This complaint has been filed by the complainant, India Education Trust against the OPs.  The complainant trust is having its three units namely, Mahatma Gandhi Medical College, Mahatma Gandhi Dental College  and Mahatma Gandhi Hospital functioning at Sitapura RIICO Industrial Area, Jaipur. In neighbourhood of the units of complainant trust, a Depot of Indian Oil Corporation also exists since years together. On the fateful day 29.10.2009, a fire blast accident took place at the Indian Oil Depot causing huge loss to several  properties in the Industrial Area including the building, plant, machinery and equipments of the complainant trust as well.  Orally on 29.10.2009, and subsequently in writing on 30.10.2009, the complainant  trust informed and conveyed the loss caused to all three units of the complainant in the fire blast accident.  A report to this effect was also lodged by the complainant trust with the police station, Sanganer, Jaipur stating therein all the facts.  The complainant trust thereafter submitted its claim for compensation to the loss caused in the said accident of fire in its all three units comprising of total claim of Rs.642.61 lakhs.  The complainant as well as the OP insurance company appointed their surveyors respectively, who carried out the survey and prepared their reports regarding loss caused in the units of the complainant trust.   The OP   insurance company relying upon the survey report of its own surveyor though after a delay of total one year, accepted claim of Rs.44,04,885/- instead of the total claim submitted by the complainant trust  to the tune of Rs.642.61 lakhs.  The OP insurance company, however, imposed a condition  asking the complainant trust to give in writing a power of attorney as well as a subrogation letter to the effect that in case any ad-hoc relief or any special subsidy is accorded by the State Government, the RIICO and the Indian Oil Corporation towards the loss caused to the complainant trust, that amount shall be payable not to the complainant trust but the OP insurance company shall have the right to get that amount.  On the basis of this unwarranted condition, the OP insurance company has not released the amount of the compensation towards insurance claim to the complainant trust to the tune of Rs.44,04,885/- and has acted highly in illegal manner adopting in unfair trade practice causing huge financial loss to the complainant trust.

2.      The complaint was resisted by the OPs by filing written statement on the ground that insurance company had appointed a surveyor and  the surveyor has assessed loss of Rs.44,04,885/-  and  the insurance company had offered to pay  this amount to the complainant subject to the complainant submitting a letter of subrogation and power of attorney. The complainant did not agree to this and therefore, the amount could not be paid. As there is no deficiency on the part of the insurance company and insurance company is ready to pay the amount assessed by the surveyor. The complaint has no merits and needs to be dismissed. Both the parties led  their evidence by way of affidavits filed  on 24.12.2011 and 24.8.2012 respectively.

3.      Heard the learned counsel for both the parties and perused the record.

4.      Learned counsel for the complainant stated that insurance company has closed the claim as ‘No Claim’ vide their letter dated 30.3.2011 stating that the complainant had not submitted letter of subrogation, power of attorney and indemnity bond in proper formats duly executed on non-judicial stamp paper and attested by notary. The learned counsel mentioned that the total claim  was of Rs.642.61 lakhs, whereas the surveyor has only assessed the loss of Rs.44,04,885/-. Learned counsel further mentioned that it is true that the State Government after receiving lump sum money from the Indian Oil Corporation (IOC) distributed general relief to all the effected parties and in  this regard the complainant also received about Rs.1 crore  as interim relief.  The subrogation letter as asked by the insurance company is to the effect that if any compensation or amount is received from any party other than the insurance company, the same will be refunded to the insurance company. Obviously, the complainant cannot give this type of subrogation letter because to get the amount of insurance company of Rs.44,04,885/-, the complainant could not be surrendering  roughly Rs.1 crore which the complainant has received as interim relief from the State Government out of the money given by the IOC. 

5.      Learned counsel for the complainant further stated that the public notice issued by the Rajasthan State Government dated 11.12.2009 clearly stated that this adhoc relief will not affect the individual insurance/third party insurance claim of the units.  Thus, State Government had made it clear that this relief was in addition to the claim which might be approved under insurance policies of the individual complainants. Thus, there should not be any question of

refunding this amount to the insurance company to get the claim from the insurance company.   To further support the argument, learned counsel referred to the judgement of this Commission in H.P. Horticulture Produce Marketing & Processing Corpn. Ltd. vs. United India Insurance Company Ltd., III (2007) CPJ 364 (NC) wherein the following has been decided:

       “Consumer Protection Act, 1986-      Section 19 – insurance – Fire – Stock damaged – Surveyor appointed – Concluded, cause of fire not known – Assessed loss at  Rs.47,48,100 – Consent given by insured for full and final compensation – Amount withheld by OP for more than 4 years – Paid after deducting Rs.9,07,750 being amount received by insured from State Government as subsidy – Dispute not settled – Complaint dismissed – Hence appeal – Contention of Insurance Company, insured agreed to receive compensation either on market value or at subsidized rates, rejected – Subsidy given by Government for protection of Government Undertaking to sell goods at lesser price in public interest, as a welfare   measure – Insurance Company not  expected to take undue advantage of welfare measures adopted by
 

   Government for benefits of consumers/Corporation – Duty of Insurance Company to reimburse insured once loss assessed by Surveyor – Further, policy specifically provides payment of insured value by the insurer at time of happening of destruction or damage of insured property – Deduction of Rs.9,07,750 unjustified – Liable to pay amount assessed by Surveyor – Interest @ 10% allowed.”

6.      On the basis of above judgment of this Commission, the learned counsel argued that if any amount is received from the Government in support of the industry, the same is not  to be adjusted against the insurance claim. Similarly, in the present case, the amount received from the State Government cannot be adjusted against the insurance claim as the insurance claim is separately payable under the contract of insurance.     

7.      On the other hand, learned counsel for the insurance company/OP stated that  the insurance company had promptly appointed the surveyor who assessed the loss at Rs.44,04,885/- and the insurance company is ready to pay this amount  to the complainant.  As this is in the knowledge of the insurance company that the complainant has received some other amount  from  other sources in connection with the same incident of fire, it is necessary for the insurer to get the subrogation letter duly authorizing the insurance company to recover the amount paid to the complainant from the party due to whose negligence the complainant has suffered loss. The power of attorney is also required in favour of the insurance company so that the insurance company may file complaint case against the party who has been responsible for the loss of the complainant. This is the usual practice and there is nothing new in asking for a letter of subrogation from the complainant. In support, the learned counsel for the OPs referred to the following portion of the judgement of the Hon’ble Supreme Court  in Economic Transport Organization, Delhi versus Charan Spinning Mills Private Limited and another (2010) 4 Supreme Court Cases 114 :

“In all three types of subrogation [viz. (i) subrogation by equitable assignment; (ii) subrogation by contract;(iii) subrogation-cum-assignment], the insurer can sue the third party wrongdoer in  the name of  the assured and can file a complaint under the Consumer Protection Act, 1986. This means that the insurer requests the assured to file the suit/complaint and has the option of joining as co-plaintiff. Alternatively, the insurer can obtain a special power of attorney from the assured and then to sue the wrongdoer in the name of  the assured as his attorney. Consequently, any plaint, complaint or petition for recovery of compensation can be filed in the name of the assured, or by the assured represented by the insurer as subrogee-cum-attorney, or by the assured and the insurer as co-plaintiffs or co-complainants.

16.  The equitable assignment of the rights and remedies of the assured in favour of the insurer, implied in a contract of indemnity, known as “subrogation”, is based on two basic principles of equity.

          (a)  No tortfeasor  should escape liability for his wrong.

(b)  No unjust enrichment for the injured, by recovery of compensation for the same loss, from more than one source.

      The doctrine of subrogation will thus enable the insurer, to step into the shoes of the assured, and enforce the rights and remedies available to the assured.”

8.      Learned counsel for the OP further stated that the complainant did not file the complaint with  clean hands and  the receipt of payment of about Rs.1 crore from the State Commission was concealed in the complaint. To support his assertion, the learned counsel referred to relevant portion of judgement in M/s. Star Packaging Vs. Indian Oil Corporation and others, First Appeal No.731 of 2015 decided on 3.11.2015 by  this Commission :

    “14.   In view of the suppression of the material facts, the present appeal is liable to be thrown at the threshold. Accordingly, we dismiss the present appeal on the ground, that appellant has not approached the fora below with clean hands and has concealed and suppressed the material facts, with cost of Rs.10,000/- (Rupees ten thousand only).”

9.      In the reply, the learned counsel for the complainant stated that   the adhoc relief was received from the State Commission after filing of the complaint. 

10.     I have given a  thoughtful consideration to the arguments of the learned counsel for the parties and have examined the matter on record. The first  question to be considered is whether the complainant is a consumer. The complainant has clearly stated that the complainant  is a trust which runs three institutions which have suffered loss. The Hon’ble Supreme Court recently in Pratibha Pratisthan and others Vs. Canara Bank and others, Civil Appeal No.3561 of 2008 decided on 7^th March, 2017   has held that a trust is not a ‘consumer’ under the Consumer Protection Act, 1986. The relevant portion of the order reads as under:

“4. A reading of the definition of the words ‘complaint’, ‘complainant’ and ‘consumer’ makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made. To put this beyond any doubt, the word ‘person’ has also been defined in the Act and Section 2(m) thereof defines a person as follows :-

            2(m)    "person" includes, -

            (i)      a firm whether registered or not;

            (ii)    a Hindu undivided family;

            (iii)    a co-operative society;

   (iv)    every other association of  persons  whether     registered  under  the Societies Registration Act, 1860 (21 of 1860) or not

5. On a plain and simple reading of all the above provisions of the Act it is clear that a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.”

11.    Apart from the above, even on merits, it is seen that insurance company is entitled to ask for a letter of subrogation and power of attorney as clarified in the judgement of the Hon’ble Supreme Court in Economic Transport Organization, Delhi versus Charan Spinning Mills Private Limited and another (supra). However, I find that language of the letter of subrogation sent by the insurance company is not as per the requirement as observed in the aforesaid judgment. Both the learned counsel had agreed during arguments that they can find out a common language to the letter of subrogation. The basic idea is not to refund any amount to the OP/insurance company by the complainant received from any other source but the only idea of subrogation is that the OP should be able to recover the amount paid to the complainant under the insurance policy from the wrong doer.

12.    In the light of the judgement of the Hon’ble Supreme Court in Pratibha Pratisthan and others Vs. Canara Bank and others (supra), the complainant  trust cannot be considered a consumer under the Consumer Protection Act, 1986 and consequently the complaint is not maintainable before this Commission. Accordingly, the complaint is liable to be dismissed, however,  I am of the view that the matter can be sorted out between the parties if they so desire without resorting to any further litigation in the light of the observations made above.  Moreover, liberty is granted to the complainant to move to the civil court for redressal of their grievances, if the complainant so desires.

13.    Accordingly, CC No. 299 of 2011 is dismissed with the aforesaid observation.