Delhi

New Delhi

CC/1127/2013

Bright Footcare Pvt.Ltd. - Complainant(s)

Versus

M/S. Oriental Insurance Company Pvt.Ltd. - Opp.Party(s)

02 Sep 2020

ORDER

 

 

NEW DELHI DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110001

 

 

C.C.No.1127/2013

 

 

Bright Footcare Pvt. Ltd.,

A Company incorporated under

The Indian Companies Act, 1956

Through its Director Nitiin Gupta

Havings its registered office at

A-187, DSIIDC Industrial Area,

Narela, New Delhi-110040.

 

 

Complainant

Vs.

 

 

1. The Oriental Insurance Co. Ltd.

           Having its Regional Office at

           Hansalaya Building, 10^th Floor,

          15, Barakhamba Road,

           New Delhi-01

            2^nd Address:-

 

The Oriental Insurance Co. Ltd.

                Registered & Head Office at

                A-25/27, Asaf Ali Road,

               New Delhi-02.

 

           3^rd Address:-

        The Oriental Insurance Co. Ltd.

        Through its Branch Manager

        Sunlight Insurance Building,

         1/28, Asaf Ali Road,

           New Delhi-02.

 

 

2.          S. Soni& Co.,

Through ShriSanjeevSoni,

1047/16, Hari Singh Nalwa Street,

Karol Bagh, New Delhi-05.

Opposite parties

 

 

ARUN KUMAR ARYA, PRESIDENT

 

 

O R D E R

 

 

The complainant has filed the present complaint against the O.P under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant’s Co. obtained Standard Fire and Special Perils Policy vide No.215400/11/2012/74 from OP-1 for the period3.05.2011 to 2.05.2012. On 22.08.2011, a major fire broke out in the factory of complainant’s Co. and most of the stock  existed there was destroyed in the fire.  OP-1 was immediately informed about the incident  and the loss caused due to fire, Fire Authorities were also intimated.  The complainant Co. lodged a claim for Rs.12,49,250/- with OP-1 which was below the sum insured of Rs.50 lacs in respect of stocks and all documents were also provided.  OP-1  appointed OP-2 to make the survey and furnish its report to OP-1.  OP-2 visited the premises of the factory and submitted its report to OP-1. In the survey report OP-2 admitted the loss caused due to fire in the factory  and the said loss was covered by the insurance policy.  OP-2 also submitted in the survey report that the complainant’s Co. failed to prove the ownership of the damaged goods/stocks due to fire. Therefore, claim of the complainant was repudiated vide letter dt. 27.12.2011 but complainant Co. has never received this repudiation letter.  Hence, the repudiation of the claim of complainant Co. by OP-1 on erroneous conclusion amounts to deficiency in service and unfair trade practice,  hence this complaint.

2.     Complaint has been contested by both the OPs.  OP-1 filed its written statement and stated that the present complaint is hopelessly time barred as the incident/fire  took place on 22.8.2011 and the present complaint was filed on 17.2.2014 which is beyond the time period prescribed u/s 24A of CP Act.  It is further stated the present complaint involves disputed questions  of facts adjudication of which requires recording of detailed oral and documentary evidence, therefore , the matter falls within the domain of Civil Court.  It is also stated that the complainant was being using the factory  for the purpose of commercial use, as such the complaint is not maintainable under the provisions of the CP Act being  commercial one .  It is submitted that as per surveyor report dt. 20.12.2011 the goods worth Rs. 9,17,314/- was  damaged in the fire, however, the complainant had failed to prove the ownership on damaged goods, as such the claim lodged by the complainant is not payable.  The claim filed by the complainant was rightly repudiated and further prayed for dismissal of complaint.

3.     Both the parties have filed their evidence by way of affidavit.  

4.     We have heard argument advance at the Bar and have perused the record.

5.     We have gone through the complaint as well as the pleadings filed by the parties, as far as the issue of limitation is concerned, admittedly loss occurred on 22.7.2011 and the present complaint was filed on 24.12.2013.  The OP Co. repudiated/closed the claim of the complainant vide letter dt. 27.11.2011.  Hence, in our view the cause of action for filing the present complaint arose on 27.12.2011  and the present complaint was filed on 24.12.2013.  The complaint is well within limitation, the objection of the OP regarding limitation is dismissed.

 

6.     Perusal of the complaint shows that the case involves the complicated question of facts  on various issues such as  i) As per the complainant, the goods worth Rs.9,17,314/- was damaged in the fire, however as per insured’s the stock register is not authentic and the insured has failed to prove their loss based on books and records ii) the ownership of the same is not proved,  all these issues required elaborate evidence.

7.     Admittedly, the Consumer Forum deals with the complaint in a summary proceeding, where cases involve a great deal of evidence, the same cannot be adjudicated upon by the Forum & for which the party concerned has to approach the civil court where elaborate procedure including recording of evidence is followed.

8.     In case titled Punjab Lloyd Ltd. Vs Corporate Risks India Pvt. Ltd. (2009) 2 SCC 301, it was held that the complicated question of law should be decided by the regular court. It further held that the decisive test in not the complicated nature of question of fact and law arising for decision. In another case titled LIC &Ors. Vs SurinderKaur&Ors.Civil Appeal No.5334 or 2006 (Arising or of SLP (c) No.17866 of 2005) decided by Hon’ble Supreme Court of India on 01.12.2006, it has been held that complex question of facts cannot be decided by the consumer forum under the Consumer Protection Act and such arises can be subject matter of regular Civil Court.

 

9.     In view of the above discussion, we are of the considered opinion that the present complaint involves complicated issues. This issues  required elaborate oral and documentary evidence and the examination of the witnesses for the proper disposal of the matter.  The proper forum for adjudication of the present complaint is Civil Court.  Consumer Protection Act being the special Act where only summary proceedings are taken up and as such the adjudication of the present complaint is beyond the scope and jurisdiction of this Hon’ble Forum.  We are, therefore, inclined to hold that the present complainant cannot be adjudicated by way of Summary Proceeding; hence the present complaint is dismissed with liberty to the complainant to approach the Civil Court as per law.

 

A copy of this order each be sent to both parties free of cost by post.  Orders be also sent to www.confonet.nic.in. File be consigned to record room.

Pronounced in open Forum on 02/09/2020

 

(ARUN KUMAR ARYA)

PRESIDENT

                                       

 

 

(H M VYAS)

MEMBER