Date of filing:- 01/10/2018.

Date of Order:-02/04/2024.

DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION

B A R G A R H (ODISHA).

Consumer Complaint No. 62 of  2018.

            Sri Prabhash Kumar Sahu since expired substituted through L.Rs

            a.   Smt. Bindu Sahu, aged about 59(fifty nine) years, Wife

            b.   Sri Saurabh Sahu, aged about 43(forty three) years, Son

            c.   Sri Sumit Sahu, aged about 40(forty) years, Son

            All are R/o/At. Ashok  Bhawan, Raghunath Para, Titilagarh, Dist. Bolangir (odisha)                                                                                                                                                       .....           .....        .....             Complainants.

-: V e r s u s :-

1. The Branch Manager, Oriental Insurance Co. ltd, Swadhin Para, Titilagarh, Dist. Bolangir.
2. The Divisional Manager, Oriental Insurance Co. ltd. Bhawanipatna, Dist. Kalahandi.          .....       .....             Opposite Parties.

Counsel for the Parties:-

For the Complainant :-                        Sri H.Harpal, Advocate with associates.

For the Opposite Party :-                    Sri P.K.Mahapara, Advocate.

                                                            -: P  R  E  S  E  N  T :-

Smt. Jigeesha Mishra               .....       .....       .....       .....       .....       P r e s i d e n t.

Smt. Anju Agrawal             .....            .....       .....       .....       .....       M e m b e r (W).

Dt.02/04/2024.                                 -: J   U  D   G  E  M  E  N  T:-

Presented by Smt. Jigeesha Mishra, President:-   

1)         The case of the Complainant is that Prabhash Kumar Sahu is the licensee of Dava O.S. Shop situated at Dava coming under P.S. Jharbandh, Dist. Bargarh(Odisha). The present case was filed by Prabhash Kumar Sahu. He was died on 24-05-2022. His legal heirs are Bindu Sahu, Saurabh Sahu and Sumit Sahu. As the Complainant died his legal heirs were substituted and they are the Complainants in this case. Prabhash Kumar Sahu was the partner of the partnership firm at M/s Shiw Prasad Prabhash Kumar. An insurance policy was taken bearing No. 346090/11/2017/4 which was valid on the date of incident to cover the insurance of the said O.S. Shop like articles of manufacturing implanted in the said shop and other items used in the shop. On dt. 05-10-2016, huge mass of miscreants including Rebati Giri, Rubilasa Pradhan, Meena Barik and others suddenly entered into the shop armed with Tangi, Khandas and other weapons and damaged the Bhati totally, broke the locker, took away Rs, 15,000/-(Rupees fifteen thousand) only, damaged the liquor kept in the shop. They also damaged CC Camera and other articles. The Complainant suffered a huge amount to the tune of more than 17 Lacs. The Complainant has taken the O.S. Shop for earing livelihood and to maintain the family. Immediately after the occurrence, the Opposite Party No.1(one) was informed as well as divisional office at Bhawanipatna and claimed to pay the amount which the Complainant suffered due to the incident. One surveyor namely Ramesh Indoria came to the  Dava, took photographs and made necessary enquiry at the spot about the loss and went back. But the Complainant was not compensated for the loss suffered by him for which reminders were served on different dates and an advocate notice was served but in vein. Hence the petition was filed for deficiency in service and unfair trade practice of the Opposite Parties.

2)         The case of the Opposite Party is that the District Commission, Bargarh has allowed the version of the Opposite Parties on dt. 19-12-2022. The Complainant preferred writ in the High Court vide W.P.(C ) No. 41059 of 2023 against the order of the District Commission dated 19-12-2022. The Hon'ble High Court, Orissa  has set aside the order dated 19-12-2022 of District Commission. Hence the version filed by the Opposite Parties are not accepted. In course of argument, the Opposite Parties raised question on maintainability of the case. The Opposite Parties submitted that the Complainant is doing commercial activities. Hence the case is not maintainable and the complaint case should be dismissed.

3)         After perused of complaint petition and documents the following issues are framed.

1. Whether the Complainant is a consumer ?
2. Whether the Opposite Parties are deficient in service ?
3. Whether the Complainant is entitled to get relief ?

Issue No.1(one)

4)         The Opposite Parties submitted that the Complainant is doing commercial activities and the case is not maintainable. The Complainant submitted that the Complainant has taken the shop for earning livelihood. The Complainant cited the judgment of Hon'ble Supreme Court of India, Civil Appeal No.(s) 53525353 of 2007, National Insurance Co. ltd Vrs Horsolia Motors and Others. In this case the Apex Court held that the complaint filed by the respondent insured has no close or direct nexus with the profit generating activity and the claim of insurance is to indemnify the loss which the respondent insured had suffered and held that the respondent is a consumer. As per the decision of  National Insurance Co. ltd Vrs Horsolia Motors and Others, the  Complainants are consumer. The insured had taken policy from the Opposite Parties. After his death his legal heirs are consumer. The case is maintainable and the issue is answered accordingly.

Issue No. 2(two)

5)         It is admitted fact that the incident was occurred during the validity of insurance policy. FIR was lodged. When the policy is admitted and incident occurred during the validity period, it was the duty of the Opposite Parties to settle the claim. But the Opposite Parties did not assessed loss after the death of first surveyor. Accordingly the Opposite Parties are deficient in service for non settlement of claim. The Complainant has not filed any stock details and loss. The Complainant only submitted that the loss amount is 17 Lakhs. No documents is filed by the Complainant regarding loss. The issue is answered accordingly.

Issue No. 3(three)

6)         For non-settlement of claim by the Opposite Parties the Complainant is entitled to get relief. The issue is answered accordingly.

            As per supra discussion, the following order is passed:-

                                                            O  R  D  E  R

7)         The complaint is allowed on contest. The Opposite Parties are directed jointly and severally to assessed loss and settle the claim within one month from the date of this Order. Further the Opposite Parties are directed to pay Rs. 30,000/-(Rupees thirty thousand)only compensation for deficiency in service and Rs. 10,000/-(Rupees ten thousand)only for litigation expenses to the Complainant, failing which, the entire amount shall carry 12%(twelve percent) interest per annum till realization.

            The order pronounced in the open Court on 02th day of April 2024.

                        Supply free copies to the Parties.

                                                                                             Typed to my dictation

                                                                                              and corrected by me.

                                    I agree,                                           (Smt. Jigeesha Mishra)

                                                                                                    P r e s i d e n t.                                                                                                    

                           ( Smt. Anju Agrawal)

                                M e m b e r(w).