IMPORTANT POINT
Once it is found that there is hiring of service for consideration and that loss has been caused to complainant on account of any deficiency in rendering service, aggrieved consumer is entitled to seek his remedy under Consumer Protection Act.

Mrs. Vineeta Rai, Presiding Member —Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) had dismissed this case at the admission stage on the ground that since this is a case of charging of extra premium and seeking refund of the same, it is not a consumer dispute and, therefore, does not fall within the ambit of deficiency in service on the part of Insurance Company and the complaint, if any, pertains to a breach of contract between the parties for which remedy lies in the Civil Court. Being aggrieved by this order, M/s Tilda Riceland Pvt. Ltd., Appellant herein and Original Complainant before the State Commission, have filed the present First Appeal.

2. Briefly stated, the facts of the case as per the Appellant/Complainant are that it is a company in the business of buying, selling, distributing and dealing in import and export of rice. It also carries on research and development in all spheres of production, processing and DNA testing of rice etc. It had obtained an Erection All Risk (EAR) Policy from the Respondent/Insurance Company by paying a premium of Rs.66,76,171/- which was payable in installments over a period from 01.04.1999 to 01.10.2002. It was contended that on a subsequent date, while examining the insurance policy and the endorsement, the Appellant/Complainant came to know that under the EAR Policy and subsequent extensions the premium charged for the Earthquake risk had not been in accordance with the Memorandum of Understanding (MoU) entered into between both parties from time to time and that the Respondent/Insurance Company had wrongly charged the full premium whereas since the coverage for this risk was only 20% of the sum insured Respondent/Insurance Company could not have arbitrarily charged full premium against a limited liability and Appellant/Complainant was entitled to 50% refund which amounted to Rs.17,09,679/- with 18% interest apart from 1,00,000/- on account of harassment and mental agony and Rs.50,000/- as litigation costs. As stated earlier, the State Commission dismissed the complaint at the admission stage itself holding it not to be a consumer dispute and observing that the Appellant has a civil remedy. Hence, the present First Appeal.

3. Learned Counsels for both parties made oral submissions.

4. Counsel for the Appellant/Complainant contended that the State Commission had wrongly dismissed the complaint on the ground that the issue involved relates only to breach of contract and not deficiency in service. It was stated that the Appellant had obtained EAR Policy from the Respondent/Insurance Company effective from 01.04.1999 to 31.03.2003 in respect of his business. Before obtaining the insurance policy, a Memorandum of Understanding was entered into and signed by the parties in 1999 specifying the coverage required by the Appellant/Complainant. As per the MOU in 1999, which was confirmed by subsequent MoUs in 2001 and 2003, the earthquake risk in the policy would be on first loss basis by which the insurance liability under the claim would be limited to 20% of the project sum insured and for this limit on liability a discount of 50% on earthquake premium would be admissible under the Tariffs. Later, Appellant/Complainant came to know that the Respondent/Insurance Company had not granted 50% deduction in respect of the earthquake premium and as soon as it came to know of the same, Appellant/Complainant wrote a letter dated 14.02.2005 to the Respondent/Insurance Company seeking refund of Rs.16,77,608/- charged in excess from him. Since no response was received, Appellant/Complainant filed a complaint before the State Commission seeking refund and other reliefs as stated earlier.

Counsel for the Appellant/Complainant contended that there was clearly deficiency in service and unfair trade practice on the part of Respondent/Insurance Company in not honouring the commitment made in the MoU/insurance policy. During the course of arguments, Cou