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Shiv Villas Resorts Pvt. Ltd v/s United India Insurance Co. Ltd & Another

    First Appeal No. 53 of 2014 against in Complaint No. 71 of 2010 (Rajasthan State Consumer Disputes Redressal Commission)
    Decided On, 13 November 2017
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER
    For the Appellant: Rakesh K. Rajwania, Advocate. For the Respondents: Animesh Sinha, Advocate.


Judgment Text

Prem Narain, Presiding Member

1. Challenge in the present appeal is to the order dated 5.12.2013 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, “the State Commission”) in Original Complaint Case No. 71/2010. By way of the impugned order, the complaint was dismissed.

2. Succinctly put, the facts of the case are that complainant obtained a Fire and Allied Perils Insurance Policy No. 140301/48/08/88/00001813 for a period from 4.9.2008 to 3.9.2009 for Rs. 32,32,59,000 . On 10.11.2008, sudden fire broke out in the hotel namely, Sheesh Mahal due to short circuit and extensive damage to furniture fixtures, crockery etc. was caused. Upon intimation to the opposite parties, surveyor named Mr. B.D. Gupta was appointed and his initial survey report dated 12.11.2008 confirmed extensive damage to the premises. Thereafter, the respondents deputed another surveyor, Mr. O.P. Agarwal, who assessed the loss at Rs. 56,91,169. It was the case of the complainant that due to adverse financial circumstances and pressure from the pressing demand from financiers, the complainant had to sign the discharge voucher for release of Rs. 56,87,519, instead of the claimed amount of Rs. 3,12,62,232. Thereafter, vide letter dated 15.6.2010, the complainant informed the opposite party that the discharge voucher will be treated as part payment and sought consideration of the legitimate claim, however, the opposite party failed to settle the claim of the complainant. Hence, the complainant filed a consumer complaint before the State Commission.

3. Upon service of notice, the opposite party submitted that the complainant and its financier, namely M/s. Rajasthan Financial Corporation signed the Discharge Voucher and have received Rs. 56,87,519 as full and final discharge of their claim. In this connection, the opposite party further submitted that the complainant was estopped under law to claim any additional amount. It has been submitted that upon the request of the complainant, the opposite party provided the break up and calculation sheet of the Survey Report vide letter dated 18.5.2010. Thereafter, the complainant, without any protest or reservation, signed the discharge voucher and sent the same to the opposite party vide letter dated 27.5.2010. It has been contended that only as an afterthought, the complainant vide letter dated 15.6.2010 came out with the theory that they had received the said amount as part payment. Vide letter dated 17.6.2010, the opposite party dismissed the contention of the complainant. Denying allegations of deficiency in service, the opposite party prayed for dismissal of the complaint.

4. The State Commission, after hearing the learned Counsel for the parties and on consideration of the material placed on record, dismissed the complaint on the ground that the complainant voluntarily and wilfully accepted Rs. 56,87,519 as full and final settlement against his claim and therefore, estopped from claiming any further amount from the opposite parties/respondents herein.

5. Aggrieved, the complainant has approached this Commission by way of the present appeal.

6. Heard the learned Counsel for the parties and perused the records.

7. Learned Counsel for the appellant stated that the total loss due to fire was more than Rupees three crores and the claim was lodged for Rs. 3.12 crores. The Insurance Company had appointed the surveyor and the surveyor assessed the loss of Rs. 56,87,519 and the Insurance Company had paid the same which was received under protest by the complainant as part payment of the total claim. The State Commission has dismissed the complaint on the ground that the voucher was signed for full and final payment on behalf of the complainant. The fact of the matter is that the complainant was in dire need of finances and therefore, the complainant accepted the amount to run their business. Even the surveyor’s report was not provided to the complainant and no basis for reaching an amount of Rs. 56,87,519 was provided. It was not possible for the complainant to make any protest endorsement on the voucher itself otherwise the complainant may not have got even this amount. As soon as the settlement of amount of Rs. 56,87,519 was received by the letter dated 8.6.2010, the complainant sent a protest letter on 15.6.2010 clearly stating that the amount of Rs. 56,87,519 has been accepted as the Company was passing through a phase of financial crunch. Before accepting the payment, the complainant had asked for break-up of the proposed amount of settlement and the Insurance Company had supplied the same along with calculation sheet of surveyor vide letter dated 18.5.2010. As the complainant needed money, there was no occasion to send any objection to the proposed amount before receiving the payment. Learned Counsel further mentioned that if the amount of claim was accepted under duress, it is not the real full and final settlement with the consent of the complainant.

8. To buttress his arguments, the learned Counsel for the appellant relied on the following judgments/orders:

(a) National Insurance Company Ltd. v. Sehtia Shoes, II (2008) CPJ 16 (SC)=II (2008) SLT 453=(2008) 5 SCC 400, wherein the Hon’ble Apex Court held as follows:

“7. Filing of a complaint is, therefore, not barred; but it has to be proved that agreement to accept a particular amount was on account of coercion. In the instant case, this relevant factor has not been considered specifically by the District Forum, State Commission and the National Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by the appellant. There is no dispute that the discharge voucher had been signed by the respondent. There has to be an adjudication as to whether the discharge voucher was signed voluntarily or under coercion. We remit the matter to the District Forum for fresh consideration. It would do well to dispose of the matter as early as practicable, preferably by the end of September, 2008.”

(b) New India Assurance Co. Ltd. v. Polycap Industries, III (2010) CPJ 313 (NC)=First Appeal No. 93 of 2008, decided on 5.7.2010, (NC) wherein this Commission observed as follows:

“5. … Despite the insurers protestations that the details of the assessment had been discussed with the complainant, we find it difficult to accept that someone who had suffered a loss of over Rs. 10 lakh according to his claim would voluntarily accept a payment of just about Rs. 4.30 lakh. In our considered view, the complainant could not have accepted this, much smaller payment voluntarily unless he was in dire financial difficulty due to the losses on account of the fire because of which he was left with no alternative but to accept the much smaller payment in so-called full and final settlement of his claim. This acceptance was thus under duress and hence the complainant was entitled to file a consumer complaint challenging the validity of the assessment. This view is in conformity with the Apex Court’s decision in the case of United India Insurance v. Ajmer Singh Cotton and General Mills and Others, (1999) 6 SCC 400. The State Commission ought to have examined this aspect, if necessary by calling for additional evidence/docu-ments, which unfortunately it failed to do altogether. It instead passed an order of questionable basis regarding the amounts.”

(c) The New India Assurance Company Limited v. M/s. Sturdy Polymers Ltd. & M/s. Sturdy Polymers Ltd. v. The New India Assurance Company Limited, III (2011) CPJ 338 (NC)=2011 NCJ 860 (NC), wherein this Commission held as follows:

“8. In National Insurance Co. Ltd. v. Harjeet Rice Mills (supra) the Apex Court held that Section 64 UM of the Insurance Act, cannot stand in the way of insurer in establishing that the claim was fraud on the company. If fraud is established, then there is no difficulty in holding that the repudiation made by the Appellant was proper. In National Insurance Co. Ltd. v. Sajjan Kumar Aggarwalla (supra), the matter was remanded to the District Forum to verify the necessary data. No ratio as such is laid down in the given case. Learned Counsel further seeks to rely on observations in New India Assurance Co. Ltd. v. Pradeep Kumar, Civil Appeal No. 3253 of 2002, wherein the Apex Court held that the surveyor’s report is not the last and final word. It has been observed that the approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured, but such report is neither binding upon the insurer nor upon the insured.”

9. Learned Counsel for the respondents/opposite parties stated that the payment has already been made to the complainant as per the recommendation and assessment of loss by the surveyor and complainant has accepted the same as full and final settlement as endorsed on the concerned voucher. The Company had sent its cheque vide its letter dated 8.6.2010. After receiving the cheque and sending the discharge voucher for full and final settlement, the complainant has filed the complainant and the State Commission has rightly dismissed the complaint on the basis that the complaint has already settled the claim with the Insurance Company by receiving Rs. 56,87,519 as full and final settlement of the claim. There was no compulsion on the complainant to accept the payment. Moreover, the complainant had not filed any proof that he was coerced by the Insurance Company or the surveyor to accept the claim. It is only an afterthought of the complainant to extract more money from the Insurance Company. The learned Counsel cited the following judgment to support his arguments:

Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC)=Revision Petition No. 2031 of 2012, decided on 16.1.2013, (NC) wherein the following has been held:

“6. So far as the other ground taken by the petitioner is concerned, the receipt of amount of Rs. 14,76,264 sent by the Insurance Company against the claim put up by the petitioner is not disputed by the petitioner. In fact, the petitioner filed certain additional documents which have been placed on record in which it has been included. Copy of the voucher signed by the petitioner indicates that he has received the amount in question by way of full and final discharge of his claim against the Insurance Company/respondents. This being the undisputed factual position, the petitioner cannot be permitted to approach the Consumer Forum for the balance amount treating the payment as only part payment against the claim unless he establishes that he accepted the amount under undue influence, misrepresentation or fraud played by the Insurance Company. No such plea has been put forth by the petitioner. The only point made by learned Counsel is that after receipt of the amount, the petitioner sent a letter to the Insurance Company asking for the payment of balance amount. This, however, cannot provide any comfort to the petitioner to reopen the matter having accepted the amount sent by the Insurance Company and signed the discharge vouched sent by the Insurance Company. The claim of the petitioner stood settled. The view taken by the State Commission is in line with the judgment of the Apex Court in the case of United India Insurance v. Ajmer Singh Cotton and General Mills and Others., (supra). In the absence of any allegation of fraud, mis-representation or undue influence, we cannot agree with the contention of the learned Counsel.”

10. Learned Counsel for the respondents further stated that the surveyors are appointed under the Insurance Act, 1938 and their report cannot be brushed aside without any cogent reasons. There are many judgments of the Hon’ble Supreme Court in this regard. In fact surveyor’s report is the main document on which the insurance claim is settled. The complainant has not pointed out any discrepancy or lacunae in the report of the surveyor. Hence without any reasons, the surveyor’s report cannot be disregarded. The Insurance Company has already paid as per the loss assessed by the surveyor and nothing remains due to the complainant.

11. I have considered the arguments of both the learned Counsel and have examined the record. First of all I agree with the contention of the learned Counsel for the respondents that surveyors are appointed under the Insurance Act, 1938 and their reports are the basis for settling the insurance claim. Their reports are generally accepted until there are some cogent reasons to disregard the same. The Hon’ble Supreme Court in the case of Sri Venkateswara Syndicate v. Oriental Insurance Company Limited & Anr., II (2010) CPJ 1 (SC)=II (2010) SLT 664=(2009) 8 SCC 507, has observed the following:

“31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

32. There is no disputing the fact that the surveyor/surveyors are appointed by the Insurance Company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that under this section the Insurance Company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the Insurance Company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report.”

12. Hon’ble Supreme Court in Sikka Papers Limited v. National Insurance Company Limited and Others, III (2009) CPJ 90 (SC)=(2009) 7 SCC 777, has observed that:

“A. Insurance—Terms and conditions specified in insurance policy—Binding effect—Insurance policy not covering parts of machinery which were required to be replaced due to normal wear and tear—Held, Insurance Company while assessing claim, rightly excluded those parts;

B. Insurance Act, 1938—Section 64-UM—Surveyor/Loss asses-sor’s report—Weightage to be given—Held, Though not the last word, yet there must be legitimate reason for departing from report—No infirmity found in surveyor’s report and therefore held, Insurance Company rightly admitted claim as per the report.”

13. From the above authoritative judgments, it is clear that there was no ground before the State Commission to reject the surveyors report, as the complainant had not filed any objection to the surveyor’s report. The complainant has not raised any objection against the surveyor’s report even in the appeal. Even at the stage of arguments, it was specifically asked from the learned Counsel for the appellant if there are any specific shortcomings in the surveyor’s report. No specific answer was given by the learned Counsel for the appellant. Thus if there are no objections to the surveyor’s report, it is to be accepted. The Insurance Company has already paid according to the loss assessed by the surveyor.

14. So far as the settlement of insurance claim is concerned, Insurance Company vide its letter dated 8.6.2010 referring to letter dated 27.5.2010 of the complainant had sent cheque of Rs. 56,87,519 along with the receipt and the same was signed by the complainant, clearly mentioning “I/we agree to accept in full and final discharge of my/our claim upon the company under Policy No. 140301/48/08/88/00001813 in respect of M/s. Shiv Villas Resorts Pvt. Ltd”. Thus, it is clear that the voucher was discharged as full and final settlement under the policy. In the citation given by the learned Counsel for the appellant in respect of (a) National Insurance Company Ltd. v. Sehtia Shoes, (supra), it is seen that the matter was remanded to the District Forum as no Forum had considered the issue of coercion, whereas, in the present case, the State Commission has considered this point. Similarly in the other case cited by the learned Counsel for the appellant viz. New India Assurance Co. Ltd. v. Polycap Industries, (supra), it is worth noting that the surveyor had given an assessment of loss to the tune of Rs. 4.50 lakh, but the State Commission had allowed about Rs. 12,00,000 to the complainant. In appeal, this Commission finally set aside the order of the State Commission and allowed only Rs. 3,00,000 along with 9% p.a. interest to be paid by the Insurance Company to the complainant. On the contrary, in the present case, full amount assessed by the surveyor has been paid by the Insurance Company. So, facts and circumstances of the cited case are not directly applicable to the facts and circumstances of the present case. Learned Counsel has also cited the case of The New India Assurance Company Limited v. M/s. Sturdy Polymers Ltd. (supra), wherein it has been observed that the surveyor report is not the final word and is not binding. If one contrasts this judgment with

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two judgments namely, Sri Venkateswara Syndicate v. Oriental Insurance Company Limited & Anr. (supra) and Sikka Papers Limited v. National Insurance Company Limited and Ors. (supra), it will be clear that they are in harmony because the surveyor report is not final word and not binding if cogent reasons are given to question the facts and analysis mentioned and recommendations made by the surveyor in his report and until this is done, the surveyor’s reports remains a very important document on which the insurance claim could be finalised. As no specific objections have been raised against the surveyor report in the present case, I feel that the judgment cited by the learned Counsel for the appellant will not have application in the set of facts and circumstances of the present case. 15. The case cited by the learned Counsel for the respondents namely Ankur Surana v. United India Insurance Co. Ltd. (supra), depict very similar facts and circumstances as of the present case and therefore, seems to be equally applicable to the present case. 16. Based on the above examination, I find that the State Commission has examined various aspects of the voucher signed by the complainant and the same confirms the full and final settlement. I also do not find any merit in the assertion of the complainant/appellant that the said voucher was signed due to any coercion or under duress. Moreover, no objections have been raised against the report of the surveyor and therefore, Insurance Company was justified in settling the claim as per the loss assessed by the surveyor. 17. Based on the above discussion, I do not find any merit in the appeal filed by the appellant and same is liable to be dismissed. 18. Consequently, the First Appeal No. 53 of 2014, Shiv Villas Resorts Pvt. Ltd. v. The United India Insurance Co. Ltd. & Anr., is dismissed with no order as to costs. Appeal dismissed.
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