IMPORTANT POINT
Advise - The Opposite Parties may not be bound by the advice of their Divisional Manager but they are bound by the terms & conditions of the Policy.

ORDER

As the facts and dispute involved in both the Consumer Complaints are same, both Consumer Complaints are disposed of by a common order treating CC/259/2012 as the lead case.

2. The Complainant is a Private Limited Company engaged in the business of import and export of commodities. Opposite Party No.1 is an Insurance Company with head office at Mumbai. Opposite Parties No.2 & 3 are Regional Office and Divisional Office of Opposite Party No.1 respectively. Complainant obtained “Marine Cargo Annual Turnover Policy No.350200/21/09/14/00000369 from Opposite Parties for Annual Sales Turnover Policy Expected Turnover of Rs.1200 Crores (Premium on Half Yearly Basis)”, valid from 01.01.2010 to 31.12.2010. Special condition No.4 of the Policy provided that the “premium is subject to the annual turnover and will be charged as per actual turnover in the Policy period.” The Complainant paid the premium in January, 2010 and July, 2010 as per condition of the Policy.

3. The Complainant exported cotton bales from Pipavav to China, Thailand, Taiwan, Indonesia etc. On 07.11.2010 at about 2.50 pm, the Security Guard noticed smoke emerging from the heap of cotton bales stored in open near the warehouse. He informed the CFS staff who attempted to extinguish the fire by using portable dry powder and water. Fire was controlled in many areas, but the cotton bales kept in the containers continued burning. The Complainant intimated the Insurance Company same day, who appointed M/s Subash Chander & Associates (SCA) as Surveyors for assessment of loss. The Surveyor visited the site on 10.11.2010. The Complainant provided all information and documents as sought by the Surveyor. Final Survey Report was submitted by the Surveyor on 25.11.2011 observing that the loss caused by fire was covered under the Policy. In order to ascertain the Complainant’s sales turnover, the Insurance Company appointed a second Surveyor, M/s Parimal R. Shah & Co., who observed that the Insured’s cargo had crossed the total sum insured of Rs.1200 crores in July, 2010 itself and the fire occurred on 7th November, 2010. The Surveyor SCA, vide Final Survey Report dated 25.11.2011, assessed the net loss at Rs.22,01,29,271/ The Opposite Parties, however, neither admitted nor denied the claim for a long time. The Opposite Parties constantly assured the Complainant that payment would be made in a timely manner. The Opposite Parties, however, vide letter dated 27th July 2012, repudiated the claim on the ground that there were significant discrepancies in the actual and expected turnover. Aggrieved by the repudiation of the claim and alleging deficiency in service on the part of the Opposite Parties, the Complainant filed Consumer Complaint with the following prayer:—

“It is therefore submitted that the Hon’ble Commission may be pleased to:

(a) Direct that the Opposite Party rendered deficient service to the Complainant.

(b) Award a sum of Rs.22,01,29,271/- being the claim due to the Complainant together with interest at 18.25% per annum from 25th December, 2011 till the filing of the Complaint and further to pay this sum with interest at 18.25% per annum from the date of this Complaint till the date of realization.

(c) Award costs connected with these proceedings to the Complainant.

(d) Such other and further orders as may be necessary in the interest of justice.”

4. The Complaint was contested by the Opposite Parties by filing the written statement. It was stated that the Insurance Policy was obtained by the Complainant for commercial purpose. The Complainant was, thus, not a Consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986. Otherwise also, the Consumer Complaint was not maintainable as the dispute could not be decided without adducing elaborate evidence, which was not possible in summary jurisdiction of this Commission and the appropriate Forum is a Civil Court.

5. On merits, it was stated that initially the premium paid by the Complainant got exhaus