Order No.-18 Dated-19/03/’15
Mr. A. K. Das, President
Record is placed for passing final order.
Complainant’s case in short is that he purchased one Mahindra Bolero Plus being registration no. WB-71/A-3088 for earning his livelihood by means of self employment. The complainant insured that vehicle with the OP Oriental Insurance Co. Ltd being Policy No.313201/31/2012/5884 which was valid from 21/02/’12 to 20/02/’13. On 10/03/’12 that vehicle meet an accident near Barua Para under Kotwali P.S., Jalpaiguri. Immediately after the accident the complainant intimated that fact to the OP and submitted his claim which was registered as claim no 313201/31/2012/000149. The complainant had to spent Rs.1,58,000/- to repair his vehicle which he intimeted to the OP on 10/09/2012. But the OP has issued a cheque for Rs.65,500/- on 11/03/2013 in his name and the he had accepted that cheque with objection. Such act of the OP is nothing but sheer negligence of service and unfair trade practice. The complainant has prayed for balance cost of repairing of his vehicle amounting to Rs.92,500/- with interest, for compensation and for cost of the proceding.
Hence, this case.
The OP has contested this case by filing a W/V denying and disputing the claims and contention of the complainant with prayer for dismissal of this case with cost. The specific stand of the OP is that the OP insurance Co. has settled the claim of the complainant and issued cheque for Rs.65,500/- in the mane of the complainant which he accepted by putting signature on the discharge voucher on 7/3/13 without protest and encashed that cheque and their by the claim of the complainant has been fully and finally settled and there is nothing more remained payable by the OP Insurance Co. to the complainant.
Points for consideration
- Is the case maintainable?
- Is the complainant a consumer?
- Is the OP guilty for unfair trade practice as alleged?
- Has the claim of the complainant fully and finally settled as claimed by the OP?
- Is the complainant entitled to the reliefs prayed for?
Decision with reasons
All points are takenup together for consideration & decision.
Seen and perused the pleadings of the parties which are supported by affidavits and the documents filled by both the parties.
The specific case of the complainant is that his vehicle viz Mahindra Bolero Plus having registration no. WB-71/A-3088 was insured with the OP which was valid from 21/2/12 to 20/02/13. On 10/3/12 that vehicle met an accident and the complainant intimated the OP about that accident immediately and he had to spent Rs.1,58,000/- for repairing of the vehicle. But the OP has paid him only Rs.65,500/- on 11/3/13 by cheque which was accepted by the complainant with objection and such act on the part of OP is nothing but negligence in service and unfair trade practice. As against this the specific stands of OP is that they have paid Rs.65,500/- to the compalinant by cheques towards full and final setlement of his claim and the complainant has accepted and encashed that cheque without any objection. Hence, the complainant can not re-open that matter by filing this case and accordingly the complainant is not a consumer and this case is not maintainable and deserved dismissal. Ld lawyer for the OP has placed his reliance on a decision of Hon’ble National Commissiomon in M.L.SPINNERS Pvt. Ltd. Vs. United India Insurance Com. Ltd. case reported in 11(2014) CPJ 692 in support of OP’s claim.
Now after going through the pleadings of the parties, the documents filed by both the parties, after due considaration of arguemnts of Ld. Lawyers of both side and after going through the decision of Hon’ble National Commission referred to above, we find that admittedly the OP had issued a cheque for Rs.65,500/- in the name of the complainant on 7/3/13 against the claim of the complainant which was encashed by the complainant his time. It appears from the Xerox copy of discharge voucher dt. 7/3/13 filed by OP, that the complainant has put his signature in english on the revenue stamp afixed therein admitting/accepting Rs.65,500/- from the OP Oriental Insurance Com. Ltd. towards full and final setellement of his claim without protest or objection. So, the plea taken by the complainant that he received the cheque for Rs.65,500/- from the OP with protest is bassless and it is nothing but cock and bull story.
In this view of the matter and in view of this observation of Hon’ble National Commission in M.L.SPINNERS Pvt. Ltd. Vs. United India Insurance Com. Ltd. case refered to above, where in Hon’ble National Commission has held that “ …… Once petitioner has received amount unconditionally and has also got the cheque encashed, petitioner ceases to be consumer as per CP Act 1986………”, the petitioner / complainant of our instant case ceses to be consumer after receiving cheque for Rs.65,500/- from the OP towards full & final setellment of his claim and encashment of that cheque. Therefore we find and hold that the complainant is not a consumer as per CP Act 1986 and as such this case ia not maintainable and the complainant is not entitle to any relief in this case and this case deserves dismissal.
All points are disposedof accordingly.
In the result the case / applications fails.
Hence, it is,
Ordered,
That the case stands dismissed on contest with cost of Rs.2,000/-.
The complainant is hereby directed to pay the said cost of Rs.2,000/- to the OP within 30 days from the date hereof failing which it will carry interest @8% P.A. and the OP shall at liberty to realise the same by putting this order into Execution on accordance with law.
Let plaint copy of this order be supplied to this parties free of cost forthwith as per provision of CP Act 1986.
