Order by:

Smt.Priti Malhotra, President

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that complainant firm is a partnership firm and running his factory under the name and style of M/s Sai Industries. The complainant’s firm purchased a machine from Kabra Extrusiontechnik Ltd., Shop No.378, 379, 367, Zan Causeway Road, Kachigam, Daman and Due. Since the day of installation the said machine is been insured with Opposite Parties i.e. United India Insurance Co. Ltd., since, 2019. It is averred that in July, 2021 some parts of the machine got damaged e.g. Take Up Unit and estimate was prepared and claim was lodged with Opposite Parties to the tune of Rs.71,217/- out of which Opposite Parties deducted Rs.44,217/- and passed the claim of Rs.27,000/- only on 16.09.2021. Alleged that the Opposite Parties deducted the amount of Rs.44,217/- without any genuine reason. The complainant visited number of times to the office of Opposite Parties, but they lingered the matter on one pretext or the other. The complainant also requested the Opposite Parties telephonically as well as through written application. Alleged that without verifying the facts and figures Opposite Parties have rejected the genuine claim of the complainant. Due to such act and conduction of Opposite Parties, the complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to make the payment of Rs.44,217/- alongwith interest @ 18% p.a. from 20.07.2021 to till the date of payment.

b)      To pay Rs.30,000/- as compensation on account of mental torture and agony.

c)       To pay Rs.25,000/- as litigation expenses as well as counsel fee.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that this Commission has got no jurisdiction to try and decide the present complaint as there is no deficiency in service or negligence as alleged on the part of answering Opposite Parties. Averred that the complainant has lodged the claim regarding damage of some parts of their machine and immediately on receipt of claim, it was duly registered, entertained and processed. M/s K.S. Bawa & Co. Surveyor & Loss Assessor was deputed for spot survey, who through its representative inspected the machine, collected documents, clicked photographs and assessed the loss of Rs.27,000/- and submitted his report dated 18.08.2021. After receipt of the survey report alongwith documents, the claim file of the complainant was duly scrutinized in terms of the policy by the competent authority of the answering Opposite Parties and an amount of Rs.27,000/- was paid to the complainant as full and final settlement. The amount of Rs.28,733/- was not allowed which were towards the GST as the complainant has their own GST number and they will get refund of the said amount from the concerned department. Rs.2500/- was deducted towards excess clause @ 5% of the claim amount subject to minimum of Rs.2500/- as per terms of the policy. Rs.733.50p was deducted towards salvage value. Since the answering Opposite Parties have already paid the said amount, so there is no deficiency in service on the part of the answering Opposite Parties. The complainant has already received the said amount as full and final settlement, so complainant has no right to file the present complaint. Averred that insurance policy is contract between insured and insurer and both the parties are bound by the terms and conditions of the insurance policy; the present complaint is not maintainable since complicated question of law and facts are involved, which required elaborated evidence both oral and documentary and it is only civil court of competent jurisdiction to try and decide the present complaint; the complainant is stopped by his own act and conduct from filing the present complaint; the complainant has no cause of action to file the present complaint; the complainant is not consumer as defined in the Consumer Protection Act. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Complainant has filed replication to the written reply of Opposite Parties denying the objections raised by Opposite Parties in its written reply.

4.       In order to prove the case, the complainant has placed on record affidavit of Sh.Ashwani Bansal s/o Darshan Kumar Bansal Ex.C1 alongwith copies of documents Ex.C2 to Ex.C10.

5.       On the other hand, Opposite Parties have placed on record affidavit of Ms.Shama Arora Mittal, Deputy Manager, United India Insurance Co. Ltd. as Ex.RA alongwith copies of documents Ex.R1 to Ex.R26.

6.       We have heard the ld. counsel for both the parties, gone through the written arguments submitted on behalf of Opposite Parties and also gone through the documents placed on file.

7.       It is proved on record that complainant’s firm purchased a machine from Kabra Extrusiontechnik Ltd., which was insured with Opposite Parties, vide policy no.2012044420P110472176 for the period 18.12.2020 to 17.12.2021 and during the policy coverage some parts of the machine got damaged and claim intimation letter was sent to Opposite Parties (Ex.C6). Complainant’s firm also got prepared the estimate of the damaged parts from Sharma Power Electricals to the tune of Rs.60417/- plus 18% GST (Ex.R20).  Thereafter, Kabra Company sent the damaged parts to the complainant’s firm and issued the bill/invoice to the tune of Rs.69,217/- (Ex.C7). Despite this complainant also incurred an amount of Rs.2000/- as fitting charges (Ex.R21) After repairing the machine, the complainant lodged the claim with Opposite Parties as per the estimate, copy of the claim form is Ex.R26. It is also proved on record that on receipt of claim intimation, the Opposite Parties deputed K.S. Bawa and Surveyor, who vide its report dated 18.08.2021 (Ex.R6) assessed the net loss to the tune of Rs.27,000/-.

8.       Now, we come to the grievance of the complainant. The main grievance of the complainant is that against the claimed amount of Rs.71,217/-, the Opposite Parties paid an amount of Rs.27,000/- only and deducted the amount of Rs.44,217/- without any genuine reason. On the other hand, the contention of Opposite Parties is that out of the total amount, the amount of Rs.28,733/- was not allowed which was towards the GST and as the complainant has its own GST number and they will get refund of the said amount from the concerned department and Rs.2500/- was deducted towards excess clause @ 5% of the claim amount subject to minimum of Rs.2500/- as per terms of the policy and Rs.733.50p was deducted towards salvage value. We have perused the report of surveyor and perusal of the same reveals that all the deductions made by the surveyor in its survey report are as per terms and conditions of the policy, but the deduction of Rs.28,733/- on account of GST is not genuine, as it is proved on record that the complainant has made the payment  of the repair bill in question alongwith GST, so complainant’s firm is entitled for the same.

9.       In view of the discussion above, we partly allow the instant complaint and direct the Opposite Parties to make the payment of Rs.28,733/- to complainant, which was deducted by them as GST, subject to submission of relevant document by the complainant’s firm showing that it has not claimed the amount of GST from the concerned department. Keeping in view of the peculiar circumstances parties are left to bear their own costs. The pending application(s), if any also stands disposed off. The compliance of this order be made by the Opposite Parties next within 15 days from the date of receipt of the documents as mentioned above, failing which, the Opposite Parties are burdened with cost of Rs.5000/- (Rupees Five Thousand only) to be paid to the complainant. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission