Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       Sh.Manish Aggarwal, partner of M/s.Ganpati Cotex, Amritsar has brought the instant complaint under section 11/12 of the Consumer Protection Act, 1986 on the allegations that the complainant is engaged in the business of manufacturing surgical/ absorbent cotton and for the purpose of carrying on its said business/ manufacturing activities, the complainant has installed various machines in the factory premises for earning their livelihood. Opposite Party is subsidiary of General Insurance Corporation of India and it has its different divisional offices/ branch offices through-out India and one such branch office is situated at Batala Road, Amritsar from where the complainant obtained the Marine Cargo Insurance Policies in question and the service of the Opposite Party is sought through its Branch Office, as required under the law. The complainant obtained three Marine Cargo Insurance Policies in the name of the firm from Opposite Party for the different period and got insured all its consignments of cotton, packed in bales or customary packing sent from Amritsar to anywhere in India against the payment of requisite premium and thus the complainant having availed the services of the Opposite Party for valuable consideration falls within the definition of Consumer as defined under the Consumer Protection Act, and as such, the complainant has a right and locus standi to file the present complaint and invoke the jurisdiction of this Forum. The first policy bearing No.484402/21/12/4400000514 was taken for a period from 5.3.2013 to 4.3.2014 for an amount of Rs.2 crores. Said amount of Rs.2 crores was exhausted on 23.3.2013 and thereafter, the uninsured consignments of goods sent to the tune of Rs.16,76,997.10 paisa uptill 24.3.2013. Thereafter, another policy bearing No. 21/12/44/83000152 was taken on 25.3.2013 for an amount of Rs.2 crores. The said amount of Rs.2 crores was exhausted on 17.5.2013 and  thereafter, the uninsured consignments of goods sent to the tune of Rs.1,03,81,558.80 paisa. Thereafter, third policy bearing No.21/12/44/8300034 was taken on 9.7.2013 and having effective date as 9.7.2013 for an amount of Rs.2 crore. Said amount of Rs.2 crores was exhausted on 6.9.2013 and the accident in question was occurred on 11.8.2013 and on the said date, there was an unexhausted balance of Rs.99,21,581.10 paisa of the insured policy amount, which clearly shows that the claim in question was occurred when there was a positive/ unexhausted balance of Rs.99,21,581.10 paisa of the insured amount. All the aforesaid three policies have a condition mentioned in the policy itself that insurance is to remain in force for a period of  twelve months from the date of its commencement unless the sum insured is previously exhausted.  During the continuation of third policy, to the ill-luck of the complainant, a consignment of cotton roles had been sent to the Managing Director, Kerla Medical Services Corporation Limited, Thiruvantpuram which has to be delivered at M/s.Central Ware Housing Corporation, Alappuzha vide invoice No. 1631 dated 11.8.2013 through M/s.D.S.Transport Corporation vide GR No. 328377. The said consignment was amounting (Rs.15,93,000/-+Rs.1,59,300/-) in total Rs.17,93,300/- which includes the declared value of the goods to the tune of Rs.15,93,000/-. When the said consignment reached near Vidisha, Madhya Pradesh in Truck bearing No.PB10-CC-0874, all of sudden the Truck caught fire and whole consignment of cotton burnt into ashes. The detail of loss as claimed by the complainant is Invoice amount Rs.15,93,000/- +Rs.1,59.300 on account of 10% extra, total amounting to Rs.17,52,300/-. Regarding the aforesaid incident, the concerned person present on the spot got lodged DDR with the police and with the fire brigade of nearby Fire Stations had extinguished the fire in question. Since the goods consigned were duly insured with the Opposite Party under the aforesaid insurance policy, therefore, intimation regarding said incident was also given to the Opposite Party and the claim was also duly lodged with Opposite Party. All the relevant documents as demanded by Opposite Party for scrutinizing and processing of claim of complainant’s firm were submitted by the complainant to Opposite Party for reimbursement of claim. The complainant has also provided the audited balance sheets for the year ended as on 31.3.2011, 31.3.2012 and  trading account as on 11.8.2013, the detail of which is given in para No.8 of the complaint. The said date shows that the complainant’s firm was earning a regular profit in the previous financial year and an having a sound financial position on the date of actual loss i.e. 11.8.2013. Upon the receipt of intimation from the complainant regarding the said incident, the Opposite Party appointed Sh.V.K.Mehta as surveyor and loss assessor, to investigate into the mater and to assess the loss so suffered by the complainant and the said surveyor has assessed the loss suffered by the complainant to the tune of Rs.7,78,505/- in the said incident of fire subject to production of damage certificate of said loss and in the absence of which 75% of the above amount on sub standard basis has been recommended to pay the complainant. It is worthy to mention over here that only copy of insurance policy has been supplied to the complainant and the Opposite Party never supplied any terms and conditions of  the impugned insurance to the complainant much less the alleged terms and conditions never formed part of contract between  the parties by which 25% has been deducted on account of non production of damage certificate. Thereafter, the Opposite Party had  deputed M/s.Ashwani Gupta and Company, Chartered Accountant firm to verify the account of the complainant’s firm. The Chartered Accountant of the firm visited the premises of the complainant firm twice a time in order to verify the books of account particularly the sales record of the complainant’s firm as mentioned in the report dated 1.3.2014 itself. The observation/ verification of sales account of complainant’s firm as stated in the report is fully mentioned in para No. 9 of the complaint.  The nutshell of the said report shows that the claim of the complainant repudiated on the ground that thee is a excess utilization of Rs.18,53,505/- from the insured amount (policy amount) on the date of accident i.e. 11.8.2013 and therefore, the claim of the complainant is not payable. The finding of the report with regard to aforesaid facts that the complainant’s firm already exhausted its limit of policy amount and there is excess utilization of Rs.18,52,505/- as stated in the chartered account’s report of Opposite Party is not sustainable as the report is not based on set standards of accounting principle. The report of Opposite Party’s chartered accountant shows that books of accounts of complainant’ firm  were not studied by him in a accurate manner and just overall figures were accumulated ignoring various other figures, factors and dates, which has to be considered in order to show the accurate status of sales account of complainant’s firm in the report dated 1.3.2014 submitted by him to Opposite Party. The report shows that intentionally in order to avoid the liability of genuine claim of the complainant wrong figures have been shown in the said report.  As per the sales accounts of complainant’s firm, the actual figures which proves and shows that on the date of accident i.e. on 11.8.2013, there is unexhausted amount of Rs.99,21,581.10 paisa even after calculating the amount of Rs.17,52,300/- of the consignment in question. It is worthy to mention over here that the complainant’s firm is a  VAT and income tax assesses firm and whatever figures have been placed on record for the kind perusal of this Forum in order to prove the present complaint, the same figures have already been submitted to the aforesaid department while filing the returns for each financial year. Instead of settling the genuine and legitimate claim of the complainant and disbursing the claim amount to the complainant as per the terms and conditions of the insurance policy, the Opposite Party is under moral statutory as well as contractual obligation to settle the genuine and legitimate claim of the complainant. The genuine and legitimate claim of the complainant has been repudiated by the Opposite Party without any just and sufficient cause despite the fact that the claim of the complainant is duly covered under the insurance policy obtained by the complainant from the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party may kindly be directed to pay claim amount i.e.Rs.7,78,505/- as mentioned in the repudiation letter dated 10.7.2014 and lateron, letter dated 21.10.2014 by the Opposite Party as detailed in the complaint occupied with interest @ 18% per annum from the date of lodging the claim till payment.

b)      Rs.2 lacs as compensation may also be awarded to the complainant.

c)       Costs of the complaint alongwith counsel’s fee may also be awarded to the complainant.

d)      Any other relief to which the complainant is found entitled under law and equity, be also awarded to him.

Hence, this complaint.

2.       Upon notice, Opposite Party appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that the complaint filed by Mr.Munish Aggarwal is not legally maintainable because he is not  the insured. As per the  insurance documents, the name of the insured concern is Ganpati Cotex.  As per the provisions of Partnership Act, where the firm is registered with the Registrar of Firms, it can sue or can be sued only in its corporate name and not by an individual. In the complaint itself, it has been repeatedly requested that the business of the firm is in crores and they are earning profit in lacs and crores, therefore the said business can not be considered for livelihood and as such, the said concern is not covered as a  consumer for filing the present complaint and the matter in dispute can only be decided by the civil courts and not by this Forum. Even otherwise, in the present complaint, complicated  questions of facts are involved which require evidence at length and as such, the complaint can not be decided in a summary manner, therefore this Forum has no jurisdiction in the light of the judgement delivered by Hon’ble Supreme Court in which it has been clearly held  that where there are  complicated  questions of facts and law which require lengthy trial and evidence to be led by both the parties and also to provide opportunity to cross examine the witnesses, then such type of the complaints should not be entertained by the Forum, rather should be relegated to the Civil Courts. Even otherwise, the Opposite Party has already informed the insured concern their claim is not payable vide letter dated 10.7.2014 and further vide letter dated 21.10.2014 and the claim  was repudiated in the said letters. The receipt of the said letters has been admitted by the insured concerned in para No.10 of the complaint. On merits, the Opposite Party almost taken up the same and similar pleas as taken by them in the preliminary objections. It is submitted  that complainant firm has installed various machines in the factory premises for earning their livelihood, but this fact is incorrect because in para No.5 of the complaint, there is reference of obtaining of insurance in crores and even the profit of the firm has been shown in crores and in the light of these figures, it can not be said that the business of the insured firm was done just for livelihood where the profit of the concern is in crores, hence the insured firm is not covered under the definition of consumer as per judgement delivered by the Hon’ble Supreme Court.  As per the basic principle of the Marine Cargo Insurance Policies, each and every consignment has to be declared irrespective of its mode of transport. It is further submitted that basic period of the said policy is 12 months. However, if the sum insured is exhausted before the expiry of 12 months, then it is incumbent upon the insured to get further insurance for the remaining period so that the policy should remain enforce regularly without any break. However, the intimation regarding alleged loss was given by the insured concern to the Opposite Party and on receipt of the said intimation, Opposite Party appointed independent surveyor who assessed the loss to the tune of Rs.7,78,505/-, but he submitted his survey report subject to fulfilment of terms  and conditions of the policy and also specifically mentioned that the party ahs not obtained Damage Certificate from the carrier. The complainant was informed to supply certain requisite documents including Damage Certificate, but the complainant firm failed to supply the same and finally, they informed that in fact they are unable to obtain Damage Certificate, therefore, their claim should be paid on sub standard basis i.e. 75% of the claim amount on the loss assessed by the surveyor. However, at the same time, the Opposite Party has also deputed Mr.Ashwani Gupta, CA and as per his report, it stands confirmed that the insured concern had utilised excess of sum insured to the tune of Rs.18,52,505/- and as per the terms and conditions of the policy in question, said claim is not maintainable and the claim of the complainant was repudiated vide letter dated 21.10.2014.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.CW1/A and amended affidavit Ex.CW1/B in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C11  and closed the evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Suresh Kumar Sharma, Divisional Manager Ex.OP/1, affidavit of V.K.Mehta, MD Ex.OP/2 alongwith copies of documents Ex.OP/3 to Ex.OP/ and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record and also perused the written submissions filed by the parties.

6.       The complainant firm through its partner has submitted his affidavit Ex.CW1/A and Ex.CW1/B in which he has reiterated the facts as detailed in the complaint. It is contended that the complainant had obtained parent Marine Cargo Insurance Policies for a period of 5.3.2013 to 4.3.2014 for Rs.2 lacs. However, the complainant has exhausted the amount much earlier and supplied material in excess of Rs.2 crores at his own risk and responsibility.  However, the complainant obtained additional policy of Rs.2 crores as per policy document Ex.C3 issued by Opposite Party w.e.f. 25.3.2013. Similarly, the complainant obtained another additional policy of Rs.2 crores as per policy Ex.C4 w.e.f. 9.7.2013 and the complainant supplied material under the last policy upto 8.9.2013, but accident took place on 11.8.2013. The complainant informed about the incident to Opposite Party and Opposite Party appointed M/s.V.K.Mehta for assessing the loss and it has assessed the loss at Rs.778505/-, but due to non production of damage certificate, the complainant agreed to accept claim on sub standard basis. Lateron, Opposite Party took the services of Ashwani Gupta & Company, which submitted its report dated 1.3.2014, copy of which Ex.C1 and the claim of the complainant was rejected primarily on report Ex.C1 allegedly for excess utilisation and the said repudiation is totally wrong.

7.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the complainant on the ground that  first of all, the complaint filed by Mr.Munish Aggarwal is not legally maintainable because he is not  the insured. As per the insurance documents, the name of the insured concern is Ganpati Cotex.  As per the provisions of Partnership Act, where the firm is registered with the Registrar of Firms, it can sue or can be sued only in its corporate name and not by an individual. In the complaint itself, it has been repeatedly requested that the business of the firm is in crores and they are earning profit in lacs and crores, therefore the said business can not be considered for livelihood and as such, the said concern is not covered as a  consumer for filing the present complaint and the matter in dispute can only be decided by the civil courts and not by this Forum. Even otherwise, in the present complaint, complicated  questions of facts are involved which require evidence at length and as such, the complaint can not be decided in a summary manner, therefore this Forum has no jurisdiction in the light of the judgement delivered by Hon’ble Supreme Court in which it has been clearly held  that where there are  complicated  questions of facts and law which require lengthy trial and evidence to be led by both the parties and also to provide opportunity to cross examine the witnesses, then such type of the complaints should not be entertained by the Forum, rather should be relegated to the Civil Courts. Even otherwise, the Opposite Party has already informed the insured concern their claim is not payable vide letter dated 10.7.2014 and further vide letter dated 21.10.2014 and the claim  was repudiated in the said letters. The receipt of the said letters has been admitted by the insured concerned in para No.10 of the complaint. On merits, the Opposite Party almost taken up the same and similar pleas as taken by them in the preliminary objections. It is submitted  that complainant firm has installed various machines in the factory premises for earning their livelihood, but this fact is incorrect because in para No.5 of the complaint, there is reference of obtaining of insurance in crores and even the profit of the firm has been shown in crores and in the light of these figures, it can not be said that the business of the insured firm was done just for livelihood where the profit of the concern is in crores, hence the insured firm is not covered under the definition of consumer as per judgement delivered by the Hon’ble Supreme Court.  As per the basic principle of the Marine Cargo Insurance Policies, each and every consignment has to be declared irrespective of its mode of transport. It is further submitted that basic period of the said policy is 12 months. However, if the sum insured is exhausted before the expiry of 12 months, then it is incumbent upon the insured to get further insurance for the remaining period so that the policy should remain enforce regularly without any break. However, the intimation regarding alleged loss was given by the insured concern to the Opposite Party and on receipt of the said intimation, Opposite Party appointed independent surveyor who assessed the loss to the tune of Rs.7,78,505/-, but he submitted his survey report subject to fulfilment of terms  and conditions of the policy and also specifically mentioned that the party ahs not obtained Damage Certificate from the carrier. The complainant was informed to supply certain requisite documents including Damage Certificate, but the complainant firm failed to supply the same and finally, they informed that in fact they are unable to obtain Damage Certificate, therefore, their claim should be paid on sub standard basis i.e. 75% of the claim amount on the loss assessed by the surveyor. However, at the same time, the Opposite Party has also deputed Mr.Ashwani Gupta, CA and as per his report, it stands confirmed that the insured concern had utilised excess of sum insured to the tune of Rs.18,52,505/- and as per the terms and conditions of the policy in question, said claim is not maintainable and the claim of the complainant was repudiated vide letter dated 21.10.2014.  Furthermore, it is the basic law that terms and conditions of the policy are to be interpreted as it is and the insured is bound by the said terms and conditions of the policy in question and if he has made any violation of the same, then the  insurance company is fully justified to reject the claim on merits. In this regard, Hon’ble Supreme Curt in judgement 2010(4) RCR Civil Page 845 page 846 holding that the contract of insurance, rights and obligations are strictly governed by terms of the policy and no exception or relaxation can be given on the ground of equity.

8.       A bare perusal of the complaint as well as written version submitted by the Opposite Party and perusal of other evidence produced by the parties, shows that in the present complaint, complicated  questions of facts are involved which require evidence at length and as such, the complaint can not be decided in a summary manner, therefore this Forum has no jurisdiction in the light of the judgement delivered by Hon’ble Supreme Court in which it has been clearly held  that where there are  complicated  questions of facts and law which require lengthy trial and evidence to be led by both the parties and also to provide opportunity to cross examine the witnesses, then such type of the complaints should not be entertained by the Forum, rather should be relegated to the Civil Courts. Furthermore, the instant dispute is with regard to calculation etc.  In this regard, we draw support in this connection from Ashok Leyland Finance Limited Vs. Himanshu S.Thumar 2005(1) CPJ page 92, wherein the Hon’ble Gujarat State Consumer Disputes Redressal Commission, Ahmedabad has held that account dispute is not a’consumer dispute’ and the complaint should not have been entertained by the District Consumer Forum.

9.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that  the complaint contained contentious questions of law and facts , which require voluminous evidence for deciding the same . The witnesses also require to be cross examined at length. The complaint proceedings before this Forum are summary in nature and this Forum cannot delve deep into the matter or allow the cross examination of numerous witnesses or production of voluminous documents. Since the matter relates to intricate questions of law and facts. A probe into the matter is required to be made. As such, this Forum cannot exercise its jurisdiction to decide the intricate questions of law and facts  in a summary manner. Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-

“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”

Their lordships have further held that :-

“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”

10.     The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in the judgement supra. A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement  which reads as under:-

“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.”

11.     As such, instant complaint is relegated to the Civil Court for deciding the matter in accordance with law. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum.      

Dated: 15.02.2017.