Judgment ( 1. ) THIS judgment shall govern disposal of the aforesaid both the appeals. ( 2. ) THE plaintiff/appellant (in F. A. No. 351/94) filed a suit against the defendants/respondents Insurance Company stating therein that the plaintiff is running a shop in the name and style of M/s. Gupta Cycle Stores at Main Bazar of village Lidhora. The said shop was insured under fire Policy with the defendants vide Cover Note Ex. P-l. The limit of liability to pay the compensation was Rs. 50,000/ -. In the intervening night of 3rd and 4th July 1989 due to fire the shop was burnt. The plaintiff informed the defendants and claimed compensation of Rs. 59,800/- for the loss sustained by him. Since the defendants did not pay the compensation, a legal notice was served on defendants on 14-12-1989. Thereafter the defendants on the basis of assessment made by the surveyor paid Rs. 18,544/- to the plaintiff towards his claim. As per the plaintiff since he was entitled to receive Rs. 50,000/-, he filed a suit claiming balance amount of Rs. 31,406/- against the defendants. ( 3. ) THE defendants filed their written statement and stated that on receipt of information of fire in the plaintiffs shop, to survey and to assess the loss they sent Shri K. K. Shrivastava, Surveyor. On consideration of his Survey and loss assessment report, the plaintiff was paid Rs. 18,594/- as full and final settlement of his claim. The plaintiff was sent a letter dated 14-2-1990 Ex. D-7 along with disbursement claims voucher Ex. D-6. As per the aforesaid disbursement claim voucher Ex. D-6 the plaintiff accepted amount of Rs. 18,544/- in full and final discharge of claims and handed over the voucher by putting his signature. Thereafter vide letter dated 3-3-1990 Ghanshyamdas Soni Development Officer of the defendants handed over the cheque of the said amount to the plaintiff on 5-3-1990. The plaintiff issued acknowledgment of the receipt of the cheque. It is further stated that the assessment made by the Surveyor was based on sound appreciation of all the relevant factors and in the survey report ex. D-9 the Surveyor on the basis of the bills submitted by the plaintiff and the actual survey of the loss of goods has assessed the damages and the same was duly accepted by the plaintiff towards full and final settlement and, therefore, the suit is not maintainable. D-9 the Surveyor on the basis of the bills submitted by the plaintiff and the actual survey of the loss of goods has assessed the damages and the same was duly accepted by the plaintiff towards full and final settlement and, therefore, the suit is not maintainable. ( 4. ) ON the basis of the above averments the Trial Court framed issues, recorded evidence, heard arguments and decreed the suit in part holding that the plaintiff is entitled to get a further sum of Rs. 16,406/- with proportionate cost. Dissatisfied by the judgment and decree passed by the Trial Court. First appeal No. 351/94 has been filed by the plaintiff against that part of the judgment by which his suit for entire claim has not been decreed and also for the interest. First Appeal No. 99/95 is filed by the defendants Insurance Company challenging the judgment and decree passed in favour of the plaintiff. ( 5. ) SHRI R. K. Samaiya, learned counsel for the plaintiff has argued that the Trial Court having come to the conclusion that the plaintiff sustained loss of Rs. 59,800/- ought to have decreed the suit in its entirety with interest. On the other hand Ms. Amrit Ruprah, learned Counsel for the defendants has argued that the suit filed by the plaintiff itself was not maintainable for the reasons that the plaintiff having accepted the amount of compensation paid by the defendants on the basis of the due consideration of the Survey Report and having signed the discharge voucher containing the endorsement that the same is in full and final discharge of claims, in view of Section 63 of the Contract Act he was not entitled to sue the defendants for balance. In support of her contention she relied on the judgment of the Supreme Court passed in the case of Kapoor Chand Vs. Himayat Ali Khan ( AIR 1963 SC 250 ). ( 6. ) COUNTERING the submissions of Ms. Amrit Ruprah, learned counsel for the defendants, Shri R. K. Samaiya, learned counsel for the plaintiff has relied on the judgment passed by this court in case of Union of India and another vs. M/s. Gangaram Bhagwandas ( AIR 1977 MP 215 ). He further submitted that the plaintiff is not an education person and, therefore, even if he has signed the discharge voucher, it cannot be presumed that he understood it. ( 7. He further submitted that the plaintiff is not an education person and, therefore, even if he has signed the discharge voucher, it cannot be presumed that he understood it. ( 7. ) IN order to decide the plea as to the plaintiff having signed the discharge voucher towards full and final satisfaction of the claim and thereupon having accepted the cheque whether can bring a suit for the balance amount as claimed by him, the evidence of the parties has to be considered. ( 8. ) BEFORE the Trial Court, plaintiff Ramswaroop Gupta examined himself as P. W. 1 and Mahesh Prasad as P. W. 2. In rebuttal the defendants examined Ramdarshan Dubey, Administrative Officer as D. W. 1, K. K. Shrivastava Surveyor as D. W. 2 and Ghanshyam Das Soni as D. W. 3. In his deposition Ramswaroop Gupta (PW 1) has not said or explained about the circumstances in which he executed Disbursement (claims) Voucher dated 16- 2-1990 Ex. D- 6, letter D-7 and acknowledgment letter D-8 dated 3-3-1990 about receipt of cheque. He has not alleged that he executed discharge voucher certificate Ex. D-6 by not understanding the contents of it nor he has stated that he executed the said voucher towards part payment of his claim. He admitted that after execution of discharge voucher he received a cheque along with covering letter dated 3-3-1990 Ex. D-8. In his cross-examination he has stated that he is educated up to 8th standard and denied execution of the voucher as full and final satisfaction. Except this evidence there is no evidence to prove or suggest that the plaintiff either accepted the amount under protest or executed the discharge voucher without knowing or understanding the contents of the same. In his plaint averments also except mentioning that he received cheque of Rs. 18,594/- towards part payment nothing has been pleaded. As against this the defendants have not only pleaded but they also led evidence to show that the plaintiff had accepted the amount knowing fully well that it is in full and final satisfaction of his claim. Ramdarshan Dubey (DW - 1) has proved that discharge voucher Ex. D-6 was sent to the plaintiff and on receipt of execution of the same by putting signature the plaintiff returned it to the defendants. On receipt of duly executed discharge voucher Ex. Ramdarshan Dubey (DW - 1) has proved that discharge voucher Ex. D-6 was sent to the plaintiff and on receipt of execution of the same by putting signature the plaintiff returned it to the defendants. On receipt of duly executed discharge voucher Ex. D-6, cheque was sent to the plaintiff along with letter Ex. D-8. Ghanshyamdas Soni (DW 3) deposed that letter Ex. D-ll was received by him along with discharge voucher Ex. D-6. He then went to the plaintiff and informed him that his claim has been settled and, therefore, he may sign the voucher so that payment can be made to him. On this the plaintiff thanked him and accepted the claim for Rs. 18,594/towards full and final settlement and put his signature on Ex. D-6 on the portion A to A above which there is an endorsement "received the aforesaid amount, in full and final discharge of claims". He also deposed that he had given letter Ex. D-7 to the plaintiff. Thereafter he received cheque from the insurance company which he handed over to the plaintiff and obtained receipt on Ex. D-8 which also bears signature of the plaintiffs on the portion A to A. ( 9. ) IN Union of India and another Vs. M/s. Gangaram Bhagwandas (supra) this Court has taken a view that if a cheque for smaller amount than what was claimed is accepted, the same acceptance and encashment of cheque does not raise a conclusive presumption that cheque was accepted in discharge of whole claim. In this case of M/s. Gangaram, the cheque was encashed but no receipt was sent, on the contrary even after receiving the cheque the plaintiff prosecuted the suit for the balance of the amount. The defendants led no evidence to show that the intention of the plaintiff was to accept the cheque in full and final satisfaction of the claim and the defendants failed to prove that there was a case of accord and satisfaction. ( 10. ) FROM the facts stated in the aforesaid case it is evident that though the plaintiff encashed the cheque but admittedly he did not issue a receipt in full satisfaction. ( 10. ) FROM the facts stated in the aforesaid case it is evident that though the plaintiff encashed the cheque but admittedly he did not issue a receipt in full satisfaction. There was absolutely no evidence on behalf of the defendants to show the intention of the plaintiff was to accept the cheque in full and final satisfaction of the claim and in that view of the matter in that case this Court held that it was not a case of accord and satisfaction. ( 11. ) IN my view the judgment of this Court passed in case of Union of india and another Vs. Gangaram Bhagwandas (supra) has got no application to the facts of the present case. In the present case there is over whelming evidence on behalf of the defendants establishing that the plaintiff though claiming amount of Rs. 59,800/- but accepted the assessment of damages made by the defendants on the basis of Surveyors report to the tune of Rs. 18,594/ -. He executed the discharge voucher containing an endorsement received in full and final satisfaction of the claim. Thereafter he accepted the cheque along with a covering letter mentioning it to be an amount of compensation towards his claim. Admittedly, no protest was made either at the time of execution of discharge voucher nor at the time of receipt of cheque. Even after receipt of the cheque the plaintiff did not send any letter of objection or grievance to the defendants. As discussed earlier in the plaint there is no averment about the plaintiff being less educated could not understand the contents of the discharge voucher. In his examination-in-chief also there is no whisper about the same. On the other hand the defendants have duly proved that the plaintiff agreed to receive the amount as paid to him as full and final satisfaction of his claim. Thus, i am of the considered view that the plaintiff having accepted the payment in full and final satisfaction of his claim was not entitled to sue the defendants for the balance. ( 12. ) EVEN otherwise defendants on the basis of evidence of Shri K. K. Shrivastava, Surveyor (DW - 2) have proved that the Survey Report Ex. P-9 was based on sound appreciation of all the necessary material to reach to the finding about the loss sustained by the plaintiff. ( 12. ) EVEN otherwise defendants on the basis of evidence of Shri K. K. Shrivastava, Surveyor (DW - 2) have proved that the Survey Report Ex. P-9 was based on sound appreciation of all the necessary material to reach to the finding about the loss sustained by the plaintiff. The assessment of loss done by the surveyor in the absence of any contrary cogent evidence cannot be said to be unjust or arbitrary. On the other hand the assessment of loss made by the surveyor appears to be just and reasonable. The plaintiff having failed to prove that he sustained loss to the tune of Rs. 59,800/- by tendering the stock and sale registers the finding of the learned Trial Court assessing the damages to the further sum of Rs. 16,406/- is not sustainable. ( 13. ) FOR the foregoing reasons, I dismiss the plaintiffs First Appeal no. 351/94 and allow the First Appeal No. 99/95 filed by defendants Insurance company, Accordingly, the suit is dismissed. Parties to bear their own costs. First Appeal dismissed.