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Biswajit Guha & Another v/s Branch Manager, New India Assurance Co. Ltd., West Bengal & Another

    First Appeal Nos. 835, 875 of 2013

    Decided On, 01 July 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER

    For the Appearing Parties: Shambo Nandy, J.P.N. Shahi, Advocates.



Judgment Text

1. Cross Appeals have been filed by the Appellants under Section 19 of the Consumer Protection Act, 1986 against the Order passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the “State Commission”) in Complaint No.58/2010 dated 04.11.2013.

2. The Complainant is sole proprietor of M/s Vida Engineering Company which was awarded construction contract for road works at South Tripura by NBCC Ltd. According to the Complainant he took 'Contractor's All Risk Insurance Policy' with the Respondent on payment of premium of Rs.3,48,316/- on 15.11.2007 and further two additional premia of Rs.1,03,987/- and Rs.1,13,076/- were realized. In the middle of July 2008, during the subsistence of the insurance contract, there was a heavy rainfall at the construction site which led to flash floods. This caused heavy damage to the project work. Thereupon, he infirmed the Insurance Company who deputed Surveyor Mr. S.R. Das to assess the loss. The Surveyor visited the site from 21.07.2008 to 24.07.2008 and undertook detailed inspection of the site. While at the site, he arrived at a loss figure of Rs.60,15,232/- for two affected road segments and the statement was signed both by the Complainant and the Surveyor. Based on this, the Complainant submitted a Claim Form with the Opposite Party recording the loss as Rs.60,15,232/- alongwith a photocopy of loss estimate prepared jointly the Surveyor during the inspection.

3. On his return to Kolkata, the Surveyor submitted a contradictory Survey Report dated 15.09.2008 in which he deviated from his earlier assessment of loss of Rs.60,15,232/-. In his detailed analysis of loss, the Surveyor assessed the total loss at Rs.58,58,644/-. He further deducted 10% contractor's profit to which the Complainant protested, vide letter dated 29.10.2008. After deducting 10% Contractor's Profit, the Surveyor arrived at a figure of Rs.52,81,788.60/- from which he deducted 5% policy excess amounting to Rs.2,64,089/- and thereby the total amount payable was shown as Rs.50,17,699/-. The Surveyor further deducted some items of the assessed damage to be 'outside the scope of policy purview' without any explanation and fixed the liability of the Insurance Company at Rs.27,63,787/-. In pursuance to the final Survey Report, the Complainant was sent a cheque amounting to Rs.27,62,174/-. The Complainant had on earlier occasion written to the Opposite Party about the severe financial crisis that he was facing and had to clear the pending payments of his staff, especially since Durga Puja was nearby and hence requested release of his claim amount. Since the Appellant was under severe financial crisis, he was compelled to receive Rs.27,83,782/- on protest with a letter dated 29.10.2008 to the Opposite Party wherein they were requested to review the reasons put forward by the Surveyor for deducting Rs.23,72,544/- from the total payable amount.

4. Aggrieved by the actions of the Surveyor and the Opposite Party, the Complainant filed a Consumer Complaint No.58 of 2010 before the West Bengal State Consumer Disputes Redressal

Commission with the following prayer:-

“a) direct the Insurance Company to pay to the Complainant the balance of compensation assessed by its Surveyor, amounting Rs.32,31,450.00;

b) along with 18% interest over Rs.32,31,450.00 from 16.9.2008, the next date of submitting Survey Report, till the date of disposal;

c) direct the Insurance Company to pay Rs.1,00,000.00 by way of compensation for harassment, suffering, mental agony to the Complainant caused by repudiating part of the survey’s total loss assessed.

d) to pass such other order for public interest against the Insurance Company, as the Hon’ble Commission may deem fit and proper.”

5. During the course of hearing, the Complainant with the permission of the State Commission produced a report by an Expert which brought forth the inaccuracies in the Survey Report and independently assessed the loss payable as Rs.54,28,746/-. The deductions made by the Surveyor were arbitrary, unfair and unjustified. Despite accepting the findings of the Expert that there was deficiency in service on the part of the Opposite Party, the State Commission came to the conclusion that the Appellant is entitled to a further sum of Rs.8,00,000/-, without giving any justification for arriving at the figure. The Surveyor, vide letter dated 17.10.2008, admitted the liability of Rs.52,81,788.60/- and has also claimed that the measurement of losses was physically inspected and the rates allowed were as per the contract. In the face of such admission by the Surveyor, there was no scope for deduction of further items of "damages" as not being within the scope of the Policy.

6. The Complaint was resisted by the Opposite Party. The Opposite Party admitted that the Respondent had taken a “Contractor All Risk Insurance Policy” from the Appellant Insurance Company, vide Policy No. 510402/44/07/03/60000004, for the period 15.11.2007 to 14.11.2008. There was incessant rain from 13th to 15th July 2008 which caused damage to under construction road. The Complainant intimated the incident to the Insurance Company, whereupon a Surveyor Mr. S.R. Das was appointed to assess the loss. The Surveyor filed his report on 15.09.2008 with the Insurance Company. On receipt of the Survey report, the claim was processed and the Complainant was paid a sum of Rs.27,63,782/-(subject to deduction of reinstatement premium), vide voucher No.510402/84/08/0000000288 dated 27.10.2008, towards full and final settlement against the claim of the Complainant. After 22 months of receiving the claim amount, the Complainant filed a Complaint before State Commission on 19.08.2010.

7. The claim amount settled was based on the report and assessment of the Surveyor. The Complainant had accepted the assessed amount without any pressure, coercion or undue influence. The Survey Report is an important document and cannot be ignored in settling the claim. The Surveyor had assessed the loss at Rs.27,63,782/-, excluding the items falling outside the preview of the Policy. Based on the recommendation of the Surveyor, which is binding upon the Opposite Party, they offered the aforesaid assessed amount and the same had been accepted by the Complainant by signing a of discharge voucher towards full an final settlement of the claim. The Surveyor's report was not challenged by the Complainant either at the time of settlement of claim nor at the time of receipt of settled amount but only after filing the Complaint.

8. The State Commission after hearing both the Parties found that there was substance in the submission putforth by the Learned Counsel for the Complainant. The State Commission held that the Complaint succeeds in part and ordered that “the petition of complaint stands allowed in part, on contest, but without any order as to costs. The Complainant is entitled to a further sum of Rs.8,00,000/- (Rupees eight lakhs) from the Insurance Company towards full and final settlement of the insurance claim and the Insurance Company is directed to pay the amount to the Complainant within 45 days from the date hereof, failing which the amount will carry interest of 8% p.a. till realization.”

9. Aggrieved by the order of the State Commission, both the Parties filed cross Appeals in this Commission.

10. Heard Learned Counsel for the Complainant as well as the Opposite Party and carefully perused the record. Learned Counsel for the Complainant basically harped on the point that initially the Surveyor appointed by the Opposite Party undertook detailed inspection of the site from 21.07.2008 to 24.07.2008 and arrived at a loss of Rs.60,15,232/-. After leaving the site and going to Kolkata, he submitted a contradictory report and reduced the amount to Rs.27,63,782/-. The Complainant due to severe financial crisis was compelled to accept Rs.27,63,782/-, under protest with a request to the Opposite Party to review the reasons put forward by the Surveyor for reducing the claim payable. During the course of argument before the State Commission, with the permission of the Commission, he produced a report by an Expert who was empaneled Engineer Commissioner of the West Bengal State Consumer Disputes Redressal Commission. The inaccuracies in the Surveyor report were listed and an independent assessment of loss was made at Rs.54,28,746/-. The deductions made by the Surveyor were arbitrary, unfair and unjustified. The State Commission while agreeing with the fact that there was deficiency in service on the part of the Opposite Party, did not accept the findings of the Expert and instead held that the Complainant was entitled to a further sum of Rs. 8 lakhs without giving any justification to the figure. The Surveyor, vide letter dated 17.10.2008, admitted the liability of Rs.52,81,788.60/- and there was no reason to further deduct any sum from the aforesaid amount.

11. On the other hand, Learned Counsel for the Opposite Party, while admitting that the 'Contractor's All Risk Insurance Policy' was taken by the Complainant and also there were damages to the road due to incessant rain during 13th to 15th July 2008, held that the amount of Rs.27,63,782/- paid to the Complainant was justified. The Opposite Party appointed Surveyor immediately on intimation, who filed report on 15.09.2008 and assessed the loss at Rs.27,63,782/- (subject to deduction of reinstatement premium). The Opposite Party accordingly paid the amount to the Complainant towards full and final settlement against the claim based on the assessment report of the Surveyor. The Complainant on receipt of the above amount filed a Complaint after lapse of 22 months before the State Commission. The Complainant had accepted the assessed amount without any pressure, coercion or undue influence. The report of the Surveyor was simply not a piece of paper and cannot be thrown in the air.

12. Brief facts of the case are that the Complainant had taken a “Contractor's All Risk Insurance Policy” from the Respondent Insurance Company for the period 15.11.2007 to 14.11.2008. Between 13th to 15th July 2008, there was incessant rain causing damage to the road works under construction. The Complainant informed about the damage to the Opposite Party, whereupon Surveyor Mr. S.R. Das was appointed and sent to assess the loss. The Surveyor submitted his report, vide letter dated 15.09.2008. Based on the assessment of loss made by the Surveyor, the claim was processed and the Complainant was paid a sum of Rs.27,63,782/- towards full and final settlement of claim.

13. The Opposite Party submitted that on receipt of the Survey report, the claim was processed and the Complainant was paid a sum of Rs.27,63,782/-, subject to deduction of reinstatement premium, vide voucher dated 27.10.2008, towards full and final settlement against the claim of the Complainant. After receiving the claim amount, the Complainant filed a Complaint before State Commission. The Complainant had accepted the assessed amount without any pressure, coercion or undue influence. The claim was settled based on the report and assessment of the Surveyor. The Survey Report is an important document and cannot be ignored while settling claims. The Complainant had accepted the amount as assessed by the Surveyor and by signing the Discharge Voucher towards full and final settlement of claim.

14. IRDA Circular dated 24.09.2015 to all Insurance Companies reads as follows:-

"The Insurance Companies are using 'discharge voucher' or "settlement intimation voucher" or in some other name, so that the claim is closed and does not remain outstanding in their books. However, of late, the Authority has been receiving complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policyholders extinguish their rights to contest the claim before the Courts.

While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurer shall not use the instrument of discharge voucher as a means of estoppel against the aggrieved policy holders when such policy holder approaches judicial fora.

Accordingly insurers are hereby advised as under:

Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts. However, it would be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law.”

The Hon’ble Supreme Court in a plethora of judgements has also reiterated that mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If the authority under the Act is satisfied of any of the above circumstances, the authority to whom the Complaint is made would be justified that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.

15. In the present case, the Complainant had written to the Opposite Party about the severe financial crisis being faced by him and the urgent needs to clear the pending payments of his staff in view of the ensuing Durga Puja and requested release of the claim amount. Since the Appellant was under severe financial crisis, he was compelled to receive Rs.27,83,782/- on protest to the Opposite Party, vide letter dated 29.10.2008, wherein again the Opposite Party was requested to review the reasons put forth by the Surveyor for deducting certain amount from the total amount payable.

16. In the above circumstances, we hold that the Complainant has not issued the Discharge Voucher of his own free will and volition but was executed under economic duress. Issuing Discharge Voucher in full and final settlement of the claim received by the Complainant in the facts and circumstances of the case, in our view is a coercive practice. It is very essential that the justification for assessment of loss provided by the Surveyor needs to be properly examined before rejecting any claim made by the Complainant. As seen from the record, the Surveyor visited the site from 21.07.2008 to 24.07.2008 and undertook detailed inspection alongwith the Complainant. He arrived at a loss of Rs.60,15,232/- for the two affected road segments and a statement was signed by both the Surveyor as well as the Complainant. Based on the above assessment of loss and cost of permanent repair, the Complainant submitted Claim Form to that extent. The Surveyor in his Report dated 15.09.2008 assessed the total loss at Rs.58,58,644/- and deducting contractor’s profit at 10% and policy excess as 5% calculated the amount payable as Rs.50,17,699/-. He, however did not stop at this, but made further deductions listing six items of works which he considered as not falling within the scope of the Policy and assessed the net loss of the underwriter as Rs.27,63,782/-. It is this figure that the Opposite Party has relied upon and sent a cheque for the amount to the Complainant, who was compelled to receive the same under protest due to financial crisis being faced by him.

17. The State Commission found the Complaint maintainable and held the Opposite Party deficient in service, allowing further sum of Rs.8 lakhs to the Complainant in full and final settlement of the insurance claim. The State Commission observed that the “Surveyor was appointed by the Complainant has clearly shown the shortcomings of the Surveyor’s Report so relied upon by the Insurance Company and the Surveyor was appointed by the Complainant has rightly opined that the Complainant is still entitled a further sum of Rs.26,64,964/- (Rupees twenty six lakhs sixty four thousand nine hundred ninety four) from the Insurance Company towards full and final settlement of the claim.” It further held that “On scrutiny of the report, so relied upon by the Insurance Company, we find much substance in the submissions so put forward by the Ld. Advocate for the Complainant,

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according to whom, the sudden reduction of the settlement amount is not properly explained. However, from the Surveyor’s report so produced by the Complainant, we find that there is some explained points in the Surveyor’s report so produced by the Insurance Company, so far as it relates to reduction of settlement amount, which was fixed at the initial stage of survey”. The State Commission having considered all the above aspects, however, arrived at the figure of Rs.8 lakhs. 18. We are inclined to go with the State Commission to the extent that there are some unexplained parts in the Survey Report, but are unable to understand why the State Commission allowed only a further sum of Rs.8 lakhs to the Complainant, without giving any explanation or justification for the said amount. The Surveyor drastically reduced his own assessment of loss from his initial assessment and cost of repair as Rs.60,15,232/- to the final figure of Rs.27,63,787/-. As seen from the report of the Surveyor, after making additions for escalation and deduction of profit and policy excess, he arrived at the amount payable as Rs.50,17,699/-. Further, without any justification or logic disallowed six items of work as falling out of the scope of the Policy and reduced the figure to Rs.27,63,782/-. Nowhere in the Surveyor Report any reason has been given nor elaboration made as to the sudden exclusion of certain items of works which is totally unjustified. 19. First Appeal No.835 of 2013 is partly allowed and First Appeal No.875 of 2013 is dismissed. The Opposite Party is directed to pay the difference in amount of Rs.50,17,699/- and the payment made, alongwith 6% interest from the date/payment/part claim was paid till realization within eight weeks from the date of this order. Order of the State Commission is modified as above and the Appeals stand disposed with no costs.
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