Orissa

Kendujhar

CC/57/2015

Bimbadhar Rout - Complainant(s)

Versus

1. The Deputy Manager, New India Assurance Co. Ltd. - Opp.Party(s)

Sri C. Hota & Associates

08 Mar 2017

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 57 OF 2015

    Bimbadhar Rout, aged about 38 years,

    S/o- Kamal Lochan Rout,

    Village- Tandibeda, P.O- Dhenkikote,

    P.S- Ghatgaon, Dist- Keonjhar……………………………………………Complainant

                             Vrs.

1. The Deputy Manager,

    New India Assurance Co. Ltd.

    1^st Floor, Ashok Bharati Tower,

    Sahid Nagar, BBSR-751007

2. The Divisional Manager,

    New India Assurance Co. Ltd.

    Canara Bank Building, Jajpur Road,

    At/P.O- Jajpur Road, Dist- Jajpur

3. The Manager,

    New India Assurance Co. Ltd.

    At/P.O- Keonjhargarh, P.S- Town,

    Dist-Keonjhar

4. The Regional Manager,

    M/s. Hinduja Leyland Finance Ltd.

    At- Plot No.392, 3^rd Floor, Lewis Road,

    BJB Nagar, Bhubaneswar-751019…………………………………………Opp. Parties

 

PRESENT:

  Shri Purushottam Samantara, President

  Smt. B. Giri, Member (W)

  Adv. for the Complainant - Sri C. Hota & Associates

  Advocate for OPs (1,2&3) - Sri N.G. Das

  Advocate for OP4 - Sri A.K. Pattnaik & R.R. Rana

__________________________________________________________________________________________ 

Date of Filing - 07.12.2015                                                                                          Date of Order - 08.03.2017

SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1. The setout of the case is that the complainant owned vehicle bearing Regd. No.OR-09P-2919, financed by Hinduja Leyland Finance Ltd.  Keonjhar. The vehicle was insured by New India Assurance Co. Ltd. The Insurance tenure is valid up to 30.03.2012 as averred.

2. The complainant also averred the vehicle met accident on dt.25.10.2011 near Mangalabara Hata. The Policy No.555010031100100001947.Occurance intimated to the Insurer. Surveyor is deputed so also submitted the report thereof.

3. The complainant further averred, the financier has made an Execution Case No.293/14 before the Hon’ble District Judge, Keonjhar arising out of A.C.P No.328/12 dt.07.12.2012 and the award costs Rs.20,39.022/- being alleged due for non-settlement of claim by OP4.

4. Further submitted the arbitration award has been passed without non-observance of the procedure of law. Even the Insurer’s non-settlement complicated the repayment schedule for which the financier implicating in different proceedings.

5. The admittance of the OP clearly shows the deficiency of service and intentional harassment. Praying direction be passed to settle the claim along with relief as deemed fit. Reliance made on advocate notice and affidavit.

6. On notice, the New India Assurance Co. (herein after called) the OP1 to 3 submitted the Policy as issued is admitted so also deputing surveyor in different dates. Admittedly the report has been submitted but the claim settlement did not materialize due to inaction and non-submission of necessary document at petitioner’s end. The survey report is submitted before the Insurer on dt.14.12.2012 for a sum of Rs.4,17,680/-. The claim was closed on 01.03.2013 vide letter No.3184/01.03.13 inter alia the case is not maintainable being barred limitation and no cause of action, hence liable to be dismissed.

7. The OP No.4 (Hinduja Leyland Finance Ltd.) stated the complainant has suppressed material facts. The complaint has been filed to evade the legal liability and extract under advantage. Approached with unclean hands, the story as said has no basis and concocted to gain monetary benefit. The case is not maintainable as one A.C.P No.328/2012 on dt.07.12.2012 has been awarded towards a sum of Rs.20,36,527/- and consequential remedy of execution proceeding vide Exn. Case No.293/14 in D.J Keonjhar well speak the barred of jurisdiction by this forum in view of different Judgement passed earlier. Thus on this score the complaint is liable to be dismissed.

8. Heard the learned counsels and perused the material on record.

9. Perusal of the record and relevant documents insist to consider the issue of maintainability on the outset.

10. We noticed the vehicle met accident on dt.25.10.2011 and on the issue no dispute persists to note. Again the Insurance claim was declared as “No claim” on the letter vide No.3184, dt.01.03.13 it is settled principle, the cause of action arose on the date of loss, i.e. on dt.25.10.2011 and the limitation extends up to 24.10.2013.

11. Further also noticed, on the other hand, the claim is repudiated on dt.01.03.13 which amply speaks the limitation extends up to 28.02.2015 and we prefer to insist on latter as same is beneficial to the complainant. Which also well speaks, the case may be filed as on the date of 28.02.2015, beyond the date, it is well gauzed that filing of any nature abounds in barred of limitation. The present case is filed on 07.12.2015, which is beyond the provision that contemplated U/s.24 (A) of the C.P. Act “The period of limitation would run from the date of repudiation and would not remain confined to the date of loss” - Prabodh J. Kothari V/S The Oriental Insurance Co. Ltd & Others - 2013 (2) CLT 81 (NC).

12. On the other hand, the arbitration Award is passed on A.C.P No.328/2012 on dt.07.12.2012 so also the execution Case No.293/14 and it is settled, “where Arbitration proceedings were initiated much after the consumer Complaint was filed and then arbitrator gave award, it would not render complaint or order passed by Consumer for a infructuous” - M/s. Magma Financial Corporation Ltd. Versus Pandit Ishwar Dev Thakur - 2012 (2) CPR 280(NC).

13. But, whereas in the present case, the complaint is filed on dt.7.12.2015 much after the order has been passed under the Arbitration proceeding. In this context the authority says 2006 (3) CPR 339(NC) - The Installment Supply Ltd. VS “Kangra Ex-Serviceman Transport Co.” & Another lays hand that “A complaint cannot be decided by the Consumer Fora after an arbitration award is already passed”.

14. “Where award had been passed by the Arbitrator, in such a case no complaint could be filed before the District Forum and the District Forum could not entertain that complaint and should not pass overlooking the terms of award”.

(ii) After award passed by the Arbitrator, Consumer forum cannot decide complaint -

      HDFC Bank Ltd. Versus Yarlayadda Krishna Murty - 2013 (1) CPR 129 (A.P).

          For the aforegoing reasons, we are of the opinion that the complaint lacks merit, invoking the Consumer Complaint Act is not fruitful to the petitioner and pleadings are infructuous and so we dismiss the case accordingly.            

 

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.

Pronounced, 8^th March 2017.      

 

                                                                                                                                                                 

                   I agree                                                                         

             (Smt. B. Giri)                                                                                      (Shri Purushottam Samantara)

            Member (W)                                                                                                         President                    

         DCDRF, Keonjhar                                                                                             DCDRF, Keonjhar                                                   

          

                                                                                 Dictated & Corrected by me

                                                                               (Shri Purushottam Samantara)

                                                                                             (President)

                                                                                       DCDRF, Keonjhar