1. THE complainant has approached this Commission with a claim of Rs. 13,44,573/- on account of the following items :
2. THE facts of the complaint in brief are that on 16.7.1994, the Vessel "MSV Safina Al-Amir" was totally lost and destroyed in the Sea due to the natural calamity. THE Ship was valued at Rs. 30 lakhs. THE Surveyor submitted his report on 11.4.1995. THE Head Office of the opposite party-Insurance Company sanctioned the claim of Rs. 30,49,580/-. On 8.11.1996, the opposite party issued a cheque for Rs. 28,99,357/- to the complainant. On that day, according to the complainant, he registered a protest orally with the officers of the opposite party Corporation and by his letter dated 11.11.1996, he sent the formal protest in writing. According to the complainant, 9th and 10th November, 1996 were Saturday and Sunday and the office of the opposite party was closed. On 13.11.1996, the opposite party informed about the deduction made by them from the sanctioned amount. THE Insurance Company has deducted the following amounts : According to the complainant, these deductions were effected illegally without any authority from the complainant. According to the complainant, the premium was fixed at Rs. 1,63,875/- on the value of the sum of Rs. 30 lakhs insured at 5.4625%. However, on 16.3.1994, the percentage was raised to 6.432% in place of 5.4625%. Further, on 13.6.1994, it unilaterally raised the premium to 6.432% as against the earlier rate of 5.4625%. It is the contention of the complainant that the opposite party ought not to have unilaterally raised the percentage of the premium and that such an increase is allowed to have been made based on their private and forged documents. THE contention of the complainant is that once the contract was concluded, the opposite party-Insurance Company could not increase the percentage of the premium without the consent of the complainant. It is contended that this increase in the percentage of the premium has been effected much after the date of contract and the deductions have been made after the sanction of the claim by the opposite party. It is alleged that the opposite party has not produced the advice given by the Advisory Committee to the opposite party and that the opposite party has charged the premium at 9.964% as per the advice. But the same has not been shown to the complainant nor to the Commission. THE letter was not supplied to the complainant although it was demanded from them. THE policy period was from 16.12.1993 to 15.12.1994 and there was no question of its renewal after 15.12.1994. It is also submitted that the opposite party had earlier entertained and sanctioned the claim submitted to them without any increase in the premium. But when the claim over Rs. 30 lakhs was sanctioned, it is just before the delivery of the cheque, they have effected the deductions as mentioned above. It is further submitted that the salvage belong to the Insurance Company and the opposite party was expected to take care and protect the salvage. THE expenses incurred for this purpose is required to be reimbursed. THE complainant has asked for the interest amount from 1.11.1994 till 8.11.1996 on account of unreasonable delay for settling the claim by the opposite party. In fact, the opposite party deliberately delayed the settlement. According to the complainant, the copy of the Surveyor''s report of M/s. J.B. Boda and Company Pvt. Ltd. is placed on record. In support of above contentions, the complainant has submitted several documents and written notes of submissions and some decisions of the National Commission and other State Commissions.
The opposite party has submitted a detailed written version running into 35 pages. The opposite party has brought out several complicated questions of facts and law involved in the present claim. They have denied the allegations made by the complainant as regards the undue delay. It is submitted by them with support of necessary documents that it is the complainant who took his own time in submitting various documents and clarifications on several issues related to his claim. On careful perusal, we find that there is really no delay in the settlement of the claim. Therefore, the claim made by the complainant on account of delay cannot be favourably considered.
The opposite party has raised another legal point to the effect that since the claim was settled fully and finally, and the complainant has received the cheque without any protest, the complaint itself is not maintainable as the complainant cannot be treated as a consumer. It is forcefully submitted that the present complaint cannot be treated as a consumer dispute in view of the full and final settlement of the claim. In support of this, the learned Counsel for the opposite party has cited certain authorities. As against this, the learned Counsel for the complainant has also cited the decisions of the National Commission. In the instant case, the cheque was issued on 8.11.1996, the complainant has averred that he had registered his protest orally on the same day at the time of receiving the cheque and the next two days were Holidays for the opposite parties office. He submitted his written protest on 11.11.1996 which has been received by the opposite party and has been discussed by their officers on 15.11.1996. Thus, there is absolutely no force in the submission of the opposite party that the complaint is not tenable. We hold that the complaint is a consumer dispute and the same is maintainable.
3. AS regards the increase in the percentage of the premium which has the characteristics of the sold goods, the opposite party has submitted the copy of the original document of 16.3.1997 wherein it has mentioned as under :
"At the request of the insured, it is hereby declared and agreed that the IInd instalment premium of Rs. 54,346/- plus balance premium of 1st instalment of Rs. 7,847/- is hereby charged to the insurer. Thus, rectifying the rate applicable from 5.4625% to 6.432%." Similarly, the copy of the original document of 13.6.1997 also makes a mention as under : "At the request of the insured, it is hereby declared and agreed that the 3rd instalment premium of Rs. 54,346/- is hereby charged to the insured. All other terms and conditions and warranties remained unchanged."
There is one more document produced by the opposite party as Exhibit 40-D. The letter of 3.2.1997 gives the details of various deductions already effected before the payment was made. There is one letter of 15.4.1996 submitted as Exhibit "C" at page 38 by the opposite party. By this letter, the complainant has written to the opposite party as under :"With reference to your demand made by you of Rs. 1,11,258/- from me regarding the less premium, I hereby request you my claim is liable to pay under the law. I will agree to authorise you deduct the said amount from the claim amount payable by you."
From this letter of the complainant, it becomes clear that he had agreed for the deduction of Rs. 1,11,258/-. The bone of contention of the opposite party is that the premium has been raised as per the advice of the Advisory Committee and at the request of the insured, i.e. the complainant and, therefore, the complainant again makes such claims as an after-thought after having received about Rs. 29,00,000/- from the opposite party. We find that the Surveyor''s report runs into about 50 pages. In addition to this lengthy report, there are several other documents filed by both the parties which go to show that there was protracted correspondence between the complainant and the opposite party. The opposite party had to seek a lot of information and clarification on several points from the complainant. The Surveyor also had to collect a lot of information from the complainant with the result that lot of complicated facts are involved in this complaint in addition to the raising of the percentage of the premium by the opposite party. The two documents, one of 16th March, 1994 and the second of 13.6.1994 are supposed to have been made at the request of the insured, i.e. the complainant. The percentage of the premium has been raised to 6.432% on 16.3.1994. These documents are not acceptable to the complainant. The complainant alleges that these are the endorsements made by the opposite party unilaterally while the opposite party has made these declarations allegedly at the request of the insurer. Thus, the very foundation of the complaint is based on disputed documents. This alongwith other documents will require a lot of evidence and also co-relate them with various other facts and circumstances which have been mentioned in the complaint, the written version and the Surveyor''s report. This is not a simple case of just raising the percentage of premium as alleged by the complainant.
4. ON going through the voluminous documents and numerous facts and circumstances of the case, we find it difficult to decide the complaint in a summary enquiry. It is, therefore, necessary to refer the matter to the Civil Court which may be in a better position to record the evidence, screen the documents and also get the disputed documents either proved or disproved. Therefore, it will be more appropriate if the complaint is referred to the Civil Court by the complainant. Therefore, the following order : Order
"In the facts and circumstances of the complaint, the complainant is directed to approach the Civil Court since it involved complicated questions of facts and law. The time spent in the prosecution of this complaint is saved and while computing the limitation, the period from the date of institution of this complaint till the date of the order, be ignored."
With these directions, the complaint stands disposed off. No order as to cost. Complaint disposed of.
