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WEST BENGAL STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CALCUTTA
Honble Mr. Justice A.K. Bhattacharjee, President;
Mr. Monoranjan Ghosh & Mrs. S. Dutta, Members
BINAGURI TEA CO. PVT. LTD.—Appellant
versus
NATIONAL INSURANCE CO. LTD. & ORS.—Respondents
Case Nos. 246/A of 1997—Decided on 24.11.1997
Counsel for the Parties :
For the Appellant :Mr. Pankaj Ranjan Bakshi, Advocate.
For the Respondents:Mr. Radha Kanth, Sr. Adv. with Mr. Partha Sarathi Sen, Advocate.
An insurance claim is a consumer dispute and the policyholder is a consumer. The terms of an insurance policy cannot be materially altered after the contract is concluded, and any dispute arising from such alteration is a consumer dispute.
Headnote:
CONSUMER PROTECTION ACT - INSURANCE POLICY - PREMIUM ADJUSTMENT - DISPUTE - ACCOUNTING - CONSUMER DISPUTE - REFUND OF EXCESS PREMIUM - INSURANCE CLAIM - SERVICE OF INSURANCE - TARIFF ADVISORY COMMITTEE - LIMITATION - MATERIAL ALTERATION OF CONTRACT TERMS - DUTY OF GOOD FAITH - CONSUMER FORUM JURISDICTION - MODEL PREMIUM STATEMENT - CHARTERED ACCOUNTANT'S CERTIFICATE - INTEREST ON REFUND - COSTS AWARDED.
Fact of the Case:
The appellant, Binaguri Tea Company Pvt. Ltd., took out a Tea Crop Insurance Policy from the respondent, National Insurance Co. Ltd., for a period of one year from 13.4.1989 to 31.3.1990. The policy included a premium adjustment clause allowing for adjustment based on tea actually produced, sold, or disposed of. The appellant submitted a Model Premium Statement certified by a Chartered Accountant showing a refundable amount of Rs. 17,970/- for the 1989-90 season and paid extra premia for subsequent seasons totaling Rs. 1,19,244/-. The respondent refused the claim, and the appellant filed a complaint before the District Forum, which dismissed the complaint on the grounds that it was a dispute of accounting and not a consumer dispute.
Finding of the Court:
The State Commission allowed the appeal, holding that the claim was a consumer dispute and that the appellant was a consumer. The Commission found that the Model Premium Statements placed by the appellant were true and allowed the claim in full, directing the respondent to pay Rs. 1,19,244/- with interest at 18% p.a. from the date of filing the complaint and costs of Rs. 2,000/-.
Issues: 1. Whether the dispute was a consumer dispute or a dispute of accounting? 2. Whether the appellant was a consumer? 3. Whether the Model Premium Statements placed by the appellant were true? 4. Whether the appellant was entitled to a refund of the excess premium?
Ratio Decidendi: 1. The court held that an insurance claim arises out of a service of insurance as defined in the Consumer Protection Act and is therefore a consumer dispute. 2. The court held that the appellant, as the policyholder, was a consumer. 3. The court found that the Model Premium Statements placed by the appellant on the basis of a Chartered Accountant's Certificate were true. 4. The court held that the appellant was entitled to a refund of the excess premium as per the terms of the insurance policy.
Final Decision: The appeal was allowed, the order of the District Forum was set aside, and the appellant's claim was allowed in full. The respondent was directed to pay Rs. 1,19,244/- with interest at 18% p.a. from the date of filing the complaint and costs of Rs. 2,000/-.
Mr. Justice A.K. Bhattacharjee, President— This is an appeal against an order of the Calcutta District Forum-II passed in CDF Case No. 3118 of 95 CDF-II/169/96 dated 27.3.1997 dismissing a complaint of deficiency filed by the appellant complainant on the grounds that the dispute was one of accounting and the complainant was not a consumer. The brief facts of the complaint case are as follows :
2. The appellant-complainant Binaguri Tea Company Pvt. Ltd. took out a Tea Crop Insurance Policy for a period of one year from 13.4.1989 to 31.3.1990. For effecting this policy they had paid a premium of Rs. 76,388/- which was accepted by the respondent-1. National Insurance Co. Ltd. (opposite party-1 in the lower Court). In me policy there was a premium adjustment clause (Clause 7) to the effect that the premium collected should be subject to adjustment on the basis of tea actually produced, sold or disposed of. The insured was required to submit to the insurer a Model Premium Statement certified by the Chartered Accountant within 180 days from the date of expiry of the policy. The complainant submitted such Model Premium Statement duly certified by a Chartered Accountant Firm from July 16, 1990. The total premium payable on actual basis for the period from 13.4.1989 to 31.3.1990 was Rs.58.418/-and as such the amount refundable in terms of the policy for the Crop Season Year 1989-90 is Rs. 17.970/-. In a similar way the complainant paid extra premia for the Season Years 1990-91,1991-92,1992-93 and 199394 to the tune of Rs. 1.19.244/-. The policy in question was actually handed over to the complainant in June, 1995 and that too after repeated requests. The complainant demanded a refund of the aforesaid amount on the basis of the Chartered Accountant's Report but the Insurance Company refused the claim. Hence, a complaint was filed before the District Forum, Unit- 1, claiming refund of the excess premium amount and damages.
2A. The opposite parties-respondents contested the case by filing a written objection. They raised various objections against the claim of the complainant. Their first objection was that the policy of insurance was guided by the terms fixed by the Tarrif Advisory Committee and as such the policy for the period from 1989-90 was due to cover risk from 18.4.1989 to 1.3.1990, i.e. the Tea Crop Season for the said year. Thus, the Model Premium Statement certified by the Chartered Accountant was not correctly prepared. The opposite parties themselves prepared a premium adjustment statement as per rules and regulations of the Tarrif Advisory Committee and found that the refundable amounts for each year were much less than the amount claimed by the complainant. The opposite parties also raised an objection that the claim was barred by limitation.
3. The learned District Forum-II after hearing the parties at length held that the complaint was actually not barred by limitation. As regards the contention that the period of the insurance policy was to be re-modelled on the basis of the Tarrif Advisory Committee's Report, the District Forum held that the relevant premium having been accepted by the Insurance Company and the period of insurance being noted on the body of the policy, the contention of the Insurance Company could not be upheld. As regards the amounts to be refunded, however, the Forum was of the view that it was purely a matter of accounting and that the same should be adjudicated before a competent Forum other than the Consumer Forum as no consumer dispute was involved in this case. In that view of the matter, the Forum dismissed the complaint and advised the complainant to move the appropriate Forum for redressal of their grievance.
4. The point for determination is if the view taken by the District Forum concerned is correct and if not, what relief the complainant is entitled to ?
Decision
5. We have perused the papers submitted by both the parties. We have also seen the terms of the Crop Insurance Policy and the r
