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Judgment
This appeal has been filed by the appellant, Rajiv Kumar against the order dated 13.9.2012 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, 'State Commission') in CC No. 30/2009.
Brief facts of the case are that the appellant's factory was insured by the OP/respondent- insurance company under Fire Insurance Policy and during the currency of the policy, fire broke out on 20.2.2008. Appellant/complainant filed insurance claim for Rs.99,73,723/-. However, insurance company settled the claim for Rs.21,04,219/- against discharge voucher dated 21.10.2008. Not satisfied with the settlement of the claim, the complainant filed CC No.30/2009 before the State Commission for the remaining amount of the claim. The complaint was resisted by the OP insurance company on the ground that the claim was already settled for Rs.21,04,219/- as per report of the surveyor and discharge voucher was signed by the complainant as full and final payment. Accordingly, it was requested to dismiss the complaint. The State Commission vide its order dated 13.9.2012 dismissed the complaint.
Hence, the present appeal.
Learned counsel for the appellant stated that the State Commission has basically dismissed the complaint on two grounds. The State Commission has observed that the complainant Mr. Rajiv Kumar was not entitled to file the complaint as the insurance was in the name of Madhur Enterprises and the second point on which the complaint has been dismissed is that the State Commission has presumed that the amount of Rs.21,04,219/- has been taken by the complainant as full and final settlement of the insurance claim.
In respect of the first point, the learned counsel argued that Mr. Rajiv Kumar, complainant is the proprietor of the sole proprietary concern M/s. Madhur Enterprises and he was fully entitled to file the complaint of his proprietorship concern. To support his contention, the learned counsel relied upon the judgement of the Hon'ble Supreme Court of India in Shankar Finance and Investment vs. State of Andhra Pradesh & Ors. (2008) 8 SCC 536 wherein it has been held that in the case of proprietary concern, the complaint was maintainable through the proprietor and not the proprietary concern. On the basis of the above judgement of the Hon'ble Supreme Court, it was argued by the learned counsel that filing of the complaint by the proprietor Mr. Rajiv Kumar was totally in order.
Coming to the second point of the discharge voucher, the learned counsel contended that in the discharge voucher dated 21.10.2008, the following is mentioned:
"Which I/we agree to accept full/partial satisfaction and discharge of my/our claim."
It was argued by the learned counsel that there is no tick mark on either the 'final' or the 'partial'. Accordingly, he pleaded that it was basically a partial discharge of the claim and that is why after some time the complainant wrote a letter dated 31.10.2008 to the insurance company asking for the details of the settled amount of Rs.21,04,219/- and the insurance company vide letter dated 25.11.2008 supplied the details. Without seeing the details, it was not possible for the complainant to have become satisfied and therefore, it was wrong on the part of the State Commission to presume that the voucher was discharged for full and final payment. The State Commission has also relied upon the consent letter given by the complainant and in this regard, the learned counsel contended that first of all, this letter is undated and is addressed to the surveyor and not to the insurance company, then in this letter, consent has been given for Rs.25,54,411/- whereas the amount has been paid to the complainant is Rs.21,04,219/-. Clearly, this letter has not been taken into consideration by the insurance company and therefore, the State Commission has wrongly presumed that the consent was given for the amount of Rs.21,04,219/- by the complainant. It was contended by the learned counsel that this letter was obtained by the surveyor on coercion and misrepresentation as would be clear from the language of this letter which reads as under:
"After having been apprised of the revised assessment, we hereby give our consent to the assessment amounting to Rs.25,54,411/- (Rupees twenty five lakhs fifty four thousand four hundred eleven ) only (NET PAYABLE TO US) subject to the conditions of the policy, approval & admission of liability by the insurer."
From the above, it was argued by the learned counsel that this consent was in terms of the revised assessment, however, the fact is that no revised assessment was given by the surveyor to the complainant as would be clear from the last para of the surveyor's report dated 1.7.2008 wherein the following has been written:
"The insured had desired vide their letter dated 16.6.2006 that the report should be submitted with their consent. However, they were given the opportunity to present their view point and the matter was discussed in detail on 26.6 .2008.
Accordingly, requested to give their consent vide our letter dt. 30.6.2007 e-mailed & couriered to them. They have confirmed receipt of the same & desired that the working details of assessment be made available to them which in our opinion, is the prerogative of the insurer"
On the basis of the above communication from the surveyor to the insurer, it is clear that surveyor did not give the revised assessment to the complainant. Thus, the consent of the complainant was obtained on a misrepresentation by the surveyor.
On the basis of the above arguments, learned counsel tried to establish that the consent was obtained on the basis of misrepresentation and this consent should not have been considered as a real consent by the State Commission and the voucher was also not discharged for full and final settlement as there was no tick mark on either the 'final' or 'partial' as explained above.
On the other hand, learned counsel for the respondent insurance company stated that the insurance company was agreeable to the total settlement for the amount of Rs.25,54,411/-. However, the claim relating to building for Rs.4,48,182/- was withheld as the complainant could not establish insurable interest on the building and therefore, the claim was finally settled for Rs.21,04,219/-. This was informed to the complainant as in his letter dated 31.10.2008 the complainant has himself written that claim relating to building has been withheld for some clarifications. While passing the details of payment of Rs.21,04,219/- in reply to the letter of the complainant dated 31.10.2008, the insurance company vide letter dated 25.11.2008 has also clarified the following:
"As regards the building loss we hereby inform you that M/s. Madhu Enterprises has no insurable interest in the said building hence, the loss to the building was not paid to you."
The learned counsel for the insurance company further argued that the complainant did not raise any objection to the settlement for Rs.21,04,219/- in his letter dated 31.10.2008, except in respect of the amount of Rs,4,48,182/- which was relating to the building. After getting the reply from the insurance company vide letter dated 25.11.2008, the complainant did not raise any issue before the insurance company in respect of any shortcoming in the settlement nor he submitted any papers to support his claim for the loss in building. However, after about one year, the complainant filed the consumer complaint. Thus it is clear that there was no protest letter in respect of the assessment of the surveyor except for the amount of Rs.4,48,182/- . The learned counsel contended that had the amount of Rs.4,48,182/- been paid, the complainant as per his letter dated 31.10.2008 would have raised no consumer dispute. However, the insurance company could not have paid this amount until the insurance company was convinced of the insurable interest of the complainant in respect of the said building. Learned counsel for the insurance company stated that if the complainant filed proper documents to prove that the complainant has an insurable interest in the said building, the insurance company would be ready to release the withheld amount for loss of the said building.
I have given a thoughtful consideration to the arguments advanced by both the parties and have examined the material on record. So far as the first observation of the State Commission in respect of the complaint having been filed by Mr. Rajiv Kumar is concerned, I agree with the contention of the learned counsel for the appellant that for a proprietorship concern, the proprietor was competent to file the complaint as held by Hon'ble Supreme Court in Shankar Finance and Investment vs. State of Andhra Pradesh & Ors. (supra).
Now coming to the issue of the discharge voucher and the remaining claim of the complainant, it is seen from the discharge voucher that the complainant has not ticked either the 'final' or 'partial' and this only means that the complainant can claim something more even beyond this discharge voucher. Now the question is to be decided upto what amount the complainant can make his claim. There is no denying that the consent letter was not given to the surveyor. This consent letter as reproduced above clearly mentions that on the basis of the revised assessment, the complainant is ready to accept the settlement of claim for Rs.25,54,411/-. There is no communication from the complainant/appellant to any authority of the insurance company or even before the State Commission that the consent was obtained by either coercion or fraud or misrepresentation. It is only in the appellate stage, this allegation is being made. First of all, the complaint has been filed after one year of the settlement of the insurance claim and except for one letter dated 31.1.2008 the complainant has not sent any protest letter to the insurance company and in the letter, he has only represented about non payment of Rs.4,48,182/- in respect of the loss of the building.
He had also asked for break up of the amount of Rs.21,04,219/- which was paid to the complainant. After the insurance company sent the details to the complainant, no communication was made by the complainant with the insurance company for about a year. This clearly means that he had accepted the break up given by the insurance company and had also accepted the reason for non payment of Rs.4,48,182/- in respect of the loss of building. The complainant has tried to prove that the consent was obtained by the surveyor by misrepresenting the information in respect of the revised assessment. The complainant himself has given the consent and has stated that as per the revised assessment, he has given the consent for Rs25,54,411/-. It means that he knew about revised assessment and that is why he gave the consent for Rs.25, 54,411/-. As there is no date on the consent letter, this also means that the complainant was playing game with the insurance company and the surveyor. It also means that this consent is to be taken for all times to come and therefore, the complainant cannot now go back against this consent. As there is no communication alleging either the fraud or coercion or misrepresentation against the surveyor or against the insurance company, the allegation of the complainant at this stage cannot be accepted.
Based on the above examination, it is evident that there was a clear consent for Rs.25,54,411/- out of which Rs.21,04,219/- has already been paid and an amount of Rs.4,48,182/- was withheld by the insurance company on account of lack of insurable interest of the complainant in the said building. In any case, the complainant had given consent for Rs.25,54,411/- and therefore, he cannot go beyond this consent and he would not be entitled to get more than this amount of Rs.25,54,411/-. However, the claim of Rs.4,48,182/- still remains for which the complainant can pursue the present complaint. As this is a contentious matter and though the insurance company is ready to release this amount if the complainant proves insurable interest and as the State Commission is already seized of the matter, it would be better that this issue is decided by the State Commission. Accordingly, I deem it appropriate to set aside the impugned order and remand the matter to the State Commission for deciding the complaint in respect of the remaining amount of Rs.4,48,182/- in respect of the loss to the building, after giving opportunity to both the parties of being heard. If need be, both parties may be given chance to file additional evidence to facilitate decision on this issue. The appeal is accordingly, disposed of. Parties to appear before the State Commission on 11.10.2018.