurised the complainant to accept the settlement which was thrust on him and the settlement under the circumstances cannot be said to be on account of free will of the complainant.
IN view of above, we are of the opinion that the findings of two Fora below which are based on material on record cannot be interfered with in the exercise of revisional jurisdiction under Section 21(b) of Consumer Protection Act, 1986 as we do not find any material irregularity, illegality and jurisdictional error in the orders of two Fora below. The revision is accordingly dismissed with no order as to costs.