28.06.2022 Present:- Sh.Naresh Garg, counsel for complainant.
Sh.Vinod Garg, counsel for opposite party.
Heard on the application for dismissal of complaint.
This order will dispose off application moved by opposite party for dismissal of complaint.
Briefly it is pleaded in the application that the District Forum (Now Commission) does not have the jurisdiction to decide this complaint. The complainant has himself admitted that the premium as has been paid to opposite party exceeds Rs.20 lakhs (under the old 'Act') and Rs.1 crore (as per the new 'Act'). As per the policy placed on record, the premium paid is Rs.2,37,76,434/-. It exceeds the pecuniary jurisdiction of this Forum. This Forum does not have the jurisdiction to decide this complaint. It is without prejudice to the plea to be taken by opposite party that the claim is not payable and there is a violation of the policy terms. In support of its pleadings, opposite party has referred the decision of the Hon'ble National Commission, New Delhi in Consumer Case No.833 of 2020 title M/s Pyaridevi Chabiraj Steels Pvt. Ltd. Vs. National Insurance Company Ltd. & Ors., Decided on 28.8.2020.
Upon notice, the complainant has contested the application by filing the written reply. In reply, the complainant has raised the legal objection that the application is not maintainable at this stage and it has been filed by the applicant/opposite party with maiafide intention just to prolong the matter. The applicant has not come with clean hands and he has suppressed the material facts and filed this application with fertile mind. The premium of Rs.8,33,820/- was taken by opposite party for this consignment against which the complaint has been filed and regarding this separate insurance certificate was also issued by opposite party to the complainant and now, opposite party with the fertile brain by changing the facts, filed this frivolous application. Opposite party insured separately each and every consignment and issued separate insurance certificate for that particular consignment and charged the premium for particular consignment and deducted the premium from the total advance premium.
On merits, it is pleaded that the subject matter in this complaint is less than Rs.1 crore. Under the policy, some complaints are filed under Section 12 of 'Consumer Protection Act, 1986' i.e. below Rs.20 lakhs. As such, this Commission has jurisdiction to decide the complaint. The law mentioned in the application is not applicable in this complaint. As such, the present subject matter is less than Rs.1 crore (under new Act) and Rs.20 lakhs (under old Act). Hence this Commission has pecuniary jurisidction to decide this complaint.
The complainant has reiterated its stand as taken in the legal objections as detailed above and controverted all other averements of opposite party and prayed for dismissal of application with special costs.
We have heard learned counsel for parties and have gone through the file.
Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above.
The point for determination is that whether this Commission has pecuniary jurisdiction to entertain and decide the present complaint or not.
Learned counsel for opposite party has submitted that this Commission has no jurisdiction to decide this complaint as the complainant has himself admitted in his complaint that the premium has been paid to opposite party exceeds Rs.20 lakhs (under the old 'Act') and Rs.1 crore (as per the new 'Act'). The complainant has placed on file 'Marine Open Import Declaration Policy', (Ex.C4). A perusal of Page No.2 of this policy depicts the total premium paid is of Rs.2,37,76,434/-, meaning thereby the complainant had paid the premium of Rs.2,37,76,434/- against this policy. This amount exceeds the limit of pecuniary jurisdiction of this Commission to entertain and decide the complaint i.e. Rs.20 lakhs (under the old 'Act') and Rs.1 crore (as per the new 'Act'). As such, this Commission has no pecuniary jurisdiction to entertain and decide this complaint.
To support these submissions, learned counsel for opposite party has also cited following cases law:-
i) Decision of Hon'ble Gujarat High Court case title Heena Vs. Hiten, SCA/17461/2011, Decided on 22.12.2011;
ii) Decision of Hon'ble National Commission, New Delhi case title Ligare Aviation Limited Vs. Oriental Insurance Company, Decided on 29.7.2021;
iii) Decision of Hon'ble National Commission, New Delhi case title M/s Maharani of India Vs. Branch Manager, United India, Decided on 11.1.2018.
iv) Decision of Hon'ble National Commission, New Delhi in case title M/s Pyaridevi Chabiraj Steels Pvt. Ltd Vs. National Insurance Company Ltd. & Ors, Consumer Case No.833 of 2020, Decided on 28.8.2020.
On the other hand, learned counsel for complainant has submitted that at the time of admission of complaint, this Commission had issued notice to opposite party after considering the point of pecuniary jurisdiction of this Commission. Therefore, now at this stage, this application is not maintainable.
Further learned counsel for complainant has argued that the premium of Rs.8,33,820/- has been taken by opposite party for consignment against which the present complaint has been filed and regarding which separate insurance certificate was also issued to the complainant by opposite party and subject matter is less than Rs.1 Crore (As per new 'Act') and less than Rs.20 lakhs (As per old 'Act'), so this Commission has pecuniary jurisdiction to decide the complaint.
To support these submissions, learned counsel for complainant has cited decision of Hon'ble State Commission, Punjab, Chandigarh F.A No.366 of 2021, Decided on 21.10.2021.
We have given careful consideration to these submissions and gone through the case law cited by learned counsel for parties.
Learned counsel for complainant has raised the objection that at the time of admission of complaint and after considering the point of pecuniary jurisdiction, this Commission had issued notice to opposite party and now, opposite party cannot raise the point regarding pecuniary jurisdiction. Learned counsel for complainant has relied upon decision of Hon'ble State Commission, Punjab, Chandigarh, F.A No.366 of 2021, Decided on 21.10.2021. With utomost humality and respect to this decision of Hon'ble State Commission, the facts of the case are distinguishable.
In case Heena Vs. Hiten (Supra), Hon'ble Gujarat High Court has held that “Taking into consideration the aspect that it is open to the petitioner to appear before the Forum and apprise it regarding its objection regarding lack of jurisdiction to entertain the complaint and in view of the fact that no effective hearing has taken place before the Forum, leave alone any order being passed, it cannot be said that the Forum has exercised jurisdiction which is not vested in it. A complainant cannot be estopped from making a complaint even before a Forum which may not have jurisdiction to entertain it. It is for the concerned Forum to decide the issue of jurisdiction in the first instance. If an order passed by the Forum is not sustainable in law, then the petitioner may have a grievance that can be taken to its logical conclusion. However, in the present case, such a situation has not arisen as the petitioner has not approached the Forum for an effective hearing and has not raised the objection regarding jurisdiction before it. In other words, the Forum has not yet had the opportunity to effectively exercise the jurisdiction vested in it, for decision of an issue. In this view of the matter and for reason state hereinabove, this Court does not consider it appropriate to entertain the peititon at this premature stage, leaving it open to the petitioner to approach the Forum and taken the objection regarding jurisdiction. In the event that the petitioner approaches the Forum and takes such an objection, the Forum shall consider and decide the same as a preliminary issue, in accordance with law, before proceeding with the merits of the case. Subject to the above directions, the petition is rejected.”
Therefore, as per the above cited law, it is open to opposite party to appear before this Commission and apprise it regarding its objection regarding lack of jurisdiction to entertain the complaint. As such, after appearing before this Commission, opposite party can raise the objection regarding jurisdiction of this Commission. Thus, this application is maintainable.
Further perusal of the policy placed on file and relied upon by the complainant, (Ex.C4) reveals that Rs.2,37,76,434/- are paid by the complainant as consideration/premium for obtaining this insurance policy.
Hon'ble National Commission, New Delhi in case title M/s Pyaridevi Chabiraj Steels Pvt. Ltd Vs. National Insurance Company Ltd. & Ors, Consumer Case No.833 of 2020, Decided on 28.8.2020 has held:-
“(7) The submission made by the learned Senior Counsel appearing for the complainant cannot be accepted. lt is no doubt true that under the Act of 1986, pecuniary jurisdiction was to be determined by taking the value of the goods or services and compensation, if any, claimed. Meaning thereby that the value of the goods or services as also the compensation is to be added to arrive at a conclusion as to whether the National Commission has the jurisdiction or not. This law was laid down by a three Member Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd, I (2017) CPJ I (NC). Thus in the Act of 1986 it was "the value of the goods or services and the compensation claimed" taken into consideration while determining the pecuniary jurisdiction. For example, if a person has agreed to purchase a Flat/Apartment/Plot for about Rs.60,00,000/- and he is claiming refund as also compensation of Rs.50,00,000/- then the value will exceed Rs.1,00,00,000/- and the Consumer Complaint has to be filed before the National Commission. Similar, would be the case of taking Insurance Policy of above Rs.1,00,00,000/-or may be below Rs.1,00,00,000/- but taking into consideration the premium paid and the compensation claimed if the value exceeds Rs.1,00,00,000/- the Consumer Complaint has to be filed before the National Commission.
(8) It appears that the Parliament, while enacting the Act of 2019 was conscious of this fact and to ensure that Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of the consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively.
(9) For ready reference the provisions of Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Act of 2019 are reproduced below:-
34(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of goods or services paid as consideration does not exceed one crore rupees
47(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
(a) to entertain-
(i) Complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore.
58(1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction-
(a) to entertain-
(i) Complaints where the value of the goods or services paid as consideration exceeds rupees ten crore.”
Section 34 of C.P Act 2019 deals with the jurisdiction of District Commission:-
“34(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of goods or services paid as consideration does not exceed one crore rupees.”
This Commission is of the opinion that insurance policy is to be considered and not the insurance certificates issued on the basis of insurance policy, as the premium is paid only once while purchasing policy. Under policy in question Rs.2,37,76,434/- are paid as premium, which exceeds pecuniary jurisdiction of this Commission.
Having regard to the facts and circumstances of the complaint, the determination for computing the pecuniary jurisdiction of a Consumer Commission being the consideration paid, we are of considered view that this Commission is handicapped to hear and decide this complaint. Therefore, in view of the case law cited by learned counsel of opposite party and legal provision detailed above, this application is allowed. Accordingly, the copy of documents be retained and complaint in original alongwith copy of this order are directed to be returned to the complainant against the valid receipt, granting liberty to file it before the appropriate Commission enjoying the jurisdiction thereof.
File be consigned to the record room.
Announced:-
28.06.2022
(Paramjeet Kaur) (Shivdev Singh) (Kanwar Sandeep Singh)
Member Member President
