Oral Order: (Patil Vithal Rao, Member)
The brief facts of the case are that the Complainant, being a Partnership Firm, availed a loan from the Andhra Bank, R.C. Puram Branch, Medak District, to run the business. It also took the Insurance Policy bearing No. 050502/11/10/1100000167 (192 New) for a sum of Rs.4,00,00,000/- for the period from 26.11.2010 to 25.06.2011 towards coverage of stocks from the Opposite Party no.1 Company, Policy no. 050500/11/10/11/00000629 for a sum of Rs.2,00,00,000/- for the period from 04.11.2010 to 03.05.2011 towards coverage of Pyrotechnic materials - stock of raw-materials, semi-finished, finished goods, goods held in trucks and packing materials, cotton seeds, cotton etc. from the Opposite Party no.2 Company and Policy no. 050200/11/10/11/00000078 for a sum of Rs.3,00,000/- for the period from 25.05.2010 to 25.05.2011 for Cotton Gin and Pressing houses i.e., for coverage of factory building for Rs.40,00,000/-, plinth & foundation for Rs.5,00,000/-compound wall for Rs.5,00,000/- and Plant & machinery and accessories for Rs.2,50,00,000/- from the Opposite Party no.3 Company. The Opposite Party no.4 is the Regional Office of the Opposite Party no.1to 3 Companies. The further case of the Complainant Firm is that on 02.04.2011 at about 4-30 a.m., extensive material of it was destroyed in a fire accident causing a loss of Rs.6,15,41,760/-. When it submitted a claim for it, the Opposite Parties assessed the loss to the tune of Rs.3,96,60,403/- through a surveyor M/s. Alok Shankar & Co. After prolonged requests and correspondence of the Complainant, the Opposite party no.1 Company finally paid an amount of Rs.2,58,54,567/- on 23.08.2012, Opposite party no.2 Company paid an amount of Rs.1,30,31,636/- on 26.04.2012 and Opposite Party no.3 company paid an amount of Rs.7,74,200/- on 08.03.2012, in total Rs.3,96,60,403/- directly to the Financier Bank to the credit of the Complainant’s account but without any intimation. Due to abnormal delay of one year four months in the said payment, the Complainant Firm suffered a loss in it’s business and even otherwise the Surveyors Report to the extent of depreciation and salvage amount for the balance claim amount is incorrect. Therefore, still the Opposite Parties are liable to pay the balance amount of Rs.61,22,545/- with interest @ 18% p.a., on the part payment amount of Rs.2,58,54,567/- @ 18% p.a., from 02.04.2011 till 23.08.2012 amounting to Rs.22,02,242/-. When the Complainant Firm got issued a legal notice dated 27.08.2012 for the said amount the Opposite Parties sent reply notice dated 15.09.2012 supporting the Assessment of the Surveyor and alleging that the amount paid was towards full and final settlement of all the claims. As per the Complainant, a copy of Surveyor Report was not furnished to it and even otherwise the same was prepared without following the regulations issued by the IRDA. For all these reasons the Complainant Firm has prayed to award the aforesaid balance claim amount with interest and also compensation of Rs.5,00,000/- and costs of Rs.50,000/-, in total Rs.88,74,787/-.
2. The Opposite Parties have resisted the claim by filing the common written version on the grounds, interalia, that the Complainant Firm is not a ‘Consumer’ under the provisions of Consumer Protection Act, 1986 in view of the business activities undertaken by it. Further the said Firm didn’t submit all the required documents to the surveyor and that as such it cannot challenge final Survey Report dated 23.01.2012. The further defence is that as per the terms and conditions of the policy the Opposite Parties have remitted the assessed amount of loss directly to the account of the Complainant Firm with the Financier Bank and that as such there was no need to intimate it separately. Further the Complainant’ Firm by it’s letter dated 23.01.2012 has agreed to the amounts assessed by the Surveyor and accepted the same through its Managing Partner by signing the documents on 24.04.2012 towards full and final discharge of the claims. The complaint is also bad for non-joinder of the Financier Bank. The allegations raised by the Complainant Firm need a detailed enquiry which is not possible in the present proceedings which are summary in nature and that as such the firm has to file a Civil Suit for the claims. The Opposite Parties have also contended that the Complaint’s Firm has intentionally splitted the claims under three different Policies and filed three cases separately with an intention to avoid court fees to be paid before the competent Civil Court. If all the said claims are clubbed together, this Commission losses it’s pecuniary jurisdiction. The policy documents also contain Arbitration clause and that as such the present complaint is not maintainable. The Opposite Party Companies are no way concerned with the alleged loan amount availed by the Complainant Firm and payment of interest there on to the bank. Though the Surveyor has followed the regulations of the IRDA in assessing the loss, the Complainant Firm has filed the present case with afterthought claims illegally and that as such the complaint is liable to be dismissed with costs.
3. The Complainant Firm has filed Affidavit Evidence of it’s Managing Director and relied on the documents under Exs.A1 to A21 to substantiate the claim. The Opposite party Companies have filed Evidence Affidavits, of their Regional Manager and the Surveyor and also the documents under Exs.B1 to B5, in defence. Both the parties have filed their respective written arguments.
4. Basing on the above pleadings the following points emerge for consideration:
1. Whether the Complainant Firm is a ‘Consumer’ within the meaning of the Consumer Protection Act, 1986?
2. Whether the complaint is barred by pecuniary jurisdiction of Party ?
3. Whether the complaint is maintainable in view of the Arbitration Clause in the Policy documents?
4. Whether the case is bad for non-joinder?
5. Whether there is any deficiency in service on the part of the Opposite Parties?
6. To what relief ?
5. Point no.1: Admittedly, the Complainant Firm has obtained the Standard and Special Perils Policy under Ex.B1 from the Opposite Parties towards coverage of it’s property. Simply because it has availed a loan from the Bank to carry out it’s business activities, it cannot be said that it is not a ‘Consumer’ within the meaning of the Act, 1986. Because as per Section-2(d) (ii) of the said Act any person who avails any services for consideration is a ‘consumer ‘. In the present case the Complainant Firm has paid the premium of the policy and availed services of the Opposite Parties towards security of it’s properties as noted in the policy document. Therefore, by considering the premium amount as a consideration we hold that the Complainant Firm is a ‘Consumer’ and the present case is a ‘Consumer dispute’ within the meaning of the Act, 1986 and that as such the Complaint is maintainable.
6. Point no.2: The Complainant Firm has availed three different individual policies for different properties with distinct coverage of the risks from the Opposite Parity nos.1 to 3 Companies. The amounts covered therein are also separate. Further, the Surveyor has meticulously noted the quantum of loss pertaining to the goods covered in his final Survey Report, Ex.B2. Simply because he has filed a common report for all the materials lost in the fire accident, to the tune of Rs.1,30,43,000/-, it does not mean that all the claims of the Complainant Firm under the policies have been clubbed together by virtue of the same fire accident. We have to segregate the claims pertaining to each policy document to determine the quantum of claim of the Complainant Firm. As per Section-17(1) (a) (i) of the Act, 1986, where the value of the goods or services and compensation claimed by the Complainant exceeds Rs.20,00,000/- but not Rs. One Crore, this Commission has jurisdiction to entertain the dispute. In the present case the claim of the Complainant Firm is well within the said limitation and that as such we hold that the case is not hit by pecuniary jurisdiction.
7. Point no.3: It is to be noted that, in the policy document an Arbitration Clause has been incorporated whenever a dispute arises between the parties. The learned defence counsel has vehemently contended that by the virtue of the said clause, the Complainant Firm has to approach an Arbitrator for settlement of the dispute and that as such the present case is not maintainable. But, we are unable to appreciate this contention for the simple reason that as per Section-3 of the Act, 1986 the provisions contained therein are in addition to but not derogation of the provisions of any other law for the time being in force. Therefore, we have no hesitation to hold that despite the Arbitration Clause in the Policy document, the Complainant Firm can resort to the jurisdiction of this Commission under the Act, 1986 and that as such the complaint is certainly maintainable.
8. Point No.4: The Opposite Parties have contended that the Andhra Bank, R.C. Puram, Medak Dt., from whom the Complainant Firm had obtained loan for business purposes and to which Bank the Opposite Parties have remitted the claim amount to the account of the Complainant Firm is also necessary party to the dispute. But in our opinion, merely because the claim amount by virtue of the loss assessed by the surveyor was remitted by the Opposite Parties to the account of the Complainant Firm with the said Bank, it cannot be said that the Bank is a necessary party to the dispute. At the most it could be a proper party. Having regard to the facts and circumstances of the case, the dispute can be resolved even in the absence of the said Bank effectively and conclusively. In this view of the matter, we hold that the case is not bad for non-joinder of a party i.e., the Bank.
9. Point no.5: Undisputedly on account of the fire accident on 02.04.2011 at about 4-30 a.m., the Complainant Firm has sustained extensive loss of properties. Thereafter it has put forth the claim with the Opposite Party Companies by furnishing necessary details of the damaged properties under EXs. A2, A4 to A8 & A9. The fire accident has been covered by the policy under Ex.B1 [A1]. Thereafter, the Opposite Parties have availed services of a licenced surveyor, Alok Shankar & Co., Mumbai, to assess the loss. Accordingly the said surveyor conducted survey and submitted the final survey report, Ex.B2 [A3] on 23.01.2012 giving the total assessment at Rs.1,30,43,000/-, inclusive of all the insured items under the three policies. As there was a delay in settlement of the claim the Complainant Firm has alleged that it has suffered extensive loss in its regular business activities and also had to bear with huge interest on the outstanding loan amount of the Financier Bank apart from the expenses in carrying out necessary repairs to its machinery etc., in the Industry. For the said purpose it also got issued a legal notice under Ex.A9 to which the Opposite Parties have sent their reply notice under Ex.A20 refuting the claim.
10. In this regard it is pertinent to note that, the Complainant Firm has given it’s consent for the amounts assessed by the surveyor through it’s letter dated 23.01.2012 under EX.B5. The material part of it is extracted below:-
Subject to the terms, conditions and warranties of the above referred Policies and subject to the Insurance Company admitting liability, we agree to accept our loss in the above connection being assessed of Rs.3,99,34,000/-(Rupees Three Crores Ninety nine lakhs thirty four thousand only) in full & final settlement offer deducting the realizable salvage value and the Policy excess applicable as per the under subjected policies terms and condition.
The above stated amount of Rs.3,99,34,000/- is inclusive of the claim amount in the present case. The settlement intimation voucher dated 24.04.2012 under EX.B4 with regard to the remittance of the claim amount, contains signatures of M.D of the Complainant Firm. These two material documents i.e., Ex.B4 and B5 have not been disputed by the Complainant Firm. The learned defence counsel has pro-pounded that having accepted the amount towards full and final settlement without any protest, the Complainant Firm cannot re-agitate the issue. In support of his contention he has relied on the decision in, 'Yogesh Kumar Sarma (Dr.) Vs. National Insurance Company Limited', II (2013) CPJ 178 (NC). In the said decision the Hon’ble National Commission held that once the claimant had received the amount unconditionally, he ceases to be ‘Consumer’ as per the Act, 1986 more so when the said acceptance was without protest and towards full and final settlement. No doubt, the Complainant Firm has disputed the said settlement but there is no material evide
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nce on record from which it could be deciphered that the Insurance Company was in a position to dominate the will of the Complainant and used that position to cause undue influence upon the Managing Partner of the Firm who signed Ex.B4. There is also no evidence that his mental capacity was temporarily or permanently affected by reasons of age, illness or mentally or bodily distress. There is also no allegation of any fraud or concealment of any material fact by the Insurance Company from the Complainant Firm. The alleged delay in finalizing the claim does not lead to establish that the Complainant Firm was entitled to receive the amount as claimed in the present case without checking the genuineness of it. This view is forfeited by the recent decision of the Hon’ble National Commission in:- National Insurance Company ltd., and another VS. J.P.Thomas, I (2017) CPJ 435 (NC). 11. In view of the aforesaid discussion we hold that the alleged deficiency in service on the part of the Opposite Parties has not been duly established and that as such the Complainant Firm is not entitled for the balance claim amount of the insurance Policy much less any compensation. 12. Point No.6:- In view of the conclusion arrived at Point No.5, we hold that the complaint is liable to be dismissed. 13. In the result, the complaint is dismissed but in the peculiar circumstances the parties shall bear their own costs.