Decided on September 22,2020

Elite International Pvt. Ltd. Appellant


ANUP K.THAKUR, J. - (1.) The complainant is a company incorporated under Indian Companies Act, 1956, engaged in the business of manufacturing and export of textile goods, made-ups and floor covering, having its factory premises at Shree Arihant Compound, Building No.J-3, Thane Bhiwandi Road, Koper, Bhiwandi 421 302. The complainant had taken out 4 Standard Fire and Special Peril Insurance Policies for a total amount of over Rs.21 crore, with a view to covering plant and machinery, and all stocks. During the subsistence of these policies, on 26.07.2005, heavy rains resulted in a flood like situation and from around 2 a.m. on 26/27.07.2005 water level rose upto 4 feet by 4.30 a.m.; it began to recede by 5 a.m. on 29.7.2005. This caused heavy damage to plant and machinery as well as stocks. The OPs-United Indian Insurance Co. Ltd. (OP hereafter) were immediately intimated. N. Velayutham and Company was appointed as surveyors and they inspected the premises on various dates during the period from 1.8.2005 till 19.9.2006. In the meanwhile the complainantm vide letter dated 29.09.2005, lodged a claim aggregating Rs.12.95 crore (Ex. E), and also sought an interim payment of at least Rs.8 crore, citing stiff financial crisis deteriorating (our) working capital position. OP made on account payment of Rs.3 crore on 20.2.2006, Rs.1 crore qua policy no. 0217/11/05/00011 ( herafter ..011) and Rs. 2 crore against policy no. 021700/11/05/00085 (hereafter ..085) (Ex. G). Per the plaint, the complainant was forced to sign these two vouchers which mention that the complainant has received the said amount (towards the) on account of their claim referred in the said vouchers (Ex.G). Subsequently, OP paid Rs.2,46,07,813/-, on 02.01.2008, Rs. 1,89,82,189/- under policy no..011 and Rs. 56,25,623/- under policy no..085, and the complainant was forced to sign and accept these payments, in full and final discharge of their claim, even though the amount fell well short of their total claim (Ex. J). Thereafter, following some meetings with the OP etc., the complainant addressed two letters, dated 23.3.2009 and 6.5.2009 : point made in these letters was that the OP had failed to carry out corrections in the policy pointed out and that on this account, the claim had not been assessed and paid (Ex. K). Finally, OP vide letter dated 8.5.2009 repudiated the claim in respect of policy no..238, on the ground that the matter was already settled and that since there were no representations from the complainant for more than one year, their request could not be considered in terms of policy condition no.6 (ii) of the insurance policy (Ex. L). Hence, a consumer complaint was filed seeking the following: "(a) That this Hon'ble Commission be pleased to hold that the Opposite parties are guilty of deficiency in service as contemplated under the provisions of Sec. 2(1) (o) of the Consumer Protection Act. (b) That this Hon'ble Commission be pleased to direct the Opposite parties to rectify the defect in it's services as insurance company and to settle the Legitimate claim of the Complainant to the tune of Rs.5,61,33,249/- together with the interest at the @ of 18% per annum from 26th January 2006 i.e. from the expiration of 6 months from the date of the incidence totally amounting to Rs.10,91,79169/- together with further interest at @ of 18% per annum from the date of filing of the complaint till it's actual realization of Complainant's claim. (c) That this Hon'ble Commission be pleased to direct the Opposite parties to pay compensation to the tune of Rs.50,000/-. (d) That this Hon'ble Commission be pleased to direct the Opposite parties jointly and or severally to pay costs of Rs.1,00,000/- towards the filing of the present complaint. (e) Any other order as this Hon'ble Commission thinks fit and proper."
(2.) This consumer complaint was contested through a written reply filed by the OP. The ground taken was that the claim stood settled and therefore no cause of action survived. The OP had made payments on the basis of assessment made by an independent surveyor and the same had been received in full and final settlement by the complainant without any reservation, and that the disbursement vouchers were signed by the complainant's bankers also. It was further stated that the complaint was time barred: loss took place in the last week of July 2005 and full and final settlement was made on 02.01.2008; no objection was raised by the complainant till 23.03.2009 and 6.5.2009 (supra) when letters were addressed to the OP alleging that the description printed in the policy was not proper and requesting that claim file be reopened. This could not be done and the same was duly communicated to the complainant on 08.05.2009 (supra). It was also argued that the complainant was not a consumer and the complaint itself was not maintainable.
(3.) Both parties duly filed their affidavits by way of evidence and short synopses of arguments. Arguments were heard on 14.09.2020.;

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