National Consumer Disputes Redressal
M/S. Chambal Fertilisers And Chemicals ... vs M/S. Iffco-Tokio General Insurance Co. ... on 4 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI INTERIM APPLICATION NO. 1/2011 IN CONSUMER COMPLAINT NO. 57 OF 2011 M/s. Chambal Fertilisers and Chemicals Ltd., Corporate Office: First Floor, 5, Commercial Centre, Jasola, New Delhi 110 025 Complainant (s) Versus 1. M/s. IFFCO-TOKIO General Insurance Co. Ltd., Regd. Office: IFFCO Sadan, C-1, District Centre Saket, New Delhi 110 017 Corporate Office: IFFCO Tower, 4th & 5th Floors, Plot No.3, Sector-29, Gurgaon 122 011 - HARYANA Opposite Party No.1 2. M/s. Oriental Insurance Company Ltd., A-25/27, Asaf Ali Road, Daryaganj, New Delhi 110 002 Opposite Party No.2 3. M/s. ICICI Lombard General Insurance Co. Ltd., ICICI Bank Towers, Bandra Kurla Complex, Mumbai 400 051 Opposite Party No.3 BEFORE : HONBLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBER APPEARANCE For the Complainant (s) Mr. Arun Khosla, Advocate For the Opposite Party . Mr. Rajshekhar Rao, Advocate DATED: 4th APRIL, 2012 ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER M/s. IFFCO-TOKIO General Insurance Co. Ltd./Opposite Party No.1 in the above captioned complaint has filed this application under Section 13, 22, and 24A of the Consumer Protection Act, 1986 (for short the Act) praying for the dismissal of the complaint on the strength of certain preliminary objections.
2. It is averred in the application that the present complaint has been filed far beyond the stipulated limitation period of two years from the date of the accrual of the alleged cause of action as provided under Section 24-A of the Act.
It is stated that the alleged damage to the Carbamate Condenser which has been made the basis of the insurance claim in the present complaint had occurred not later than the year 2005 or in any case as per the complainants own showing the cause of action arose on 26th March, 2007 when it discovered the damage to the Carbamate Condenser and therefore looked from any angle, the complaint is patently barred by limitation. Without prejudice to the above submission, it is also stated that the complainant is not a Consumer within the meaning of Section 2(1)(d) of the Act, because it is mammoth corporate entity, its annual turnover running into billions of rupees and the present complaint has been filed before this Commission with a view to avoid payment of substantial court fee on the claim amount of Rs. 9,11,45,370/- and Rs. 3,38,01,198/- towards the interest and therefore, liable to be dismissed. It is also pleaded that the instant case involves questions of technical details and fact including, inter alia, as to the reasons for the alleged damage caused to the Carbamate Condenser in question, which would require detailed evidence and examination including significant evidence on technical and engineering matters which are best left to be adjudicated by a Competent Court of ordinary civil jurisdiction rather than to be decided by this Commission in exercise of its summary jurisdiction. The complaint is stated to be otherwise misconceived and wholly untenable because the insurance policy was issued for the period 20th October, 2006 to 19th October, 2007 and the alleged damage to the Carbamate Condenser had occurred in 2005 i.e. much before the policy was taken. In any case, it is pleaded that the complaint is not maintainable in the present form even going by the complainants own averments and allegations made in the complaint.
3. The application has been opposed on behalf of the complainant by filing a reply, thereby controverted the objections and pleas raised in the application seeking dismissal of the complaint. It is denied that the complaint is patently barred by limitation or that the complainant is not a Consumer. It is also denied that the complaint raises complex questions of facts and laws which can only be adjudicated by a competent Court of ordinary civil jurisdiction and not by this Commission in exercise of its summary jurisdiction.
4. We have heard Mr. Rajshekhar Rao, Advocate learned counsel representing the opposite party/applicant and Mr. Arun Khosla, Sr. Advocate on behalf of the complainant/non-applicant and have considered their submissions. The first ground on which the opposite party seeks the dismissal of the present complaint is that the complainant is not a Consumer within the meaning of the term primarily on the ground that the complainant is a Mammoth corporate entity with annual turnover which runs into billions of rupees. There cannot be denial of this position but the question is as to whether the above status and characteristic of the complainant should take it out from the purview of the definition of Consumer as appearing in Section 2(1)(d) of the Consumer Protection Act, 1986 (To be read as Act). The answer is a plain NO because the Act itself permits filing of a complaint by any person including juristic persons like corporate entity, partnership firms, societies and associations registered under the relevant laws. Merely because in the case in hand, the complainant happens to be a mammoth corporate body having turnover of billions of rupees will not disentitle the complainant to file the complaint, provided the complaint raises a consumer dispute. Hitherto the Commission has been of the consistent view that even when a company or firm engaged in the commercial and industrial activity files a complaint alleging deficiency in service on the part of the insurance company for not settling an insurance claim, such a partnership firm or company or individual can approach this Commission for redressal of his grievance because the insurance coverage taken by such a person is not for any commercial purpose i.e. with a view to earn profit and is only to safeguard its interest arising out of the risk to his buildings, plant and machinery and stocks in trade etc. We must therefore reject this contention of the opposite party/applicant.
5. This takes us to the next objection of the opposite party in regard to the complaint being barred by limitation. In para 35 relating to the cause of action, the complainant has averred as under:
That the cause of action for filing the present complaint has arisen on 26.03.2007 when the TRAIN-B Carbamate Condenser of the complainants Urea Plant No.2 was cut open and found to be damaged. The cause of action arose when the complainant company raised its claim on 11.02.2008 with the opposite party No.1. The cause of action further arose on 19.11.2010 when the Opposite Party No.1 has repudiated the complainants claim. The cause of action is continuing and subsisting.
6. From the above it may be noticed that according to the complainant, the cause of action for filing the present complaint arose for the first time on 26.03.2007 when the complainant cut open Train-B Carbamate Condenser and found it damaged, it again arose when the complainant lodged its claim with the opposite party/Insurance Company on 11.02.2008 and lastly it arose on 19.11.2010 when the opposite party No. 1 repudiated the complainants claim. The cause of action is stated to be continuing and subsisting one. Counsel for the opposite party has vehemently argued that the complainant has mentioned the above dates just to cover up the delay in filing the complaint because as per the complainants own showing the damage, if any, to the Condenser had occurred in the year 2005 and therefore, the claim ought to have been lodged with opposite party within a reasonable time from that date or from the date when the factum of damage to the carbamate condenser became known to the complainant in the year 2007. According to him the date of lodging of claim or its repudiation are not the date on which when the cause of action arose. In cases of non-settlement of insurance claim by an insurance company, it has been the consistent view of this Commission that in such matters, it is the date of repudiation of the insurance claim, which may also be treated as the date of accrual of the cause of action and period of limitation of two years prescribed under Section 24A of the Act may be reckoned from the date of such repudiation. There is no denial of the factual position that the claim lodged by the complainant was repudiated by the insurance company vide letter dated 19.11.2010 and if we compute the period of two years, the complaint which was filed on 4th April, 2011 is well within time. This objection also fails.
7. It was also contended on behalf of the opposite party that the many complex issues of facts are involved, which would require voluminous documentary and oral evidence, which cannot be decided by this Commission in exercise of its summary jurisdiction. In this regard, we may simply observe that any such case which is filed before this Commission would involve some or the other questions of fact and law, which this Commission is obliged to adjudicate upon. We would not like to throw away the complaint on this ground and relegate the complainant to the Civil Court only for this reason.
8. In view of the foregoing discussion, we hold that the application filed by the opposite party seeking dismissal of the complaint on the above grounds is misconceived and in any case, has no merits.
The same is accordingly dismissed.
9. The opposite party may file its written version on merit within four weeks from the date of this order.
10. List on 09.07.2012 before the Registrar for completing the pleadings and evidence and thereafter listing the complaint before the Commission for final hearing.
Sd/-
(R. C. JAIN, J.) PRESIDING MEMBER Sd/-
(S.K. NAIK) MEMBER SB/2