SHAMBHU NATH BAL MUKAND vs New India Assurance Company Ltd.

-THIS is a complaint under Section 12 of the Consumer Protection Act, filed by M/s. Shambhu Nath Bal Mukand, Haridwar Road, Sahanpur, Najibabad, District Bijnore through Sri Rajul Randhar, Partner, against New India Assurance Company Limited through its Branch Manager, with the allegations that the complainant is a consumer and has availed facilities of insurance by payment of consideration (premium) to the opposite party. The insurance policy covered various risks, calamities such as flood. It has been alleged that the loss of the stock of Rab was caused due to flood. The Insurance Company appointed Surveyor for the assesment of loss and the complainant assisted the Surveyor by providing him relevant documents. It has further been alleged that the opposite party sent a cheque for Rs. 4,67,434/- to the complainant against the entitlement of Rs. 20,57,950/-. It has also been alleged that the Insurance Company got the signature of the complainant on blank discharge voucher on the plea of early payment which is an abuse of confidence. He also placed reliance on the decisions of Hon''ble Supreme Court and Hon''ble National Commission.

THE opposite party, Insurance Company filed its written statement with the allegation that the complainant is not a consumer. THE company also allegedly justified the report of the Surveyor including Rs. 100/- per qtl. as salvage cost of the Rab. THEre is no deficiency in service by the Insurance Company. Denying vehemently the claim, the Insurance Company alleged that the complainant accepted the properly filled up discharge voucher voluntarily without any protest and with the consent of his Banker (Bank of Baroda, Nazibabad) and the cheque issued in lieu of the settlement of the claim was promptly encashed and was never returned in protest by the complainant. This is alleged that the complaint has been filed on an afterthought to extract more money. THE Insurance Company further asserted that the Surveyor after assessing the net liability rightly deducted 2/3rd of the assessed amount on valid grounds. THE Surveyor has rightly and justly assessed the claim and the complainant has voluntarily signed the discharge voucher and accepted the payment as full and final settlement of his claim. The evidence, documents have been exchanged between the parties.

Mr. H.L. Khanna has argued the case on behalf of the complainant and the learned Counsel Mr. Sanjeev Agarwal for the Insurance Company has also been heard at length. The file and evidence have been perused.

THE main argument advanced by the complainant is that the Surveyor has not made the valuation of the loss properly and the discharge voucher was blank when the signatures of the complainant were obtained on it. As far as the Surveyor''s report is concerned which is Annexure-3 to the written statement and it runs in 13 pages, each and every point has been mentioned in the Surveyor report. THE argument is that in some of the pits the damage caused to Rab has been assessed as less. This argument is not acceptable because in page 8 of the Surveyor report it has been mentioned that the weight of the total Rab stock in 13 pits were 4995 qtls. and weight of O.K. Rab in pits 2, 3, 4, 5, 6 and 7 is volume x density i.e., 2704.5 cft x 0.3936 i.e. 1064.49 qtls. Accordingly the weight of damaged Rab is 4995 qtls. minus 1064.49 qtls. = 3930.51 qtls. THE assessment of loss has been made also on the basis of actual volume of total Rab after damage. Hence considering the important factors i.e., density, volume, etc. the loss has been assessed and we do not find any error, intentional or unintentional. THE complainant''s representative argued that lapse on the part of insurer is apparent for considering 2/3rd of the loss as invalid. THE reason for considering 2/3rd of the loss invalid has been given on page 12. THE main reason which has been given is that the stability of structure was not certainly in order because cracks and caving-in of side walls were clearly visible. Had the structure of pit been provided with proper water proof plaster inside with suitable re-enforcement of stiffener cross supports, neither any water entry into the pits would have taken place nor the walls would have caved in. THE complainant''s argument is that instability of structure cannot be made any ground for making 2/3rd loss invalid and in support of his argument he has cited Hon''ble N.C.D.R.C.''s ruling I (1992) CPJ 35 (NC) in case of Shree Cold Storage Pvt. Ltd. v. New India Assurance Company. This case is quite distinguishable as the case before Hon''ble National Commission was that the cold storage was damaged by earth-quake. Here is not the case of natural calamity, to that extent. No forecast of earth quake could be made. This is not the case with the calamity of flood. Water (flood) is a natural phenomena. It is not a calamity in itself. It may become calamity when the society (or the individual) is not capable of undoing its adverse effect. Even if for the sake of arguments we consider that structural instability should not be the ground for reducing the loss assessed the complainant has accepted the insurance claim by signing the discharge voucher by accepting the cheque without any protest. His conduct shows that he is fully satisfied with the loss assessed and that is why he has received the money through cheque given by the Insurance Company. So after that he cannot raise the issue that the loss was not properly assessed and full payment was not made to him. Annexure-4 to the written statement is also on the file and this is the ''consent-cum-legally discharged loss payment voucher'' which shows that the insured claimant had signed it and as witness of the execution of this document the Branch Manager of the Bank of Baroda has also signed it. It is to mention that the Bank of Baroda is the Banker of the insured claimant. THE voucher expressly mentions that the insured claimant has consciously acknowledged to have received the sum of Rs. 4,67,634/- paid by New India Assurance Company, Not even an iota of evidence is there on the file that the signature on the discharge voucher has been obtained by fraud, misrepresentation, undue influence or coercive bargaining compelled by circumstances. THE complainant has cited ruling of Hon''ble Supreme Court in United India Insurance v. Ajmer Singh Cotton & General Mills & Ors., reported in II (1999) CPJ 10 (SC)=VI (1999) SLT 590=1999 (3) CPR 53 (SC) wherein principle has been laid that if the consumer satisfies the authority under the Act that discharge voucher was obtained by fraud, mis-representation, undue influence or coercive bargaining compelled by circumstances appropriate relief can be granted but this is not the case here. THEre is no evidence that there has been fraud, mis-representation, undue influence or coercive bargaining compelled by circumstances. A perusal of the discharge voucher will show that the complainant-insured claimant had signed it consciously in respect of full and final satisfaction and the settlement of the claim. Had it been part payment there would have been mentioned somewhere on the discharge voucher or the cheque would not have been encashed or it would have been accepted with protest. But nothing of this kind has been done by the insured and contrary to this his Banker, Branch Manager has also signed as witness which means he is witness of the signatures of the insured and also witnessed that the insured is consciously acknowleding the amount towards full and final satisfaction of the claim. It has been argued by the Counsel for the Insurance Company that immediately the cheque has been encashed by the claimant, how can he say that the loss was more or his claim is justified and he has received only part payment. This argument is valid that Rs. 4,67,634/- has been accepted consciously by the claimant in respect of full and final satisfaction and settlement of the claim now he cannot say that it was a part payment. In the aforesaid rulings the Hon''ble Supreme Court has given the above view but on the fact of that case we find that in that case a discharge voucher was admittedly executed voluntarily and the complainant had not alleged the execution under fraud, etc. hence in the absence of pleadings and evidence the State Commission was justified in dismissing the complaint and the Hon''ble Supreme Court overrruled the Hon''ble National Commission who however, granted relief solely on the ground of delay in the settlement of the claim. Here in this case before us there is ample evidence in the form of discharge voucher, acceptance of cheque, its immediate encashment, not making protest or objecting while signing the discharge voucher or encashing the cheque. All this shows that with proper application of free mind without any fraud, mis-representation and undue influence the complainant received the sum mentioned in the voucher towards full and final satisfaction of the settlement. Now he cannot raise the question of fraud, misrepresentation, etc. nor he can allege that the voucher on which his signature was obtained was blank. No argument about the status of consumer has been pressed by the learned Counsel for the Insurance Company. There is no doubt under law that the complainant is consumer and his case fully comes within provisions of COPRA.

THE ruling cited in I (2000) CPJ 19 (SC) is also distinguishable from the instant case on the above grounds. From the side of complainant case reported in I (1996) CPJ 125 (NC) has been cited wherein the principle has been laid that the assessment of the loss is entirely the function of the Insurance Company Surveyor and the complainant could not be compelled to accept the quantum as assessed by the Insurance Company''s Surveyor and if the insured is not available for settlement of that loss then the Insurance Company cannot take any advantage. This ruling is not applicable in instant case. Here the insured is available. He was very much involved in the process of assessment and the Surveyor report is quite detailed and is based upon arithmatical reasonsings and we have no ground to differ from it. THE factor of density, volume, etc. of the Rab has also been taken into consideration and we do not find any ground to differ. Even volume of liquid affected and unaffected has been shown, depth of liquid has also been shown, volume of rectangular portion and semi-cylindrical portion has also been shown, its weight, volume, density, every thing has been shown and the facts mentioned in the laboratory tests have also been examined and it appears that correct finding has been given by the Surveyor. THE complaint has no force. In view of the above discussions the complaint stands dismissed. Parties will bear their own cost. Let a copy of this order be issued to the parties as per rules. Complaint dismissed.