Morteza Yousefi vs Icici Lombard General Insurance Co. Ltd

THE matter in the present proceeding arises from an insurance claim for flood/rain damage to the residential house of the Complainant. OP/ICICI Lombard General Insurance Co. Ltd. was ex -parte in the proceeding before the District Forum, Kurukshetra. The Complaint was allowed, on the basis of pleadings and evidence of the Complainant. This order was challenged in appeal before Haryana State Consumer Disputes Redressal Commission in which the Complainant was ex -parte. The State Commission allowed the appeal of the OP/Insurance Co. and dismissed the complaint. The Complainant has challenged the order of the State Commission in the present revision petition before this Commission.

THE brief factual matrix of the case comprised the claim for flood/rain damage caused to the house in July, 2010. The relevant policy under which the house was insured had commenced on 13.8.2009. The assessor appointed by the Complainant estimated the loss at Rs.1 lakh. On the other hand, the surveyor appointed by the Insurance Co. assessed it at Rs.13,290/ -. The Insurance Co. sent a cheque for this amount. The complainant claimed to have accepted it ''under protest ''.

WHILE allowing the claim of the Complainant in entirety, the District Forum clearly recorded the following as the basis for the decision: - ''''Complainant in his exparte evidence tendered his own affidavit, copy of legal notice, postal receipts, copy of estimate for repair and copy of sale deed as Exs.C1 to C6. We have heard the ld. Counsel for the complainant and have perused the case file carefully. Complainant in his affidavit has testified all the facts so set out by him in the complaint. In support, he has also placed on file copy of legal notice, postal receipts, copy of estimate for repair and copy of sale deed as Exs.C2 to C6. The evidence adduced by complainant is unchallenged and unrebutted due to the fact that OPs have failed to contest the same and they have filed no reply. Ultimately, they have failed to appear and have opted to proceed against exparte. So, we have no other option except to rely evidence of complainant. ''''

On the other hand the State Commission, while allowing the appeal and dismissing the complaint, has categorically noted that the respondent/Complainant did not appear despite service of notice and therefore was proceeded ex -parte. It has also observed that - ''''We find force in the contention raised on behalf of the appellants -opposite parties. The complainant has not produced any evidence to show that the cheque of the amount of Rs.13,290/ - was accepted by him under protest. Mere pleadings without any supporting evidence cannot take the shape of proof. By now it is well settled principle of law that the cheque received and encashed without any protest, is presumed to have been accepted in full and final settlement. Support in this regard can be taken from the judgment rendered by Bhagwati Prasad Pawan Kumar versus Union of India (2006 -3) PLR 76 (SC), wherein the acceptance of the cheque and its encashment was held in full and final settlement of complainant ''s claim without any protest. This case is fully covered by Bhagwati Prasad Pawan Kumar ''s case (Supra). The cheque in question was issued to the complainant on 29.11.2010 and the same was accepted by the complainant but he filed the complaint before the District Forum on 14.09.2011 i.e. after a considerable gap of more than ten months and therefore the claim put forward by the complainant is presumed to be concocted one. The other aspect of the case is that the complainant has relied upon the report of surveyor wherein only estimate has been given whereas in the report of surveyor relied upon by the opposite parties, the total loss of the complainant ''s house was given on actual basis as Rs.13,290/ -. Thus the report submitted by the opposite parties is more authenticated than that estimate relied upon by the complainant. ''''

THE main ground raised in the revision petition is that the revision petitioner had no opportunity of being heard before the State Commission. It is also alleged the petitioner was neither served the copy of the appeal/notice of the appeal, nor with the copy of the impugned order. In this background, on the very first date of hearing, this Commission directed the revision petitioner/Complainant on 18.11.2013 to file copy of the order -sheet of the State Commission to show whether any notice was served on him or not. This was followed by further opportunity till 4.8.2014. On the last mentioned date the Commission observed that the copies of the order -sheet as directed on 18.11.2013 had not been produced till the matter was reserved for orders on 4.8.2014.

WE find it necessary to observe that the above failure on the part of the revision petitioner/Complainant has occurred despite a long period of over 8 months having been allowed to him. This conduct is totally contrary to the alacrity shown by him in filing the execution petition before the District Forum in less than three months of the decision of the District Forum and filing the revision petition in less than two months of closure of the execution proceedings, before the District Forum. We therefore, hold that he has completely failed to substantiate the allegation in the revision petition that the appeal was decided by the State Commission without giving him an opportunity of being heard. We also hold that the impugned order is based on correct appreciation of the evidence before the State Commission.

IN the light of the above, we find no substance in this revision petition. It is accordingly dismissed for want of merit. No orders as to costs.