JAYESH KANAIYALAL SHAH vs BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD.

THE undisputed facts of this case are as under: THE complainant had hypothecated his goods with Peoples Co-op. Bank Limited which has insured the said goods in the account of the complainant for Rs. 6 lakhs. THE cotton bales were destroyed by fire and a claim for Rs. 5,73,000/- was made with the Insurance Company. It appears that at the request of the Insurance Company Mr. Upendra R. Shah was sent for surveying the damage and he surveyed the damage for 150 bales at Rs. 4,69,600/-. It also appears that at the time of survey the complainant''s partner was present and at the request of the surveyor he gave a letter dated 28.9.91 agreeing to the assessment of Rs. 4,69,600/- in order to put an end to a dispute though, according to him he has suffered more damages.

HAVING obtained this consent from the complainant Mr. Upendra R. Shah made a report on January 10,1992 but to the reasons best known to the Insurance Company the amount was not sent for a long time. The amount being substantial it was not possible for the complainant to wait any more and he, therefore, filed the present complaint on February 19,1992. It appears that after the filing of the complaint by the complainant, the complainant''s partner appears to have been called by the Insurance Company and according to the Insurance Company the complainant''s partner agreed to take Rs. 4,69,600/- and the cheque was given after taking his signature. As usual, in this case there is no receipt for full and final settlement nor there is any assurance taken from the complainant that he was not claiming any interest since the matter was pending before us. Mr. B.S. Patel, the learned Advocate appearing on behalf of the complainant has vehemently argued that since the amount has been offered to him he had no reason not to accept the said amount towards his claim. He therefore vehemently urged that his client is entitled to the balance amount alongwith interest throughout and cost.

Mr. Pandya, the learned advocate appearing on behalf of the Insurance Company states that so far the damages are concerned, not only that there is an evidence of the surveyor that the damage was to the tune of Rs. 4,69,600/-, this assessment has in turn been accepted by the complainant and the complainant therefore cannot be permitted to reverse from his acceptance. The complainant has filed the complaint for the amount exceeding the amount of admitted damages and that amount having been paid, the complaint should be disposed of accordingly.

WE have considered the arguments of the learned advocates. No doubt, the complainant has accepted the damages in order to put an end to the dispute and particularly when the amount was fairly high. He being a merchant might have thought that it is better to accept certain amount rather than to file a suit. However, having accepted the assessment Mr. Pandya is not disputing that the assessment is binding to the Company. The Insurance Company has failed to make the payment. It may be possible to argue that the agreement may not be binding. WE have persuaded Mr. Patel not to press for the difference since his client has accepted the money and signed on the back of the cheque. It is true that thereafter his client has wrote a letter that he has accepted this amount under protest. But to our opinion it is an after thought. In any way Mr. Patel has been kind enough not to press for the balance amount but has vehemently urged that atleast his client is entitled for interest since the money has been wrongly retained by the Insurance Company. WE are not inclined to accept the arguments of Mr. Pandya that the amount having been accepted, interest should not be allowed. The amount involved is substantially high and there is no reason why the Insurance Company should not pay the interest. If the money had been paid in September 91 the complainant would have earned interest. This amount has been used by the Insurance Company for its own purpose. There is no receipt for full and final settlement produced by the Insurance Company. In these circumstances we feel that the complainant is entitled for the interest atleast from 1.10.91 till the cheque was given to him by the Insurance Company. With regard to the cost Mr. Patel has vehemently argued that since his client has succeeded and the payment has been made by the Insurance Company on account of the filing of the present complaint, his client is entitled for the cost. Mr. Pandya states that before the judgment the Insurance Company has already paid the agreed amount. Even though the amount agreed was Rs. 4,69,600/- the complainant has filed a complaint for Rs. 7,14,000/- which includes interest and other damages. He therefore urges that in any view of the matter the Insurance Company is entitled to the cost. We have considered the arguments of both the advocates and we feel that the cost should be quantified by us. Keeping the respective arguments for the cost in mind, we have quantified the cost at Rs. 2,000/-, which is a reasonable amount having regard to the facts and circumstances of the case. ORDER The Opposite Party - the Insurance Company is directed to pay interest from 1.10.91 till 18.5.92, the date on which the cheque was given to the complainant @ 18% p.a. with cost which is quantified at Rs. 2,000/-. The amount shall be paid within 4 weeks from the receipt of the judgment of the Commission. Complaint allowed with costs. _______________