ORDER

Complainant-M/s. Arun Udyog which is a Partnership Firm carrying on business of mining activities such as raising and transporting minerals from mines has filed this case under Sections 17(1)(a)(i) of the Consumer Protection Act, 1986, in short, the C.P.Act to direct the New India Assurance Company Limited through its Regional and Divisional Manager viz. opposite party Nos. 1 and 2 to settle the claim at Rupees 8,59,748.56 paise with 18% interest per annum from the date of receipt of the claim of the complainant till payment, in favour of the complain¬ant. Complainant, at the same time, has claimed from the opposite parties cost of litigation Rupees 20,000/-, compensation for mental agony rupees 5,000/-, cost of postal expenses Rupees 500/- to and fro journey expenses from Bhadrak to Bhubaneswar Rupees 5,000/- and business loss of Rupees 1,00,000/-.

2. The case of the complainant, in brief is that after purchasing Tata Hitachi Excavator to carry on its business purpose, complainant insured the said Excavator with opposite parties for the year 1998-99 vide policy No. 31550109943 from 10.12.1998 to 09.12.1999 (Annexure-1). Risk covered under policy is for damage of the excavator due to flood, typhoon, Tempest, Hurricane, storm, inundation cyclone etc. During super cyclone and flood on 29.10.1999 and 30.10.1999, the said excavator met with considerable damage being submerged in water inside the mines. Therefore, complainant intimated this to opposite parties and had requested to depute Surveyor to inspect the excavator and the mines. The Surveyor deputed by opposite party No. 2 inspected the machines of the excavator on 10.12.1999 and found the total Hydraulic system, Engine, pump, hydraulic pump, etc. were damaged which he intimated to opposite party No. 2 vide his letter dated 13.12.1999 (Annexure-3). Vide Annexures-3 and 4, complainant intimated him also that the total and final loss would be inti¬mated to him after the machine is operated and hydraulic system is dismantled. Complainant submitted claim form and provisional estimate as per the vouchers of Grand Motors through letter Annexure-4. Complainant submitted the service report, inspection report, quotation of spare parts of Trishul Tread Pvt. Limited vide letter Annexure-5 to opposite party No. 2. After completion of repair of the excavator, complainant sent bills for spare parts, repairing charges and report to opposite party No. 2 vide letter Annexure-5 dated 02.05.2000. Though complainant was going on enquiring from opposite party No. 2 since 10.06.2000 about settlement of insurance claim and even, made representation to his higher authority viz. opposite party No. 1 till 08.03.2002, he received no favour from them. Vide letter dated 08.03.2000 (Annexure-20) opposite party No. 2 had requested him to submit money receipts against payment of Bills Nos. 62, 63, 64 and 65 of 2000 which he sent also. But much thereafter vide letter dated 19.04.2000 (Annexure-24), opposite party No. 2 repudiated his claim on the ground that Bills submitted by him are not in order as per the report of the Investigator and damage to same of the major parts like Cylinder Arm and Cylinder Boom are not techni¬cally feasible. The complainant claims that he has been put to loss of Rupees 8,59,748.56 paise towards cost of spare parts and repairing charges as per the bills submitted by him. As opposite parties have repudiated his claim, complainant blames them for causing deficiency in service being the insurer.

3. As per their joint written version, the opposite parties challenge the maintainability of the consumer case mainly on the ground that the complainant being a Commercial Firm is not a consumer under Section 2 (1)(d) of the Consumer Protection Act, 1986, hereinafter be called as C.P.Act. Their specific case is that during alleged period of cyclone, said TATA Hitech Excavator has not been damaged in flood water. However, admitting insurance of said excavator and receipt of the claim f