Orissa

Cuttak

CC/3/2016

Chandan Kumar Sahu, Proprietor - Complainant(s)

Versus

New India Assurance Co Ltd - Opp.Party(s)

S K Parida

18 Nov 2022

ORDER

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

                                                C.C.No.03/2016

 

Chandan Kumar Sahu,Proprietor,

M/s. Sweety Pharmaceuticals,

At/PO/PS:Chauliaganj,Town/Dist:Cuttack.                                  ... Complainant.

 

                                                Vrs.

1.        New India Assurance Co. Ltd.,

Near Nishamani Cinema,Surya Vihar,

Link Road,Cuttack.

 

2.      State Bank of India,

SMECCC Branch,Collee Square,

Cuttack-753003.                                                                     ... Opp. Parties.

 

 

Present:               Sri DebasishNayak,President.

                                Sri SibanandaMohanty,Member.

 

Date of filing:     08.01.2016

Date of Order:   18.11.2022

 

For the complainant:          Mr.S.K.Parida,Adv. & Associates.

For the O.Ps No.1     :          Mr.B.K.Sahu,Adv.& Associates.

For the O.P No.2:                 Mr. Sriharsha Pradhan,Adv. & Associates.

 

Sri DebasishNayak,President.

            Case of the complainant as made out from the complaint petition in short is that he had a medicine shop under name “Sweety Pharmaceuticals” where from he was earning his livelihood.  The said medicine shop of the complainant was insured for the period with effect from 19.11.13 to 18.11.14  and for the insured value of Rs.8,00,000/-. He had paid a sum of Rs.6523/- towards the premium of the said policy.  Thus, the policy certificate bearing no.55030348130600000156 was in favour of the complainant.  On 13.6.14 at about 11.30 p.m there was a fire accident by virtue of which the said medicine shop “Sweety Pharmaceuticals” was burnt and there was severe damage to the medicines,furnitures etc of the said shop.,  Accordingly FIR was lodged that night itself at Chauliaganj P.S and the matter was reported immediately to both the O.Ps.  One surveyor namely Ajit Nanda was deputed to assess the loss of the complainant and on 16.6.14 the said surveyor had submitted his report to that effect.  The complainant was thereby given a sum of Rs.30,000/- towards his loss which he had not accepted but had written a letter to the O.P no.1 demanding the balance amount of Rs.7,70,000/- towards the insurance amount.  The O.P no.2 had sent a notice U/S-13(2) of Securitisation Act for therecovery of the finance amount to the tune of Rs.31,923/- from the complainant.  According to the complainant, the O.P had slept over the matter after issuance of letter dt.3.2.15.  Thus by filing this case, the complainant has claimed for the total amount of Rs.8,00,000/- alongwith interest thereon @ 18% per annum till the total amount is quantified together with compensation to the tune of Rs.6,00,000/- and a further sum of Rs.10,000/- towards his litigation expenses.

            He has filed copies of series of documents in order to prove his case.

2.         On the other hand, both the O.Ps have contested this case and have filed their written version separately.  According to the written version of O.P no.1, the complainant has no cause of action for which the complaint petition is liable to be dismissed with cost.  According to O.P no.1, the surveyor Ajit Nanda was deputed who had assessed the loss to the tune of Rs.44,132/- which was further revalued to be of Rs.30,600/-.  The said amount had already been paid to the complainant on 13.11.14.  But subsequently on 3.2.15 the complainant had raised his protest.  Thus, according to the O.P no.1, the complaint petition is liable to be dismissed.  In this context O.P no.1 has relied upon certain decisions which are cited as below: 

That the Hon’ble National Commission in a decision reported in II(201$) CPJ-280 had held that whether there was a Protest exercised by the complainant, while accepting the cheque.  He has also relied upon the decision  of Hon’ble National Commission in the case of Raj Kumar Vrs. United India Insurance Co. Ltd.,III (2011) CPJ-354(NC) observed that the consent letter for full and final settlement from the complainant was obtained by the Insurance Company by misrepresentation, fraud or coercion made by exercising undue influence and applying the law laid down by the Hon’ble Supreme Court in the case of United India Insurance Company Vrs. Ajmer Singh Cotton & General Mills & Others, II(1999) CPJ 10(SC)-VI(1999) 6 SCC 400 allowed the claim of the complainant against the Insurance Company.  That in a similar case of National Insurance Co. Ltd. Vrs. Vasanthi Marine Foods Limited, 2010 CTJ 179(CP) (NCDRC), the Hon’ble National Commission has observed that each case-Appeals-Complaint made by the complainant after a considerable gap from signing the discharge vouchers were  obtained by fraud,misrepresentation, undue influence or coercive bargaining-Appeals allowed-Complaints”.  In the case of Jess Ram Khushi Ram Pvt. Ltd. & Another Vrs. National Insurance Co. Ltd. & Others reported in II(2014) CPJ 280 (NC), the Hon’ble National Commission has held that once petitioner has received the amount  unconditionally and has also got the cheque encashed, under these circumstances, petitioner ceases to be a Consumer as per the C.P.Act,1986.

Thus, according to the written version of O.P no.2, the case of the complainant is not maintainable which is liable to be dismissed, barred by law of limitation and bad for mis-joinder and non-joinder of necessary parties.  In the written version of O.P no.2, since he was a financier of the complainant he has to realise the outstanding arrear from the complainant to the tune of Rs.3,19,231/- alongwith interest thereon for which they had sent notice U/S-13(2) of Securitisation Act.

3.         After going through the averments of the complaint petition and the written version as available in the case record, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable ?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

            iii.        Whether the complainant is entitled to the reliefs as claimed ?

Issue no.ii.

Out of the three issues, issue no.ii being the pertinent issue is taken up first to be considered here in this case.

            Admittedly, the complainant had a medicine shop with name “Sweety Pharmaceuticals” which was burnt due to fire accident on 13.6.14.  It is also not in dispute that the said shop was insured by the complainant for which after the incident, the O.P No.1 had deputed one surveyor namely,Ajit Nanda to assess the loss and accordingly after getting the report from the said surveyor on 16.6.14 O.P no.1 had paid the complainant a sum of Rs.30,000/- towards his loss on 13.11.14.  The same is admitted by the complainant through his letter, copy of which is attached vide Annexure-6 to his complaint petition.  There is no allegation of any fraud, misrepresentation, coercion made by the complainant. The complainant had protested subsequently at a later stage as regards to the claim towards the damage of his shop by writing to the O.Ps on 3.2.15.  In this context the decisions as relied upon  by the O.P no.1 when perused, it is noticed that the complainant after accepting the money of Rs.,30,000/- from O.P no.1 on 13.11.14 had protested about the same at a later stage, on 3.2.15 stating therein that he was not satisfied with the said amount.  Thus, it goes to show that subsequently with a malafide intention, the complainant had protested to the O.P no.1 towards the settlement of his loan with a oblique motive which is his sheer afterthought.  Accordingly, there is no deficiency noticed on the part of the O.Ps here in this case and this issue goes in favour of the O.Ps.

Issues no.i & iii.

From the aforesaid discussions, it can never be said here that the case of the complainant is maintainable and he is entitled to any of the reliefs as claimed by him.   Hence it is so ordered;

                                                            ORDER

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

Order pronounced in the open court on the 18^th day of   November,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                                 Sri Sibananda Mohanty

                                                                                                                                               Member