Paul Departmental Store vs United India Insurance Company Limited & Anr

Deepa Sharma, Presiding Member

This order shall dispose of the present Appeal filed by the complainant challenging the order dated 23.02.2015 of the State Commission on his complaint no. 02/2011, whereby his complaint was dismissed on the ground that the complainant since had voluntarily settled his dispute with the insurance company and had received full settlement of his claim, the complaint was not maintainable.

The impugned order has been challenged by the complainant on the ground that disbursement voucher dated 05.02.2010 was received by him from the National Insurance Company and his claim against the United India Insurance Company Limited was still pending and although they had appointed the surveyor and the survey had been done yet they failed to take any decision and, therefore, dismissal of his complaint is illegal and perverse on the part of the State Commission.

The brief admitted facts of the case are that complainant is the sole proprietor of Paul Departmental Store and engaged in retail sale of goods involving personal household, readymade garments, hosiery, shoes etc.  He took three insurance policies from three different insurance companies.  He took Standard Fire and Special Perils Policy No. 401308/11/3100000092 dated 06.06.2008 and insured amount of Rs.10.00 lacs with the coverage period from 14.6.2008 to 13.6.2009 against the premium of Rs. 16,500/- for the stocks lying in the departmental store from National Insurance Company.  He also obtained another Standard Fire and Special Perils Policy from United India Assurance Company Limited for a sum of Rs.30.00 lacs for the period 15.12.2008 to 14.12.2009 and also obtained another Standard Fire and Special Perils Policy from ICICI Lombard General Insurance Company Limited for insured amount of Rs.4,11,569/- for building and Rs. 1,64, 628/- for the period 31.05.2008 to 30.05.2009.  On the morning of 30.04.2009 at about 7.00 a.m., a fire broke out in his store and his store suffered loss in the fire.  He forwarded the claim forms to all the three insurance companies.  National Insurance Company appointed M/s Protocol Surveyors and Engineers Pvt. Ltd. who did survey and after completing the investigation, submitted the surveyor report.  The National Insurance Company quantified the loss and, thereafter, offered a cheque of Rs.90,64,704/- which was accepted by the complainant.  His claim, however, was not assessed by other insurance companies and hence he filed the complaint.

The State Commission after perusing all the relevant records, evidences and hearing the arguments of learned counsels, held as under :

“11.    We have examined the matter on its merits on the record. Our attention has been drawn to Para No.10 of the complaint, wherein complainant itself admitted that it has accepted the amount of Rs.90,48,204/- from the OPs in this case. The affidavit of Vikram Johar of M/s Protocol Surveyors and Engineers Pvt.Ltd,  Protocol House, A-56, Sector-7, Noida is on the record to the effect that physical verification of the articles caused to the stock furniture, fixture and fittings, due to alleged fire was conducted. That he assessed the loss to the tune of Rs.92,50,000/-  in respect of stock, furniture, fixture and fittings, vide survey report dated 20.10.2009, annexure R-3 is on the record. There is an affidavit by the above surveyor to this effect that he found loss of Rs.92,50,000/- in this case. The report of the surveyor carries weightage and it is strong piece of evidence  on the record. Surveyor is appointed under the Insurance Act. The report of the surveyor can be discarded, when there is contrary cogent evidence on the record. Consequently, on the basis of the survey report, the claim was found to be Rs.90,48,204/- by the OPs in this case. The complainant received this claim amount regarding loss of the articles due to fire under the policies. Final survey report is Annexure C-23-A by Protocol Surveyors and Engineers private limited. The final net amount payable, is Rs.91,04,116/-, as has been examined by us. The final report of the surveyor would prevail over the interim report. Undisputedly, the complainant received an amount of Rs.90,48,204/- towards the full and final settlement of this claim from the OPs. The counsel for the complainant was specifically asked by this bench as to whether complainant lodged any protest about the receipt of claim of Rs.90,48,204/-. The counsel for the complainant could not point out any substance on the record to the notice of this bench to the effect that it received the above insurance claim under any protest. The complainant, if dissatisfied with this claim amount, could have returned this cheque amount under protest or it could have lodged protest with the OPs forthwith without any delay expressing its dissatisfaction over this amount of settlement of insurance claim. The counsel for the complainant is unable to point out any document to our notice on this point except filing this complaint. The instant complaint was presented by the complainant before this Commission on 06.01.2011. The complainant received full and final settlement amount of Rs. 90,48,204/-, vide affidavit of Sh.S.K. Takkar, Managing Director of the United India Insurance Company on the record and Annexure R-10 on the record. The claim form is Annexure R-2 , the survey after physical verification found the loss assessed to the tune of Rs.92,50,000/- vide survey report dated 20.10.09 Annexure R-3 and Annexure R-4 revised assessment report dated 9.12.2009. The complainant submitted their consent for accepting the amount of   Rs. 90,64,704/-  towards full and final settlement, vide Annexure R-5, which is signed by Hardeep Singh Complainant.  Strong reliance is upon  Annexure R-5, vide which, the complainant accepted the full and final settlement of Rs. 90,64,704/- without any protest on 15.12.2009. The instant complaint was filed by the complainant on 06.01.2011 before this Commission much time thereafter. From 15.12.09 to 06.01.2011, there is no document pointed out to our notice by the complainant that he ever lodged any protest with the OPs for inadequate amount or settlement of Rs.90,64,704/-. On this point, there is an authority of the Apex Court in United India Insurance Company Vs.  Ajmer Singh Cotton and General Mills & Ors , reported in II(1999) CPJ 10 (SC) , wherein Apex Court held that : "discharge voucher executed voluntarily, complainant had not alleged their execution under fraud, absence of the pleadings and evidence to this effect on the record, the discharge voucher was admittedly executed voluntarily towards full and final settlement. The mere delay for couple of day would have not authorized to the National Commission to grant relief particularly when the insurer had complained of no delay during the acceptance of insurance amount under the policy."

Consequently, the matter stood finally settled as per the observation of the Apex Court in the above authority and discharge voucher is not proved to be fraudulent, hence the complaint of the complainant is without merit. The complainant is estopped from challenging it again, once the complainant has accepted the full and final settlement of the claim for Rs. 90,48,204/-, vide Annexure C-5 on the record from the OP No.1.”

These findings are impugned before me.  It is alleged that loss suffered by the complainant was much more than had been assessed and calculated by the other insurance companies.  He filed appeal against National Insurance Company Ltd. and United India Insurance Company Ltd.  Al-though he had filed complaint against ICICI Lombard General Insurance Company but in this appeal, complainant has not included the ICICI Lombard General Insurance Company as one of the respondent and has not challenged the impugned order qua ICICI General Lombard.

It is settled proposition of law that once a settlement of claim has been done without any protest, the claim would be considered to have settled full and final.  A settled claim can be set aside only when it is proved on record that settlement was not voluntarily and had been done under force or coercion.  There is, however, no contention in the complaint that he was forced to enter into a settlement or any coercion was used or that settlement was not voluntarily.  No doubt he had obtained three insurance policies but all the three insurance policies were of same nature of the loss and for the same stocks.  One of the insurance company under the policy has calculated the loss suffered and offered the amount which has been accepted by the complainant without any demour.  The claim of the complainant for the loss of the insured goods thus stands satisfied.

It has been clearly held by the Hon’ble Supreme Court in the case of United India Insurance Company Vs. Ajmer Singh Cotton and General Mills and Ors. II (1999) CPJ 10 SC on which the State Commission has also relied that once the claim has been settled, unless it is proved that settlement is fraud, such a settlement is full and final and no complaint is, therefore, maintainable.

The complainant, therefore, has failed to point out any illegality or infirmity in the impugned order.  He is bound by the settlement which acts as estoppel. The Appeal has no merit and same is dismissed.