National Consumer Disputes Redressal
M/S. S.D. Enterprises vs National Insurance Co. Ltd. & 4 Ors. on 16 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 465 OF 2015 (Against the Order dated 28/11/2014 in Appeal No. 99/2005 of the State Commission Maharastra) 1. M/S. S.D. ENTERPRISES 68/A-2 SHAH & NAHAR INDUSTRIAL ESTATE, DHANRAJ MILL COMPOUND, SITARAM JADHAV MARG, LOWER PAREL, THROUGH ITS AUTHORIZED REPRESENTATIVES MUMBAI - 400 013 MAHARASHTRA ...........Petitioner(s) Versus 1. NATIONAL INSURANCE CO. LTD. & 4 ORS. MUMBAI R.O: 1,12 JAMSHEDJI TATA ROAD, CHURCHGATE , MUMBAI - 400 020 MAHARASHTRA 2. NATIONAL INSURANCE CO LTD. MUMBAI R.O II, 5TH FLOOR, STERLINGBLDG, FORT, MUMBAI - 400 001 MAHARASHTRA 3. NATIONAL INSURANCE CO LTD. DIVISION:III,16 VEER NARIMAN ROAD, 2ND FLOOR, MERCANTILE BANK CHAMBERS, 19 CAWASJI PATEL STREET, MUMBAI - 400 023 MAHARASHTRA 4. NATIONAL INSRAUCE CO LTD. MUMBAI DIVISION NO-VII,25070, BHARAT HOUSE, 3RD FLOOR, 104 MUMBAI SAMACHAR MARG, MUMBAI - 400 001 MAHARASHTRA 5. NATIONAL INSURANCE CO LTD., MUMBAI DAB-III,260501 2ND FLOOR, GENERAL ASSURANCE BUILDING, 232, D.N ROAD, MUMBAI - 400 001 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBER
For the Petitioner : Ms. Kanika Agnihotri, Advocate For the Respondent : Ms. Meenakshi Midha, Advocate
Ms. Ensha Chhabra, Advocate
Dated : 16 Jan 2017 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 28.11.2014 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') in CC No. CC/05/99 - M/s. S.D. Enterprises Vs. National Insurance Co. Ltd. & Ors. by which, while dismissing application for amendment of complaint, complaint was also dismissed.
2. Brief facts of the case are that Complainant/petitioner is a partnership firm. Opponent nos. 1 to 5/Respondents are the General Insurance Company having their regional, divisional and branch offices at different places. The Complainant had taken four insurance policies from Opponent nos. 3,4 and 5 for insurance of stocks and stocks in process pertaining to the insured's trade against the fire/flood/riots and had paid the premiums as charged by them. The complainant has stated that there was flood on 25.6.2002 to 26.6.2002 at its Adhikanksha Warehouse situated at Plot Nos. 11 and 12, Chinchpada, Gokhivare, Vasai East, Thane and stock of steel goods, engineering goods, packing materials and textiles fabrics were got damaged. It was informed to the opponents. Surveyor was appointed by the opponents. Surveyor submitted report and thereafter the complainant submitted a claim and that was repudiated. Alleging deficiency on the part of OP, complainant claimed Rs. 90,74,169/- as insurance claim and 18% p.a. interest on aforesaid amount from 30.1.2003 and compensation of Rs. 5,00,000/- with legal cost of Rs.50,000/-.
3. OP resisted complaint, admitted insurance coverage, but denied assessment of loss made by complainant and denying any deficiency on their part, prayed for dismissal of complaint.
4. During the pendency of proceedings, complainant moved application for amendment in the complaint for reduction of claim and learned State Commission while rejecting application for amendment, dismissed complaint for want of pecuniary jurisdiction against which, this revision petition has been filed.
5. Heard learned Counsel for the parties finally at admission stage and perused record.
6. Learned Counsel for petitioner submitted that learned State Commission has committed error in dismissing application for amendment of the complaint and further in dismissing complaint itself without hearing the parties; hence, revision petition be allowed and impugned order be set aside and amendment application be allowed and matter may be remanded back to learned State Commission to decide complaint in accordance with law. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
7. The core question to be decided is whether learned State Commission could have dismissed complaint itself while dismissing application for amendment in the complaint and further whether prayer for reduction of claim should have been dismissed by learned State Commission?
8. Complainant filed application for amendment in the complaint for the purpose of reduction of claim which was opposed by OP and learned State Commission heard arguments on that application and application for amendment in the complaint was dismissed, as learned State Commission had no jurisdiction to entertain the complaint itself.
9. Admittedly, complaint was filed in the year 2005 and complaint was admitted and OP was issued notice and OP filed written statement and complaint was proceeding as per law. Learned State Commission observed in the impugned order that question of pecuniary jurisdiction should have been considered by learned State Commission when complaint was filed, but due to mischief played by the complainant while submitting the application of claim, amount which exceeds Rs.1 crore was not noticed by office or Members of this Commission. It was further observed that in the statement of claim, the amount was shown as Rs.96,24,169/-, but has not calculated interest on the aforesaid amount and if interest on aforesaid amount is clubbed, claim would be more than Rs. 1 crore. Aforesaid observation is prima facie wrong because firstly when complainant has not calculated interest and has not clubbed this amount in Clause 'b' of the prayer clause, this amount should not have been clubbed for deciding pecuniary jurisdiction of learned State Commission. As per Section 17 (1) C.P. Act, State Commission has jurisdiction to entertain the complaints where the value of goods or services and compensation, if any, claimed exceeds Rs.20 lakhs, but does not exceed Rs. 1 crore, meaning thereby, amount of interest was not to be clubbed with amount of services or goods and if amount of interest is not clubbed, total claim including compensation was below Rs. 1 crore and learned State Commission rightly entertained the complaint. OP has also not raised any objection regarding pecuniary jurisdiction in its written statement. Learned Counsel for the respondent has drawn my attention towards para 21 of the written statement, but perusal of aforesaid para reveals that there was no objection regarding pecuniary jurisdiction of the State Commission, but only this plea was taken by OP that OP is not liable to pay any amount to the complainant for alleged loss. In such circumstances, there was no occasion for learned State Commission to observe that learned State Commission had no pecuniary jurisdiction to entertain the complaint while deciding application for amendment in the complaint for reduction of claim and learned State Commission has committed error in dismissing complaint for want of pecuniary jurisdiction while deciding application for amendment in the complaint.
10. Learned State Commission observed that "there cannot be any dispute that complainant can move an amendment application for reducing his claim and Commission may allow his amendment application". This observation makes it crystal clear that complainant is competent to reduce its claim at any time and learned State Commission cannot decline application for amendment to reduce claim. Learned State Commission has dismissed application on the ground that learned State Commission had no jurisdiction to entertain the complaint itself which has already been discussed above and it is held that learned State Commission had jurisdiction to entertain the complaint and learned State Commission has committed error in dismissing application for amendment of the complaint for want of pecuniary jurisdiction to entertain complaint. Learned State Commission should have allowed application for amendment of the complaint and decided complaint in accordance with law.
11. In the light of aforesaid discussion, the impugned order is liable to set aside and application for amendment of complaint is to be allowed.
12. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 28.11.2014 passed by the learned State Commission in CC No. CC/05/99 - M/s. S.D. Enterprises Vs. National Insurance Co. Ltd. & Ors. is set aside and application for amendment of complaint filed by complainant is allowed and petitioner is directed to file amendment complaint with State Commission on or before the next date and learned State Commission is directed to decide complaint in accordance with law treating complaint within its pecuniary jurisdiction.
13. Parties are directed to appear before State Commission on 20.2.2017.
......................J K.S. CHAUDHARI PRESIDING MEMBER