IA/17015/2023 (Delay Condonation Application) This is a delay condonation application that has been preferred by the appellant Insurance Company for condonation of a reported delay of 125 days in the filing of the appeal. The delay condonation application has been opposed by the learned counsel for the respondents/complainants on the ground that the delay explained by the appellant is only for 120 days and that too without any day-to-day explanation in respect of the delay. The delay condonation application narrates that the appellant Insurance Company had been pursuing the matter but some time was taken to seek legal support and collect the documents and then preparing the appeal. This led to a consumption of more than 30 days but there was no intentional or deliberate delay in the filing of the appeal. Learned counsel for the respondents/complainants submits that the explanation is not satisfactory and even otherwise the delay has not been explained with any sufficient cause. Having considered the submissions raised, it is correct that the explanation is not thoroughly satisfactory and it does not give exactly a day-to-day explanation but nonetheless the grounds that have been taken for filing of the appeal and have been urged, make out a case for condonation of delay but on payment of costs of Rs.10,000/-. The costs shall be accordingly paid to the respondents/complainants. The delay condonation application is allowed and the appeal shall be treated to be within time. Appeal Learned counsel for both the parties have been heard at length and they agree for the final disposal of the appeal at the admission stage itself. Two contentions have been advanced by the learned counsel for the appellant Insurance Company. The first is that the respondents/complainants were not consumers nor the complaint could be treated to be a consumer complaint keeping in view the provisions of 2(1)(d) and 2(1)(o) of the Consumer Protection Act, 1986 as the nature of the policy against which coverage and indemnification is sought is in respect of a commercial venture and hence the contractor’s all risk insurance policy involved in the present case does not entitle the respondents/complainants to maintain this complaint as it is a service for a commercial purpose. The State Commission therefore has committed an error in allowing the same. The second ground raised by the learned counsel for the appellant Insurance Company is that the State Commission has completely overlooked the terms of the policy, particularly deduction of 5% of the claim amount as excess, and therefore the amount awarded is contrary to the terms and conditions of the policy. So far as the first contention of the learned counsel for the appellant Insurance Company is concerned, that has already been answered by the Apex Court in the case of National Insurance Co. Ltd. Vs. Harsolia Motors and Ors. (2023) 8 SCC 362. In view of the ratio of the aforesaid decision, the nature of the claim being under an insurance policy which is only for indemnification and not for profiteering, the complaint is maintainable as a consumer complaint. Following the ratio of the said decision, the first objection raised by the learned counsel for the appellant Insurance Company is rejected. Coming to the second contention raised by the learned counsel for the Insurance Company with regard to deduction, learned counsel for the respondents/complainants has been unable to dispute the terms of the policy but he contends that in view of the averments made in para-9 of the complaint, which went unrebutted by the Insurance Company, the amount claimed for the purpose of deduction should be only Rs.49,82,084/- and not Rs.69,92,089/-. The submission therefore is that in view of the aforesaid averments made in the complaint, the deductions sought should be limited only to the extent of the amount mentioned in para-9 of the complaint. Learned counsel for the appellant Insurance Company has pointed out that it is not only para-9 but para-11 as well which should be taken into consideration which is an admission of the respondents/complainants. It is by now well settled that an admission on the basis whereof reliance is placed cannot by itself be an axiomatic truth of the fact which is sought to be pleaded in order to prove a particular fact. The fact has to be proved on the basis of the evidence led and even if no written statement has been filed, it is the Court that has to be satisfied before relying on any unrebutted assertion. Reference be had to the judgment of the Apex Court in the case of Balraj Taneja and Anr. Vs. Sunil Madan and Anr. (1999) 8 SCC 396, Para-29 extracted hereunder:- “29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.” In view of this, what can be gathered from the pleadings is that the respondents/complainants have claimed an amount of Rs.49,82,084/- together with a claim of idle expenditure of Rs.20,10,000/-. This therefore totals to a claim amount of Rs.69,92,089/-. Accordingly, the excess claim of 5% therefore has to be calculated accordingly in terms of the policy. In view of limited arguments that have been made on the two issues referred to above, the appeal deserves to be partly allowed to the extent of the deduction of the amount of 5% of the claim amount as referred to above which calculation according to the learned counsel comes to Rs.3,49,604/-. In view of the aforesaid calculation, the net amount payable is Rs.22,57,750/- - Rs.3,49,604/- = Rs.19,08,146/- which shall be payable coupled with 9% interest thereon as awarded by the State Commission. Learned counsel for the appellant Insurance Company states that the principal amount of Rs.22,57,750/- has been deposited before the State Commission on 21.05.2024. Accordingly, the said amount shall be adjusted towards the total amount payable to the respondents/complainants according to the order passed today. The State Commission is therefore directed to carry out the calculations and prepare the decree accordingly for the Insurance Company to satisfy the decree as modified hereinabove by this order. If any other amount spills over, after satisfying the decree as indicated above, the same shall be refunded to the appellant Insurance Company. The amount of costs imposed while allowing the delay condonation application shall also be added in the calculations for satisfying the final decree as per this order by the State Commission. The appeal stands disposed of accordingly. Pending applications, if any, also stands disposed of. | 
