High Court
Facts
16291.2024WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6291 OF 2024Padmavati Enterprises Through it's ProprietorMukesh S/o Balasaheb Kalange Age :- 37 years, Occ : Business, R/o Fulsaundar Chowk, Maliwada, Vishal Ganpati Road, Ahmednagar...PETITIONERVERSUS1.The Manager, New India Assurance Company Ltd., Head Office at New India Assurance Building, 87, M.G. Road, Fort, Mumbai - 400 001 2.The Regional Manager, New India Assurance Company Ltd., Regional Office, Sharda Centre, 11/1, Erandavana, Karve Road, Pune - 411 004. 3.The Senior Divisional Manager, New India Assurance Company Ltd., Divisional Office (151800) Abbott Building, Second Floor, New Ashoka Hotel, King Road, Ahmednagar - 414 001 4.The Manager, The United India Insurance Company Ltd., Kisan Kranti Building, Station Road, Market Yard, Ahmednagar 414 001. ..RESPONDENTS…Mrs. Rashmi S. Kulkarni h/f Mr. S.M. Mule, Advocate for petitioner. Mr.M.R. Deshmukh, Advocate for respondent nos.1 to 3 Mr. S.R. Bagal, Advocate for respondent no.4. …CORAM:ROHIT W. JOSHI, J.RESERVED ON :5th AUGUST, 2025PRONOUNCED ON:18th AUGUST, 2025 26291.2024WP.odtJUDGMENT :The present petition is filed against order dated14.01.2020 passed by the learned Maharashtra StateConsumer Dispute Redressal Commission, Mumbai(hereinafter referred to as “the State Commission”) inConsumer Complaint No.49/2019, thereby dismissing theComplaint at the stage of hearing before admission as alsoorder dated 06.03.2023 passed by the National ConsumerDisputes Redressal Commission, New Delhi (hereinafterreferred to as “the National Commission”), dismissing FirstAppeal No.301/2020 assailing the said order dated14.01.2020. 2.The petitioner is the original complainant inComplaint filed before the State Commission. The case of thepetitioner is that he was running a business of sale and serviceof mobile hand sets and associated accessories under thename and style as "Padmavati Enterprises" as a sole proprietorfor earning his livelihood. He claimed that he had obtainedinsurance cover for his shop from respondent no.1 for a periodfrom 27.10.2017 to 26.10.2018. It is the case of the petitioner 36291.2024WP.odtthat on 26.05.2018, at around 1.00 a.m., there was theft inthe shop in which entire stock in the shop was stolen.According to the petitioner, the entire stock in the shop wasworth Rs.39,17,535/-. The petitioner claims that respondentno.1 – insurance company was liable to make good the saidloss, however, respondent no.1 had settled the claim forRs.12,53,675/-. Dissatisfied with the amount of claim paid bythe respondent – insurance company, the aforesaid ConsumerComplaint was filed by the petitioner. 3.In Nutshell, the case set up in the complaint isthat on 26.05.2018, there was theft in the shop of thepetitioner, regarding which F.I.R. was lodged with theconcerned Police Station on 26.05.2018 and as per theprescribed procedure Surveyor of the respondent – insurancecompany was also appraised about the theft. The petitionerhas stated that he had submitted stock report on 26.05.2018,in which the value of balance stock was mentioned asRs.7,17,544/-. The petitioner stated that the claim wassubmitted as per advise and direction of Surveyor. Perusal ofthe pleadings will further demonstrate that according to thepetitioner, the Surveyor had collected stock details and a loss 46291.2024WP.odtreport from him after the theft. Perusal of the pleadingsfurther demonstrate that the Surveyor had informed thepetitioner that his claim could be considered only uptoRs.10,58,757/-, which was subsequently revised atRs.14,49,734/-. The petitioner states that due to the financialdistress, he has shown his willingness to accept an amount ofRs.14,49,734/- vide application dated 30.03.2019. Thepetitioner then states that the Surveyor had initially preparedthe report as fire survey report, however, thereafter theSurveyor on his own account stated that out of the total stockof Rs.39,17,535/-, balance stock in the shop was worthRs.22,61,643/- and the loss was accordingly assessed atRs.16,55,892/-. The petitioner has stated that he had obtainedloan for running his business and the lender bank had alsoobtained insurance for the shop from another insurancecompany about which the petitioner was not aware and on theground that the petitioner had also obtained insurance fromanother company, the respondent – insurance company paid asum of Rs.12,53,675/-, being 75% of the total amount of lossassessed. The petitioner has stated in the complaint that theSurveyor obtained his signature on request application dated30.03.2019, pursuant to which the insurance company had 56291.2024WP.odtclosed the claim of the petitioner on 14.05.2019. Thepetitioner has also alleged that respondent nos.1 to 3 hadtaken his signature on bank receipt without mentioning theamount in which subsequently amount of Rs.12,53,675/- wasmentioned. 4.It will be pertinent to mention that in the F.I.R.lodged by the petitioner, reference to which is made in thecomplaint itself it is stated that around 20 mobile hand setsworth Rs.3,00,000/- and cash amount of Rs.40,000/-(approximately) were stolen. 5. As stated above, the learned State Commissionhas dismissed the Complaint at the stage of hearing beforeadmission on 14.01.2020. The learned State Commission hastaken note of the fact that in the F.I.R. lodged on the date ofincident, the petitioner had claimed that mobile hand setsworth Rs.3,00,000/- and cash amount of Rs.40,000/-approximately was stolen. The learned State Commission hastaken note that it was not even the case of the petitioner thatduring the investigation he had provided proper details to the 66291.2024WP.odtInvestigation Agency giving accurate figures of the allegedloss. The learned State Commission has also observed that theallegations in the Complaint were against the Surveyor. It isobserved that except for bare statement, the petitioner did notadduce any evidence to counter the report. In view of suchreasons, the learned State Commission expressed that thepetitioner had prima facie failed to make out a case ofdeficiencies in service or unfair trade practice and thatgrievance of the petitioner was required to be decided by CivilCourt. 6.It appears that there is an inadvertent error instating that the petitioner did not adduce evidence to counterthe report. The Commission probably intended to state thatthe petitioner did not produce any documents to counter thereport. Since the complaint is rejected at the stage ofadmission itself question of adducing evidence did not arise. 7.Aggrieved by the aforesaid order, the petitionerfiled Appeal before the National Commission, which came tobe dismissed vide order dated 06.03.2023. The National 76291.2024WP.odtCommission has broadly concurred with the reasons recordedby the learned State Commission. It is observed that thepetitioner had himself come up with the case that the stock ofRs.7,17,544/- was the available stock as communicated byhim to the Surveyor. It is observed that the Surveyor had givenhis report based on information provided by the petitioner.The National Commission has observed that the Surveyor hadmade assessment of loss ignoring the statement of thepetitioner in the F.I.R. that total value of hand sets stolen wasonly Rs.3,00,000/-. It is observed that the payment made bythe respondent - insurance company was also accepted by thepetitioner. In view of the aforesaid, the learned NationalCommission concurred with the learned State Commissionand dismissed the Appeal. 8.It will be however pertinent to mention that therespondent - insurance company had paid only 75% of theamount assessed loss towards compensation on the groundthat the petitioner had availed insurance from anotherinsurance company. The National Commission has directed therespondent - insurance company to pay the entire amount ofloss assessed on the ground that no clause in the policy could
Legal Reasoning
136291.2024WP.odtfound that mobile hand sets were stolen and othergoods/accessories were found to be intact. As per theSurveyor, value of available mobile hand sets wasRs.7,17,544/-. It is observed in paragraph 9 of the judgmentthat the complainant has himself admitted that the stock ofRs.7,17,544/- was available as per the communication issuedby him to the Surveyor. The order also records that theSurveyor accepted the value of stock available as on the dateof theft as Rs.39,17,535/-. The learned State Commission hastaken note of inconsistency in the value of stock stolen in theF.I.R., in the information provided by the petitioner toSurveyor and in a case set up in the complaint before the StateCommission. On these grounds, it is held that the petitionerhad failed to make out a prima facie case for entertaining theComplaint. The learned State Commission has howeverobserved that the forum of Civil Court may be available to thepetitioner for ventilating his grievance. As stated above, thelearned National Commission has broadly concurred with theobservations. 15.The findings recorded by the authorities take anote of the pleadings in the complaint. In paragraph 6 of the 146291.2024WP.odtcomplaint, the petitioner has stated that he had submitted astock report dated 26.05.2018 in which value of remainingstock detail after the theft was mentioned as Rs.7,17,544/-.This figure of Rs.7,17,544/- tallies with the figure of value ofavailable mobile hand sets assessed by the Surveyor. TheSurveyor has held that only mobile hand sets were stolen andaccessories were intact. Perusal of F.I.R. will also demonstratethat the petitioner had reported about the theft of mobilehand sets only. He did not refer to theft of any accessories. TheSurveyor has also accepted the total stock value stated by thepetitioner. 16.Apart from this, it must be stated that thepetitioner has accepted the amount paid to him towardscompensation. There are pleadings in the complaint about theissuance of receipt and also consent for acceptingRs.14,49,734/- towards settlement of the claim. The pleadingsin the complaint also demonstrate that according to thepetitioner, the Surveyor was constantly in touch with him andwas making inquires with the petitioner regularly in order toassess the loss. Most importantly, it is also stated that thedetails of the claim, which was being computed were also 156291.2024WP.odtshared by the Surveyor. Apart from this, the petitioner has alsolevelled allegations against respondent nos.1 to 3 stating thatthey had obtained a signature on a blank receipt. RespondentNos.1 to 3 are officials of the insurance company having theirrespective offices at Mumbai, Pune and Ahmednagar. Primafacie, it appears that having accepted the amount ofcompensation computed by the insurance company, thepetitioner wants to retract and claim higher compensation.The learned Commission has, therefore, found that primafacie case of deficiency in service or unfair trade practice isnot made out and the remedy of the petitioner lies in filing aCivil Suit. 17.The view taken by the learned authorities ispossible view. It is taken after considering the pleadings in thecomplaint and other material produced by the petitioner. Theview is possible view, which does not warrant interference atthe hands of this Court in exercise of its jurisdiction underArticle 226 and 227 of the Constitution of India. 18.As regards the judgments on which the reliance is 166291.2024WP.odtplaced by the petitioner, it must be stated that all thesejudgments unanimously state that only because somecomplicated questions of facts arise for consideration, theadjudicatory forums under the Consumer Protection Actshould not refuse to entertain the complaints by relegating theconsumer to Civil Court. In the present case, the principalallegations appear to be against the Surveyor. The Surveyor isnot a party to the Consumer Complaint. Likewise, theallegations are made against the officials of the insurancecompany regarding obtaining signatures on the blank receipts.Stand of the petitioner in the F.I.R., loss report submitted toSurveyor and pleadings in the complaint do not go hand inhand. In the considered opinion of this Court, the averment inthe complaint itself discloses that mixed questions of factsarise for consideration in the Consumer Complaint, which willinvolve recording lengthy evidence, which will be beyond thescope of summary inquiry, which the adjudicatory forumsunder the Consumer Protection Act are expected to undertake.As regards the judgment in the matters of CCI ChambersCoop. Hsg. Society Ltd., and Himanshu Trading Co. (supra),which lay down that normally notice should be issued andafter the pleadings of the respondents are found, the 176291.2024WP.odtCommission should form opinion as to nature and scope ofinquiry to determine as to whether the facts of the casewarrant relegating the consumer to the Civil Court or not.Whereas, the said legal principle cannot be disputed and isalso binding on this Court, it needs to be stated that theHon'ble Supreme Court has also held that when facts of caseinvolve adjudication by recording lengthy evidence, which isbeyond jurisdiction of a forum undertaking summary inquiry,consumer should be asked to work out the matter in a fulldressed trial in a summary suit. It is well settled that the ratioof every judgment must be interpreted and understood in thebackdrop of peculiar facts of each case. In the facts of thepresent case, the pleadings and material on record relied uponby the petitioner would by itself indicate that complicatedquestions of facts involving lengthy evidence will have to beled. There are personal allegations made against the Surveyorand officials of the insurance company. There is alsocontradiction in the pleadings and the documents. Likewise,the loss claimed in the complaint, report to Surveyor and F.I.R.is also not for the same amount. Having regard to the totalityof the circumstances, in the considered opinion of this Court,the impugned orders do not warrant any interference and the
Arguments
86291.2024WP.odtbe pointed out for deduction of 25% amount on the groundthat the insured had also taken another policy. 9.Heard Mrs. Rashmi S. Kulkarni, the learnedAdvocate for the petitioner. The learned Advocate contendsthat both the authorities have erred in holding that thedispute could not be raised under the provisions of theConsumer Protection Act and that the appropriate remedy forthe petitioner was to file a Civil Suit. She has placed relianceon the judgment of the Hon'ble Apex Court in the matter ofDr. J.J. Merchant and others Vs. Shrinath Chaturvedi, (2002)6 SCC 635 to contend that merely because the disputed andcomplicated questions of facts arise for adjudication in theConsumer Complaint, the Consumer Complaint should not bedismissed by relegating the consumer to Civil Court. Therelevant portion of the judgment is extracted hereinbelow :- "12. It was next contended that such complicatedquestions of facts cannot be decided in summaryproceedings. In our view, this submission alsorequires to be rejected because under the Act, forsummary or speedy trial, exhaustive procedure inconformity with the principles of natural justice isprovided. Therefore, merely because it is 96291.2024WP.odtmentioned that Commission or Forum is requiredto have summary trial would hardly be a groundfor directing the consumer to approach the CivilCourt. For trial to be just and reasonable longdrawn delayed procedure, giving ampleopportunity to the litigant to harass the aggrievedother side is not necessary. It should be kept inmind that legislature has provided alternativeefficacious, simple. Inexpensive and speedyremedy to the consumers and that should not becurtailed on such ground. It would also be totallywrong assumption that because summary trial isprovided, justice cannot be done when somequestions of facts are required to be dealt with ordecided. The Act providers sufficient safeguards."10.The learned Advocate for the petitioner thenplaces reliance on the judgment in the matter of CCIChambers Coop. Hsg. Society Ltd., Vs. Development CreditBank Ltd., (2003) 7 SCC 233. The Hon'ble Supreme Court hasobserved in the said judgment as under :- "6...... Merely because recording of evidenceis required, or some questions of fact and lawarise which would need to be investigated anddetermined, cannot be a ground for shutting thedoors of any forum under the Act to the personaggrieved. 106291.2024WP.odt7..... The decisive test is not the complicatednature of the questions of fact and law arising fordecision. The anvil on which entertainability of acomplaint by a forum under the Act is to bedetermined is whether the questions, thoughcomplicated they may be, are capable of beingdetermined by summary enquiry i.e. by doingaway with the need of a detailed andcomplicated method of recording evidence." 11.Reliance is also placed on judgment in the matterof Punj Lloyd Limited Vs. Corporate Risks India Pvt. Ltd.,(2009)2 SCC 301, wherein the same legal principle isreiterated and it is further held as under :- "15. we are of the view that the decisionarrived at by the Commission is premature. TheCommission ought to have issued notice to therespondent and placed the pleadings on record.When pleadings of both the parties were madeavailable before the Commission, only then theCommission should have formed an opinion as tothe nature and scope of enquiry, i.e., whether thefacts which arose for decision on the basis of thepleadings of the parties required a detailed andcomplicated investigation of facts which wasincapable of being undertaken in a summary andspeedy manner, then only the Commission should 116291.2024WP.odthave justifiably formed an opinion on the need ofrelegating the complaint to a civil court." 12.Placing reliance on the said judgments, thelearned Advocate for the petitioner contends that the learnedState Commission could not have dismissed the Complaint atthe stage of admission. She contends that the Complaintdeserves to be admitted and decided on merits. Likewise, thelearned Advocate has relied on several judgments to contendthat the report of Surveyor could not have been considered tobe final or sacrosanct and that the learned authorities haveerred in dismissing the Complaint by placing reliance on thereport of the Surveyor. 13.Per contra, Mr. M.R. Deshmukh, learned Advocatefor respondent nos.1 and 2 supports the orders. He contendsthat the respondent - insurance company has paid the amountto the petitioner as per the report submitted by the Surveyor.Referring to the provisions of the Insurance Act, 1938, hecontends that the Surveyor is not an employee of theinsurance company and that he is an independent person,who has made independent assessment of loss, which has 126291.2024WP.odtbeen honoured by the respondents. He contends that it cannotbe said that the insurance company has committed unfairtrade practice or there is any deficiency in service since theclaim is paid in accordance with the amount quantified by theindependent Surveyor. He has placed reliance on Section 64-UM in support of his contention. 14.Perused the orders passed by both the authorities.The learned State Commission has dealt with the pleadings inthe Complaint and considered the same in the light of thedocuments produced on record by the petitioner. It is observedthat in the initial report lodged by the petitioner with policeauthority, it was stated that 20 mobile hand sets were stolen.Value of the same was mentioned at Rs.3,00,000/-. Thelearned State Commission has taken into consideration thatalthough, the F.I.R. was lodged on the very day on which theincident had occurred, even subsequently the petitioner didnot apprise authorities about the actual loss allegedly sufferedby him. The learned State Commission has also found thatthere was inconsistency in the pleading of the petitioner. Thelearned State Commission has referred to the survey reportand found that Surveyor visited the shop of the petitioner and
Decision
186291.2024WP.odtpetition is liable to be dismissed. 19.Writ Petition is, therefore, dismissed with noorders as to costs. 20.Needless to mention that since the impugnedorders do not adjudicate the case on merit but only expressthat the appropriate remedy for the petitioner will be to file acivil suit, observations made in the said orders as also in thepresent judgment will not binding on the Civil Court whiledeciding the Civil Suit. 21.Civil Applications, if any, stand disposed of.[ROHIT W. JOSHI, J.] sga/2025