K R Rajashekar vs NEW INDIA ASSURANCE COMPANY LTD

AGGRIEVED by the order dated 21.7.2005 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ''the State Commission'') in complaint case No. 101/03, the original complainant has filed the present appeal. By the impugned order, the State Commission has dismissed the complaint leaving the parties to bear their own costs.

THE complaint before the State Commission was filed claiming a total compensation of Rs. 34,13,868 towards the balance amount of the insurance claim for idemnification of the loss suffered by the complainant, he having already received a sum of Rs. 56,76,981 purportedly in full and final settlement of the said claim.

THE undisputed facts which may be noticed for deciding the present appeal are that the complainant had taken a shopkeepers fire policy in the sum of Rs. 85,00,000 with the coverage of furniture, electrical equipment instruments and stocks of various textile articles like sarees, etc. A fire broke out in the insured shop of the complainant on 31.3.2001. The intimation about the same was given to the Insurance Company which initially appointed Srivatsan Surveyors Pvt. Ltd. as Surveyor to assess the loss and damage to the said shop of the complainant. On the basis of the statement of claim and material supplied by the complainant, the above-named Surveyor assessed the net loss to the stocks, furniture, etc., at Rs. 69,59,518 after applying the condition of average and by deducting the salvage value of the stocks, furniture, etc. It would appear that the said report of the Surveyor did not find favour with the Insurance Company and, therefore, the latter appointed another Surveyor/investigator, namely, Upendra, Chartered Accountant, who on consideration of the report of the Surveyor and on going through the various documents more particularly the bills of certain stocks claimed to have been purchased by the complainant from Arvind Silks, No. 15, Iyengarkulam Main Road, Kancheepuram, Rathna Silks, Kancheepuram, R. Jagadambal Silks, Kancheepuram; and Sunil Tex, Bangalore and after personal verification of the said bills, came to the conclusion that bills to the extent of Rs. 12,39,2141 issued by the above named firms to the complainant were suspect. In any case, payment of the bills to the said dealers could not be established. The Insurance Company furnished the said report of the investigator to the Surveyor Srivatsan Surveyors Pvt. Ltd., which, on consideration of the same, quantified the loss at Rs. 56,76,981. The Insurance Company accepted the said report and paid the said amount to the complainant by means of a voucher dated 6.5.2002 which recorded that the payment was being made to the complainant in full and final settlement of his claim arising out the said loss under the policy. It would appear that several months later, the complainant sent a legal notice to the Insurance Company claiming Rs. 34,13,868 as the balance amount of payment for the loss suffered by him. The Insurance Company explained that the amount of Rs. 56,76,981 was paid to the complainant in full and final settlement of its claim and, therefore, the latter was not liable to make any further payment. Complaint filed by the complainant was also resisted on the same very ground. The State Commission upheld the plea of the Insurance Company and held that the Insurance Company having already settled the claim of the complainant by paying a sum of Rs. 56,76,981 in full and final settlement, the complaint filed was an after-thought and dismissed the same accordingly.

WE have heard Mr. C.K. Sridhar, Advocate, learned Counsel representing the complainant-appellant and Mr. Sunil Kapoor, Advocate, learned Counsel representing the Insurance Company-respondent and have given our thoughtful consideration to their respective submissions.

SINCE the complainant has already received a sum of Rs. 56,76,981 towards his claim for indemnification of the loss suffered by him, the important question is as to whether the said amount was received by the complainant in full and final satisfaction of his claim? If we answer this question in the negative, only then the question would arise as to whether the Insurance Company is liable to pay any further amount to the complainant towards their said claim. In this case, it is not disputed that the complainant has received a sum of Rs. 56,76,981 by signing a discharge voucher which unambiguously recorded that payment being made to the complainant was in full and final discharge of his claim under the said policy. After executing such a discharge voucher, whether the insured could still lay a claim for any further amount has been considered by the Supreme Court in the case of United India Insurance v. Ajmer Singh Cotton and General Mitts and Ors., II (1999) CPJ 10 (SC)=VI (1999) SLT 590=(1996) 6 SCC 400, as under: "The mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief".

THE above position was reiterated in a later decision titled National Insurance Company Limited v. Sehtia Shoes, II (2008) CPJ 16 (SC)=II (2008) SLT 453=(2008) 5 SCC 400. In the case in hand, we find that complainant made no allegation about exercise of undue influence, misrepresentation, etc., and the only reason set up for receiving this amount was that the complainant being a semi literate businessman was under financial constraints and so accepted the said amount. In our opinion the said ground by itself would not be sufficient to hold that the amount so received by the complainant was not in full and final discharge of his claim.

THE question as to whether the complainant has received a sum of Rs. 56,76,981 in full and final settlement of his claim or otherwise, has been dealt with by the State Commission in the following manner: "The learned Counsel appearing for the complainant submitted the receipt of the said amount was due to the fact that the complainant was facing financial problem at that time as he has been indebted to so many persons and therefore, he has received the said amount without mentioning any protest in the discharge voucher. The complainant at the same time has failed to produce the affidavit of the concerned persons in'' support of his case to the effect that the complainant is facing financial difficulties as he has been indebted to certain persons. The further case of the complainant is that he signed the discharge voucher on 6.5.2002 and immediately on the next day i.e., on 7.5.2002 he had written a letter to the OP expressing his protest for having accepting the amount offered by the Insurance Company. The copy of the letter has been produced by the complainant along with his complaint. Thereafter, the complainant also issued a legal notice dated 27.2.2003 asking the Insurance Company to pay the amount as per the Surveyors'' report and he has received the amount of Rs. 56,76,981 under protest with reference to letter dated 7.5.2002. The OP replied the said legal notice disputing the receipt of the letter dated 7.5.2002 is produced as Ex.P-13. The reply notice is marked as P 15. By looking at the letter dated 7.5.2002 we find the seal of the Insurance Company on the OP having received the said letter. In the absence of such signature, it cannot be accepted that the said letter was received by the Insurance Company. Therefore, the alleged letter dated 7.5.2002 cannot be treated as one of expressing protest while receiving the amount of Rs. 56,76,981. The complainant is not an illiterate person. He is a big business man. He having signed the said discharge voucher dated 6.5.2002 aloneg with his banker, he is bound by the contents of the said letter. From a reading of the contents of the said letter, it is seen that the complainant has received a sum of Rs. 56,76,981 in full and final settlement of his claim. If that is so, it is not open for him to ask anything more on the basis of the Surveyors'' report if any. Further the complainant having received the said amount without any protest he is estopped from contending that he is entitled for more amount than what has been received under Ex. R11. Hence we find no merit in this complaint".

MR. Sridhar, learned Counsel for the appellant would assail the above finding of the State Commission on the strength of letter dated 7.5.2002 purportedly having been sent by the complainant to the Insurance Company and, thereafter, notice dated 27.2.2003 asking for the balance amount. The State Commission has disbelieved the delivery of the said letter to the Insurance Company and in our opinion rightly so because no cogent proof about the delivery of such a letter has been brought on record. The Insurance Company has denied the receipt of such letter in categorical terms. Going by the preponderance of probabilities, it is difficult to believe that complainant had sent any such letter dated 7.5.2002 to the Insurance Company. It would appear to us that it was after several months of having received the payment of Rs. 56,76,981, the complainant wanted to re-agitate the issue on the ground that the amount so received by him was not in full and final settlement of its claim under the said policy. Bearing in mind the above legal position, we must hold that amount of Rs. 56,76,981 received by the complainant was in full and final settlement of its claim.

EVEN after holding so, we have examined the entertainability of any further claim beyond Rs. 56,76,981. In this connection Mr. Sridhar has invited our attention to the report of the Surveyor who had quantified the net loss at Rs. 69,59,518 and he submitted that the Insurance Company ought to have settled the claim of the complainant at least to the above extent, if not more. As against this, Mr. Sunil Kapoor has argued that payment of Rs. 56,76,981 made to the complainant was strictly in accordance with the final survey report dated 24.4.2002. In the said report, said Surveyor has quantified the net loss at Rs. 56,76,981 in the following manner: Stocks as on 28.2.2001 as per stock statement submitted to State Bank of India Rs. 59,49,000 Add : Purchase for March ''01 as per bills - Rs.56,79,515 Less : Bills not be considered as per investigator''s findings-21,26,164 Rs. 35,53,351 Add: Entry Tax and Freight Rs. 9,523 (A) Rs. 95,11,874 Less : Sales From 1.3.2001 to 31.3.2001 Rs. 36,79,647 Less : Gross profit @ 14.63% Rs. 5,38,332 (B) Rs. 31,41,315 Value of stock at cost (A-B) Rs. 63,70,559 Less : Allowance for non and slow moving stock @ 2% Rs. 1,27,411 Value of stocks at risk as on 31.3.2001 Rs. 62,43,148 Less : Value of unaffected stocks as per insured''s balance sheet as on 31.3.2001 Rs 11,41,167 Value of the stocks destroyed in fire accident Rs. 51,01,981 Add: Assessed loss on furniture and other contents as per our tetter No BLR-999101 dated 3.8.2001 Rs. 7,00,000 Total revised loss amount due to fire accident Rs. 58,01,981 Less : Salvage value realizable from damaged items Rs. 1,25,000 Revised adjusted loss amount due to fire accident Rs 56,76,981

ALONG with this, report of Mr. Upendra, Chartered Accountant has also been filed. We have carefully gone through the said report which will show that the complainant - appellant had submitted several purchase bills from various suppliers of Kanchipuram and Bangalore showing the purchases to the extent of Rs. 12,39,214 which stocks could not be said to have been received by the complainant before the date of peril because the bills were found to be suspect and in any case no proof was lead that the payment of these goods/stocks was actually made by the complainant to the said suppliers or the goods were, in fact, supplied to the complainant

WE have no reason to discard this cogent evidence which will explain as to how the net loss of the complainant was finally assessed at Rs. 56,76,981 instead of the preceding assessment made in the said Surveyor. The said amount having already been received, we may simply observe that the complainant should thank his stars that despite certain suspect bills having been put up by him in support of his claim on account of the loss/damage to the stocks, the Insurance Company has not disentitled his claim altogether and has settled and paid the rightful claim amounting of Rs. 56,76,981. In our view, the complainant is not entitled to any further amount.

IN view of the above discussion, we find no merits in the present appeal. The appeal is dismissed as devoid of merits, leaving the parties to bear their own costs in these proceedings. Appeal dismissed.