HOTEL SARA vs Oriental Insurance Co. Ltd.

BRIEFLY put the case of complainant is that complainant has a big hotel at Aharbal comprising two complexes A and B. Complex A was commissioned in 1987. Complainant in the year 1988 wanted to construct one more building for the Hotel, Complex B and approached to State Financial Corporation for financial assistance. State Financial Corporation sanctioned Rs. 16.58 lacs on 23.7.1988 meanwhile turmoil in the Valley started and the Complex B remained under construction. Complex A was completed with personal funds of the complainant.

COMPLAINANT had two insurance policies. Complex A was insured in the name of complainant alone under policy No. 11/97/01255 and Complex B in the name of complainant and financier for a sum of Rs. 11,60,000.00. Premium of Rs. 2,320.00 was also paid. Insured building was under the occupation of security forces. It was on 30.11.1996 that security forces vacated the premises but Chowkidar of complainant Ghulam Qadir Biswal was regularly keeping the watch and ward of the building. Just after one week the security forces left the building, the militants set on fire the hotel building. Complaint was raised. FIR was filed. O.P. deputed Irfan Alam Surveyor to conduct the preliminary survey. Thereafter the Omkar Bajnoo was appointed Surveyor to assessal the loss. Bajnoo assessed the loss for Rs. 6.00 lacs. Surveyor held that there was total loss. Complainant pressed the O.P. for the settlement of the claim. Same was not settled but instead O.P. appointed investigator without the knowledge of the complainant so the complaint was filed for claiming compensation for Rs. 10,60,000.00.

O.P. was noticed. They filed the written version. O.P. has resisted the claim on the ground that the building was only one under the name and style of ''Hotel Sara'' which was insured. The O.P. has stated that the complainant had manipulated a story regarding the construction of Complex B in order to mislead the Commission. According to O.P. building was only one which was insured and it was raised against the loan advanced by SFC. According to the complainant hotel Sara itself was financed by SFC against which O.P. had issued the insurance policy.

THE occurrence is admitted. Appointment of Irfan Alam as preliminary Surveyor is also admitted. It is admitted that Omkar Bajnoo worked out loss at Rs. 5,92,441/-. O.P. considered this assessment to be on the higher side. Deputed Mr. G.M. Bhat for reassessment. G.M. Bhat reassessed the loss to the tune of Rs. 5,52,452.00. In para 6 of the written version of O.P. has contended that the complainant approached him for compromise. Complainant himself accepted Rs. 4,99,500.00 in full and final settlement. According to O.P., complainant gave consent to this amount and said that the amount so agreed be given to her instead of SFC.

O.P. has lastly contended that complainant is not entitled to any extra amount other than Rs. 4,99,000.00 which was agreed by her under the compromise in full and final settlement of the claim. During the pendency of the complaint this Commission has ordered the O.P. on 16.5.2000 that the O.P. shall pay the admitted liability to the consumer. In the meantime SFC also appeared and claimed the amount. According to the SFC the hotel Sara was constructed on the loan advanced by SFC. Controversy arose as to who was entitled to the admitted liability. This Commission on 29.5.2001 ordered that the cheque be handed over to SFC without commenting as to who was entitled to the amount finally. Prima facie it was held that SFC has financed the hotel subject to the result of merits of the case amount was given to SFC after taking undertaking from them. Evidence was recorded.

HEARD learned Counsels for the parties. Now the controversy between the parties has boiled down to a very short point as to whether complainant is entitled to some additional amount after signing the voucher in full and final settlement for Rs. 4,99,500.00 and after compromising with the O.P. It may not be out of place to mention here that the learned Counsel for the complainant has stated at the Bar that he has no objection for giving the amount to SFC and thereby has accepted that the SFC is the financier of the hotel. So the controversy regarding Block A and Block B ended.

LEARNED Counsel for the complainant has accepted that he had compromised with O.P. that he was ready to take only Rs. 4,99,500.00 if the amount would have been given to him directly and not through SFC. LEARNED Counsel for the complainant has vehemently contended that the amount was not paid immediately after signing the compromise document and after signing the voucher. According to him the amount was thereafter not handed over to the complainant but was handed over to SFC so it pleaded that the compromise for Rs. 4,99,500.00 only is not binding on the complainant. On the other hand learned Counsel for the O.P. has canvassed before us that once the voucher is signed in full and final settlement, it becomes a new contract which cannot be called in question nor it can be brushed aside. After considering the rival arguments we are of the view that complainant is not entitled to any additional amount because he has signed the voucher in full and final settlement for Rs. 4,99,500.00 and has accepted the compromise letter which has been executed for acceptance of the same amount. We have perused the law in this behalf. United India Insurance Co. Ltd. v. Ajmeer Singh Cotton and General Mills and Others, II (1999) CPJ 10 (SC)=1999 NCJ 453 (SC), is clear on the point. Apex Court has in categorical terms held that in case the voucher is signed in full and final settlement by the party it cannot be called in question unless it is pleaded that the voucher was got signed. Under the duress or under coercion. Hon''ble High Court also in Saleema Jabeen v. National Insurance Co. Ltd., AIR 1999 J & K 110, has held the same view that signing of voucher in full and final settlement cannot be called in question unless it is challenged on the basis that voucher was executed on the basis of fraud of coercion. Both the authorities apply in the case in hand. In the present case no fraud or corecion has been alleged by complainant. The only point complainant has pleaded is that said money was not given to the complainant and was not given immediately after the compromise. No fraud or corcion has been pleaded. It is a fact that the settled amount of Rs. 4,99,500.00 was not handed over to complainant. This is so because the SFC appeared before the O.P. and claimed the amount. The said amount was then released by the Commission on perusing the documents of SFC. Now the complainant also has admitted that the said amount was due to SFC. We think no violation has been committed by the O.P. in handing over the cheque under the order of this Commission to SFC. After all amount given to SFC is to be debited from the account of complainant only. It is one and the same thing that either the amount is paid to the complainant in person or it is given to SFC who debited from the outstanding account (loan) of the complainant. In the circumstances when the complainant has herself agreed for Rs. 4,99,500.00 Commission is helpless to allow any additional amount. However, we direct the O.P. to pay 9% interest on the amount of Rs. 4,99,500.00 from 2 months after the first survey report submitted by Omkar Bajnoor till the cheque was paid to the financier of the complainant and Rs. 5,000.00 as cost of the litigation. Complaint disposed of.