IMPORTANT POINT
Consumer Fora cannot sit in appeal to examine the propriety of order passed by Ombudsman in insurance claim where complainant had accepted the award given by Ombudsman.

Mrs. Basanti Devi, Member—Being aggrieved against the order dated 3.6.2003 of the District Forum, Ganjam at Berhampur in CD Case No.198 of 2002 holding CD Case is not maintainable, the complainant has come up with this appeal praying to set aside said order of the District Forum and to direct respondent No.1, who is opposite party No.1 in the CD Case, to pay the total claim amount as per the complaint petition in entirety with interest @ 18% from the date of occurrence in lieu of deficiency in service and cost of litigation.

2. We have heard Mr. R.K. Pattnaik, learned counsel for the appellant and Mr. G.P. Dutta and Mr. G.B. Dash, learned counsel appearing for the respondent Nos.1 and 2 respectively. Perused the pleadings of the parties and Xerox copies of the documents filed on behalf of the parties.

3. The main point for adjudication by us is that whether in view of the unconditional acceptance of the compensation recommended by the Ombudsman in respect to loss sustained due to the unprecedented cyclone dated 17.10.1999, the complainant can again file consumer complaint claiming the total loss as per his claim form/complaint petition.

4. The admitted facts by the parties are that the complainant, who is the owner of Rice Mill styled as “Sankat Tarini Rice Mill” has taken Fire Policy ‘A’ No. 345400/617/99 covering stocks and stocks in process of paddy, rice bran, etc. for an assured sum of Rs.5,00,000 for the period from 21.12.1998 to 20.12.1999 (Annexure1) with the Oriental Insurance Company Ltd.—opposite party No.1 through financier opposite party No.2 of the CD Case. Undisputedly, during super cyclone, on 17.10.1999, said Mill was also affected. The case of the complainant in brief is that due to cyclone his said Mill, godown, its asbestos roofs were blown away and the stock of paddy, rice and bran were blown away due to cyclonic wind and were also damaged in rain water causing damage to the tune of Rs.5,65,249. Accordingly, complainant lodged a claim (Annexure 4) for said amount before OP No.1. opposite party No.1 also deputed Surveyor, who assessed the loss at Rs.2,20,600. OP No.1 sent said amount through cheque to opposite No.2. But complainant was not informed about this by both the opposite parties, in short Opps.. When he came to know about this, while making representation to Opp. No. 1 for early settlement of the claim, he could know about this, which was a backdoor arrangement. Thereafter, he moved Insurance Ombudsman for the injustice caused to him by settling the claim for a small amount without properly taking into account the actual loss sustained by him, when the Tahsildar, Berhampur and Food Inspector, Ganjam District after spot verification could trace and certified about severe damage to the said Mill Unit and stocks in the Unit. But the Ombudsman assessed the total loss at Rs.3,30,990 without properly appreciating the actual damage and directed/opposite No.1 to pay the balance amount of Rs.1,10,330 to the complainant as opposite No.1 had already paid Rs.2,20,600 out of Rs.3,30,990 which had been accepted by the complainant. According to the complainant, he received said amount on compassionate ground and not being satisfied with the claim settled by the Ombudsman. Therefore, he filed aforesaid C.D. Case against the Opps. to direct them to pay the balance claim amount of Rs.2,69,010, which is total amount of loss claimed Rs.5,00,000 minus the total amount already paid as aforesaid viz. Rs. 3,30,990 (actually, it is Rs.1,69,010 instead Rs. 2,69,010) with admissible rate of interest over said Rs.5,00,000 from the date of loss till its realization and to pay Rs.50,000 towards unnecessary delay to pay the claim amount, harassment, business loss and cost of litigation.

5. Only OP No.1 had filed written version and had contested the C.D. Case and opposite No.2 is set ex parte in the C.D. Case. It is stated on behalf of the OP No.1 that Consumer Fora in view of the Consumer Protection Act cannot exercise