No. 4/28.11.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Both sides are present through their Ld. Advocates.  This appeal is by the Complainant against the order of dismissal of the complaint.  Upon careful consideration of the impugned order we find that the complaint case has been dismissed on two folds reasons.  First, the Complainant, who took the insurance cover for all the stores, paints, chemicals, raw materials of his proprietorship business stored both at the factory premises as well as in the Office premises of the said business is not a consumer as he is carrying on his such business of the aforesaid materials and, therefore, such insurance cover is for commercial purpose.  Second, the quantification of claimed amount requires taking of detail evidence which is beyond the scope of summary proceeding by a Consumer Disputes Redressal Forum. 

Upon reading of the said two grounds on the basis of which the complaint case has been dismissed we are of the firm view that the same are not tenable in law.  First, the Complainant took the insurance cover in respect of all the paints, chemicals and raw materials stored in the factory and office premises of the Complainant for the purpose of carrying on his manufacturing and marketing of paints.  To secure the said materials as well as the products manufactured in the factory premises the said insurance cover was taken by the Complainant.  The Complainant has not dealt with the Insurance Policy which he has taken for covering the risk of the said materials for any commercial purpose.  It is, therefore, cannot be said that the Complainant had taken the insurance policy for dealing with the same for commerce or had traded with such Policy.  Therefore, dismissal of the complaint on such ground is absolutely perverse.

Lastly it is evident from the materials on record that the claim of the insured was settled by the Insurer at a sum of Rs.2,64,933/- against the claim made by the Complainant for whole of the assured sum of Rs.9,00,000/-.  In view of the claim so made by the Complainant it is absolutely necessary to determine whether the settlement as above made by the Insurer was justified or not.  Such question is absolutely within the competence of the District Forum under provisions of the Consumer Protection Act, 1986.  It can at all be said that anything decided unilaterally by the Insurer by way of settlement of the claim raised by the claimant at an amount much less than the claimed amount would stand as the final settlement of the claim without requiring any intervention by the Consumer Court and the Consumer Court has no jurisdiction and/or authority to settle the claim to which the claimant is entitled to on the basis of the evidence that may be adduced by the parties.  For the reasons as aforesaid the second ground on which the complaint has been dismissed is also not tenable in law. 

We, therefore, set aside the impugned judgement and order and send the case back on remand for final disposal on merits by the Forum below.  Regard being had to the fact that against the claim of the Complainant the Insurer itself has agreed to settle the claim at Rs.2,64,933/- we accordingly observe that the Complainant – Appellant without prejudice to their rights and contentions in the complaint case will be at liberty to receive the aforesaid sum of Rs.2,64,933/- pending final disposal of the complaint case.   The Insurer is accordingly directed to pay to the Complainant the aforesaid sum forthwith.  Since the complaint case has been filed sometime in the year 2009 it is desirable that the same should be disposed of on remand within a period of three months from the date of receipt of records of this case.