ORDER Dated: 27-01-2017
Mohd. Anwar Alam, President
- Hon’ble National Consumer Disputes Redressal Commission vide order dated 19.12.2006 passed in CC 221/2006 held as under:
“Heard the learned counsel for the complainant. This not a fit case to be admitted in the National Commission as the claim is exaggerated. Complainant may approach Civil Court or appropriate forum as we thinks fit for his grievance. Complaint is dismissed.” So this case was presented before Hon’ble State Commission Delhi.
- Hon’ble State Commission Delhi Vide order dated 09.05.2007 passed in CC No. 07/2007 (07/70) held that “the interest is not a component of compensation as it is always subject to adjudication as to whether the complainant is entitled to interest or not or if so at what rate and from which period”. It was further held that if the allegations are assumed to be correct, the compensation for the purpose of pecuniary jurisdiction would not cross Rs. 20,00,000/- in the result the complaint is transferred to the concerned District Forum for consideration.
- In compliance of the above order passed by the State Commission , Delhi this complaint came to this forum for consideration.
- The complainant has filed this complaint on 29.03.2007 in the Hon’ble State Commission which was admitted on 03.07.2007 in this forum. Complainant alleged that he was trading member of National Stock Exchange of India Limited and took an indemnity insurance policy which covered losses arising out of physical loss, destruction, theft damages, security etc. etc. with the OPs which was effective from 1-6-1996 to 31-05-1997. On 27.1.1996 share certificates worth Rs. 18,00,000/- were lost / stolen from the Mumbai office of the complainant and complainant in this regard lodged a complaint with the police and OPs were informed accordingly to register the insurance claim. Till October 1996 , OPs did not make any payment of the insurance claim with the result that complainant became defaulter in the trading in the NSE thereby NSE disconnected the trading terminal of the complainant which resulted in loss in the business of the complainant. Vide OP’s letter dated 10.10.1997 their surveyor assessed the claim of the complainant in respect of the loss of the said share up to the amount of Rs. 14,38,363/- but OPs did not make any payment to the complainant even after about 2 years of the surveyor report so complainant was expelled as broker by the NSE on 02.11.1997. Later on 28.08.2004 the certificate of the complainant was also cancelled and to square up the dues of the complainant the complainant has to pay Rs. 28,00,000/- as penalty to the NSE on account of deficiency in service i.e. the delay in releasing the insurance claim. Complainant lost membership of NSE of India and thus profit of the business with NSE which the complainant assessed as Rs. 81,52,580/- for which the OPs are liable. On 09.12.2004 OPs reduced the final payment of the complainant to Rs. 13,011/- hence legal notice was given to OPs on 11.09.2006 but no response was received by the complainant. On 07.12.2006 complainant filed a complaint before the Hon’ble National Commission which was dismissed in leminy accordingly he filed complaint before the Hon’ble State Commision
with the prayer as under:
i) To pay Rs.364150/- to the complainant towards balance of Insurance Amount;
ii) To pay Rs.704630/-, to the complainant towards interest 18% for not paying the above amount from 27.6.1996 till date;
iii) To pay Rs.638577/- to the complainant towards Interest @ 18% for delayed interim payment of Rs.9,31 142/.- from 27.6.1996 to 18.4.2000
iv) To pay Rs.90800/-to the complainant towards the payment made to Insurance Agent;
v) To pay Rs. 195900/-.to the complainant towards the counsel fee for instituting and Withdrawing court cases Concerning lost shares on advice of opposite parties.
vi) To pay Rs.2804561/- to the complainant towards penalty to Master policy Holder (NSEIL) Which could have been avoided had the insurance claim was not delayed.
- On 04.01.2008 defence of the OP was struck down. On 08.12.2009 counsel of the OP submitted that OP is willing to make the payment if complainant provide document of SBI Magnum and the letter from the two companies details of which will be given to the complainant that shares have not been further transferred to any person.
- In support of his complaint complainant filed his own affidavit along with documents i.e. copy of certificate of insurance policy for the period 01.06.1996 to 31.05.1997 (Annexure C-1) , copy of complaint to police and OPs (Annexure C-2 and Annexure C-3 respectively) , copy of surveyor assessment (Annexure C-4), copy of letter of investigator (Annexure C5) , copy of letter of NSE (Annexure C-5/A),copy of hand written letter dated 05.07.1999 (Annexure C-5/B), copy of letter along with copy of affidavit (Annexure C6), copy of affidavit (Annexure C-6/A), copy of letter dated 15.10.2003 (Annexure C-7), copy of letter of subrogation and special power of attorney (Annexure C-8), copy of letter dated 09.12.2004 (Annexure C-9) , copy of legal notice (Annexure C-10), copy of order of Hon’ble National Commission(Annexure C-11) , copy of letter dated 18.04.2007 (Annexure C-11/A), copy showing the details (Annexure C-11/B)
- OP filed affidavit of Dr. M.A. Sheikh and Sh. N. K. Arora ( Managers) along with documents i.e. copy of policy (Ex. OP1/A) , copy of reply (Ex. OP1/B) and legal notice (Ex. OP1/C). As the defence of the OP has already struck down therefore the evidence and documents filed by OP is not considered.
- Both the parties filed their written arguments.
- We have heard the arguments and considered the evidence led by the parties and their written and oral arguments. In this case points to be considered are as under:-
- Whether complainant is a consumer?
(b) Whether this forum has pecuniary jurisdiction to entertain this complaint?
(c) Whether there is any deficiency in service on the part of the OP?
(d) Relief.
10. Complainant was trading member of the National Stock Exchange hence took an indemnity insurance policy which covered losses arising out of physical loss, destruction, theft damages, security etc. etc. with the OP which was effective 1-6-1996 to 31-05-1997. These allegations are well supported with insurance certificate (Annexure C-1) hence complainant is a consumer.
11. It is true that Hon’ble State commission vide order dated 09.05.2007 passed in CC no. 70/07 transferred the present to this forum for consideration but 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.”
12. In view of the above order passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the view taken by the Hon’ble State Commission Delhi vide order dated 09.05.2007 legal position regarding pecuniary jurisdiction has been now changed and at present the above order of the Hon’ble National Commission will prevail.
As legal position regarding pecuniary jurisdiction is to be considered on the basis of above decision given by the Hon’ble National Commission ,accordingly prayer in this complaint exceeds Rs. 20 Lakhs and this forum has no pecuniary jurisdiction to entertain this complaint. Accordingly this complaint is not maintainable in this forum.
13.As this forum has no pecuniary jurisdiction under the provisions of Consumer Protection Act, 1986 to entertain this complaint, therefore, there is no need to decide remaining points of consideration. Accordingly the complaint is dismissed as not maintainable with the liberty to the complainant to approach appropriate forum as he thinks fit for redressal of his grievance within 30 days from date of issuance of the copy of this order.
14. Both the parties will bear their own cost. Copy of the order made available to the parties free of cost as per law. File be consigned to record room.
Announced on………
