DILIP KUMAR WAMANRAO DARYAPURKAR vs National Insurance Co. Ltd.

THIS is an appeal filed by the complainant against the order dated the 2nd August, 1993 passed by the State Consumer Disputes Redressal Commission, Maharashtra. By the impugned order the State Commission has directed the opposite party, National Insurance Company Ltd. (respondent herein) to pay Rs. 1,01,850/- towards full and final settlement of the insurance claim of the complainant within 30 days from the date of receipt of the copy of the order failing which the amount shall carry interest at the rate of 18% per annum till realisation. The complainant has also been allowed Rs. 5,000/- as compensation for pursuing his insurance claim. The rest of the complainant''s insurance claim was rejected.

THE facts as gathered from the record are that according to the complainant he is running a medical shop, in Camp Amravati under the name of Krushnarpan Medicals. THE shop was full of medicines and there was a refrigerator of Alwin Company also in the shop. THE complainant had insured his shop for Rs. 2,50,000/- under the fire policy, with the opposite party. During the validity of the insurance, on 11th February, 1992, the complainant''s shop was damaged by fire and all the stock including furniture and refrigerator was burnt. THE complainant informed the Insurance Company on the same date about the fire accident in writing to its office at Amravati. He also informed the concerned departments including the Police Station about this incident. THE Police prepared a panchanama. THE Insurance Company sent a Surveyor on 11th February, 1992 to assess the damage. THE complainant gave a list of articles in the shop i.e., of the medicines which were partly burnt and damaged worth Rs. 1,29,719/- and another list of articles which were completely burnt and damaged to the extent of Rs. 97,281/- to the Surveyor. On 22nd April, 1992 the complainant made a claim for Rs. 2,79,000/- on account of medicines, furniture and the refrigerator. THE claim of the complainant was not finalised till the filing of the complaint. However, the complainant received a cheque for Rs. 76,850/-towards party-payment of the claim on 22nd September, 1992 which cheque was accepted by him under protest. It may be mentioned here that the Surveyor had assessed the loss to the tune of Rs. 1,77,000/-. THE complainant was paid Rs. 76,850/- after deducting the amounts due to the State Bank of India and the Bank of Maharashtra, towards the loans taken by the complainant. THE complainant''s grievance is that the medicines and goods in the shop were not pledged or hypothecated to the State Bank of India or to the Bank of Maharashtra which had already filed a suit claiming Rs. 35,565.88 and which suit had been decreed in favour of Bank of Maharashtra. Instalments were granted to the complainant to pay the decretal amount by monthly instalments of Rs. 750 /- per month commencing from 1st September, 1992. THE complainant wrote letters to the Insurance Company to settle his claim, but to no avail. THE complainant in the complaint alleged that he has suffered loss to the tune of Rs. 2,71,155/-under different heads as mentioned in the complaint. He also claimed Rs. 5,695/- on account of mental agony. Thus, after deducting Rs. 76,850/- which had already been paid to the complainant a claim of Rs. 2 lacs with interest thereon at the rate of 18% per annum from 1st October, 1992 till realisation was made in the complaint. On being noticed the opposite party did not file its written version. However, on the date of arguments before the State Commission they filed their version admitting the insurance policy and also admitting that the damage was caused due to fire to the complainant''s medical shop. However, it was pleaded that the Surveyor has fixed the final liability at Rs. 1,77,000/-. Rs. 73,600/- was due from the complainant to the State Bank of India and Rs. 35,365/- to the Bank of Maharashtra from the complainant as the furniture and stock of medicines have been hypothecated to the aforesaid Banks. According to the opposite party on request from the complainant dated the 22nd September, 1992 the aforesaid loan amounts were deducted from the total amount payable to the complainant for payment to the Banks and, therefore, only Rs. 76,850/- were paid to the complainant. It was admitted that the amount deducted had not been paid to the Banks.

The State Commission held that under the stipulation the Insurance Company is legally obliged to pay to the complainant the entire amount of loss assessed by the Surveyor i.e. Rs. 1,77,000/- and the Insurance Company was not entitled to deduct any amount payable to the Banks although the complainant''s furniture, medicines and stock were hypothecated to the Banks. It was further remarked that it was for the Banks to take appropriate steps to recover their dues and that there was no agreement under which the Insurance Company could withhold the amount of loans payable to the Banks and thus the action of the Insurance Company of withholding the balance amount of the complainant is contrary to the agreement of insurance and it amounted to deficiency in service. Hence, after allowing the adjustment of the amount already paid by the Insurance Company to the complainant, the State Commission passed the impugned Order.

FEELING aggrieved the complainant has filed this appeal. His contention is that he has suffered more damage than assessed by the Surveyor. Before proceeding further we may mention here that the complainant himself had given an affidavit to the Insurance Company to the following effect : "It is also brought to your notice the State Bank of India has claimed Rs. 46,518.40 and not the amount of Rs. 70,372.85. It is also submitted that the amount claimed in your letter can be kept by you as a security of the claim of State Bank of India at an interest rate of 18%."

In another part, it is further stated : "It is also submitted the State Bank of India has sanctioned Rs. 38.000/- to M/s. Krushnaparn Medicals, Amravati and due to some difficulties in repayment without understanding the real facts the Bank filed suit for Rs. 46,518.40, but the amount shown in the letter is Rs. 47,165.85 is not correct and also the interest stated to be claimed Rs. 73,600/- is also not agreeable."

In that affidavit there is also a mention about Bank of Maharashtra having obtained a decree for Rs. 36,565/- against the complainant. The said affidavit of the complainant is at pages 116 to 118 of the paperbook. Thus, on the basis of the said written undertaking the Insurance Company had withheld the amount which was alleged to be due by the complainant to the above Banks. Thus, it cannot be said that the Insurance Company committed any negligence while not disbursing the remaining amount of the loss assessed by the Surveyor.

THE complainant has vehemently challenged the report of the Surveyor and has urged that the loss suffered by him is much more than the loss assessed by the Surveyor. However, there is not sufficient evidence on the file to hold that the report of the Surveyor is not correct. It may, however, be mentioned here that after the order of the State Commission the opposite party sent a voucher for Rs. 1,05,150/- which was signed by the complainant on 3rd September, 1993 in full satisfaction and discharge of all claims under the policy mentioned in the voucher. From the written arguments submitted by the complainant it appears that the cheque for the said amount of Rs. 1,05,150/-has been received by the complainant on 15th September, 1993. The present complaint was filed by the complainant after he had signed the voucher in full and final satisfaction of his claim but before the amount received by him. The complainant has of course pleaded that he had received the amount under protest. There is nothing on the present file to prove this contention. We are of opinion that in such circumstances, the complainant cannot allege any deficiency on the part of the Insurance Company. His remedy, if any, lies with Civil Court. In the light of the above observations we do not find any force in the present appeal and dismiss the same. We make no order as to costs. However, we make it clear that the complainant will be at liberty to agitate his claim for the remaining amount in appropriate Court of law. Appeal dismissed.