Orissa

Jajapur

CC/21/2015

Narayan Nayak - Complainant(s)

Versus

Manager(Legal) M/S Magma H.D.I General Insurance Co.Ltd - Opp.Party(s)

Sujit Sen,Sitanshu Sekhar Mohanty

29 Dec 2015

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                             Present:  1.Shri Biraja Prasad Kar, President,

                                                                             2.Shri Pitabas Mohanty,Member

                                                                             3. Miss Smita Ray, Lady Member.

Dated the 29th  day of December,2015.

C.C.Case No.21 of 2015

Narayan Nayak, S/O Late Sadhu Charan Nayak

At. Nanpur Patna,  P.O./P.S.Balichandrapur

Dist.Jajpur.                                                                                             ………………………..Complainant .                                                                                   

           (Versus)

1.Manager(Legal) M/S Magma H.D.I.General Insurance Co.Ltd,Magma House

    24  park street ,Kolkata.    

2. Manager,Magma Finace Corporation ltd, Registered Office,24,park street

    Dist.Kolkata .

3.Manager, Magma Finance Corporation Ltd, Branch office,At.Chandikhole

    Sunguda,Dist.Jajpur.                                                                                      ……………Opp.Parties.           

                                                                                                                                                

For the Complainant:                          Sri S. Sen, Sri S. Jena, Mr. S.S. Mohanty, Advocates.

For the Opp.Party no.1:                      Sri  S. Ku. Mishra, Sri R.Ku. Mohanty ,Advocates.

For the Opp.Party no.2 and 3 :           Sri A.Ku.Pahil,Advocate.

                                                                            Date of order  : 29.12. 2015.

SHRI  BIRAJA  PRASAD  KAR, PRESIDENT.

                        Deficiency in  service is the grievance of the complainant.

                        Succinctly put, the brief facts of the complaint are that the complainant obtained an Insurance policy from O.P.no.1 for his Truck bearing Regd. No.0R-09-H-0957 covering the period from 17.10.13 to 16.10.2014 . While so ,on 26.04.2014, the vehicle met with an accident and the complainant averred that he got it repaired spending Rs.2,27,440/- . It was pleaded that O.P.no.1 colluding with O.P.no.2 sent an assessment  sheet made by the surveyor  for Rs.24,000/- only to which the complainant refused to receive. The delayed settlement of Rs.24,000/- by O.P.no.1 instead of Rs.2,27,440/- is illegal and erroneous .  It was further alleged by the complainant that when the complainant took his repaired vehicle to the R.T.O, Chandikhole for obtaining fitness and permit the O.P.no.2 seized the vehicle on 18.12.2014 intentionally and deliberately in order to harass the complainant. Thereafter on 24.01.2015 the O.P.no.2 after receipt of Rs.1,51,500/- towards the arrear installment and stock yard charges released the vehicle. The complainant alleging deficiency in service on the part of the O.P. has filed this dispute / complaint with the prayer to direct the O.Ps. to pay Rs.5,00,000/- along with the cost and interest.

                        On being noticed the O.P.no.1 Insurance Company appeared through his advocate and filed his preliminary/Addl. written version refutting the allegations made in the complaint petition and pleaded that this O.P has deputed its surveyor on the same day of receipt of claim intimation and the surveyor has taken photographs of the slightly damaged left side bumper of the Truck of the complainant standing in front of Charmal P.S but regarding the  total estimated loss made by Suraj Motors Garage, Jagatpur, this O.P does not admit the same being highly manipulated estimates. However those have been properly verified by the Surveyor and were the subject matter of assessment by the final Surveyor which has been reflected in final survey report and the report of Surveyor has to be given due weightage as per the decision of the Hon’ble Supreme Court and National Commission .

                        Regarding the estimated / final bill submitted by the complainant, this O.P humbly submits that those bills are created and not obtained  from show room and no way connected to the damage of his vehicle. This O.P humbly submits that the vehicle of complainant was proceeding from Khurda towards Brajarajnagar and on the way near Charmal P.S a cow came across the road and to save her, the driver turned the vehicle towards left side and dashed with a tree causing minor damage to the left side bumper, some portion of left side front show as per the survey report and photographs taken by surveyor at the relevant time and accordingly the total damage has been assessed the extent of Rs.24,000/- by the final surveyor and the said amount has been paid to the complainant towards his full and final claim by this O.P effecting proper claim disbursement voucher as admitted by the complainant, in para- 6 of the petition.

                        This O.P humbly submits that the complainant has received Rs.24,000/- as full and final satisfaction of his own damage claim of his Truck No.0R-09H-0957 as per assessment made by the final surveyor with his free consent without any protest from his side and without coercion, fraud or undue influence and after receiving the assessed amount, he has filed this false case only to harass this O.P. However the complainant should be put to strict prove before this Forum that he has protested the assessed amount of surveyor while receiving amount of Rs.24,000/- as full and final settlement from this O.P and proof that coercion, fraud or undue influence was imposed on him to receive the assessed amount of claim of Rs.24,000/- failing which the present complaint will be dismissed with heavy cost on him since he has not approached this Forum with clean hands and has suppressed such material facts to this Forum.                  There is no deficiency of service by this O.P as the claim has been processed in due time in consultation with the complainant and he was in close contact with this O.P for settlement of his claim and the claim has been settled full and final with his consent. The amount of claim is imaginary and misconceived. The complainant is not liable to get the same since he has already admitted to have received his full and final claim amount of Rs.24,000/- from this O.P and his further claim is baseless and the present claim deserves no merit and in this respect the O.P no.1 relies upon a decision of the Hon’ble National Commission reported in 2005(1)CPR-96(NC) decided between United India Ins. Co.Ltd. Vrs. Jadav Kiran Stores and in 2005 (1) CPR-99-(NC) decided between M/S Essen Enterprises and National Is.Co.Ltd and in 2006(1)CPR-235(NC) decided in the matter of National Ins.Co. Ltd.vrs. Mrs.Aleyama Verghese & Ors wherein their Lordship has given a finding that in Insurance claim  the report of Surveyor is an important document which can not be brushed aside and should not be shunned without sufficient reasons and the assessment of loss made therein has to be specifically agreed or rebutted and further said that where loss was assessed by Surveyor by taking all facts and circumstances in to consideration, there would be no justification for Consumer Fora  to differ from the assessment and there are number of judgments  of the Hon’ble National Commission and of Hon’ble Supreme Court in this regard to be filed by this O.P. later at the time of argument of the case.

                        In view of the above the present complaint should be dismissed with cost since it has no merit.

                        The O.P.no.2 and 3 appeared through their advocates and filed their written version. In the written version it is pleaded that the complainant is a debtor and the  O.P is a creditor and the relationship between the parties is that of a debtor and creditor which is outside the scope and preview of the C.P. Act. The dispute and difference between the debtor and the creditor can not be a subject matter of a petition of complaint before any Consumer Forum and as such the dispute does not fall within the scope and ambit of the C.P.Act. Therefore, the complainant is not able to get any relief from this Hon’ble Forum. As per judgement of Hon’ble NCDRC, as reported in 2006(III) CPJ-247(N.C) which is well discussed and relied by the Hon’ble SCDRC, Orissa while deciding the case of Deepak Kumar Sahoo-Vrs.Indusind Bank Ltd vide judgement dt.30.11.2009. this point has been well established . It is also discussed and decided  in case of Mandal plastic Industries Vs. Bihar State Financial Corporation (1998(2) CPR-254) with regard to grant of loan by Financial institution it was held that the borrower is not a consumer under the Act. Thus the complainant is liable to be dismissed on this very ground.

                        When there is alternative redressal Forum of Arbitration as per Agreement between the parties, and the matter of dispute had been referred & finally disposed off, and that Award being unchallenged became a Decree, the complainant has no locus-standee to file any complaint before this Hon’ble Forum. As the Arbitration Award has been passed before initiation of this complaint, this Hon’ble Forum has lost its jurisdiction to decide any dispute between complainant and this answering O.P . As per judgement of Hon’ble NCDRC as reported in 2006(3) CPR-339(NC) in case of ‘ the Installment Supply Ltd” Vrs. Kangra Ex-Serviceman Transport Co.& another. It is observed that :

“ A complaint can not be decided by the Consumer Fora after an arbitration award is already passed “.

                        Under  the above mentioned circumstances the C.C. Case is liable to be dismissed against the O.P no.2 and 3 as there is no negligence on the part of the O.Ps.

                        On the date of hearing we have heard arguments from the learned advocates concerned , perused the record and documents available in detail.

                        From the record, evidences on record and arguments it is clear that the complainant being dis-satisfied with the assessment of the surveyor has filed this dispute for enhancement of claim. As per survey report, the loss sustained by the complainant towards repairing of the vehicle was Rs.24,000/- but the complainant has filed the bills of different work, shops such as Bijay works Madhupatna-Cuttack-10-M/S  Sarala Authomobiles,Jagatpur-Cuttack. Jai Maa Tara,Jagatpur Cuttack,Raj Auto Electricals,Jagatpur,Cuttack,Maa Laxmi Glass House,Jagatpur,Cuttack Poular Automobiles, Jagatpur, Cuttack amounting to Rs.2,27,440/-                           towards the repairing charge of the vehicle. It is no more res integra that the Surveyor report be given due weightage and it can not be brushed aside unless there is sufficient material to the contrary. The complainant though filed the assessment  of the Surveyor but had not challenged the Surveyor’s report by adducing any evidence, rebuttal evidence nor cross examining the surveyor. So in our view, it will be apposite to accept the assessment made by the Surveyor towards the repairing of the vehicle.

                        The next question arises that the complainant challenged the full and final receipt through an affidavit filed on 05.10.15 stating therein that the signatures appearing on the full and final discharge voucher (filed by O.P no.1) does not belong to him and it is a manufactured one. This is a case of fraudulent transaction. In our view this fraudulent transaction can not be decided by this Fora . More over the complainant has not taken any steps to send his disputed signature appearing in the full and final settlement voucher to the hand writing expert for comparison with the admitted signatures appearing in the complaint petition , vokalatnama etc. Complainant has miserably failed to establish that the full and final settlement voucher is a created one for the purpose of this case and the signature appearing in the voucher does not belong to him. Under the aforesaid observation the C.C. Case is liable to be dismissed.

                        As against the claim of the complainant against of O.Ps.no.2 and 3, the present C.C. Case is filed by the complainant after the arbitration award is passed. Hence, in view of the decision of Hon’ble National Commission reported in 2006(3)CPR-339(The Installment Supply Ltd Vrs. Kangra Ex-Serviceman Transport Co & another) and decision of our own State Commission passed in Revision petition No. 97/12 (Sangram Rout  Ver.  Niranjan Palei) decided on 16.07.2013, this C.C. Case is not maintainable against the O.P.no.2 and 3.

O R D E R

                        Resultantly, the C.C. Case is dismissed against all the O.Ps on contest without any costs.

                                    This order is pronounced in the open Forum on this the 29th day of December ,2015. under my hand and seal of the Forum.