NATIONAL INSURANCE COMPANY LTD vs NOOR ALI

THIS revision petition is directed against the order of the State Commission Uttar Pradesh, Lucknow dated 16.07.2012 in Appeal No. 538 of 2005. The State Commission dismissed the appeal filed by the petitioner insurance company against the order dated 29.12.2004 passed by the District Forum Sultanpur in CC No. 108 of 2004.

THE consumer dispute in the complaint relates to non settlement of insurance claim for the loss caused to the stocks lying in the insured shop of the respondent complainant consequent upon a fire accident which took place on the night intervening 3rd and 4th August, 2003. On being informed, the insurance company appointed a surveyor, who on inspection assessed net loss to the tune of Rs.1,79,011/ - and recommended settlement of claim in the sum of Rs.1,29,717/ - after the adjustment. This amount was infact remitted by the insurance company to the complainant on 17.03.2004 and was accepted by the complainant vide a settlement voucher of the said date duly signed by the complainant. Case of the complainant in the consumer complaint was that he had actually suffered loss of Rs.8.00 lacs against which a partly sum of Rs.1,29,117/ - has been paid which was accepted by him under protest, whereas the petitioner insurance company took the plea that the loss was properly assessed and there was no justification for any enhanced payment against the insurance claim. The petitioner also took a preliminary objection that respondent complainant was estopped from reagitating the matter by filing a consumer complaint after having settled the claim and accepted a sum of Rs.1,29,117/ - in full and final settlement of the claim.

THE District Forum on consideration of the matter allowed the entire claim of the respondent complainant and awarded him additional sum of Rs. 6,70,883/ - alongwith 12% interest p.a. with the stipulation that if the amount is not paid within one month, the amount shall carry 15% interest per annum. Aggrieved by the order, the insurance company filed appeal before the State Commission which allowed by the State Commission upholding the contention that insurance claim stood finally settled on payment of Rs.1,29,117/ -.

BEING aggrieved of the order of the State Commission, respondent filed revision petition No. 1638 of 2008 and the National Commission partly allowed the revision petition with following observations: ""Now, coming to the question as to what should be the proper amount of insurable claim which the Petitioner is entitled from the Respondent Insurance Company. In this regard, we may simply observe that the orders of the District Forum upholding the claim of the Petitioner to the extent of Rupees eight lakh cannot be sustained particularly on the basis of the detailed report of the surveyor in regard to the assessment of loss filed on record which we see no reasons to discard or differ from. The surveyor has assessed the net payable loss at Rs.1,79,011/ -. While assessing the loss, the surveyor has taken care to make deductions for the excess amount and under other heads and therefore, it is not clear as to for what reasons the Insurance Company straight away reduced approximately a sum Rs.50,000/ - from the said net payable assessment of Rs.1,79,011/ -..

In our view, ends of justice would be adequately met if the present revision petition is partly allowed and the Insurance Company is called upon to pay the balance amount as per the assessment of the surveyor. Since the balance amount was withheld with no tenable justification by the Insurance Company, we consider it appropriate that the Respondent Insurance Company should also pay interest @ 9% per annum w.e.f. 1.4.2004 till the date of payment. The revision petition is disposed of accordingly.

THE complainant not being satisfied with the order of the National Commission, approached the Hon''ble Supreme Court. The Supreme Court vide its order dated 17.08.2009 in Civil appeal No. 5547 of 2009 arising out of SLP (C ) No. 887 of 2009 allowed the appeal, set aside the orders passed by the State Commission as well as the National Commission and remanded the matter back to the State Commission to consider the appeal in accordance with law and after giving opportunity of hearing to the parties.

IN the second round, the State Commission vide impugned order dated 16.07.2012 concurred with the finding of the District Forum and dismissed the appeal preferred by the petitioner with cost of Rs.15000/ -

MS . Sonia Sharma, Advocate for the petitioner insurance company has contended that the orders of the foras below are not sustainable for the reason that they have failed to appreciate that the respondent complainant having settled the insurance claim fully by receiving a cheque of Rs.1,29,117/ - and encashing the same in full and final settlement of his claim is estopped from filing the consumer complaint. In support of this contention, he has drawn our attention to the copy of the settlement voucher dated 17.03.2004, execution of which is not denied by the complainant. The settlement voucher reads as under: RECEIVED from NATIONAL INSURANCE COMPANY LIMITED Sultanpur Branch Office the sum of Rupees One Lac Twenty Nine Thousand One Hundred Seventeen only in payment of full and final payment under Policy No. -9800360 and Claim No. -03/3980008. Rs.1,29,117/ -""

ON reading of the above, we gets a clear impression that sum of Rs.1,29,117/ - was received by the complainant in full and final settlement of insurance claim which is the subject matter of this complaint.

LEARNED counsel for the respondent complainant has contended that although complainant had received the said amount but it was accepted under protest. In order to substantiate this plea, learned counsel for the complainant has drawn our attention to copy of letter dated 17.03.2004 addressed to the Senior Manager Bank of Baroda, Sultanpur by the Branch Manager of the opposite party. At the bottom of the said letter, there are signatures of the complainant on the endorsement "received under protest". From this, counsel for the complainant is seeking us to infer that the amount of Rs.1,29,117/ - was received by the complainant under protest and not against full and final settlement of his claim.

WE do not find merit in this contention because the endorsement regarding protest is on the copy of the communication between the insurance company and the bank manager, which by no stretch of imagination could have come in the hands of the complainant. On the contrary, from the settlement voucher dated 17.03.2004, it is clear that the amount was received by the complainant voluntarily without protest. Thus, it cannot be disputed that the complainant had received the above noted amount in full and final settlement of his claim. The complainant after having settled the matter and receiving the consideration, now cannot be permitted to reagitate the matter by filing a consumer complaint. Thus, the order of the foras below are not sustainable being without jurisdiction.

IN view of the discussion above, the revision petition is allowed; impugned order is set aside and complaint is dismissed.