J. Jayaram, Judicial Member
This case coming before us for final hearing on 07.07.2014 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:
2. The case of the complainant is as follows:
The complainants are manufacturers and exporters of Fabrics and Garments and export them to various countries including Argentina for several years, and they have got good track record. They have earned foreign exchange for the country to the tune of several crores of rupees, and they have received several awards as a leading exporter.
3. The opposite party is a Government of India Enterprise, which provides insurance coverage for exporters against variety of risks, on payment of premium. The complainant took an Insurance Policy known as Shipments (Comprehensive Risks) Policy from the opposite party to the maximum liability under the policy restricted to Rs.60 Lac for the export of garments to Argentina.
4. In course of time, their export orders increased steadily and went up to Rs.5 crores. Therefore, the insurance coverage with maximum liability restricted to Rs.60 Lac was considered to be inadequate, and hence the complainant sent a letter dated 13-08-2001 to the opposite party requesting enhancement of liability under the said policy to Rs.1 crore. In anticipation of the enhancement of insurance coverage, the complainant also paid premiums for the shipments made. Unfortunately, the payments from Jan 2002 to Mar 2002 in respect of shipments made in Sep 2001 were frozen by the Government of Argentina despite the fact that the buyer made a remittance to the Government for conversion into foreign exchange. Therefore, an amount of Rs.1,03,59,026/- representing the value of the shipments made in Sep 2001 got stuck with the Government of Argentina.
5. The complainant lodged a claim with the opposite party for the money receivable from Argentina; but the opposite party sent a letter dated 16-08-2002 stating that the maximum liability under the policy was only Rs.60 Lac up to 21-10-2001, and that they have already considered the claims up to Rs.60 Lac for the policy for the shipments effected during the said period, and therefore, the complainant’s claim for enhanced amount could not be considered. This amounts to deficiency in service on the part of the opposite party, and hence the complaint praying for direction to the opposite party to pay a sum of Rs.40 Lac towards insurance claims under the Shipments (Comprehensive Risks) Policy together with interest at the rate of 18 % p.a., and to pay a sum of Rs.2 Lac as compensation for mental agony and pain caused to the complainant, and pay costs.
6. The opposite party filed version contending that it is a commercial transaction, and the services of the opposite party are availed for commercial purposes and hence the complainant is not a consumer as contemplated under Sec. 2 (1) (d) of the Consumer Protection Act, and that the complaint is not maintainable under the Consumer Protection Act, and the complaint cannot be entertained by the Consumer Forum, and that the claim of the complainant was repudiated by letter dated 16-08-2002, and hence the complaint is barred by limitation as contemplated under Sec.24-A of the Consumer Protection Act, and that they have already settled the complainant’s claim at Rs.60 Lac; and that the complainant is not entitled to claim further amount of Rs.40 Lac.
7. Proof affidavits were filed by both sides, and Ex.A1 to A14 were filed and marked on the side of the complainant; and Ex. B1 to B10 were filed and marked on the side of the opposite parties.
8. The points for consideration are:
1) Whether the complainant is a consumer as contemplated under Sec. 2 (1) (d) of Consumer Protection Act; and whether the complaint is maintainable;
2) Whether the complaint is barred by limitation as contemplated under Sec. 24 – A of the Consumer Protection Act; and whether the complaint is maintainable;
3) Whether there is deficiency in service on the part of the opposite party;
4) Whether the complainant is entitled to get compensation from the opposite party;
5) To what relief the complainant is entitled.
9. Point No.1: It is pertinent to note that as per the averments in the complaint, the complainant has availed the services of the opposite party for commercial purpose and it is a commercial transaction done on a large scale involving crores of rupees. In the complaint it is clearly stated that they are manufacturers and exporters of fabrics and garments and export them to various countries for several years and they have got a good track record, and that they have earned foreign exchange to the country to the tune of several crores of rupees, and they have received several awards as leading exporters.
10. Further, according to the complainant, the total amount of Loss suffered by the complainant on account of the impugned shipments is Rs.1,03,59,026/-. Therefore, it is clearly established that it is a commercial transaction and it is for commercial purpose, and therefore, the complainant is not a consumer as contemplated under Sec. 2 (1) (d) (i) and (ii) of the Consumer Protection Act. Therefore, we hold that the complaint is not maintainable on this score, and the point is answered accordingly.
11. Point No.2: It is contended by the opposite party that the complainant’s claim was repudiated by the letter, Ex.B8 dated 16-08-2002 which is admitted by the complainant in Para 24 of the complaint regarding cause of action. It is relevant to note that the complaint has been filed on 7-11-2005, which was returned and re-presented on 2-11-2006. Therefore, it is evident that the complaint has been filed beyond the statutory period of two years as contemplated under Sec. 24&ndas
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h;A of the Consumer Protection Act. Therefore, we hold that the complaint is barred by limitation, and it is not maintainable on this ground, and the point is answered accordingly; 12. Point Nos.3&4: In view of our findings on Point Nos. 1 and 2 that the complaint is not maintainable, these points (3 & 4) do not survive for consideration, and the points are answered accordingly; 13. Point No.5: In view of above findings on Point Nos. 1 to 4, we hold that the complainant is not entitled to any relief in the complaint. 14. In the result, the complaint is dismissed as not maintainable. No order as to costs in the complaint.