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Himachal Pradesh High Court · body

2009 DIGILAW 1342 (HP)

Mohan Chand Chauhan v. The Oriental Insurance Co. Ltd

2009-12-23

ARUN KUMAR GOEL, CHANDER SHEKHAR SHARMA, SARAJ SHARMA

body2009
ORDER Justice Arun Kumar Goel (Retd.), President (Oral). Appellant is aggrieved from the order passed by District Forum, Shimla whereby his complaint No.525/2004 has been dismissed. At the time of hearing it was not disputed that the building of the appellant was insured in the sum of Rs.12. 75 lacs, whereas household effects were insured against fire loss in the sum of Rs.2,25,000/-. It is also not in dispute that as a result of the fire on 16.10.2003 the insured building as well as household effects were substantially damaged. On receipt of information, respondent appointed surveyor to carry out preliminary survey and for this purpose Er. Rajneesh Kumar Dhiman (B.E. Mechanical), was appointed. He carried out preliminary survey and his report is Annexure:R-4-A to R4-F. Thereafter final survey was got done by the respondent from Shri D.K. Gulati of Dee Kay Consultants, Engineers. Again Shri Gulati is a B.E.(Mechanical). Both these surveyors are duly licensed surveyors and loss assessors by the competent authority. Vide Annexure R-6-B, dated 8.7.2004, appellant informed the respondent -and submitted his consent letter as desired by the Insurance Company for its consideration, Annexure R-6 dated 9.7.2004 is the consent letter which reads as under: "With due respect that the survey report for 8,53,117/Rs. is acceptable to me as insurance claim." 2. On the basis of the aforesaid consent letter, amount was paid to the appellant and discharge voucher in this behalf dated 9th July, 204, Annexue:R-7, is there. 3 According to the respondent with the payment of this amount, appellant's claim against it stood fully satisfied as this amount was received in full and final settlement regarding fire which occurred on 16.10.2003. 4. Record of the complaint file shows that after receipt of the amount vide Annexure R-7, appellant got legal notice issued to the respondent explaining the circumstances whereunder he had to accept the amount of Rs.8,53, 117/ -. This was duly replied to on behalf of the respondent by its Counsel. Its stand as contained in this was, that the amount was received by the appellant in full and final satisfaction of his entire claim without any protest in the presence of witness after being fully satisfied. This notice was sent on 20.7.2004 as is evident from Annexure R-11, and was replied to on 27.7.2004 vide Annexure R-9. 5. In the aforesaid background complaint was lodged by the appellant. This notice was sent on 20.7.2004 as is evident from Annexure R-11, and was replied to on 27.7.2004 vide Annexure R-9. 5. In the aforesaid background complaint was lodged by the appellant. Amongst other things, his stand before the District Forum below was, that his entire building was gutted in the fire and it was a case of total loss. His family was on the road without any shelter. Surveyor had assessed the loss that no part of the building was left. Further according to the appellant he was entitled to get the compensation from the respondent as per benefit given in the policy in question, but only half amount was paid which was received by him on the assurance that remaining amount will be paid after settling his claim. Being on the road at that time without any shelter he was in urgent need of money. Therefore, he received the amount offered vide Annexure R-7, but the remaining amount has been withheld to which he was also entitled to, Respondent had no right, title and interest to pressurize the appellant to receive the inadequate amount which is against the policy. This stand of the complainant was denied by the respondent while dealing with paragraph-4 of the complaint wherein these allegations had been made. 6. In the aforesaid background Mr. Jamalta, learned Counsel for the appellant forcefully urged that his client was in no win situation and it was under compelling circumstances as his family was on the road without any shelter as also the entire household effects having been burnt besides the insured building, it was under these compelling circumstances that he furnished the consent letter Annexure R-6 and as a consequence of it accepted the amount and executed the discharge voucher, Anmixure:R-7. Further according to him if either he had not given the consent letter or not accepted the amount pursuant to it, plight of his client can be better imagined than explained. As such it cannot be said that Annexures R-6, R-6/B and R-7 were executed of free will and volition, much less can be said to have been submitted by the appellant voluntarily to the respondent. 7. All these pleas were seriously contested and resisted by Shri Bagga learned Counsel for the respondent. He submitted that appellant is trying to become wiser after having pocketed the money. 7. All these pleas were seriously contested and resisted by Shri Bagga learned Counsel for the respondent. He submitted that appellant is trying to become wiser after having pocketed the money. If this amount was not acceptable to him, he could have very well refused or at least have objected to it at that stage. In these circumstances, according to him, complaint was rightly dismissed by the District Forum below and he prayed for upholding the said order while dismissing this appeal with punitive cost. Further according to Shri Bagga, his client has acted in a very fair, just and reasonable mariner when the claim was not only settled but was paid immediately after the appellant had consented and thereafter legal notice was duly replied to by the respondent. 8. Looking to the peculiar facts and circumstances of this case, as also the two· survey reports - preliminary as well as final, on which great emphasis was laid by Shri Bagga, on behalf of the respondent, we are satisfied that the submission of Mr. Jamalta is well founded that his client was in no win situation. Reason being that due to fire, his dwelling house, which was insured, was a case of total loss, household effects were also destroyed. In these circumstances, his client had no option but for succumbing to offer made by the respondent by submitting Annexure R-6/B, followed by consent letter Annexure R-6, and discharge voucher Annexure R-7. In this behalf according to him refusal to accept this amount would have multiplied the miseries of the appellant further. Therefore, no benefit can be derived by the respondent from the discharge voucher Annexure R-7, qua its stand regarding full and final settlement of his claim in its entirety. In this behalf dates of these documents assume significance. Annexure R-6/B is dated 8.7.2004. This is accompanied by consent letter, Annexure R-6. Pursuant to it cheque was received by the appellant. The date of the discharge voucher is 9.7.2004. Immediately thereafter i.e. on 20th July, 2004 legal notice was got served by the appellant which was received in the office of the respondent on 21.7.2004. As such submission of Mr. Bagga that the full and final payment was made by his client, vide Annexure R-7, stands repelled. The date of the discharge voucher is 9.7.2004. Immediately thereafter i.e. on 20th July, 2004 legal notice was got served by the appellant which was received in the office of the respondent on 21.7.2004. As such submission of Mr. Bagga that the full and final payment was made by his client, vide Annexure R-7, stands repelled. For taking this view reliance is being placed on a decision of the National Commission in the case of United Insurance Company Ltd. - Appellant vs. S. Jagganath Singh Respondent, 2009 STPL(CL) 1150 NC. Nothing to the contrary has been brought to our notice. 9. A perusal of both the reports of the surveyor also supports the submission of Mr. Jamalta to a large extent, that this was virtually a case of total loss though it has been observed by the final surveyor in Annexure R-5-D that the value of the debris of house was Rs.80,000/-, of other household effects Rs.63, 750/ - and salvage of household effects was assessed at Rs.l,500/ - by him. This supports the claim of the appellant that this is a case of total loss. If the house was in habitable condition and/ or the household effects were useable, then in the final surveyor's report, the above amounts would have been shown accordingly and not as value of debris/salvage that was found at the spot. In the light of these circumstances, we are of the view that this appeal deserves to be allowed. Ordered accordingly. 10. In this case the reports of both the surveyors cannot be accepted on which great emphasis was laid by Shri Bagga, for the respondent for rejection of the appeal. Reason being that admittedly the survey that was to be carried out was in respect of civil works because of the insured house which was gutted due to fire. We are of the view that for assessing loss in such case, a Civil Engineer was the appropriate person who should have been deputed. Whereas not only for preliminary survey, but even for final survey, a Mechanical Engineer was deputed by the respondent. We have no doubt in our mind that the qualification, as well as expertise of a Civil Engineer and of a Mechanical Engineer are totally different. The expertise is not inter-changeable, neither one can be a substitute for the other. 11. There is another reason to reject this appeal. We have no doubt in our mind that the qualification, as well as expertise of a Civil Engineer and of a Mechanical Engineer are totally different. The expertise is not inter-changeable, neither one can be a substitute for the other. 11. There is another reason to reject this appeal. In this behalf reference is being made to a decision of this Commission in Original Complaint No.412007 decided on 25.6.2008, M/s. Hotel Woodrina vs. United Insurance Company Ltd. In this case report of a Mechanical Engineer in respect of civil works was rejected. The order of this Commission was challenged before the National Commission in Revision Petition No.3591/2008. While disposing of this revision, on this aspect, National Commission held as under:- ". . .. . .. . .. . ... Good reasons have been assigned by the State Commission for discrediting the report of Umesh Kumar Sood, Surveyor appointed by the Insurance Company. The State Commission preferred to put credence on the, survey report of Mr. Saini who was a Civil Engineer than the report of Mr. Sood who was obviously Mechanical Engineer. One can take notice of the fact that regard being had to the nature of the job which the survey was required to accomplish, the surveyor should have possessed expertise in the Civil Engineering............" 12. No other point was urged. In view of the aforesaid discussion, while allowing this appeal-, it is ordered that the appellant is entitled to be indemnified by the respondent in the following manner:- a) Against total sum of Rs.12,75,000/ - Rs.11,95,000/- for building: (Rs.12,75,000/- - Rs.80,000/-) b) For household effects: Rs.1,59,750/- (Rs.2,25,000/- - Rs.65,250/-) i.e. to a total sum of Rs.13,54,750/-. The appellant has already received a sum of Rs.8,53,117/-. Thus the balance amount payable by the respondent to the appellant works out to Rs.5,01,633/-, it is on this sum that the appellant is held entitled to interest @ 9% per annum from the date of filing of the complaint, i.e. 23.11.2004 till the date of payment/deposit, whichever is earlier, besides Rs.10,000/ - as costs of this appeal as well as of the complaint below. Ld. Counsel for the parties have undertaken to get copies of this order free of costs as per rules from the Court Secretary. M.R.B.