Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This complaint is filed by the Complainant – SETCO Chemicals Pvt. Ltd., Vasai (East), District Thane against the New India Assurance Co. Ltd., Mumbai, alleging deficiency in service on the part of the Insurance Company.
(2) The Complainant pleaded in his complaint that Opponent after inspecting the premises and scrutinizing the information given by the Complainants used to calculate the premium and used to issue policy which was renewed every year from time to time. The present complaint has been filed in respect of Policy No.11/140500/6405 for the loss caused to the Complainant on 14.05.1997 due to fire. After claim was lodged, Opponent appointed their surveyor Mr.Manish P.Shah. He did not have knowledge or competence to take decision of loss caused to the stock. He therefore, could not understand and assess loss properly and correctly. He misled Opponent by submitting report. Opponent without considering the report properly or calling any explanation from the Complainant on the survey report and without giving hearing to the Complainant sent repudiation letter dated 14th October, 1999 with dishonest intention and ulterior motive. Complainants thereafter sent their Advocate’s letter dated 1st December, 1999 and demanded copy of survey report and made request to the Opponent to refer the matter to arbitration as per the clause in the policy. Opponent by their letter dated 3rd January, 2000 through their Advocate Mr.Barve replied the letter, but did not furnish copy of survey report nor agreed to refer the matter to Arbitration. According to Complainant under section 64 UM of the Indian Insurance Act, Insurance Company is required to take independent decision and report of Surveyor is not binding on them. Complainant had asked for survey report again. They had also submitted certificate issued by Chemical department of Technology of the University of Bombay about damage caused to their goods in the fire. Complainant pleaded that since Insurance Company neglected to refer the dispute to arbitration, the Complainant Company was compelled to file present complaint for compensation for deficiency in service. The Complainant pleaded that for repudiating the rightful claim arbitrary ex-parte decision has been taken by the Insurance Company on the basis of report of Surveyors. The Complainant pleaded that Complainant’s claim was illegally unlawfully repudiated for extraneous consideration and for non-germane reasons. According to Complainant Company it suffered loss of `15,67,055/- as per statement annexed and as per certificate issued by Chartered Account due to fire. The Complainant obtained certificate from competent expert i.e. University Department of Chemical Technology of Bombay University to prove and satisfy Opponent and their Surveyors that the goods which were damaged due to fire could not be reused for their product. The Surveyor did not consider the said expert opinion and on the basis of Surveyor’s report the Opponent repudiated the claim by taking arbitrary decision. The Complainant, therefore, pleaded that they suffered huge loss due to wrong repudiation of their claim by the Insurance Company. The Complainant therefore pleaded that Insurance Company should be directed to pay to the Complainant a sum of `15,67,055/- with interest @18% per annum from 15th August, 1997 till payment and should be further ordered to pay to the Complainant Company a sum of `1,00,000/- for mental harassment and for loss of business and also claimed costs of the proceeding.
(3) The Insurance Company filed written version and pleaded that the value of services and compensation with interest as claimed in the complaint by the Complainant Company far exceeds pecuniary jurisdiction of this Commission. Complaint has been filed on 31.01.2000, whereas at that time jurisdiction of this Commission was to entertain consumer complaint involving value of goods and services and compensation not exceeding `20,00,000/-. The Insurance Company pleaded that alternate to the prayer clause the Complainant has sought compensation of `15,67,055/- towards claim with interest @18% per annum from 15.08.1997 till date of filing of the complaint and also claimed `1,00,000/- as compensation for mental harassment caused to the Complainant, so total claim amount involved in the complaint as per relief clause A & B comes to `23,60,476.84 and therefore, on this count itself for want of pecuniary jurisdiction the complaint should be dismissed with costs. The Opponent further pleaded that it had issued fire insurance policy “C” to the Complainant bearing No.11/140500/06305 for the period 16.04.1997 to 15.04.1998. The Complainant has not annexed copy of policy issued to it. Said policy was subject to terms and conductions, exclusions, exceptions spelled out in the policy. Opponent pleaded that there was no delay, deficiency or negligence in the services rendered by the Opponent. Alleged loss due to fire due to short circuit took place on the night of 14th and 15th May, 1997. Intimation of the claim was received on 15.05.1997. Surveyor Mr.Manish Shah was appointed on the same day. He visited to site on 16th and 17th May, 1997 to assess the loss. Surveyor requested the Complainant to submit documents by sending letter dated 18.05.1997 and several reminders given on 26.05.1997, 06.06.1997, 15.06.1997, etc.etc. upto 20.03.1998. Survey Report was received on 20.06.1998. After receipt of documents from the Complainant in May, 1998 the Surveyor assessed loss of the Complainant to the extent of `1,55,288/- though amount claimed was `15,09,055/-. Thereafter, Complainant vide letter dated 12.08.1998 did not resist the assessment except to point out that policy was with Re-instatement clause. This estopped Complainant now claiming amount of `15,67,055/-. The Complainant had sought help of Consultant – M/s.Vitasia as their Agent to discuss technical aspects of the claim and requested Opponent to deal with them. Surveyor – Mr.Manish Shah replied queries of the Consultants, minutes of the meeting dated 18.12.1999 were recorded in the presence of Complainant to identify the requirements and documents, till then details not furnished by the Complainant. The reminders were also sent to the Complainant on 19.12.1998, 01.02.1999, 03.02.1999 and on 26.02.1999 asking the Complainant to comply with the submissions of information. But, information sought was not furnished by the Complainant. They in fact wrote letter dated 03.04.1999 and informed Opponent that they could not furnish agreed information. Exhibit’E’ is the said letter. According to Opponent Complainant was unable to substantiate his claim and even after considering the Complainant’s claim on re-instatement basis loss was assessed by the Surveyor of `1,96,170/-. Surveyor, however, observed that in the event of second sale purchase bills they had not maintained excise record. It was also found by Surveyor that no such firms or persons operated at the addresses of M/sRoyal Enterprise, Roopam Laboratories, Neo-Spectra Polymers and Chemicals Ltd. So, looking to the survey report and notes made therein Claims Committee of the Opponent sought legal opinion on 07.09.1999 on the aspect of repudiation and after obtaining legal opinion they sent repudiation letter after making one more scrutiny of the liability under the policy. The reply to Complainant’s Advocate notice was also given by Opponent Advocate. They pleaded that there is no delay, defect, deficiency, negligence in their rendering service to the Complainant and liability was rightly repudiated by repudiation letter dated 14.10.1999. It pleaded that Complainant had no cause of action to file consumer complaint. Each and every para of the complaint was denied by the Opponent in its written version and Opponent pleaded that the claim preferred by the Complainant is highly exaggerated and on the basis of certificate issued by the Chartered Accountant the claim was repudiated, since Complainant had relied upon the transactions with three non-existing firms. So, it was found to be fraudulent claim and therefore, there was no alternative but to repudiate the claim. The Opponent pleaded that complaint should be dismissed with costs.
(4) We heard submissions of Advocate Mr.Anand Patwardhan for the Complainant and Advocate Mr.M.G. Barve for the Opponent Insurance Company.
(5) Main question that is required to be addressed by us in view of the pleadings between the parties is, whether this Commission has pecuniary jurisdiction to entertain and try the present complaint?
Our finding on this main issue is in the negative.
REASONS:
(6) Without going into the case of Complainant as well as the Insurance Company in detail, the complaint is required to be decided with reference to issue of pecuniary jurisdiction. Complainant has filed consumer complaint with a prayer that Opponent be ordered and directed to pay `15,67,055/- along with interest @18% per annum from 15th August, 1997 till payment. In Clause ‘b’ of the prayer clause 2nd prayer is that Opponent be ordered to pay a sum of `1,00,000/- for mental torture, harassment, loss of business and business reputation, besides in prayer clause ‘c’ cost and expenses of this complaint is also sought. Looking to the prayer clause (a) and (b) the Complainant Company seems to have asked for award not only for `15,67,055/- but also interest @18% per annum from 15th August, 1997 till payment.
(7) While filing written version by the Opponent – The New India Assurance Co. Ltd. in its paragraph no.1 categorically asserted that Complainant has sought reliefs wherein he has claimed value of services, compensation as well as interest which far exceeds the pecuniary jurisdiction of this Commission. Complaint is filed on 31.01.2000 knowing fully well that at that time jurisdiction of this Commission to entertain the complaint where value of goods or services and compensation if any claimed does not exceed `20,00,000/-. The insurance company further pleaded that in paragraph no.1 of the written version that looking to the prayer clause, it is very clear that Complainant had sought relief and compensation as per prayer clause, means, they have asked for `15,67,055/- towards claim amount and interest thereon @18% per annum from 15.08.1997 till the date of complaint and also claimed `1,00,000/- towards mental harassment, torture etc.caused to the Complainant. So, total amount claimed in this complaint as per relief Clause Nos. (a) & (b) comes to `23,60,076.84, this was till the date of complaint. Since then more than 10 years have elapsed. At the time of the passing of the order, if any, this amount would increase by some lac than what has been calculated by insurance company in its written version. In its paragraph no.1 of written version Insurance Company mentioned that total amount claimed in the complaint as per prayer clause (a) & (b) came to `23,60,075.84. This was specifically pleaded in the written version filed by Insurance Company on 08.06.2001. The Complainant appears to have filed one affidavit on 24th June, 2008 which was solemnized before Notary Advocate on 24.03.2008 and placed it on record and in paragraph no.2 it is mentioned that his claim is for `15,67,055/- for the loss caused to him and `1,00,000/- for mental torture and harassment and same is within pecuniary jurisdiction of this Commission, though he had prayed interest @ 18% per annum, the same cannot be considered for the purpose of jursidiciton. He therefore says that this Hon’ble Commission has jurisdiction. This affidavit came to be filed as late as on 24th June, 2008, i.e. 7/8 years since filing of written version by Opponent. What is pertinent to note is the last sentence of this affdiavit wherein Complainant further stated as under:
“I, therefore, pray that award/order be granted as prayed.”
As prayed means, as prayed in the complaint. In complaint we have already mentioned above that he has prayed for grant of award of `15,67,055.84 along with interest @18% per annum from 15th August, 1997 till payment. So, when we read the prayer of the Complainant, it is clear that with reference to complaint as has been argued by Counsel for the Opponent the prayer in the complaint far exceeded pecuniary jursidiciton of this Commission, since in the year 2000 when complaint came to be filed, this Commission had jurisdiction to entertain and try complaints involving claim not exceeding `20,00,000/-. Under Section 17 of Consumer Protection Act, 1986, State Commission had jurisdiction to entertain complaints where value of goods and services and compensation for claim below `5,00,000/- but does not exceed `20,00,000/-. So, till the Amendment Act of 62 of 2002 which was brought into statute w.e.f. 15.03.2003, the jurisdiction of this Commission to entertain the complaint restricted between `5,00,000/- to `20,00,000/- and no complaint could be entertained before 15.03.2003 where value of the complaint exceeded `20,00,000/- and this complaint as filed by the Complainant in 2000 exceeded the jurisdiction of this Commission because it contained prayer the value of which came to `23,60,476.84. So looking to the prayer clause the complaint came to be filed by the Complainant for the claim exceeding `20,00,000/- when it was filed in the year 2000 before the State Commission and it is for this reason the Ld.Counsel for the Opponent rightly submitted that this Commission has no pecuniary jurisdiction to entertain and try this present complaint. It is tried to be contended by Counsel for the Complainant Mr.Anand Patwardhan that his client had already filed affidavit in the year 2008 and has mentioned that he was claiming `15,67,055.84 plus `1,00,000/- for mental torture which is within the pecuniary jurisdiction of this Commission. Though he has also claimed interest @18% per annum, but, it is discretion of the Commission and therefore interest @18% cannot be considered for the purpose jurisdiction. Pecuniary jurisdiction of the Commission or Forum depends upon the prayer clause and prayer clause when read in the instant complaint would reveal that as on filing of the complaint Complainant had claimed award for `23,60,476.84, so this was far exceeding the limit of `20,00,000/- which was the maximum pecuniary jurisdiction available u/sec 17 of the Consumer Protection Act in terms of Clause 1(a) as is stood in the year 2000.
(8) In fact it would have been better that the Complainant to seek amendment of the complaint in the year 2008 itself on the basis of affidavit filed by the Director of the Complainant and by seeking amendment in prayer clause Complainant Company should have restricted the claim to `15,67,055.84 plus `1,00,000/- only. In that case this complaint would have been held to be entertainable by us. But even in that Affidavit the Complainant prayed that as per prayer clause the award should be passed and prayer clause remained unamended despite the filing of affidavit in the year 2008.
(9) So, looking to the fact that this complaint came to be filed in the year 2000, looking to the fact that at that time the pecuniary jurisdiction of this Commission was not exceeding `20,00,000/- and looking to the fact that complaint as filed with the prayers (a) and (b) together contained the prayers to award amount of `23,60,476.84. We hold that the complaint as filed in the year 2000 and pending for disposal till today must be held to be beyond the pecuniary jurisdiction of this Commission and on this ground alone the complaint will have to be returned to the Complainant for filing it in the Commission having pecuniary jurisdiction to entertain and try such complaint. Hence, we pass the following order:
O R D E R
(i) Complaint is returned for want of pecuniary jurisdiction.
(ii) Complainant may file this consumer complaint in appropriate Commission having pecuniary jurisdiction to entertain and try the present complaint.
(iii) No order as to costs.
(iv) Inform the parties accordingly.
Pronounced on 8th June, 2011.
