ORDER
1. The present Revision Petition has been filed by the Petitioner/Opposite Party against order dated 26.07.2007 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (for short "State Commission") in First Appeal No.1990/2007.
2. Along with the Revision, an application for condonation of delay of 20 days, has also been filed by the Petitioner. For the reasons mentioned in the application and in the interest of justice, the delay in filing the Revision Petition is condoned and the Application is allowed.
3. The case of the Complainant is that they were dealing in wholesale purchase and sale of sugar and vegetable, ghee and refined oils etc. under the name and style of M/s SS.S. Enterprises, at 4425/A, Gur Bazar, Ambala Cantt. The Complainant got its goods insured including Sugar, Refined Oil, Vanaspati Ghee, Tea, Soap, Washing Powder, Neutrela, Salt, etc. lying in the godown situated at Jain Gali, Gur Bazar, Ambala Cantt. with the Opposite Party for an amount of Rs.18,50,000/-, vide Insurance Policy No.353501/11//03/00774 valid from 7.11.2003 to 06.11.2004.
4. On 3.8.2004, there was a flood in Ambala Cantonment and the Complainant suffered loss. The Opposite Party was immediately informed regarding the damage caused due to flood. A claim was made for Rs.6,61,927/-. The Opposite Party appointed M/s A.K. Govil Associate as Surveyor to assess the damages and loss. He inspected the premises/godown between 07thto 10thAugust, 2004. The documents sought by the Surveyor were also duly furnished by the
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Complainant to the satisfaction of the Surveyor and the Opposite Party. Despite constantly reminding the Opposite Party, the claim of the Complainant was not settled. Thereafter, a cheque of Rs.1,49,728/- dated 29.03.2005 was received by the Complainant in the first week of May, 2005. Immediately, the Complainant wrote a letter to the Opposite Party wherein a copy of the Survey Report was sought but on one pretext or the other, it was not provided to the Complainant. Due to non-settlement of the claim, the Complainant filed a Consumer Complaint with the District Forum with the following prayer:-
"That the present complaint may please be accepted with costs, a sum of Rs.9,12,201/- alongwith interest at the rate of Rs.12% per annum may please be awarded as compensation in favour of the Complainant on account of loss, mental tension, harassment and agony suffered by the Complainant on the part of the Opposite Parties, in the interest of justice, law and equity."
5. The Opposite Party resisted the Complaint and contended that the Complainant did not cooperate in providing the necessary information and documents and based on written consent of the Complainant, the Surveyor assessed the loss on inspection of the insured premises. Thus the Complaint be dismissed.
6. After hearing both the Parties and perusing the record, the District Forum dismissed the Complaint. Being aggrieved with the order of the District Forum, the Complainant preferred an Appeal before the State Commission. The State Commission allowed the Appeal and set aside the order of the District Forum. The Opposite Party was directed to pay Rs.5,12,199/- to the Complainant alongwith interest @ 6% per annum from the date of filing claim till its realization.
7. Being aggrieved with the order of the State Commission, the present Revision Petition has been filed by the Opposite Party.
8. Heard the Learned Counsel for the Parties and carefully perused the record.
9. Learned Counsel for the Petitioner/Opposite Party submitted that the State Commission erred in not appreciating the fact that the Complainant received an amount of Rs.1,49,728/- in full and final settlement of the claim and signed the discharge voucher without any protest. He relied on the judgment of Hon'ble Supreme Court in M/s Bhagwati Prasad Pawan Kumar vs. Union of India 2006-03 PLR 76 (SC) wherein it was held that the protest must be lodged before encashment of the cheque. Further, it was not the case of the Complainant that the amount was accepted under coercion, undue influence or fraud. It was further submitted that the Surveyor's report is an important piece of document and has to be given due weightage and the State Commission while ignoring the Surveyor's Report enhanced the compensation without assigning any reason.
10. Learned Counsel for the Respondent/Complainant submitted that the Complainant has been accepted the cheque for an amount of Rs.1,49,728/- under protest, as part payment towards the claim. It was submitted that Surveyor A.K. Govil was not party to the contract, therefore any correspondence with the Surveyor may not be taken into consideration for valid
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discharge of the Insurance Company from its liability. He further contended that Hon'ble Supreme Court held that even execution of the Discharge Voucher would not always deprive the Consumer from preferring claim with respect to deficiency in services. The Complainant even after the execution of Discharge Voucher could have raised its pleas for further payment of claim amount to him. In this case, the Petitioner even failed to get the Discharge Voucher signed. He stated that during the pendency of the Revision Petition, the Insurance Company complied with the order of the State Commission by making payment of Rs.7,63,432/- to the Respondent/Complainant as full and final settlement of the Complainant. After making payment of this amount, the Respondent/Complainant is satisfied with the claim.
11. Admitted facts of the case are that the Complainant deals in wholesale purchase and sale of sugar and vegetables, ghee and refined oils etc. at 4425/A, Gur Bazar, Ambala Cantt. The Opposite Party Insurance Company issued a Fire (Floater Policy) No.353501/11/03/00774 for the period 07.11.2003 to 06.11.2004 for the sum insured of Rs.18,50,000/- covering stocks lying in the godown and shops of the Complainant/Respondent. The Complainant suffered a loss due to flood on 3.8.2004. The Opposite Party appointed a Surveyor who inspected the insured premises on 10.08.2004 and after due consultation with the Complainant and perusal of the records, the Surveyor assessed the loss at Rs.1,50,263/-.
12. The issue involved in this case is whether amount of Rs.1,50,000/- accepted by the Complainant was in full and final settlement of the claim. In this regard, reference is made to the letter dated 04.03.2005 issued by the Complainant to the Surveyor, which reads as follows:
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"With reference to your above claim and the final discussion we had with you when the assessment of loss was discussed and explained to us, we hereby agree to net adjusted loss of Rs.150000/- (Rupees one lac fifty thousand only) towards full and final settlement of your captioned claim policy/policies of Insurance issued to and held by us. We also understand that this assessment/adjustment of loss is subject to terms and conditions of the policy/policies of Insurance issued to and held by us."
13. Reading of the above, it is clear that the Complainant had accepted the amount of Rs.1,50,000/- in full and final settlement of the claim and signed the acceptance letter dated 04.03.2005. The Complainant has not denied the issuance of the letter date 04.03.2005. Their allegation is that the said letter dated 04.03.2005 was not issued to the Opposite Party but the Surveyor who was not a Party to the contract of Insurance. It is relevant to mention that after discussion with the Surveyor, the Complainant accorded their free consent and agreed to accept an amount of Rs.1,50,000/- in full and final satisfaction, vide letter dated 04.03.2005. The letter was issued on 04.03.2005 and the Complaint filed on 06.01.2006 appears to be an afterthought. The Respondent/Complainant failed to produce any material or any evidence to show that they had ever objected or protested against the settlement of the insurance claim at Rs.1,50,000/- nor have been able to show that the letter dated 04.03.2005 was signed under protest or any compulsion or duress on fraud and misrepresentation. The State Commission has proceeded on the basis of the fact that the discharge voucher was not signed by the Complainant, therefore, the Complaint was maintainable. The State Commission, however,
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ignored the fact that the Complainant, vide letter dated 04.03.2005 has already given the consent for settlement of the claim for Rs.1,50,000/-. The finding of the State Commission is, therefore, not a material consideration.
14. Hon'ble Supreme Court in United India Insurance Co. vs. Ajmer Singh General Mill (IV 1999 SLT 590) and New India Insurance v. Venkata Padmavati Rice Mill [(2000) 10 SCC 334] held that the Complaint is not maintainable after the receipt of the payment in full and final settlement, except in case of fraud, coercion, undue influence and misrepresentation which has to be specifically pleaded and proved by evidence. Further in Bhagwati Prasad Pawan Kumar v. Union Of India . 76 (SC)] Hon'ble Supreme Court held that the protest of non-acceptance must be conveyed before the cheque is encashed. In the present case, the Complainant had not lodged any protest.
15. For the foregoing discussion, Revision Petition is allowed, the impugned order of the State Commission being against the judgments of Hon'ble Supreme Court in Ajmer Singh General Mill and Venkata Padmavati Rice Mill (supra) is set aside and the Complaint dismissed. There shall be no order as to costs. The Petitioner/Opposite Party shall be at liberty to recover the excess amount paid to the Respondent/Complainant in compliance of the impugned order of the State Commission.
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C. VISWANATH
PRESIDING MEMBER
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RAM SURAT RAM MAURYA
MEMBER
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