Mr. Justice D.M. Patnaik, President—This is an original case wherein the complainant the Managing Director of a Poultry Farm in the District of Ganjam claims a sum of Rs. 16,00,000/- under policy of insurance in respect of Poultry Unit that was valid in between the dates 20.11.1998 to 19.11.1999. It is his case that in the cyclonic storm that hit the coastal areas in the district of Ganjam on 17/18th of October, 1999 his huge stock of poultry feed were damaged. The claim lodgrd before the Insurance Company under Annexure-3 was repudiated by the Insurance Company and hence the case.

2. The Insurance Company in the written version took the ground that the case is not maintainable because the complainant was running the business on a commercial basis. Secondly the complainant having signed the loss/discharge voucher accepting the amount of Rs. 4,60,000/- in full and final satisfaction of the claim, cannot again re-agitate the matter for higher compensation.

3. We have heard Mr. R.K. Pattanaik the learned Counsel for the complainant and Mr. S. Ray the learned Counsel for the Insurance Company at length and perused the documents on record.

4. We are unable to accept the case of learned Counsel for the Insurance Company that the complaint petition should be dismissed on the ground that the complainant is carrying on any business in poultry on a commercial basis. When it is the question of satisfaction of a claim under a policy of insurance, it relates to the service hired by the complainant from the Insurance Company on payment of consideration i.e., the premium. That apart whether it was a commercial establishment or nor would also depend upon the facts and circumstances of each case. There is nothing on record to hold it against the complainant. Therefore, first contention of Mr. Ray is rejected.

5. It was submitted by Mr. Ray that the complainant’s claim has been finally settled at Rs. 4,60,000/- and accordingly liability has been discharged by obtaining the signature of the financing bank i.e., Bank of India on the loss voucher and the amount has been credited against the outstanding loan of the complainant and the Insurance Company is not liable to pay any further amount.

6. Mr. Pattanaik the learned Counsel for the complainant on the other hand challenged this action on the part of the bank by submitting that if the complainant was the loanee under no circumstances the bank was competent to give a discharge voucher on behalf of the complainant when the complainant himself has not given a valid discharge voucher in respect of the insurance claim. Further Mr. Pattanaik has drawn our attention to the letter of the Bank of India dated 25.7.2002 received by this Commission on 22.8.2002 from where it is clear that the Bank not to have received the amount of Rs. 4,60,000/- as claim by the Insurance Company. Therefore, even accepting Mr. Ray’s contention that the amount has been paid, the same is found incorrect. The letter of the Bank of India is rather found to be inconsistent with the case pleaded by the Insurance Company under para-9 of the written version. In fact examining Annexure-3 that is the special claim report filed from the side of the Insurance Company, we find that the Insurance Company unilaterally settled the amount at Rs. 4,60,000/- taking 65 per cent towards salvage. The Insurance Company filed no document from the Bank side accepting the settlement. Therefore, we hold that this amount has not been paid to the Bank till date.

7. Our attention is drawn to Annexure 3 the joint name signed by the complainant as well as the loss Assessor and Surveyor, dated 20.2.2000. This document is not disputed. The Surveyor assessed the loss of Rs. 10,60,971/-. Though it is mentioned that the above assessment is directly without prejudice to the right of the concerned party, it is not shown to us from the side of the Insurance Company as to how the assessment is wrong.

8. The subsequent settlement at Rs. 4,60,000/- as is claimed by th