Insurance company cannot deduct short premium of policies period of which had already lapsed from claim for loss occurred in currency of another policy.

Mr. Justice A.L. Bahri, President — This appeal is by the complainant challenging order of District Forum, Gurdaspur dated February 26,1997 whereby the complaint was dismissed, which was filed against New India Assurance Co. Ltd.

2. The complainant. Him Ispat Ltd. a Public Ltd. Company took an insurance policy from the Branch Office of New India Assurance Company, Pathankot on April 15,1991 for a sum of Rs. 10 lacs. The insurance policy commenced on April 15, 1991 and was upto April 14, 1992. The machinery and equipments of the Company situated in Village and Post Office Kandrori, District Kangra (H.P.) were insured. A fire took place in the main Mill Block in the month of March, 1992 i.e. on the night of 21st and 22nd March, 1992. The complainant is alleged to have suffered loss to the tune of Rs. 20 lacs. The claim was made before the Insurance Company who appointed Assessor. As per report of the Assessor, the loss suffered was found to the tune of Rs. 4,09,390/-. The Company, however, paid a sum of Rs. 2,57,382/- vide cheque dated October 30, 1994. The said cheque was accepted under protest by the complainant vide letter dated November 30,1994. As per allegations, a sum of Rs. 1,52,008/- was deducted by the Insurance Company on the excuse that lesser amount of premium was received from the complainant on account of previous insurance policies in respect of the insurance of the building and machinery. Such policies were for 4/5 years prior to the policy in dispute. Thus, it was alleged that there was deficiency in rendering service on the part of the Insurance Company by illegally withholding the remaining payment. The stand taken up by the Insurance Company in their version was also to the same effect that lesser premium was charged in respect of the previous insurance policies. Total amount of short premium was to the extent of Rs. 1,51,958/- as per details of the policies and the amount of short premium given in the version as reproduced in the impugned order. It was further stated that amount of Rs. 82,674/- was waived while effecting the recovery. The District Forum accepted the stand of the Insurance Company and dismissed the complaint. The District Forum observed while making reference to Order VIII, Rule 6 of the Code of Civil Procedure that the same was not applicable to the proceedings under the Consumer Protection Act and it was not appropriate to allow payment of the withheld money and thereafter leave the Insurance Company to claim the aforesaid amount in the separate suit in the Civil Court. It was observed that it was for the complainant to agitate the mater in a Civil Court. Reference was made to the decision of Tamilnadu State Commission in "Chief Engineer, Madras Region, Tamilnadu Electricity Board & Anr. v. Smn Consumer Protection Council & Anr.",

3. The only question involved in the present case is as to whether there was deficiency on the part of the Insurance Company in rendering service in not making the payment of loss suffered by the complainant as assessed by the Surveyor and the second question co-related therewith is as to whether the complainant should be relegated to his remedy to the Civil Court or the Insurance Company. We have given due consideration to the respective arguments addressed by Counsel for the parties. The ratio of the decision in Chief Engineer's case (supra) is not applicable to the case in hand. The dispute therein was with respect to the tariff whether it should be 0.37 paise per unit or Rs. 1.15 paise per unit. It was held that such a matter could not be agitated in the Consumer Court. The position in the present case is entirely different. There is no question of challenge to the tariff. As far as deficiency in rendering service is concerned, after Surveyor had assessed the loss, the Company was duty bound to offer the said amount to the complainant. Since the said amount was not offered, there was deficiency in rendering service. The amount offered was less, which was a