Orissa

Cuttak

CC/22/2021

M/s S K Mohapatra & Co represented through Managing Partner Susanta Kumar Mohapatra - Complainant(s)

Versus

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

R K Pattanaik & associates

06 Jul 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.22/2021

 

M/s. S.K. Mohapatra& Co.,

Represented through its Managing Partner,

Susanta Kumar Mohapatra,

S/O:Braja Kishore Mohapatra,

At present Plot No.-1240/41,Mahanadi Vihar,

Nua bazar,Cuttack,Odisha-753004.                                     ... Complainant.

 

                                                                Vrs.

1. Branch Manager,

The New India Assurance Co. Ltd.,

Cuttack Divisional Office 1,Badambadi,

Kathajodi Road,Cuttack-753012.

 

2. Senior Divisional Manager,

The New India Assurance Co. Ltd.,

Cuttack Divisional Office 1,Badambadi,

Kathajodi Road,Cuttack-753012.                                          ... Opp. Parties.

 

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri SibanandaMohanty,Member.

 

               Date of filing:     08.02.2021

Date of Order:    06.07.2023

 

For the complainant:            Mr. R.K.Pattnaik,Adv. & Associates.

For the O.Ps.                 :        Mr. A.A.Khan,Adv. & Associates.

 

Sri Sibananda Mohanty,Member.                                          

 

The case of the complainant in short is that it is a firm registered under the Companies Act,1956 and it is represented by it’s Managing Partner.  It is the case of the complainant is that it used to undertake work contract activity pertaining to cable laying conductor stringing, pole erection, transformer erection and commissioning of electrical equipment of different power distribution company such as CESU,WESCO,SOUTHCO and NESCO throughout the Odisha.  During the course of activity, the complainant firm was required to store the materials in different places where work was being undertaken.  In order to secure safety of the aforesaid materials such as cables, conductors, poles, transformers and electrical equipments from fire, theft and other perils, the complainant had taken a Storage-cum-Erection Insurance Policy from the O.Ps bearing policy no.55030044160400000003, which was commenced from 6.1.2017 to 5.4.2017 and the sum assured was of Rs.65,00,000/- and the premium was payable under the policy was Rs.11,887/-.  It is the further case of the complainant is that while the policy was in force there was a theft in his store room at Khuntuni on 11.1.2017 at about 11 P.M. where the material was being stored.  Immediately, thereafter the incharge of the said store informed the fact of the theft to the local police station at Khuntuni on the same day at about 11.50 p.m.  The police registered P.S. Case U/S-395 of IPC and investigated the matter.  The police had also seized one TATA 407 vehicle loaded with 8 quintal of Aluminium wire, cable wire about 2 quintals, one 16 KVA transformer and two Chanel as well as had arrested some of the accused persons.  The complainant had intimated the incident of theft to the O.Ps over phone as well as in writing on 19.2.2017 and 28.2.2017.  The complainant also had given intimation to the O.Ps about the details of items which were stolen being valued at Rs.15,24,730/- and accordingly lodged a claim to that effect with the O.Ps.  The complainant also has submitted before the O.Ps police final report of Khuntuni P.S dtd. 21.7.2017.  It is alleged by the complainant that after receipt of claim form and other relevant documents, the O.Ps remained silent over the matter for a period of 1 year 9 months and only on 18.3.2019 repudiated his claim on the ground that after receipt of the survey report, it was found by them that he  had no insurable interest on the material allegedly stolen and further there was no evidence of forcible entry.  The complainant has further stated that the O.Ps in that letter has stated that  aluminium conductors/wires were not insured item under the policy as the policy was issued cable laying and thereby rejected the claim of the complainant.  The complainant after receiving the repudiation letter alleged to have represented the O.Ps to serve him the survey report and terms and conditions of the policy so that he can examine the basis of rejection of his claim but the O.Ps remained silent over the matter.  Hence, the complainant filed the present case.  The complainant in his complaint petition has prayed for a direction to the O.Ps to pay the claim amount of Rs.15,24,730/- alongwith interest, compensation for mental agony caused to him and cost of his litigation, in total Rs.16,44,730/-. 

The complainant has filed copies of several documents in order to prove his case.

2.       The O.Ps have contested this case and have filed their written version controverting the allegations as made by the complainant in his complaint petition.  It is stated by the O.Ps that this Commission has no jurisdiction to entertain and adjudicate the present dispute in hand as the dispute does not fall within the provision of the C.P.Act,2019 and is exclusively triable by Civil court and as such the complaint petition is liable to be dismissed on the ground alone.  It is also stated by the O.Ps to dismiss the complaint case as it is barred by limitation.  It is further stated by the O.Ps that the complainant is running a commercial enterprise and therefore he is not a consumer as defined under the C.P.Act,2019.   The O.Ps  admitted to have  issued Insurance policy to the complainant.  It is the case of the O.Ps is that the stock of the complainant being kept in an open space the question of forcible entry does not arise.  The O.Ps disputed about the theft of goods worth of Rs.15,24,730/-.  It is stated by the O.Ps  that the insurance was for laying of cables and the cover was operative for the goods whenthey arrive at the site and continued till the erection is completed or the works undertaken is completed which is earlier.It is stated by the O.Ps that by virtue of a contract between the complainant and CESU, the complainant was undertaking the construction work of CESU, but the CESU in the year,2016 has cancelled the said contract.  Hence, in the instant case it is alleged by the O.Ps  that no such contingency as the contract was cancelled by CESU for undertaking any of the construction work which is before the date of inception of insurance cover. It is reiterated by the O.Ps that  when there was no contract for construction/laying of cables, the fiction of insurance cover also does not exist.  The policy was obtained by suppressing the fact of non-existence of any contract of construction/erection/laying of cables and therefore the insurance contract is void ab initio. It is further submitted that there would have been Insurance coverage to the storage of materials connected with an erection work and not a mere storage which is unconnected with any construction work does not cover under the policy.  It is further stated that the construction/erection of any plant or machinery like laying of cables is the subject matter of insurance and the storage is to be incidental to it to qualify for any kind of insurance coverage in the category under which the policy was issued.  Further they have stated that the policy issued by them covers for cable laying but the insured had raised claim against them theft of aluminium wire, conductor and electrical wire which is not connected with laying of cables.  It is stated by the O.Ps that the complainant was storing the left over stocks from all his work sites to return to the Principal, CESU and it was not for use for the cable laying work relating to present subject matter of insurance.  It is alleged by the O.Ps that the survey report reveals that the store of the complainant was being used for returning of materials from sites and not for construction purpose andthat apart any item besides cable laying items is beyond the sweep of coverage.  It is further stated that the policy was not for general storage, but intended to be for construction of the proposed work.  It is stated by the O.Ps that the policy having been vitiated by fraud and want of utmost good faith, no claim could be entertained as the policy is void ab initio.  It is argued by the O.Ps that in the policy, the risk covers at Paradeep when the work was to be undertaken but not the place where the goods are stored as alleged by the complainant at Khuntuni. Hence, it is prayed by the O.Ps to dismiss the case with cost.

             The O.Ps have filed several documents as well as evidence on affidavit to prove their case.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of the O.Ps no.1 & 2, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the complainant is a consumer under the C.P.Act,2019 ?

ii.         Whether the case of the complainant is maintainable?

iii.        Whether there was any deficiency in service on the part of the O.Ps  and if they have practised any unfair trade ?

iv.        Whether the complainant is entitled to the reliefs as claimed by him?

Issues no.i& ii.

Out of the four issues, issuesno.i & ii  being the pertinent issuesare taken up  first for consideration here in this case.

          Admittedly, the complainant is a firm.  It undertakes work contract activity pertaining to cable laying, pole erection, transformer erection etc of different Power Distribution Company throughout the Odisha.  The nature of work undertaken by the complainant is commercial in nature.  It had insured one of the work contracts to be undertaken by it.  The complainant is not a consumer under Sec.2(7) of C.P.Act,2019 as he had hired/availed the service of O.Ps for commercial purposes.   Hence, the complaint petition of the complainant is not maintainable before this Commission.  As such, those two issues are decided against the complainant.

Issues no.iii& iv.

From the discussions as made above, as it is held that the case of the complainant is not maintainable, there is no need to answer the present issues.  As such the complainant is not entitled to get any relief.  Hence, it is so ordered;

                                              ORDER

Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 6^th day of July,2023 under the seal and signature of this Commission.          

                                                                                                                                                                          Sri Sibananda Mohanty

                                                                                                                                            Member

                                        

                                                                                                                                   Sri Debasish Nayak

                                                                                                                                               President