MOHAMMAD YASIN MIR vs National Insurance Co. Ltd.

THIS claim arise out of the insurance cover not disputed. The loss of the insured property, the date of occurrence and the validity of the insurance cover on the date of damage is not disputed. The complainant''s case in short is that pursuant to raising of claim in respect of destruction of his stocks on 9th/10th of October, 1995 in a fire incident at Tangdar Mr. M.K. Warikoo was appointed as Surveyor who assessed the loss at Rs. 6,83,000/-, but subsequently the opposite party engaged Mr. M.Q. Andrabi for investigation to which he objected and Mr. Andrabi instead of investigating the matter re-assessed the loss at Rs. 4,32,748.00.

IT is said by the complainant that this was done for ulterior motives and complainant was compelled to receive this amount on 14.2.1997 after an assurance was given to him that his claim will be examined again. He submits that the compelling circumstances were marriage of daughter and payment of wages to labourers. At another place it is stated by him that this was a provisional part payment and he had no alternative but to receive this part payment under protest. The opposite party''s short defence is that the complainant executed a consent letter for the same he received and also executed a Discharge Voucher undertaking to receive this amount in full and final satisfaction of all his claims under the contract of insurance.

In our view only two aspects need our consideration. The first being as to whether the complainant had protested against the appointment of Mr. Andrabi, a second Surveyor and secondly whether the complainant has received the payment in full and final satisfaction of his claim. A reference in this regard may be made to the affidavit of the complainant wherein he submits that the consent letter has been manipulated as it does not bear his signatures but admits that he accepted the provisional payment under compelling circumstances given in the complaint. In the cross-examination the complainant admits the execution of the Discharge Voucher and submits that there is no assurance given in the Discharge Voucher that it is a part payment. The notice was given by him to the opposite party in April, 1997 though part payment was accepted through cheque in February, 1997. The fact that after receiving this cheque in February, 1997 the complainant did nothing till April, 1997 clearly goes to show that he had not protested or signed the Discharge Voucher under undue influence or duress. In normal course if the amount had been received under protest it would be depicted in the Discharge Voucher itself but there is nothing like that in the Discharge Voucher nor has the complainant in affidavit stated that the expression "received under protest" was put down by him on the Discharge Voucher. All he states is that circumstances compelled him to receive this amount. In any case from February, 1997 till 14th April, 1997 he did nothing nor lodged any protest. This clearly shows that he has been advised to give this notice to the Company after a period of about two months only to create grounds for filing this complaint. It is thus clear that the complainant has suppressed from us the fact that the payment was received by him in full and final satisfaction of his claim under the contract of insurance. We are of the view that this suppression is with a design.

AS far as the question of getting the matter reassessed is concerned we find that the reasons advanced by the opposite party in its objection for getting the matter investigated by M.Q. Andrabi are cogent and the decision to get the matter reassessed was not in any way based on any mala fide. We are not concerned with the fact as to whether the consent letter was really signed by the complainant and this we say for the reason that me Discharge Voucher admittedly has been signed by the complainant. Mr. Manzoor Ali submits that he has a feeling that the Discharge Voucher bears the expression "under protest" and that the records of the Company may be perused. We would have considered this, but for the fact that this argument does not appeal to us for the reason that the complainant in his affidavit nowhere states that this expression was used by him while signing the Discharge Voucher. On the other hand he is specific in stating that he signed the Discharge Voucher which gives no further assurance. It would thus be seen mat the complainant has suppressed from us the most important fact of having received the payment in full and final satisfaction of all his claims under the contract of insurance. In normal course if the complaint were simply for the payment of interest for the amount we would have allowed it as in our view the full indemnification is only possible if it is paid on and from the very date of loss and me full and final discharge voucher at the most gives quietuous to the opposite party insofar its liability under the contract of insurance is concerned. But in this case having noticed that complainant has suppressed the most important fact from us and has approached us with most unclean hands we are not prepared to grant him any relief. The complaint as such is dismissed. The complainant shall pay a sum of Rs. 5,000.00 to the opposite party as costs of litigation within a period of six weeks from today. Complaint is dismissed. Copy of the order be given to the parties to be collected by them on their own within a week''s time. Complaint dismissed. __________________