Date of filing :- 09/09/2014.
Date of Order :- 11/01/2017.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 22 of 2014
M/S Sports Planet represented through Sri Siba Prasad Mishra S/o. Keshab Chandra Mishra, aged about 40(forty) years R/o- Hatpadapda, W.No. Post/Ps/Dist/-Bargarh.
..... ...... ...... ..... Complainant.
-: V e r s u s :-
The Branch Manager, Oriental Insurance Company, Ltd Bargarh represented through it’s Divisional Manager, Sambalpur Division, Sambalpur P/o/Dist-Sambalpur.
..... ..... ..... ..... Opposite Party.
Counsel for the Parties.
For the Complainant:- Sri P.K.Panigrahi, Advocate with other Advocates.
For the Opposite Party:- Sri P.K.Mahapatra, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Dt.11/01/2017 -: J U D G E M E N T :-
Presented by Sri K.P. Mishra, President:-
Brief Fact of the case;-
In pursuance to the provision of the Consumer Protection Act U/S 12 the case has been filed by the Complainant thus as the Complainant is the owner and Proprietor of M/S Sports Planet situated at Hatpada of Bargarh town carrying on his business in selling and supplying sports materials to earn his livelihood, have entered upon an insurance policy with the Opposite Party's company vide policy No. 345601/48/2012/1056 commencing from Dt. 20.03.2012 to Dt.19.03.2013 midnight against his said shop for a sum assured amount of Rs. 26,00,000/- (Rupees twenty six lakh)only with an agreed terms and condition as enumerated in the policy bond of the said policy to compensate the Complainant in case any damage occurred to the said shop due to theft, burglary & etc.
Further the case of the Complainant, during the subsistence of the said policy, theft was committed in his shop by some miscreants, immediately on the next day the Complainant reported about the incident before the local police and also to the Opposite Party but the police submitted F.R.T. as no clue.
Simultaneously claim for compensation was lodged before the insurer Opposite Party against a claim of Rs.15,19,125/-(Rupees fifteen lakh nineteen thousand one hundred twenty five)only but the Opposite Party deputed Surveyor to assess the loss up to Rs.7,00,000/-(Rupees seven lakh)only and basing on the report of the Surveyor an amount of Rs.4,08,187/- (Rupees four lakh eight thousand one hundred eighty seven)only was awarded against such loss claimed by the Complainant and the same amount was deposited in the account of the Complainant by core banking system.
Being aggrieved with the assessment of the Surveyor, as his report was based on the non availability of stock register in proper manner, non maintaining of Account register of business transaction of the Complainant and his report before the police and his subsequent enhancement of claim amount on Dt. 10.11.12 for an amount of Rs.15,19,125/-(Rupees fifteen lakh nineteen thousand one hundred twenty five)only as against his claim for an amount of Rs.11,22,995/-(Rupees eleven lakh twenty two thousand nine hundred ninety five)only on Dt. 21.06.2012. The Complainant has preferred to file the present case before the Forum claiming amounting to Rs.15,19,125/-(Rupees fifteen lakh nineteen thousand one hundred twenty five)only as actual loss and Rs.50,000/-(Rupees fifty thousand)only due to mental agony with a plea that in spite of his repeated request both by writing and orally the Opposite Party did not respond. In his support some xerox copy the policy, an estimated sheet of loss, a statement of his stocks prepared by him and others have been filed.
Perusing the pleading and after hearing the counsel for the Complainant the case was admitted and notice was served on the Opposite Party and the Opposite Party appeared before the Forum with a petition claiming against the maintainability of the case to which the complainant vehemently objected by filing an objection and the Forum was pleased to reject the petition of the Opposite Party on the ground stated therein and directed the Opposite Party to file it’s version.
The Opposite Party filed it’s version re-agitating the same question of maintainability of the case in the Forum since the Complainant was a business house as such not coming under the definition of consumer, along with that it has denied it’s liability to pay any further amount of claim as he has already accepted the amount paid by the Opposite Party unconditionally by signing the discharge voucher in presence of witness as full and final settlement as such the privity of contract between the parties ends and so he is estopped from making any further claim also the Opposite Party denied the claim of the Complainant for Rs.15,19,125/- (Rupees fifteen lakh nineteen thousand one hundred twenty five)only and the calculation of such an amount as an after thought and false one. In it’s version the Opposite Party has vehemently objected the allegation of the Complainant regarding the appointment of an out sider surveyor and his report as arbitrary one. Again it has totally denied the further claim of the Complainant on the ground that at the time of making for proposal of the policy the insured /Complainant had undertaken to maintain all relevant documents like records and books of accounts, purchase, sells, stocks cash book ledgers and voucher, which he has not performed. And in view of such circumstances the claim of the Complainant has been rightly surveyed and assessed by the Surveyor on non standard basis and the Complainant admitted such award and accepted unconditionally and hence he is not entitled for further payment as claimed by him. Further it has raised a question of the limitation of Forum as the instant question of the case relates to the quantum dispute so it can not be decided by the Forum rather it need an elaborate hearing in the Civil Court. And in support of his case has filed the copy of the policy papers, a letter of the Complainant Dt. 11.06.2012, the copy of the F.I.R. lodged by the Complainant and the final report of the police. The assessment reports of the surveyors and many other Documents.
In view of the above averments made by both the parties the following points have come off for determination.
That whether the complaint is maintainable ?
That Whether The complainant is entitled for further amount of compensation ?
Whether the complainant entitled for compensation against mental agony ?
Perused the pleading version of the Opposite Party and documents filed by both parties, after going through their respective written arguments, and hearing the learned advocates of both the parties. While dealing the point No. 1(one) for determination we are of the view that the question of maintainability of the complaint since the same has been elaborately discussed at the admission stage of the case in nut shell the Complainant is running the business to earn his livelihood for self employment and the same was admitted as such it is needless to re-agitate the question of maintainability again hence it is affirmatively answered.
While dealing with the points No. 2(two) having gone through the entire materials and the pleading and version filed both the parties and after hearing the counsels of both the parties it has come to our notice from the F.I.R. lodged by the Complainant that on Dt.10.06.2012 in the midnight the incident of burglary has been committed by some miscreants by breaking the lock of his shutter and on getting information in the next day morning from neighbors of his shop i.e. on Dt. 11.06.2012, he rushed to his said shop and found that the stocks which were kept in the ground floor of his shop were missing so he immediately informed the Town Police, Bargarh also in his said F.I.R. he has mentioned that he had kept some packets of sports materials which was supposed to be supplied to some school of different districts besides those items some other materials were also missing.
On the basis of that F.I.R the police investigated in to the matter but subsequently filed his final form as the same is true but no clue. And at the same time he has also informed the insurer the Opposite Party about the incident and subsequently has applied for indemnification of such loss in the prescribed format before the Opposite Party,
On the information of the Complainant about the incident the Opposite Party has immediately deputed one surveyor to assess the loss up to Rs.7,OO,OOO/-(Rupees seven lakh)only against his claim of Rs.15,19,125/-(Rupees fifteen lakh nineteen thousand one hundred twenty five)only and the Surveyor has given his report for payment of Rs. 4,08,187/-(Rupees four lakh eight thousand one hundred eighty seven)only calculating the same loss on non standard basis as on being asked the Complainant could not produce those document like purchase, sell, stock registrar to his satisfaction which he has to maintain as per the contact entered in to by him at the time of the execution of the insurance deal with the Opposite Party, and also having gone through the survey report of the first Surveyor and another Surveyor & loss assessor of the Opposite Party, and having gone through memo of arguments and oral submission made by the counsel for the Opposite Party we found that there are several discrepancies in the claim of the Complainant as he has submitted different amount in it’s claim and in different papers, in different time, it seems as if he is not sure of the actual amount of loss he has sustained in as much as he has not maintained any record of his stocks, sell nor purchase register to substantiate his claim and more over from the survey report of the Surveyor it is found that he has gone deep in to his investigation and thoroughly surveyed the spot, the total area of operation of the business of the Complainant, the total capacity of the area concerned wherein the incident has taken place and also the storing capacity of the area to keep the alleged amount of stock to have been stored which are alleged to have been stolen, more so in it’s report he has also asked for some documents e.g to whom such stocks supposed to have been supplied and exact amount of stocks the documents for purchase of such stocks, the total stocks available by that time and some other documents to which the Complainant has failed to comply with, in default of which he has calculated the loss of the Complainant on non standard basis and recommended for the aforesaid amount of Rs. 4,08,187/-(Rupees four lakh eight thousand one hundred eighty seven)only on the contrary the Complainant has filed some calculation sheet of his stocks which is not substantiated by any documentary evidence more so it is found from the record that the Complainant has accepted the said amount by signing on discharge voucher with an endorsement as full and final payment and also has executed a documents in it’s support. And later on has raised objection to that effect. To which the learned counsel for the Opposite Party has condemned by citing a decision of National Commission Reported in NCJ 2013 wherein it has held a principle;- “Insurance claim - sought enhancement – legality – held - where privity of contact of consumer and service provider, if any, come to an end, and petitioner accepted the amount unconditionally then petitioner ceases to be a “consumer”, in furtherance to substantiate his contention regarding the worth of the report of the surveyor by citing two decision of the National Commission Reported in CPR 2008 & 2009 in Page No. 51 , 285 respectively wherein it has been held by (NC) that the report of Surveyor is an important document and can not be brushed aside lightly with out any contrary material’. Further more he has cited another decision of our own State Commission wherein it has been held that the Forum is not to assess the damages’’. In support of his such citation further more he has submitted through his memo of argument that after the alleged theft in the shop of the Complainant he has submitted two sets of claim form claiming different amounts i.e on Dt. 21.06.2012 for an amount of Rs.11,22,995/-(Rupees eleven lakh twenty two thousand nine hundred ninety five)only and on Dt. 10.12.2012 for an amount of Rs.15,19,125/-(Rupees fifteen lakh nineteen thousand one hundred twenty five)only which is self contradictory. On the contrary the Complainant has not produced any materials nor could produce any authenticity to establish his claim as justified.
In view of such aforesaid circumstances, we are of the view that the survey report of the Surveyor deputed by the Opposite Party and their assessment of loss caused to the Complainant have rightly computed and since he has accepted the awarded amounts of Rs.4,08,187/-(Rupees four lakh eight thousand one hundred eighty seven)only without any protest at the time of such disbursement in addition to that he has executed the deed of subrogation and as he has failed to produce sufficient materials to establish his further claim as justified. Hence he is estopped from making any further claim against the Opposite Party, hence the points for determination answered in favour of the Opposite Party.
Thirdly in view of the aforesaid circumstances the Complainant has failed to prove his case of claim in enhancing the awarded amount and since the Opposite Party has taken of his responsibility in surveying, assessing and paying the settled amount to the Complainant in due time and the Complainant has accepted the same, in our considerate view he has not committed any deficiency in rendering service in causing any mental agony to the complainant as against his allegation, resulting to his claim for compensation as such the points for determination is answered in favour of the Opposite Party and as such he is not entitled for any compensation to that effect.
Further more the the counsel for the Opposite Party has referred several decisions of honorable courts regarding the jurisdiction of the Forum with regard to the quantum dispute but in our humble view we don’t feel necessary to go in to such arena in view of the nature of the case in hand. Hence order as follows.
O R D E R
Hence in view of the aforesaid fact and circumstances, the Complainant has miserably failed to prove his case for enhancement of the quantity of compensation amount as against the accepted amount of Rs.4,08,187/-(Rupees four lakh eight thousand one hundred eighty seven)only awarded by the Opposite Party as such the case is dismissed without any cost.
Hence the order is pronounced in the open Forum today.
Typed to my dictation
and corrected by me.
(Sri Krishna Prasad Mishra)
P r e s i d e n t. I agree,
(Sri Pradeep Kumar Dash)
M e m b e r.
