Mrs. Salima Jabeen vs National Insurance Company Ltd. and Others

Syed Bashir-ud-din, J.—In this Civil 1st Misc. Appeal, order/award dated 23-9-1997 in complaint file No. 62/97 of Jammu and Kashmir

State Consumers Protection Commission, Srinagar, (hereinafter, for short ""Commission""), is under challenge.

The appellant, Mrs. Salima Jabeen, entered into an agreement of Insurance bearing Policy No. 421003/11/94/31/00917 with National

Insurance Company, respondent No. 1 in respect of a built up house with land underneath and appurtenant thereto, situated at Gulabhagh Zukura,

Srinagar.

The policy of insurance was valid for one year from 13-1-1995. The policy also covered fire risk inter alia by militant acts. The sum assured

was Rs. twenty three lacs. On the intervening night of March 31, and April 1, 1994, militants set the house with household goods on fire. The

house and the goods sustained substantial damage. The appellant approached the Insurance Company. One Shri M. K. Warikoo, was appointed

and deputed as Surveyor to investigate and to assess the loss.

The Surveyor, oh inspection of the site and on the assessment of the loss, assessed the loss and damage of the insured house. However, the

respondents Company with Regional Office at Chandigarh, referred the matter to another Surveyor-cum-loss assessor OM Puri of Purisons

Surveyors Pvt. Ltd. On 6-2-1995. This Surveyor, on investigation and reassessment of loss and damages, assessed the total loss in the sum of Rs.

6,61,772/- and forwarded its report to the respondents on 24-9-1995. This amount has been received and paid to the appellant.

The appellant comprehending that the loss assessed by the first Surveyor, Shri M. K. Warikoo, was on higher side, claimed this amount. After

receiving Rs. 6,61,722/-, the loss assessed and valued by second surveyor, she laid claim to the amount of Rs. 4,89,096/-, the difference between

the loss assessed and valued by the first and second Surveyor. For the purpose, she filed complaint No. 62/97 before the Commission, and also

claimed further compensation of Rs. two lacs for inconvenience and injury caused to the complainant due to negligence.

The Commission, after registering the complaint, issued notice to respondents, who appeared and filed written statement. The respondents

resisted the claim in main, on the ground that the loss/damage to the property covered by the insurance policy (as assessed by Surveyor Shri Puri

Sons), in the sum of Rs. 661722/- was paid to the appellant after the parties mutually settled the claim finally at this sum. The appellant consented

to the said settlement of claim in respect of damages to the building under insurance policy for the said sum and waived further claim(s) on all

counts including interest, thereto. As full and final settlement of the claim, she executed the consent letter and voucher of receipt of the amount

Annexure P1 on complaint file of Commission.

Before the Commission, complainant/appellant examined two witnesses. The O. P. opted not to lead evidence. The Commission, on

examination of the matter on hearing, dismissed the complaint after finding no merit in the complaint. In fact, the Commission found the complaint

based on frivolous grounds and therefore, allowed sum of Rs. two thousand as costs to the O.P.

The counsel for the appellant canvasses, that Shri OM Puri of Purisons Surveyors Pvt. Ltd., second surveyor, and loss assessor-cum-valuer in a

meeting with the appellant and her husband proposed negotiated settlement of the whole claim in the sum of Rs. ten lacs between the parties and

for the purpose demanded a signed letter and discharge voucher from the appellant. The appellant handed over the signed consent letter and

discharge voucher to said Shri OM Puri without specifying the amount of Rs. ten lacs. After said Shri Puri was in receipt of the consent letter and

discharge voucher, he demanded illegal gratification from the appellant's husband. The insurance company was requested to withdraw the case

from the said Puri. The Company did nothing. Instead the appellants claim was settled at Rs. 6,61,722/- on the assessment report of Shri OM

Puri. The Commission, did not provide her an opportunity to lead evidence and prove her case.

The counsel for O. P. (respondents) submits, that the consent letter and discharge voucher have been executed by appellant of her own will and

free volition. The sum specified is Rupees 6,61,722/-. The consent letter as also the discharge voucher have not come into existence by

intervention of Puri or for that matter of any other assessor. The only role of the Purisons Surveyors Pvt. Ltd. is that the assessor has assessed the

loss at Rs. 6,66,722/-, the amount at which the claim has been finally settled. The execution of the two documents have been admitted in

unequivocal terms by the appellant. The appellant has waived her claim(s) to all further compensation. She by her own act has released the

respondents from all contractual obligations under the policy of insurance.

In the complaint, before the Commission, receipt of Rs. 6,66,722/- on account of fire damage to the house on the basis of assessment report

of Shri OM Puri of Purisons Surveyors Pvt. Ltd., is admitted. In her statement before the Commission during the course of cross-examination,

appellant/complainant, Saleema Jabeen, has in unequivocal terms further admitted the receipt of this amount and execution of the discharge

voucher and giving of a consent letter. Though the other witness examined by the complainant namely Ghulam Rasool Mir, states that he

accompanied the complainant and her husband and was present in the meeting they had with Shri OM Puri, appellant on her part, in her cross-

examination states, that she has not met the Surveyor personally.

It is evident that, theory of working out of the settlement with OM Puri, as put-forth in the claim and appeal, has been invented only to make

out a case for laying claim to additional amount, after receipt of the amount of Rs. 6,61,722/-, at which figure claim was fully and finally settled by

parties out of their free will on unfettered voluntary consent. Not only so, the appellant has not examined her husband, referred as a star witness

before the Commission. It defies logic, that the husband of appellant, namely, Shri M. A. Kawoosa, who at the relevant date was posted and

functioned as Director of Environment, allowed her to sign a paper which did not specify the amount as final and full satisfaction of the insurance

claim and that too on claimed settlement with the surveyor, who in no case is concerned with the settlement of claim between Insurance Company

and the appellant. It is nowhere shown that Shri OM Puri of Purisons Surveyors Pvt. Ltd., was acting as an agent or was otherwise authorised to

negotiate the settlement with the appellant. The claim of the appellant that, she was not given opportunity to lead evidence, is disproved on record.

The record file of the Commission, shows that the complainant/appellant was given opportunity to lead evidence, but, she just led evidence of two

witnesses.

Keeping in view the summary nature of proceedings before the Commission, the appellant, as seen through record, has been given ample

opportunities to lead evidence.

Viewed thus, the conclusion and the decision arrived at by the Commission, that the complainant/appellant has not made out a case for claimed

compensation before it and that too after her execution of consent letter and discharge voucher in settlement of her Insurance claim in the sum of

Rs. 6,61,722/- is based on evidence, facts and circumstances discernible from record, The admission of execution of the consent letter and

discharge voucher is in effect waiver by the appellant and abandonment by the complainant/ appellant of her further rights, if any, which accrued to

her under the policy of insurance. By executing the documents, she has released the Insurance Company of its contractual obligation. In view of the

above settlement, as she has accepted the amount in full and final settlement of her claim, arising out of the insurance contract, the Insurance

Company is discharged of its obligations under the contract. The defence of accord and satisfaction, put forth by the Insurance Company, is fully

substantiated on record.

In the fact situation and circumstances of the case, final and full satisfaction of the claim under the Insurance Policy can be safely and neatly

gathered. The tender by the Insurance Company and acceptance by the appellant of Rs. 6,69,722/-, by way of full and final satisfaction of the

Insurance claim under the policy and thereby, releasing the Insurance Company of all its obligations to meet any further claim(s) on this count is

fully substantiated by evidence, facts and circumstances of the case. The impugned order/ award by the Commission, is in order and is fully

substantiated by the evidence and preponderance of probabilities of the case.

No other point is canvassed or argued before us.

In the result, we confirm impugned order/ award of the Commission, and dismiss the appeal. Parties ordered to bear their own respective

costs.