2009(2) CPR 91
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
P.N. Kashalkar, Presiding Judicial Member and Smt. S.P. Lale, Member
Techno Economic Service Private
Limited —Complainant
versus
The New India Assurance Company
Ltd. —Opponent
Consumer Complaint No. 83/2000
Decided on 12.5.2008

IMPORTANT POINT
If there is a protest letter within a few days since the alleged settlement of the insurance claim between the parties them payment made by the insurance company and accepted by the insured could not be said to be accepted in full and final settlement and as such consumer complaint is maintainable for recovery of remaining amount of compensation.

Headnote:(i) Consumer Protection Act, 1986—Section 2(1)(d) & 14—Insurance Claim—Non-payment of amount to the extent insured suffered loss—No complicated question of facts involved in the complaint—Simple complaint alleging deficiency in service on part of insurance company—Consumer complaint maintainable—No need to direct complainant to approach the civil court. (Para 5)

       (ii) Consumer Protection Act, 1986—Section 2(1)(d)—Consumer—Insurance Claim—Deficiency in service—Simply because complainant company is in business of exporting items—That does not mean that it cannot be said to be a ‘consumer’—Complainant company exported 400 boxes of Analgin injection—Consignment was to be delivered to the consignee in Nigeria—Invoice value of consignment was 48000$—Consignment landed in discrepant condition—Complainant company lodged their claim with insurance company for invoice value equivalent to Rs.17,13,600/-—Insurance company assessed loss amounting to Rs.6,42,600/- though total loss was Rs.17,13,600/- —Partial claim offered by insurance company was accepted under protest—Insurance company directed to pay another amount of Rs.6,42,600/- alongwith cost.

       Held: In the case of hiring of service for consideration, if there is any deficiency, the party in default can be prosecuted by filing consumer complaint and question whether services availed of were for commercial purpose or not was of no consequence. This ruling is squarely applicable to the facts of our case. So, relying on this ruling, we hold that complainant company can very well file consumer complaint since O.P. Insurance Company is guilty of deficiency in service in partially allowing the claim out of total loss suffered by the complainant company. Again in the case of M/s. Harselia Motors- Versus- M/s. National Insurance Company Limited, it was held by the Hon’ble National Commission that when a person takes insurance policy to cover the envisaged risk he does not take it for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit. So, consumer complaint for deficiency on the part of the Insurance Company can lie in the Consumer Fora though complainant company may be engaged in some sort of business. These two rulings persuade us to hold that the complaint as filed by the complainant company alleging deficiency in service and unfair trade practice is maintainable and on the ground of ‘commercial purpose’ it can not thrown out of this Commission. (Para 6)

       Question is how much amount should be awarded to the complainant company. According to the complainant company, as per survey report, policy was taken for an amount of 48000$ equivalent to Rs.17,13,600/- and O.P. Insurance Company paid only 50% of the assessed loss amounting to Rs.6,42,600/-. The complainant company claimed that they had suffered total loss of Rs.17,13,600/-. The balance quantity though not broken had become un-saleable due to staining of the batch and license numbers. Therefore, complainant company claimed that total amount of loss minus the amount paid by the Insurance Company to the complainant should be awarded by allowing this complaint. However, survey report reveals that 75% injections sent in the consignment were damaged and 25% injections were not damaged but survey report mentioned that balance of 25% goods is not likely remain good and in saleable condition. Entire stock could be considered lost and irrecoverable. Considering the survey report, we are of the view that complaint is required to be allowed and since 50% of the assessed loss had been paid on 16.9.1998 by tendering amount of Rs.6,42,600/- another amount of Rs.6,42,600/- is required to be paid by the Insurance Company along with cost of this complaint. The amount thus payable by the Insurance Company would be Rs.6,42,600/- with interest at the rate of 9% per annum from 16.9.1998 till the final realization of entire amount besides Rs.10,000/- as cost of this complaint. (Para 10)

       (iii) Consumer Protection Act, 1986—Sections 2 & 14—Insurance Claim—Full and final payment—Complaint filed alleging that insured was coerced to accept ‘compromise settlement’—Maintainability—If there is a protest letter within a few days since the alleged settlement of insurance claim between parties then payment made by Insurance Company and accepted by the insured could not be said to be accepted in full and final settlement—

       M/s. Morinda Cooperative Sugar Mills Ltd. v. New India Assurance Company Ltd., 2001 (3) CPR 92 (NC) followed.

       Held: According to the complainant, Insurance Company was given cheque of Rs.6,42,600/- on 16.9.1998 and complainant company recorded first protest on 30.8.1998, second protest on 19.9.1998 and third protest on 27.9.1998. Therefore, in terms of Hon’ble National Commission ruling, agreeing with the submission of counsel for the complainant company, we hold that this complaint for the recovery of the remaining amount of loss suffered by the complainant company is tenable in law and plea of full and final settlement raised by the Insurance Company must be turned down in the given facts and circumstances. We reiterate that the full and final settlement voucher obtained by the Insurance Company is hit by coercion employed by the Insurance Company official on the director of the complainant company. There was no free, fair and voluntarily full and final settlement of the marine policy claim between complainant company and the Insurance Company and it is for this reason we hold that complainant’s complaint is tenable in law and can be allowed in the circumstances obtainable. (Para 9)

       Result: Complaint Partly Allowed.