Haryana

Sonipat

374/2013

RIBA TEXTILE LTD. - Complainant(s)

Versus

1. THE NEW INDIA ASSURANCE CO.,2. REGINAL MANAGER NEW INDIA ASSURANCE CO. ,3. R.N. SHARMA - Opp.Party(s)

S.S.MIGLANI

11 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

               

 

                                Complaint No.374 of 2013

                                Instituted on:09.09.2013

                                Date of order:19.06.2015

 

Riba Textile Ltd. through its Director Shri Ravindedr Garg son of Shri Lal Chand Garg, resident of Kishore House, Assandh road, Panipat.

 

…Complainant.         

Versus

 

1.The New India Assurance Co. Ltd. through its Senior Divisional Manager, Panipat.

2.The New India Assurance Co. Ltd. through its Regional Manager,having its regional office Tower II, Jeevan Bharati, 124, Connaught Circus, New Delhi.

3.RN Sharma & Co. Surveyor and Loss Assessors, FD-33(Second Floor) Pitampura, Delhi through its Director/Authorized Signatory.

 

                                                     …Respondents.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by:  Shri S.S. Miglani, Advocate for complainant.

            Shri M.L. Sehgal, Advocate for respondents no.1 and 2.

            Respondent no.3 ex-parte.

 

Before-    Nagender Singh-President. 

          Prabha Wati-Member.

           D.V.Rathi-Member.

 

O R D E R

 

1.    Complainant has filed the present complaint against the respondents alleging therein that the complainant company is carrying on its business of manufacturing of terry towel for export purpose at Sonepat and it has been resolved that Shri Ravinder Garg one of the Director of the company has been authorized to file the present complaint against the respondent insurance company who is liable to make the payment of Rs.6,64,598/- to the complainant.  It is also alleged that the complainant company has taken the fire policy from the respondent no.1 and 2 on 19.10.2011 for the period valid w.e.f. 19.10.2011 to 18.10.2012 . Unfortunately, fire broke out in the factory premises of the company on 21.11.2011 and DDR was lodged with the concerned police station.  The respondent company on receipt of the information appointed Shri RN Sharma to assess the loss suffered by the company and the complainant submitted the estimated loss to the tune of Rs.51 lacs.   The surveyor assessed the loss to the tune of Rs.36,83,872/- on receipt of all the relevant documents from the complainant.   Surveyor asked the complainant to give  his consent but the complainant flatly refused to do so.  On 31.3.2012, the complainant sent their representative who met respondent no.2 who handed over a cheque of Rs.25,48,434/-  to the said representative but the said representative showed his inability to receive the said cheque.  The respondent no.2 also discussed the matter with the complainant and said that this amount of Rs.25,48,434/- is being released by the insurance company as a part payment of Rs.36,83,872/- as assessed by the surveyor and the remaining amount shall be released within 30 days.  On this assurance, the complainant asked his representative to take the cheque of Rs.25,48,434/- from the respondent no.2.  The respondent no.2 took the signature of the said representative on some blank as well as printed papers.  Thereafter the respondent company again called the representative of the complainant on 30.4.2012 and again handed over a cheque of Rs.515600/- with a request to take the same being part payment.  Thereafter, the complainant requested the respondents so many times to make the payment of Rs.6,64,598/- alongwith interest at the rate of 18% per annum from the date of surveyor report till realization,  but the respondent released only an amount of Rs.14000/- and did not make the payment of Rs.6,50,598/- to the complainant  and that amounts to a grave deficiency in service on the part of the respondents. So, the complainant has come to this Forum and has filed the present complaint.

2.        The respondent no.1 and 2 appeared through their respective counsel, whereas respondent no.3 was proceeded against ex-parte vide order dated 09.10.2014.

          The respondent no.1 and 2 in their written statement has alleged that the respondent no.2 appointed the surveyor Shri RN Sharma who initially assessed the loss to the tune of Rs.36,83,872/- vide surveyor report dated 16.2.2012.  The complainant gave the consent letter dated 17.2.2012 for full and final settlement of the claim.  After considering and determining the percentage of wastage salvage value, the loss of stock was finally assessed at Rs.31,47,539/- and the surveyor submitted his revised report dated 28.3.2012 and the complainant agreed for the final assessment of amount of Rs.30,94,615/-. The complainant has received the claim through cheque of Rs.25,48,438/- on 31.3.2012 and Rs.5,15,600/- on 30.4.2012 against full and final discharge voucher.  Including fire fighting charges, the company also paid Rs.14000/- to the complainant and thus, no amount is payable to the complainant since full and final payment has been made. The complainant is not entitled for any further amount as alleged in the complaint and thus, prayed for the dismissal of the present complaint since there is no deficiency in service on the part of the respondents no.1 and 2.

3.        We have heard learned counsel for both the parties at length and have also gone through the entire relevant records available on the case file very carefully and minutely.

4.        Ld. Counsel for the complainant has argued that the surveyor has assessed the loss to the tune of Rs.36,83,872/- and against the said assessed amount, the respondent no.1 and 2 have paid the amount of Rs.25,48,434/-, Rs.5,15,600/- and Rs.14000/- to the complainant and with-held the remaining amount of Rs.6,50,598/- wrongly, illegally and to cause unnecessary mental agony and harassment to the complainant.

        On the other hand, ld. Counsel for the respondent no.1 & 2 has argued that the complainant is not entitled to get Rs.6,50,598/- from the respondent no.1 and 2 since the complainant has already received the amount of Rs. Rs.25,48,434/-, Rs.5,15,600/- and Rs.14000/- from the respondent no.1 and 2 insurance company in full and final settlement of their claim.

          In this present case, there is no dispute with regard to the fact that the complainant has received the amount of Rs. Rs.25,48,434/-, Rs.5,15,600/- and Rs.14000/- out of Rs.3683872/- and if the amount of Rs.25,48,434/-, Rs.5,15,600/- and Rs.14000/- is deducted from Rs.3683872/-, then the balance comes to Rs.605838/-.

          Now the main question arises for consideration before this Forum is whether the complainant is entitled to get the amount of Rs.605838/- from the respondents no.1 and 2 or not?

          During the course of arguments on 18.06.2015, ld. Counsel for the respondents have placed on record the document Ex.R1 and has submitted that at this stage, the complainant has no right to claim any other amount as the amount has already been paid to the complainant in full and final settlement of his claim.

          We have perused the contents of the document Ex.R1 very carefully and minutely. The contents of the same are reproduced below:-

          “The said claim has been settled for Rs.3094615/- plus Rs.14000/- advtg. Expenses for salvage disposal as full and final settlement on 30.4.2012.  M/s Riba Textile not satisfied with the settled amount and had sent use a legal notice of the Advocate.”.

          The contents of this document Ex.R1 itself shows that the complainant was not satisfied with the settlement of the respondents and that’s why legal notice was sent by the complainant to the respondents.

          As far as the full and final settlement of the claim is concerned and as submitted by the learned counsel for the respondents, no discharged voucher to prove the full and final settlement of the claim in between the complainant and the respondents no.1 and 2 have been placed on record.  Thus, in the absence of the same, it cannot be proved that there was any full and final settlement of the claim in between the parties.  Whereas the document Ex.R1 placed on record by the respondents no.1 and 2, speaks against the insurance company as it is specifically mentioned in this document that the complainant firm was not satisfied with the settlement of the insurance company and legal notice was sent by the complainant firm to the insurance company.

          In the written statement at page no.3, para no.4, it is submitted that the respondent no.2 appointed the surveyor Shri RN Sharma to conduct the survey and to assess the loss.   But it is very sorry state of affairs that except the written statement & affidavit of Shri JK Mittal Divisional Manager of New India Assurance Co. and the document Ex.R1, there is nothing from the side of the respondent no.1 and 2.  There is no report of Shri RN Sharma Surveyor on the file.  No affidavit of Shri RN Sharma Surveyor has been filed by the respondents no.1 and 2.  Why the report and affidavit of Shri RN Sharma Surveyor has not been placed on record, the best reasons are known to the respondents no.1 and 2.  Merely on the basis of the document Ex.R1, the respondents no.1 and 2 cannot take any benefit and in the absence of the material evidence on the part of the respondents no.1 and 2, we have no hesitation to except the pleadings of the complainant.  The onus heavily lies on the respondents no.1 and 2 to prove by leading cogent, concrete and elaborate evidence that the complainant is not entitled for any relief.  But the opportunities have ended into smoke.

 

 

          In our view the action taken by the respondent insurance company in the matter of the complainant by with-holding the payment of Rs.605838/- is wrong and illegal and the complainant is entitled to get the said amount from the respondent insurance company alongwith interest and compensation.  Accordingly, we hereby direct the respondent insurance company to make the payment of Rs.6,05,838/- to the complainant alongwith interest at the rate of 09% per annum from the date when the payment of Rs.25,48,434/- was made to the complainant, till its realization.  Further the respondent insurance company is directed to compensate the complainant to the tune of Rs.five thousands for rendering deficient services, for causing unnecessary mental agony & harassment and further to pay compensation to the tune of Rs.three thousands under the head of litigation expenses.

          With these observations, findings and directions, the present complaint stands allowed.

         Certified copy of this order be provided to both the parties free of cost.

File be consigned to the record-room.

 

 

(Prabha Wati)        (DV Rathi)                 (Nagender Singh-President)

Member DCDRF        Member DCDRF                   DCDRF, Sonepat.

 

Announced: 19.06.2015