Orissa

Cuttak

CC/131/2014

Gajendra Nath Das - Complainant(s)

Versus

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

S K Ghose

31 May 2017

ORDER

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

                                                                                   C.C No.131/2014

 

Sri Gajendra Nath Das,

Vill:Beleipur Nalkani,

P.O/P.S:Erasama,Dist:Jagatsinghpur.                                       … Complainant.

 

                Vrs.

 

Sr. Branch Manager,

New India Assurance Co. Ltd.,

Cuttack District Branch Office,Ground Floor,

Opp. Arunodaya Market,Link Road,

Cuttack.                                                                                         … Opp. Party.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     12.09.2014

Date of Order:   31.05.2017

 

For the complainant:      Sri S.K.Ghose,Adv. & Associates.

For Opp.Party            :      Mr. A.A.Khan,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

                The complainant having attributed deficiency in service and unfair trade practice to the O.P, has filed this case seeking appropriate relief against them in terms of his prayer in the complaint petition.

1. The sequence of events constituting the case of the complainant in short is that the complainant is the owner in possession of a tractor and a trolley bearing Regd. No.OR-21C-4981 and 4982 respectively. On 9.10.2010 when the said tractor and trolley were parking in the campus of the complainant at Navodaya  Bidyalaya, the villagers of Rahama entered into the campus and set fire to the vehicles expressing their anger over the death of one labourer Sisir Senapati who was engaged in the construction work in the said premises and got electrocuted.  The vehicles were then completely gutted and destroyed.

1. On 11.10.2010 surveyor-cum-loss assessor Sri B.Das was deputed by the O.P to make survey and assess the loss and in due compliance with it, necessary survey was undertaken and report was submitted to the O.P. stating the nature of accident and damage of different parts of the vehicle as detailed in his report.  The complainant was also advised to bring the vehicle to an authorized repairer and wait till final surveyor should reach and asses the loss.  According to the complainant he brought the damaged vehicle to Pragati Traders which is the authorized dealer, for repair.  After proper verification the said Trader gave a letter to the complainant on 7.01.2011 that the vehicles have sustained excessive damage due to fire and they were beyond repair.  On estimation by the said Trader, the total expenses would come to Rs.6,60,000/- excluding labour charges of Rs.30,000/- extra.
2. Thereafter the complainant on 11.1.11 submitted his claim to the O.P along with all relevant documents.  The O.P. on 24.11.11 deputed Sri B.Das and S.K.Brahma to the spot for making final survey.  It is alleged that after several telephonic messages and letters given by the above surveyors to the complainant, the latter did not cooperate with them in dismantling the said vehicles.  Rather the complainant on 1.12.11 sent a letter o the O.P requesting him to indemnify him on total loss basis.  Subsequently the O.P replied to the complainant on 7.6.12 that earlier report of surveyor S.K.Burma has estimated that the expenses of repair of the said vehicles would not exceed 75% of the insured declared value i.e. Rs.4,86,051/- and the loss cannot be treated as total loss.  The O.P then requested the complainant to produce the bills and cash memos showing the repair of the vehicles so as to enable him to settle the claim but the complainant did not respond.  Then the O.P. on 6.8.12 again sent a letter to the complainant requesting him to submit above documents within 30 days, failing which his file would be closed as ‘No claim’.  Again on 17.8.12 the O.P sent another letter to the complainant reiterating his earlier stand of paying the repair cost to the tune of Rs.1,57,515/- on submission of the bills and cash memos showing the repair of the said vehicles.  Ultimately on 17.9.12 the O.P sent another letter to the complainant rejecting his claim as ‘No claim’.
3. It is specifically stated that the O.P instead of settling the claim of the complainant has adopted unfair trade practice and his negligence and conduct are tantamount to deficiency in service.
4. It is important to leave a mention here that the complainant had filed C.C No.119 of 2013 against the O.P for the same cause of action where he has claimed compensation of Rs.10,80,000/-.  The said case was disposed of on merit by this Forum vide order dt.19.5.14.  In that case it was ordered that the complainant has to make a fresh application to the O.P for reassessment of claim on loss basis within 30 days of receipt of the order and the O.P has to make reassessment of the claim of the complainant within 30 days of receipt of the complainant’s application.  It has been further ordered that in case no such application was made by the complainant within the stipulated period, the O.P would release the assessed amount of Rs.1,57,515/- to the Odisha State Cooperative Bank Ltd. which had got a lien over the amount.
5. Although the complainant filed a fresh application to the O.P on 18.6.14 for reassessment of the claim on loss basis, as per the direction of this Forum yet the O.P did not settle the claim of the complainant for which he was constrained to take shelter of law by filing the present case before this authority.  As such he has prayed to direct the O.P. to pay rent of Rs.30,000/- to him charged by the authorized dealer of keeping the vehicles in his premises, Rs.20,000/- towards interest payable to the bank, Rs.30,000/- towards mental agony and harassment caused to him, Rs.6,90,000/- towards damages caused to the vehicles, Rs.1.00 lakh towards loss of his income and Rs.30,000/- towards cost of litigation.   It is further prayed that the O.P may be directed to pay pendentilite and future interest @ 12% per annum on the total amount of Rs.10,80,000/- payable to him in the interest of justice. The complainant has relied upon the following documents which have been filed and annexed.

1. Copy of receipt of payment of Rs.10,964/- dt.23.8.2010(Annexure-1)
2. The copy of insurance policy bond(Annexure-2)
3. The copy of estimate prepared by Prapgati Traders.(Annexure-3)
4. The copy of the letter dt.24.11.2011 by the O.P to the complainant (Annexure-4).
5. The copy of letter dt.1.12.2011 given by the complainant to the O.P.(Annexure-5).
6. The copy of letter of reply dt.7.6.2012 by the O.P(Annexure-6).
7. The copy of letter of the complainant dt.11.7.2012 to the O.P to relook the matter and settle the claim as per the insurance policy(Annexure-7)]
8. The copy of letter of the O.P. dt.6.8.12(Annexure-8)
9. The copy of letter of the complainant dt.14.8.12(Annexure-9)
10. The copy of letter of the O.P dt.17.8.2012(Annexure-10)
11. The copy of letter of the O.P dt.17.9.2012 (Annexure-11).
12. The copy of the order dt.19.5.2014 in Consumer Dispute Case No.119 of 2013(Annexure12).
13. The copy of the fresh claim application dt.18.6.2014 (Annexure-13).

6. The O.P. entered appearance and filed written version and contested the case.  At the outset it is stated that the case is not maintainable both in fact and law and as such liable to be dismissed.  It is also stated that for the same cause of action the complainant had earlier filed C.C No.19/2013 against him which was disposed of by this Forum on merit vide order dt.19.05.2014 and the complainant has filed the present case for the same cause of action for second time which as per settled principle of law is not maintainable.  According to the answering O.P he has already settled the claim of the complainant and the amount of Rs.1,57,515/- assessed by the licensed surveyor has already been paid to the Odisha State Cooperative Bank in shape of A/c payee cheque bearing No.05243 dt.28.7.14 drawn on Axis Bank,Cuttack towards full and final satisfaction of the claim of the complainant in accordance with the direction of this Forum passed in the final order dt.19.5.14.  A copy of the same has been sent to the complainant in forwarding letter dt.25.7.14 and as such there is no deficiency in service on the part of this O.P in any manner.  Annexure-A,A/1,A/2 and A/3 are respectively copies of the final order dt.19.5.14 in C.C No.119 of 2013, copy of letter dt.25.7.14 and postal receipts filed in this case.
7.  It is also stated that the complaint petition is defective for non-joinder of necessary party in as much as the complainant had purchased the above tractor-trolley being financed by the State Cooperative Bank,Link Road Branch, Cuttack which is a necessary party to this case.  But he has not been arrayed as such and therefore the present case is not maintainable.  Copy of R.C book of the said tractor is annexed herein and marked as Annexure-B.  Annexure-C, C/1 are respectively the copy of the insurance policy and policy conditions issued by the O.P in favour of the complainant.  The complainant has filed the claim on 11.10.10 with the O.P.  In the mean time the spot surveyor has visited the spot and submitted his report to the O.P.  Annexure-D, D/1 are copies of the above two documents filed in this case.  The complainant submitted the claim form duly filled in all respect with the O.P on 11.01.2011 and thereafter the licensed surveyor S.K.Bramha was deputed to the spot for verification and assessment of loss.   Although the said surveyor contacted the complainant and sent various messages requesting him to dismantle the said tractor for the purpose of proper assessment of the exact loss, the latter failed to respond to the request of the said surveyor.  That surveyor finally sent a letter dt.24.4.11 to the complainant to contact him at the earliest not less than 10 days from the date of receipt of the said letter for further action in the matter.  Copy of the said claim form and copy of the letter of the said surveyor dt.24.4.11 have been filed and marked as Annexure-E & E/1 respectively.  Lastly when the complainant failed to cooperate with the final surveyor, the latter assessed the loss and submitted his final survey report on 28.7.11 with net assessment of loss as Rs.1,54,500/- to the O.P.  Annexure- F is the copy of the said final survey report dt.28.7.11.  Thereafter, the O.P again requested the complainant vide his letter dt.24.11.11 to dismantle the vehicle within 7 days from the date of receipt of this letter for settlement of his claim.  Annexure-G is the copy of the said letter dt.24.11.11.  In reply to such letter, the complainant has intimated the O.P vide his letter dt.1.12.11 that the said vehicle cannot be repaired and requested him to settle the claim on total loss basis. Annexure-H is the letter dt.1.12.11 of the complainant.  On 30.1.12 the O.P. once again requested the complainant to dismantle the vehicle in presence of the final surveyor, S.K.Brahma within 15 days.  Annexure-I is the copy of the said letter of the O.P.  Subsequently he got telephonic information from the financier on 12.3.12 that the said vehicle was about to be dismantled. Then the O.P. requested the financier to dismantle the same on 16.3.12 in presence of the final surveyor who was absent from the office on that date.  Annexure-J is the copy of the letter dt.12.3.12 as stated above.  On 16.3.12 the spot surveyor  as well as final surveyor conducted final survey in presence of the Branch Manager and thereafter the final surveyor submitted his addendum survey repot with further loss of Rs.3015/-.  Annexure-K is the copy of addendum final survey report submitted to the O.P.  Thereafter the O.P requested the complainant through various letters dt.7.6.12, 4.7.12, 18.7.12, 6.8.12 and 17.8.12 requesting him to repair the vehicle and submit bills and cash memos for re-inspection of the vehicle and settlement of his claim but the complainant did not respond to it.  Ultimately his claim was repudiated by the O.P. on 17.9.12 and the fact of repudiation was communicated to him through registered post with A.D.  Copies of the aforesaid letters and postal receipts have been filed and marked as Annexure-L series.
8. The O.P has also obtained the certified copy of the final form in connection of Tirtol P.S Case No.176 of 2010 and found that the police after due investigation has submitted charge sheet in that case stating that the tractor and the trolley in question were in half burnt condition and it clearly falsified the claim of the complainant about the complete damage caused to the insured vehicle due to fire accident.  Annexure-M is the copy of the final form submitted by the police to the court in the above case.  Annexure-N is the copy of the final order dt.19.5.14 passed in C.C Case No.119 of 2014.  It is specifically stated that the complainant did not submit any application to the O.P as per the direction in the final order vide Annexure-N and the O.P reminded the complainant to take steps accordingly.  Then the complainant submitted an application on 18.6.14 claiming Rs.10,50,000/- for settlement of his claim.  Then the O.P wrote a letter to the complainant on 30.6.14 requesting him to submit another application for settlement of his claim on cash loss basis in terms of the order passed vide Annexure-N.  But the complainant did not respond to it.  Subsequently the O.P had written a series of letters to the complainant to this effect but of no avail.  Lastly the O.P paid Rs.1,57,515/- in shape of  A/c payee cheque bearing No.052433 dt.28.04.2014 to the Central Cooperative Bank,Cuttack towards full and final satisfaction of the claim of the complainant as per the final order vide Annexure-N.  Copy of the series of letters stated above have been filed and marked as Annexure-O series.  The other averments made in the complaint petition have been denied.  Accordingly it is prayed, the case is not maintainable and the same may be dismissed.
9. We have heard the learned counsel for the complainant and the O.Ps at length.  We have also gone through the annexures filed by them respectively in this case.  It is an admitted fact that the complainant had earlier filed C.C Case No.119/2013 against the same O.ps on the same cause of action with the same relief.  That case was heard on merit and finally disposed of by this forum vide orer dt.19.05.2014.  In the said order, the complainant was directed to make a fresh application to the O.P for reassessment of his claim on cash loss basis within 30 days of receipt of copy of this order.  The O.P was also directed to make reassessment of the claim of the complainant within 30 days of receipt of the complainant’s application.  It has been further directed that in case no such application was made by the complainant within the stipulated period, the O.Ps are to release the assessed  amount of Rs.1,57,515/- to the Odisha State Cooperative Bank  Ltd., Link Road,Cuttack  immediately which had got a lien over it.  The O.P in compliance to the above order has already made deposit of Rs.1,57,515/- in the account of the Odisha State Co-op. Bank Ltd., since the complainant did not file the appropriate application with the O.P in time. Annexure-A/1 is the letter of O.P which reveals the deposit of the aforesaid amount in the said bank.  The learned advocate for the O.P has further assailed the very maintainability of the present case mainly on the ground of principle of res-judicata.  According to him this second complaint filed between the same parties on the same cause of action which has already been disposed of on contest earlier is not legally sustainable.  The main thrust of argument of the learned advocate for the complainant that the O.P has arbitrarily disposed of his application filed for reassessment of claim on cash loss basis and deposited the required amount in the account of the Odisha State Co-op. Bank illegally.  As such it is stated that this illegal act of the O.P. has given rise a fresh cause of action which necessitated filing of the present case.  It is also submitted that principle of res-judicata is not applicable to the consumer cases.
10. Admittedly  the present case has been filed by the complainant against the same O.P on the same subject matter with same cause of action and relief which were raised heard on merit and finally disposed of in earlier C.C Case No.119/2013.  It is  trite law that if such cases are allowed to be filed it would give rise to multiplicity of litigations causing undue harassment to the O.Ps.  No person shall be vexed twice for the same cause of action.  Therefore the submission made by the learned counsel for the reasons afore stated has no force.  Hence ordered;
    6698606.  

                                The case be and the same is dismissed on contest.  No cost.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 31^st   day of May,2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                  President.

                                                                                                             (Sri B.N.Tripathy )

                                                                                                                 Member.

                                                                                                              (Smt. Sarmistha Nath)

                                                                                                                       Member(W)