UNITED INDIA INSURANCE COMPANY vs SONA ULLAH DAR

THIS appeal is directed against the order-dated 18.9.2000 passed by the DF whereby the DF has allowed the complaint of the respondent. Shorn of details the case of respondent is that he insured his stocks in trade of Kiryana Hoisery and Cosmetics for Rs. 2.50 lacs. On the intervening night of 20/21st January, 1995 some unknown miscreants broke into the shop and after stealing the stocks set it ablaze with the result the whole building gutted in fire alongwith the stocks in trade.

CLAIM was raised by the complainant. Surveyor was appointed by the appellant. Surveyor assessed the loss at Rs. 99,600.00. Complainant was given the said amount and the complainant executed a Discharge Voucher in full and final settlement of the claim. He accepted the money against protest. The words AP he wrote while signing the voucher. Till then the contents of the survey report were not shown to him and after accepting the money complainant came to know about the survey report and he filed the claim petition which was resisted by the other side on the ground that complainant has signed the Discharge Voucher in full and final settlement so he cannot reopen the case. Df after recording the evidence came to the conclusion that the stocks in trade at the time of the incident valued Rs. 2.63 lacs as the Surveyor in his report had categorically admitted that the whole stocks in trade were partly looted and partly burnt. According to the survey report loss to the stocks in trade was TOTAL. Df on the basis of this allowed the claim and directed the appellant to pay Rs. 1,50,400.00 alongwith 12% interest with effect from 4.9.1997 the amount is in addition to the amount already received by the respondent/complainant.

Heard learned Counsel for the parties. Learned Counsel for the appellant contended before us that the Surveyor has asserted the loss being an EXPERT, his report could not be challenged. Respondent signed the Discharge Voucher in full and final settlement and closed the door for making further claim. He has further contended that complainant has nowhere in his complaint pleaded that he signed the Discharge Voucher under coercion nor has pleaded that any fraud was committed by the appellant in getting his signature recorded on the Discharge Voucher. He has relied on United India Insurance Co. Ltd. v. Ajmeer Singh Cotton and General Mills & Ors., II (1999) CPJ 10 (SC)=VI (1999) SLT 590=1999 NCJ 453 (SC). Moreover he has relied on Saleema Jabeen v. National Insurance Co. Ltd., AIR 1999 J&K 110. We have considered this part of arguments of the learned Counsel for the appellant and perused both the authorities cited above. We are inclined to agree with the learned Counsel for the respondent that the Apex Court authority is not applicable in the present case on the ground that the Apex Court has also in the authority supra said that in case Discharge Voucher is voluntarily signed by a party he cannot thereafter dispute the execution of such Discharge Voucher unless he pleads fraud or coercion. In the case in hand we have seen the Discharge Voucher from the face of it, it does not appear to have been executed voluntarily. The respondent while signing the voucher has categorcially written the word ''AP'' which admittedly he means against protest. So it is evident that the Discharge Voucher has not voluntarily been executed by the respondent at the time of accepting the money from the Insurance Company. He was not fully contended with this amount. Secondly, we have perused the complaint itself. In the complaint at para 8 respondent has categorically mentioned that till the time of getting his signature on the Discharge Voucher he was never shown the report of the Surveyor nor the contents of the survey report were revealed to him. Here the mischief lies. In the survey report the Surveyor has been very categorical in saying that the stocks in trade at the time of the incident were Rs. 2.63 lacs. It is also true that this was on the higher side. It is equally true that the Surveyor has candidly made it clear that the whole stocks in trade was burnt to ashes and after looting it the whole building was set ablaze. Complainant was genuinely agitated that in case Surveyor has admitted the real position that the whole building was set ablaze and the whole stocks in trade were burnt to ashes why he should be paid Rs. 99,600.00 only when stocks in trade were insured for Rs. 2.50 lacs and the loss is more than that, so he filed the complaint. In such circumstances we are not satisfied that the Discharge Voucher was voluntarily executed. We agree with the learned Counsel for the respondent that the Discharge Voucher was executed under PROTEST. We have gone through the Saleema Jabeen''s case also. In that case Discharge Voucher was executed voluntarily. The Court was of the opinion that in case Discharge Voucher is executed voluntarily, contract comes to end. But picture in this case is quite different. Here the complainant was not shown the survey report till his signature was sought on the Discharge Voucher and even then Discharge Voucher was signed by him under PROTEST.

WE have perused the whole judgment. WE agree with the DF that the filing of the complaint was genuine for claiming the amount. The only point for which we are not convinced is with regard to the deduction on account of dead stock and salvage and moreover interest also has been allowed on a higher rate. WE uphold the judgment of the DF with the modification that for the Dead Stock and Salvage we deduct Rs. 10,000.00 and rate of interest we reduce from 12% to 10% p.a. Appeal disposed of.