Natraj vs Oriental Insurance Co.Ltd

THIS appeal has been filed by the complainant against the order of the District Forum, Bikaner dated 5.8.92 dismissing the complaint filed by him under Section 12 of the Consumer Protection Act, 1986.

FACTS leading to the filing of this appeal are that the complainant-appellant carried on cloth business at K.E.M. Board, Bikaner. He had got insured the cloth in stock in the shop for a sum of Rs. 2,25,000/- and the furniture in the shop for a sum of Rs. 25,000/- against fire .under an Insurance Policy dated 20.10.85. On the night intervening 9.2.88 and 10.2.88 at about 11.00p.m. there was a fire in the shop in which the complainant carried on business and his entire cloth in stock and furniture was burnt and reduced to ashes. He therefore, made a claim with the Opposite Party-Oriental Insurance Co. Ltd. for a sum of Rs. 2,46,000/-. He had intimated the Insurance Co. on telephone about the fire and the loss. However, the Insurance Co. appointed their local Surveyor Shri B .K. Modi after 48 hours who assessed the loss. It was alleged that Shri B.K. Modi did not possess the competence to assess the loss as he had no experience about the quality of the cloth or its price or the price of furniture. Another Surveyor from Delhi was appointed and he inspected the shop and the burnt goods. The Surveyor of Delhi assessed the loss at Rs. 2,00,000/-. It was alleged that the Oriental Insurance Co. Ltd. has only paid an amount of Rs. 1,33,544.50 to the complainant. The complainant accepted this amount under protest reserving his claim for the balance of the amount. The complainant also alleged that the local Surveyor Shri B.K. Modi was not on happy terms with the complainant and was annoyed with him. Branch Manager of Oriental Insurance Co. Ltd. Bikaner was also on inimical terms with the complainant and the local Surveyor had collusively with the Branch Manager had assessed the loss. The local Surveyor deliberately did not include in his assessment suiting and shirting cloths which were in four racks near the electricity meters and which were completely burnt and their cost was respectively Rs. 41,720/- and Rs. 37,540/-, in all Rs. 79,260/-. The local Surveyor arbitrarily assessed the loss without giving any opportunity to the complainant for hearing. The cost of the furniture in the shop was more than Rs. 25,000/-. The complainant, therefore, prayed that a sum of Rs. 1,14,956/- may be awarded to him as balance amount of the compensation which had not been included by the Surveyor in the assessment. He also claimed Rs. 40,000/- as interest and Rs. 10,000/- as costs. Upon reference being made, the Opposite Party filed its version on 15.1.92 before the District Forum. It was not disputed that the complainant had got the cloth in stock and furniture insured with the Opposite Party. The local Surveyor made investigation and also inspected the account book maintained by the complainant. Shri B.K. Modi was a Chartered Accountant and was licensed Surveyor from Govt, of India and was competent to assess the loss of cloth and furniture. It has been stated that the Surveyor of Delhi had made wrong assessment of the loss. After investigation and assessment, the complainant was paid an amount of Rs. 1,33,544.50 as compensation. It is denied that the complainant accepted this amount under protest. It was denied that the cost of the furniture was about Rs. 1,00,000/-.

It may be stated that after the filing of the complaint, the complainant reduced his claim to Rs. 99,999/- instead of Rs. 1,14,956/- claimed as compensation in the complaint. He also relinquished his claim for Rs. 40,000/- with respect to interest and Rs. 10,000/- with respect to costs. This was done by the complainant in order to bring his complaint within pecuniary jurisdiction of the District Forum, Bikaner.

THE District Forum held that Shri B.K. Modi, local Surveyor had reached on the spot on 10.2.88 itself and had inspected the account books. THE version of the complainant was not correct that Shri B.K. Modi reached his shop after 48 hours. It was further held that after receipt of the amount of Rs. 1,33,544.50 on 16.3.89, the complainant gave a receipt in full and final satisfaction of his claim and the complainant now could not raise any objection regarding that. THE District Forum did not accept the correctness of a photo copy of the receipt which had been produced by the complainant. It accepted the receipt produced by the Opposite Party which showed unqualified acceptance of an amount of Rs. 1,33,544.50 by the complainant. THE complainant did not raise any objection at the time when Shri B.K. Modi was making the survey. As regards the claim regarding burning of furniture, it was held that the furniture was insured for Rs. 25,000/- and it was included in the claim. On the basis of these findings, the District Forum dismissed the complaint. Before us the learned Counsel for the appellant advanced the same arguments which had been advanced by him before the District Forum. It is clear from the report of Shri B.K. Modi that on 10.2.88 itself, the Insurance Co. had appointed him as Surveyor. The Surveyor inspected the premises of the complainant on 10.2.88 itself and his survey and investigation continued upto 13.2.88. The Surveyor had initiated the cash book and ledger maintained by the complainant on 10.2.88 itself. It was found that the last stock statement submitted by the complainant to the bank did not contain the detailed description of cloth goods and did not show the clear position of various types of cloths in hand held by the insured. It was also found that the stock of the cloth was not totally destroyed but partially damaged and had completely become wet with water because the fire-brigade had used water to extinguish the fire. The Surveyor had examined trading accounts of past three years and after examining the accounts he came to the conclusion that the stock was shown as inflated by the complainant. He prepared a statement showing the quantity and value of cloth physically existing in the shop before the fire. He further prepared the loss sustained to the furniture. The loss of cloth was assessed at Rs. 12,136/- and after giving allowance to Rs. 1,400/- as depreciation, the net amount payable for the loss of furniture was determined at Rs. 10,736/-. It appears that later on another survey made by Delhi Surveyor named Thapar Srinivasan and Kapoor Pvt. Ltd. and gave survey report on 16.8.88. He assessed the loss at Rs. 2,03,693/-. It has been mentioned that survey by Delhi Surveyor was made after six months of the fire. He did not give any allowance for salvaged stock.

THE Opposite Party produced the original receipt regarding payment of Rs. 1,33,544.50 executed by the complainant Shri C.B. Popali. In this original receipt there are no words that the payment was accepted under protest and after reserving the rights of the complainant for the balance of the claim. No reliance can be placed on photo copy of the receipt when the original did not contain any mention that the amount of Rs. 1,33,544.50 was accepted by the complainant without prejudice to his legal rights to claim balance of the amount. It appears that the photo copy produced by the complainant has been forged by him. It was not denied by the complainant that the original did not contain his signature. It is clear from the receipt produced by the Insurance Co. that the complainant had accepted the amount of Rs. 1,33,544.50 in full settlement of all claims of loss or damage and expenses sustained by fire and all demands arising from the Insurance Policy and gave complete discharge to the Insurance Company. THE complainant, therefore, having accepted the amount of Rs. 1,33,544.50 from the Insurance Co. is now estopped from claiming any further amount. The District Forum rightly dismissed the complaint. This appeal has no merit in it what soever and it is hereby dismissed. Appeal dismissed.