Before the District Consumer Disputes Redressal Forum, Kangra at Dharamshala, District Kangra (HP), Camp at Palampur



Consumer complaint No: 260/06

Date of presentation: 20.9.2006

Date of decision: 24.3.2009



M/S R.B. Traders Marana PO Maranda, Tehsil Palampur District Kangra HP through its Proprietor Shanti Sharma aged 51 years son of Sh. Shesh Ram resident of VPO Maranda, Tehsil Palampur District Kangra (HP)

Complainant

Versus



1. The New India Assurance Company Ltd. Main Bazar Palampur, District Kangra HP

2. State Bank of India (ADB) Palampur

Opposite parties



Complaint under section 12 of the Consumer Protection Act, 1986



PRESIDENT: A.S. JASWAL

MEMBERS:PABNA SHARMA AND PARDEEP DOGRA



For the complainant: Sh.J.C.Katoch, Advocate

For opposite party No.1: Sh. Neeraj Bhatnagar, Advocate

For O.P.NO.2 Sh. R.P. Gogra, Advocate



ORDER

A.S. JASWAL, PRESIDENT (ORAL)



In nut-shell, the case of the complainant is that he is the sole Proprietor of M/S R.B. Traders Maranda PO Maranda and the stock of M/S R.B. Traders Maranda was insured with opposite party No.1 in the sum of Rs.13,00,000/- vide insurance Policy No.352402/48/05/34/00577. It is asserted that the complainant has CC Limit of Rs.10,00,000/- with opposite party No.2. It is asserted that during the subsistence of the Insurance Policy on dated 5.3.2006, in the night, all of a sudden a fire broke out in the business premises of the complainant and that whole of the stock of the shop got burnt. Due information was given to the opposite parties. It is asserted that after completing necessary formalities, he submitted his claim before opposite party No.1, who on dated 29.5.06 handed over a consent letter to the complainant and asked him to accept a sum of Rs.7,72,627/- net loss, as assessed by the Surveyor towards full and final settlement of his claim. Upon this, the complainant had given three different consent letters. It is asserted that thereafter, he replied the consent letter dated 30.5.06 and submitted that he is ready to accept the claim of Rs.7,72,623/- under protest only and will press for rest of the claim of Rs.5,27,377/- plus interest. The grievance of the complainant is that the opposite party No.1 has not paid the insured amount despite the fact that all the stock lying the shop were insured with opposite party No.1 for a sum of Rs.13,00,000/-. Thus, the opposite party No1 has committed deficiency in service.

2 The claim of the complainant has been resisted and contested by the opposite party no.1 by asserting that the claim made by the complainant was duly processed, investigated, verified, assessed, approved and paid to the complainant vide cheque No.242738 dated 27.7.06 for a sum of Rs.7,67,623/-as per consent given in the affidavit dated 31.5.06 attested on 1.6.06 after deduction of Rs.5,000/- which has been received earlier by the complainant as Ex-gratia payment from H.P. Govt. Since, the complainant accepted the said amount with out any protest, there is no deficiency in service on the part of answering opposite party.

3. The opposite party No.2 in its reply has admitted that the complainant has Cash Credit limit with the answering opposite party. Other averments have been denied.

4. This Forum on 16.5.07 framed the following points for determination:-

1. Whether O.Ps committed deficiency in service, as alleged? OPC

2. Whether the complaint is not maintainable, as alleged? OPOPs

3. Relief

5. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-

Point no.1: No

Point no.2: Decided accordingly

Relief The complaint is dismissed as per operative part of the order.

REASONS FOR FINDINGS

POITNS No 1 and 2

6. Both these points are inter connected and inter linked, hence are taken up together for determination, in order to avoid repetition in discussion. Learned counsel for the complainant has argued that the opposite party No.1 has not paid the entire insured amount of the Policy despite the fact that the entire stocks lying in the shop were destroyed in the fire, which broke out in the shop. Learned counsel further argued that the Surveyor Man Mohan Sharma, had prepared a wrong inventory of the goods because he had not taken into consideration the items as per the details of goods submitted by the complainant alongwith the claim form and as per the spot verification, which caused a loss to the complainant to the tune of Rs.92500/-.

7. On the other hand, learned counsel for the opposite party No.1 has urged that there is no deficiency in service on the part of the opposite party No.1, as the complainant had accepted Rs. 7,67,623/- towards full and final settlement of his claim. He further urged that since the complainant had accepted the said amount towards full and final settlement of his claim, there is no deficiency in service on the part of opposite party no.1. Learned counsel for the O.P. No.2 has argued that the complainant has failed to prove any deficiency in service on the part of answering opposite party.

8. To appreciate the arguments of the learned counsel for the parties, the entire record available on the file was gone into in detail. The complainant has filed his affidavit, Ex.CW1, in which he has re-counted the averments, as made in the complaint.

9. From the material on record, it stands proved that on dated 5.3.2006 during the subsistence of the Insurance Policy , a fire had broken out in the shop of the complainant and that all the stocks including furniture, fixture and fittings were burnt. It also stands proved that on receipt of intimation regarding the alleged incident; the opposite party no.1 had hired the services of independent qualified Surveyor and Loss Assessor Sh. Rakesh Sood to conduct the spot survey. It is also not a disputed fact that thereafter; the opposite party No.1 had hired the services of independent qualified Surveyor and Loss Assessor Shri Man Mohan Sharma for inspection of fire loss who submitted joint inspection report with Sh. Rakesh Sood Surveyor dated 17.4.06. This fact also stands proved that thereafter; the opposite party No.1 had hired the services of Sh. S.K. Soni to conduct the final survey who vide his detailed report, Annexure OP-8 had assessed the loss at Rs.7,72,623/-. It also stands proved that thereafter, the opposite party, as per consent affidavit, Annexure OP1, had paid the assessed amount to the complainant towards full and final settlement of his claim. There is no dispute regarding these facts.

10. The contention of the complainant that the opposite party No.1 has not assessed loss of the complainant properly and that the complainant had received the assessed amount under protest is rejected being devoid of any force. On the record, the opposite party no.1 has placed claim disbursement voucher Annexure OP2 whereby the complainant had received Rs.7,67,623/- as full and final settlement of his claim and he had signed the discharge voucher without any protest. The complainant has not proved on record, by way of cogent evidence, that he had received the said amount under protest. There is nothing on record to this effect. Further, the contention of the complainant that Surveyor of the opposite party No.1 namely Sh. Manmohan Sharma, had prepared wrong inventory of the goods has no substance because the perusal of inventory report, Annexure C-29 reveals that the same bear the signatures of the insured/complainant, as the same was prepared in his presence. At the relevant time, the complainant had not raised any objection qua the said report, prepared by the independent Surveyor of OP No.1, which bears his signatures. We are of the view that when the complainant had received the assessed amount as full and final settlement of his claim, no deficiency in service can be attributed on the part of the opposite party No.1.

11. The another contention of the complainant that the opposite party No.1 had got executed the affidavit from him by exercise of undue influence and coercion, is rejected being devoid of any force. There is no evidence on record to prove that the opposite party No.1 had got signed the discharge voucher from the complainant fraudulently or by the exercise of undue influence or by misrepresentation or on coercive bargaining. Had the opposite party No.1 got signed the discharge voucher fraudulently from the complainant, he would have lodged a complaint against the opposite party No.1, but there is no such evidence on record which proves this contention of the complainant. Since, the complainant has accepted the assessed amount towards full and final settlement of his claim vide disbursement voucher, Annexure OP-2, no deficiency in service can be attributed on the part of the opposite party No.1. So far as opposite party No.2 is concerned; the complainant has failed to prove any deficiency in service on its part. Hence, point no.1 is answered in negative and point No.2 is decided accordingly.

12. No other point argued or urged before us.

Relief

13. In view of our findings on points no.1 and 2 above, the complaint is dismissed leaving the parties to bear their own costs. The copy of this order be sent to the parties, free of costs and the file after due completion be consigned to the record-room.