(Per: Mr. C.C. Pant, Member):

This appeal is directed against the order dated 01.10.2010 passed by the District Forum, Haridwar, allowing the consumer complaint No. 174 of 2009 and directing the opposite party to pay to the complainant a sum of Rs. 4,26,359/- together with interest @ 6% per annum from the date of filing the consumer complaint till payment and Rs. 1,500/- towards cost of litigation within a month from the date of the order.

2. The facts of the case, as stated in the consumer complaint, in brief, are that the complainant – Sh. Gugan Singh through Speed Crafts Ltd., Plot No. 1, I.I.E. Sidcul, Roshnabad, District Haridwar, purchased a Topteam Machine Hydraulic Press. The machine was transported to Sidcul, Haridwar by truck No. HR38-G-7111 of M/s ENGG Logistics, Faridabad on 29.07.2008. The said machine got damaged while it was being loaded in the said truck. According to the complainant, the machine was insured with National Insurance Co. Ltd., Haridwar–opposite party. The opposite party was intimated regarding the said damage through e-mail, upon which the opposite party deputed its surveyor to inspect the said machine. The surveyor observed that the loss due to damage was to the tune of Rs. 4,26,359/-. The complainant, accordingly, lodged his claim to the opposite party, but the opposite party did not pay the claim. When the complainant sent a notice to the opposite party through his counsel, the opposite party informed the complainant vide its letter dated 28.03.2009 that there was a manipulation and overwriting in the date on the challan. The date “24.07.2008” was made “29.07.2008” by overwriting. The complainant has stated in his consumer complaint that the said machine was loaded on 29.07.2008. The truck No. HR38-G-7111 passed through Vijay Nagar (Ghaziabad) check post of Commercial Tax Department on 31.07.2008. Thus, alleging deficiency in service on the part of the opposite party, the complainant filed a consumer complaint before the District Forum, Haridwar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint vide its order dated 01.10.2010 and directed opposite party in the above manner. Aggrieved by the said order, the opposite party – insurance company has preferred this appeal.

3. We have heard the learned counsel for the parties and perused the material placed on record.

4. The learned counsel for the appellant argued that the consumer complaint filed by the respondent–complainant was not maintainable before the District Forum, because the complainant Sh. Gugan Singh is not a consumer. Further, the company–Speed Crafts Ltd. is engaged in commercial activity and, therefore, for this reason also, the consumer complaint was not maintainable. The District Forum has erred by entertaining the consumer complaint inspite of the fact that these preliminary objections were raised by the appellant–opposite party before the District Forum in its written statement. The learned counsel further submitted that the company–M/s Speed Crafts Ltd. had taken a Marine Cargo Policy, covering a risk of Rs. 20 lacs for the period from 05.05.2008 to 04.05.2009. The commodities covered under the policy were steel items, Drum Mix Plant, Engines etc. The feature of the policy is that it is declaration based policy. Accordingly, the policy-holder has to submit monthly statement of transit of goods along with their value. The insurance remains in force for the period of 12 months, unless the sum insured is previously exhausted by declaration. Upto 04.06.2006, the total sum insured had exhausted in the following way:-

(1) Sum insured opted Rs. 20,00,000.00

(2) Sum insured exhausted

as per declaration of insured

upto 31.05.2008 Rs. 17,21,384.51

(3) Declaration upto 04.06.2008 Rs. 4,07,344.25

Balance as on 04.06.2008 Rs.(-) 1,28,728.76

[(1)–(2) –(3)]

5. Thus, the total limit of sum insured had not only exhausted, but it was in negative on 04.06.2008. The responden