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2012(3) CPR 190 (Guj.)
GUJARAT STATE CONSUMER DISPUTES REDRESSAL COMMISSION, AHMEDABAD
R.P. Dholakia, President, S.A. Makhija and Jyotiben P. Jani, Members
Shri Giriraj Proteins —Appellant
versus
National Insurance Co. Ltd. —Respondent
Appeal No. 722 of 2004
Decided on 9.3.2012
Counsel for the Parties:
For the Appellant:Mr. V.M. Pancholi, Advocate.
For the Respondent:Mr. M.J. Shelat, Advocate.
IMPORTANT POINT
Mere execution of discharge voucher and acceptance of insurance claim will not estop the insured from making further claim.s
Headnote:(i) Consumer Protection Act, 1986—Section 2(1)(g) —Surveyor’s report—Extent of Admissibility for settling an insurance claim—Although assessment of approved surveyor is pre-requisite for settlement of claim of twenty thousand or more but the survey report is not the last and final word—It is not sacrosanct that its cannot be deported from—The approved surveyors report may be basis or foundation for settlement of claim by insurer in respect of loss suffered by the insured but surely such a report is neither binding upon insurer nor the insured—Thus report of approved surveyor can be ignored if it is perverse or arbitrary based on mere inferences or surmises and/or suspicion. (Para 3)
(ii) Consumer Protection Act, 1986—Section 2(1)(g) —Fire Insurance Policy—Fire broke out in flour mill during subsistence of policy—Repudiation of claim—Complaint—Dismissed by District Forum—Appeal—The surveyors report was arbitrary in regard to loss of machinery and stock as it was not based on any relevant and proximate material—The total amount claimed excluding damages to electric wiring and fillings would come to Rs.15,35,525—After deducting one lakh for marginal variations, it would come to Rs.14,35,525 with 9% interest—Complaint partly allowed. (Para 5)
(iii) Consumer Protection Act, 1986—Section 2(1)(r)—Unfair trade practices—It is a wrong practice followed by insurance companies in not paying single pie without having discharge voucher—Mere execution of discharge voucher and acceptance of insurance claim would not estop the insured from making further claim—Instantly, complainant had filed consumer case immediately after receipt of amount—Complainant was also facing threats of legal action from bank—Hence payment to complainant could not be said to be by way of voluntary full and final settlement and amounted to unfair trade practice. (Para 7)
Result: Complaint partly allowed.
S.A. Makhija, Member—The appellant Shri Giriraj Proteins are original complainant and the respondent National Insurance Co. Ltd., are the original opponent and they are referred to as such in their original nomenclature for the sake of convenience.
2. The short facts of the case are that the complainant was running a flour mill in Shriram Builders Compound at Chakalia Road in village Dahod, District Dahod. It was using plastic and gunny bags for packing its product. All the packed and ready material was kept in storage place in the premises of the complainant. The complainant had insured the machinery, goods, stocks, packing material, etc. and the said policy was issued by the opponent company for insuring the risk of Rs.62,00,000. On 6.5.2003 in the mid-night fire had taken place at the insured premises. The complainant informed the opponent Insurance Company, completed all formalities and submitted the insurance claim. Surveyor was appointed by the opponent who assessed the loss as stated in the report. The Insurance Company instead of paying the loss claimed by insured settled the claim by paying Rs. 11, 17,597. The complainant thereafter filed the complaint. Consumer Disputes Redressal Forum dismissed the complaint on the ground that the complainant had accepted the sum of Rs.11,17,597 from the Insurance Company as full and final settlement of the claim. The complainant being aggrieved by the order of Consumer Disputes Redressal Forum filed this appeal. This Commission by its order dated10.5.04 dismissed the entire complaint on the ground that the complainant was not a consumer under Section 2(1)(d)(ii) of the Act after the amendment affected in the C.P. Act on 15.3.2005. The complainant filed a Revision Petition being No.3391 of 2004 before the Hon’ble National Commission which came to be allowed on 22.4.2009 holding that the insurance policy is only for the indemnification of the actual loss and it is not intended to generate any profit and therefore the insurance policy to cover the risk cannot be said to have been taken for commercial purpose. Hon’ble National Commission set aside the order and returned back the matter to this Commission for deciding afresh in view of the order of the National Commission passed in the case of M/s. Harsolia Motors v. National Insurance Cot Ltd., decided on 3.12.2004 in First Appeal No.159 of 2004. Thereafter this Commission by its order dated 28.1.2011 remanded the matter to decide the case on merits. Then thereafter the opponent National Insurance Co. Ltd., filed another Revision Petition being No.1784 of 2011 which came to be decided on 3.11.2011. By this order Hon’ble National Commission has directed this Commission to decide or reconsider the case on merits in view of this Commission’s finding that the full and final settlement was not arrived at. Thus this appeal being First Appeal on the facts, this Commission is required to formulate necessary points for determination and decide the same as per direction of Hon’ble National Commission.
3. After hearing the parties, following points arise for our determination.
(i) Whether this Commission can ignore the report of Surveyor? If yes under what circumstances?
(ii) Whether the complainant is entitled for the insurance loss as prayed for?
(iii) Whether the insurer can raise the issue of pecuniary jurisdiction at very belated stage in the appeal?
(iv) Whether the payment to the insured was as full and final settlement?
(v) What order?
Our finding to the aforesaid points are as under:
(i) In the affirmative. The circumstances indicated.
(ii) As per finding,
(iii) In the negative;
(iv) In the negative;
(v) As per final order.
Reasons:
Point Nos. (i) and (ii):
As far as legal position in regard to surveyor report is concerned say of Hon’ble Supreme Court can be found in this regard in the case of New India Assurance Company Ltd. v. Pradipkumar1, wherein it has been held that although assessment of approved surve
