Jess Ram Khushi Ram Pvt. Ltd. vs NATIONAL INSURANCE CO. LTD.

THE Complainant proprietor of Jess Ram Khushi Ram Pvt. Ltd., purchased two insurance policies in the sum of Rs. 3.25 crore on stock and Rs. 31.00 lakh on building, plant, machinery and stock for the period from 3.6.2004 to 2.6.2005 from the National Insurance Company Ltd., the Respondent/Opposite Parties. On 31.7.2004, a fire took place at premises of complainant and there was huge loss. The Surveyor appointed by O.P. assessed the loss and gave report, on 11.10.2004 recommending a sum of Rs. 49,09,160, in respect of yarn and raw material damaged in this fire. After considering the salvage and other deductions, the net loss was assessed at Rs. 36,78,833. Thereafter, Complainant approached personally requesting OPs for releasing the amount of compensation and repeatedly contacted them through letters, reminders. Finally, under such coercive and pressurizing circumstances, the Complainants signed a discharge voucher by way of full and final settlement, in October, 2005, when a cheque for Rs. 6,43,886 was given to him, on 20.10.2005 and last cheques for Rs. 10,06,541 and Rs. 48,316 were given on 9.11.2005. As per the recommendations of the IRDA, it is incumbent upon the OPs to either accept the report of the Surveyor or to release the amount recommended by the Surveyor, within fifteen days of the receipt of the surveyor''s report. Hence, the O.P. violated the rules and regulations of IRDA and did not make the payment as assessed. Hence, alleging the deficiency in service against OP, a Complaint was filed before the District Consumer Disputes Redressal Forum (in short, ''District Forum'') Panipat, Haryana on 5.12.2005.

THE District Forum, held the OPs liable for negligence and directed the OPs to pay the sum of Rs. 19,50,000 together with interest @ 12% from 20.10.2005, till realization and a sum of Rs. 3,300 as litigation expenses. Against, the said order of District Forum, the OPs filed two appeals, FA 930/2007 and FA 931/2007 on 16.4.2012 before the State Consumer Disputes Redressal Commission, (in short, ''State Commission'') Haryana at Panchkula. The State Commission accepted the appeal FA 930/2007 and set order of District Forum and dismissed the complaint. However, the learned State Commission has dismissed the FA/931/2007 filed by the respondents herein holding that the repudiation of the claim on the basis of exclusion clause is wrong and arbitrary.

AGGRIEVED by the order of State Commission the complainant preferred this revision.

WE have heard the Counsel for both the parties. Also heard on the application for condonation of delay for 33 days. For the reasons given in the application for condonation of delay, we condone the delay. Now, on the merit, we need to decide, the pivotal issue that, whether there was a "Protest" exercised by the Complainant, while accepting the cheques for Rs. 17,47.726 from the OPs, and whether the Surveyors assessment was correct or not.

WE have perused the evidence on record, findings of both the Fora and the other documents like Surveyor''s report, investigation report, the financial, bank records.

THE complainant had received the amount of Rs. 17,47,726 from the O.P. by executing ''Consent Letter'' to their entire satisfaction. The State Commission has rightly put its observations considering the Consent Letter signed by the complainant. The observation made by State Commission is reproduced as follows: In support of his arguments, learned Counsel for the appellant -opposite party referred to the ''consent letter'' reproduced as under - -

Consent Letter

We hereby tender our consent willingly and voluntarily. We agree to accept Rs. 17,47,726 (Rupees seventeen lacs forty -seven thousand seven hundred twenty -six only) as full and final settlement of our claim as per surveyor report of M/s. N. Kumar Surveyors Pvt. Ltd. without any element of duress, coercion and compulsion of whatsoever nature regarding all the damages/losses arisen out of F.I.R. subject to our completion of all the necessary requirements/formalities as necessitated in the claim, subject to policy terms and conditions and exceptions.

Date: 3.10.2005

Sd/ -

Place

(Signature)

Address

Having considered the facts and circumstances of the case and the ''consent letter'', we find force in the contention raised on behalf of the appellant -opposite party. It is well settled law that once the claim has been accepted by the claimant without any objection by signing consent letter in full and final settlement of claim offered by the Insurance Company.

The Counsel for petitioner submitted that, due to the pressure of the market creditors, the very existence of the petitioners was in danger the complainant had accepted the amount under compelling circumstances. He further contended that, complainant had protested and the "Protest Letter" by way of legal notice was sent to O.P. two days later. Also, the Complainant approached District Forum on 5.12.2005 i.e. less than a period of one month from the date of receipt of the last payment on 9.11.2005, hence, filing of complaint can also be considered as a protest against, so -called full and final settlement. Therefore, it was not a voluntary acceptance of claim as final settlement.

WE do not find any force in such argument. Sending a legal notice, filing complaint before District Forum are the legal steps taken by the complainant. It is not as such a protest.

WE are unable to substantiate as to why the complainant signed the settlement voucher, blindly? He has signed the discharge voucher for full and final settlement in October 2005, received the amount by three cheques and the last payment was made on 9.11.2005. Thereafter, on 11.11.2005, he has sent a notice to OPs. Hence, it is clear that the complainant was not vigilant and prudent enough, he is responsible for his wrongs, and woke up from sleep on 11.11.2005 after i.e. one month after signing document in October 2005. He would have in his handwriting written about protest on the same voucher or returned back the cheques to the OPs. He would have not deposited the cheques issued by the OP. Hence, we are of considered view that the complainant being an owner of his private company and he must have signed the consent letter with full knowledge after going through the contents mentioned therein and therefore question of any pressure tactics by the opposite party upon the complainant does not arise.

THE OPs contended that the complainant had not maintained the stock register till 7.2.2004. The assessment report dated 11.10.2004 issued by the 1st Surveyor was for Rs. 36,78,833, which was not a final one. It was subject to terms and condition of insurance policy. Hence, for appropriate assessment of claim another Mr. N. Kumar Surveyor Pvt. Ltd. investigated the matter and assessed loss at Rs. 17,57,726. We have perused the surveyor''s reports and found several discrepancies in the 1st surveyor report. In our opinion the 2nd Surveyor has assessed the loss properly based on financial records and detailed investigation.

ENTIRETY of facts and aforesaid discussions, we are of considered view that, the complainant had received the amount of Rs. 17,47,726 from the O.P. by executing ''Consent Letter'' to their entire satisfaction. We do not find any fraud or coercion on behalf of the O.P. upon the complainant at the time of signing consent letter. The complainant should have challenged the 2nd survey report. He should have produced the solid unflappable evidence before the Surveyor during assessment or in the proceedings before the State Commission. Hence, the complainant has failed to lead any cogent, convincing and conclusive evidence to bolster his entire claim. Accordingly, there is no merit in this Revision Petition and we are not inclined to interfere in the impugned order passed by the State Commission. The revision petition is dismissed. No order as to costs.