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and final settlement of its claim, the complainant is estopped from claiming any
further amount from the insurer. The second plea taken by the opposite party is that
not only the stock kept in the godown but also the stock in transit as well as the
amount receivable from the market were required to be taken into consideration, for
the purpose of deciding whether there was under any insurance or not and if the stock
in transit and the market receivable are added to the actual stock kept in the godown,
there was under insurance to the extent of 41.26% and therefore the payment made
to the complainant was justified, after making deduction on account of under
insurance.
3. The learned counsel for the complainant has placed before us a Circular No.
IRDA/NL/CIR/Misc/173/09/2015 dated 24.09.2015 issued by Insurance Regulatory
Development Authority of India (IRDA) to all the General Insurance Companies, with
regard to the use of discharge vouchers in settlement of claim. The said circular reads
as under:—
“The Insurance Companies are using ‘discharge voucher’ or “settlement
intimation voucher” or in some other name, so that the claim is closed and does not
remain outstanding in their books. However, of late, the Authority has been
receiving complaints from aggrieved policyholders that the said instrument of
discharge voucher is being used by the insurers in the judicial fora with the plea
that the full and final discharge given by the policyholders extinguish their rights to
contest the claim before the Courts.
While the Authority notes that the insurers need to keep their books of accounts
in order, it is also necessary to note that insurer shall not use the instrument of
discharge voucher as a means of estoppel against the aggrieved policy holders
when such policy holder approaches judicial fora.
Accordingly insurers are hereby advised as under:
Where the liability and quantum of claim under a policy is established, the
insurers shall not withhold claim amounts. However, it would be clearly understood
that execution of such vouchers does not foreclose the rights of policy holder to
seek higher compensation before any judicial fora or any other fora established by
law.
All insurers are directed to comply with the above instructions.”
It is contended by the learned counsel for the complainant that in view of the
aforesaid circular, which is binding upon the insurer, the plea of estoppel cannot be
pressed by it.
4. The learned counsel for the insurance company submits that the aforesaid
circular cannot be given retrospective effect by applying it to the present complaint
particularly when there is nothing in the circular to give retrospective effect to the
directions contained therein. It is also submitted on behalf of the insurer that since the
said circular was not issued at the time discharge voucher was obtained and payment
was made to the complainant, there was no deficiency on their part in rendering
services to the complainant. This is also the submission of the learned counsel for the
insurer that the insurance companies are making representation to IRDA to withdraw
the aforesaid circular and are also contemplating legal action to challenge the said
circular. He also submits that the circular issued by IRDA cannot supersede the
decision of the Hon'ble Supreme Court on the subject United India Insurance v. Ajmer
Singh Cotton & General Mills [(1999) 6 SCC 400] and National Insurance Co. Ltd. v.
Sehtia Shoes [(2008) 5 SCC 400]. We, however, find no merit in the contention that
the said circular is contrary to the above referred decisions of the Hon'ble Supreme
Court. If the Insurance Company is aggrieved from the aforesaid circular, a consumer
forum is not the appropriate forum to challenge its validity and so long as the said
circular remains in force, the insurer, in our opinion is precluded from taking the plea
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reads as under:—
“The property is situated at:- Building No. 38, Gala Nos. 1 & 2, Arihant Complex,
Near Kopar Bus Stop, Bhiwandi, Dist. Thane-421302.
ON STOCK OF PHARMACEUTICALS
DRUGS, COSMETICS AND PACKING
Description of Risk:
MATERIALS AND OTHER STOCK LOCATED
IN GODOWN AT THE ABOVE ADDRESS”
10. It is crystal clear from a bare perusal the above referred extracts from the
insurance policy that the said policy covered only the goods which had been stored in
Building No. 38, Gala Nos. 1 & 2, Arihant Complex, Near Kopar Bus Stop, Bhiwandi,
Dist. Thane. Neither the stock in transit nor the market receivables were insured by
the opposite party. Therefore, there can be absolutely no justification at all for the
insurer to take into account the goods in transit and the market receivables for the
purpose of deciding whether there was any under insurance on the part of the
complainant or not. Admittedly, if the goods in transit and market receivables are
excluded, the value of the goods at risks was only Rs. 6,20,00,000/- as against the
insured value of Rs. 6 crores. The complainant has no objection to an appropriate
deduction being made, on account of the value of the goods at risks being Rs. 20 lakhs
more than the insured value of Rs. 6 crores.
11. Admittedly, the total amount payable to the complainant, after making
adjustments for under insurance to the extent of Rs. 20 lakhs, comes to Rs.
4,18,69,233/-. The opposite party having paid only Rs. 2,52,54,735/-, the
complainant is entitled to the balance amount of Rs. 1,66,14,498/- from the insurer.
12. For the reasons stated hereinabove, the opposite party is directed to pay an
amount of Rs. 1,66,14,498/- to the complainant along with interest on that amount @
9 % per annum from the date of filing of the complaint till the said amount is paid. In
the facts and circumstances of this case, there shall be no order as to costs. The
payment in terms of this order shall be made within six weeks. The complaint stands
disposed of accordingly.
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