ORDER                                    Dated: 05-04-2017

Mohd. Anwar Alam, President

1. The complainant filed this complaint on 20-09-2010 and alleged that complainant got the consignment insured with the OP’s divisional office vide policy no. 361800/21/07/430000303 dated 16.03.2007. Complainant further alleged that short quantity of material (consignment) was received at Kandla Port (valued at Rs. 1,90,902/-) and the said shortage was due to negligence on the part of the shipper of the consignment and vide letter dated 17.08.2007  a claim was filed with the OP  by the complainant and  16 documents  were also submitted for claiming compensation of the loss which the complainant had suffered but to no effect. As per letter dated 19.09.2008, three claims were raised by the complainant which were not settled by the OP due to the reason that the shortage/ loss reported to the OP falls under exclusion clause 4.2 & 4.3 in the policy of insurance issued to the complainant. OP wrongly repudiated the claim on the ground that the two

claims were reported for the first time after the expiry of the currency of the policy period. Hence OP is deficient in providing services and complainant prayed this forum to direct OP to pay to the complainant  a sum of Rs. 1,90,902/- with interest and other charges.

2. In reply OP admitted the consignment was insured with the OP vide policy bearing no. 361800/21/07/430000303 dated 16.03.2007. OP objected that complainant had availed the services of opposite party for commercial purpose and hence complaint of the complainant is not maintainable and  there is no deficiency in service on its part in repudiating the claim  if the complainant.   OP denied rest of the allegations and prayed to dismiss the present complaint with costs.
3. The complainant has filed rejoinder to the written statement and denied the objections made by OP and supported his complaint.
4. In support of his complaint complainant filed affidavit of Sh. Chitresh Aggarwal along with documents i.e. copy of letter dated 09.04.2007 (Ex CW-1/1), copy of letter dated 09.04.2007 (Ex CW-1/A)   copy of letter dated 17.08.2007 (Ex CW-1/2), copy of  letter dated 28.03.2007 (Ex. CW-1/3), copy of claim form (Ex CW-1/4),  copy of claim form (Ex CW-1/5), copy of invoice dated 23.03.2007 (Ex CW-1/6) , copy of packing list (Ex. CW-1/7), copy of invoice beneficiary’s certificate (Ex CW-1/7A) , copy of bill of entry (Ex CW-1/8) , copy of bill  of lading  (Ex CW-1/9 and Ex CW-1/10) , copy of terms and conditions (Ex CW-1/11) , copy of certificate  dated 27.03.2007 (Ex CW-1/12) , copy of certificate  of origin (Ex CW-1/12A) , copy of  notice dated 17.08.2007 sent to shipping authority (Ex CW-1/13), copy of notice dated 17.08.2007 sent to Kandla Port  Trust(Ex. CW-1/14 & 14A), copy of letter of subrogation and special power of attorney (Ex.CW-15 & Ex. CW-1/16), copy of policy issued by OP (Ex. CW-1/17), copy of survey report dated 18.04.2007 (Ex. CW-1/17A), copy of letter dated 13.08.2008 (Ex. CW-1/18), copy of letter dated 04.08.2008(Ex. CW-1/19) , copy of letter dated 13.08.2008 (Ex. CW-1/20), copy of letter dated 19.08.2008 (Ex. CW-1/21), copy of notice dated 27.01.2009 (Ex. CW-1/22) , copy of replies dated 28.01.2009 and 02.02.2009 (Ex. CW-1/23, Ex. CW-1/24 and Ex. CW-1/25).
5.   In support of reply OP filed affidavit of Sh. Y,G. Joshi  (Authorized Representative) along with documents.
6. Both the parties filed their written arguments.
7. For the oral arguments none appeared for complainant since 06.11.2015 and none appeared for the opposite party since 05.12.2016. As this is an old case pending since 2010 therefore written arguments of the parties and material on the record considered. In this case points to be considered are as under:-

1. Whether complainant is a consumer?
2. Whether this forum has pecuniary jurisdiction to entertain this complaint?
3. Whether there is any deficiency in service on the part of the OP?
4. Relief?

8. In reply OP did not deny issuance of insurance policy  bearing no. 361800/21/07/430000303 dated 16.03.2007 in favour of complainant company hence complainant is a consumer.
9. Mere perusal of the complaint clarifies and the insurance policy (Ex. CW-1/17)  admitted by the parties covering the import consignment against all risks for a total sum  of Rs.1,43,66,825/- . It is true that the complainant prayed  for an amount of  Rs.1,90,902/- for the short quantity received with interest and other charges  but the total value of the service is Rs. Rs.1,43,66,825/- i.e. total sum insured under the policy. This value of service i.e. sum assured under the policy is to be considered for pecuniary jurisdiction of this forum.
10. The  Hon’ble National Commission vide order dated 07.10.2016 passed in C. C. No. 97/2016 with regard to the reference  dated 11.08.2016 relating to issue numbers (i) to (iv) decided the pecuniary jurisdiction  as under:-

“(i) It is the value of the goods or services, as the case may be  and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

(ii) The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.

(iii) The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

(iv) In a complaint instituted under section 12 (1) (c) of the consumer protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefits the complaint is instituted and the total compensation claimed in respect of such consumers.”

11.  In view of the above settled legal position as well as facts of the complaint this forum has no pecuniary jurisdiction to entertain this complaint.  Looking to the above facts and circumstances we are of the considered opinion that value of service availed by the complainant is Rs.1,43,66,825/- and this forum has no pecuniary jurisdiction to entertain this complaint. Hence this complaint is not maintainable in this forum.
12.  As this forum has no pecuniary jurisdiction in this case therefore there is no need to decide remaining points of consideration. Complainant is directed to approach appropriate commission within 30 days from the date of issuance this order or within period of limitation prescribed under the provisions of Consumer Protection Act,1986.
13.  Both the parties will bear their own cost.  Copy of the order be made available to the parties free of cost as per law.  File be consigned to record room.

Announced on………