PAGORA FARMS (P) LIMITED vs United India Insurance Co. Ltd.

THIS complaint is filed under Section 17 read with Section 12 of the Consumer Protection Act, 1986 [for short, "the Act"].

THE complainant is one M/s. Pagora Farms (P) Limited, 41, 2nd Street, Kumaran Colony, Vadapalani, Madras - 600 026. The 1st opposite party is M/s. United India Insurance Co. Ltd., Head Office, 24, Whites Road, Royapettah, Madras - 600 014.

The 2nd opposite party is M/s. United India Insurance Co. Ltd., Divisional Office, 169, Mini Street, Madras - 600 079.

THE complainant took a Brackish Water Prawn Insurance Policy with the opposite parties for a period of five months commencing from 22.7.1994. THE sum insured under the policy for prawns is to the tune of Rs. 20,00,250/-. THE area covered under the policy is 2.54 hectares. THE policy itself contains a table indicating the manner and method of assessment of quantification of the loss. THE crop period of five months according to the Schedule into 10 fortnightly periods. If the loss occurred during the first fortnightly period, the loss is to be assessed at 22% of the sum assured. For the loss occurring in subsequent fortnightly periods the sum is estimated at a progressive rate of percentage of the sum assured and eventually at the 10th fortnightly period, the loss is to be assessed and estimated at 100%. THEse things apart, we are able to perceive from the terms and conditions of the policy, the percentage of assessment and quantification of the loss have to be computed not only with reference to the fortnightly period within which the loss occurred but also to the extent of the area affected. THE policy also contains a clause that the Insurance Company will pay to the assured 80% of the value of the prawns on the date of loss as per valuation mentioned in the policy. In the case on hand, the loss has to be estimated on the 6th fortnightly value basis as relatable to pond No. N1. THE Surveyor, finally assessed the loss for N1 pond after deducting salvage in a sum of Rs. 2,09,889/-. The opposite party Insurance Company paid this sum of Rs. 2,09,889/- to the complainant in full settlement of the claims. The complainant would also admit by way of specific incorporation of averment in the complaint that they, as a matter of fact, received the said sum from the opposite party. They would however contend that they are entitled to get more amount from the opposite parties, Insurance Company. According to them, they are entitled to get from the opposite parties, a sum of Rs. 7,84,178/- but what they got from the opposite party is only to the tune of Rs. 2,09,889/- and there is a balance of Rs. 5,74,189/- to be paid by them. They estimated the loss taking into account the input cost and the average body weight of the prawns.

THE opposite parties, Insurance Company would contend that there is no basis for the estimation of the loss as claimed by the complainant in the terms and conditions of the policy. When the matter came up for enquiry before us today, learned Counsel Mr. M. Muraleedhara Reddy, appearing for the complainant is called absent and no representation is made on his behalf. No one is present representing the complainant M/s. Pagora Farms (P) Ltd. Such being the case, there is no other go for us to consider the materials placed on record by the complainant and also the materials placed on record by the opposite parties, Insurance Company and dispose of the matter. The opposite parties, Insurance Company, marked Exs. B1 to B3 on their side. Ex. B1 is the copy of the complaint filed by the complainant in Civil Suit No. 379/2000 on the file of the High Court of Judicature at Madras. Ex. B2 is the policy of insurance taken by the complainant with the opposite party for a period of 5 months commencing from 22.7.1994. Ex. B3 is the Surveyor''s report. We heard the arguments of learned Counsel Mr. M.B. Raghavan, appearing for the opposite parties, Insurance Company.

LEARNED Counsel appearing for the opposite parties, Insurance Company, would urge that in view of the fact the complainant has filed a comprehensive suit before the High Court of Judicature in Civil Suit No. 379/2000 in respect of the subject matter covered by the complainant, this Commission has no jurisdiction at all to enquire into the matter and the complainant has to agitate the matter only before the High Court of Judicature in the comprehensive suit he has filed. In support of such a submission, the said learned Counsel relied upon the decision in the case of Indian Medical Association Housing Society Ltd. v. M/s. Rustumji Developments, 1986-99 NC & SC on Consumer Cases (Part III) 4716 (NS). In that case, the National Commission took the view that it is not appropriate that the Commission should conduct a concurrent adjudication of identical issues covering the same subject matter when they are pending adjudication before some other competent authority and consequently dismissed the complaint. The National Commission also took the view that the dismissal of the complaint will not operate to prejudice the complainant before Arbitrator and Civil Court.

PARAGRAPH 27 of the plaint under Ex. B1 reads as below : "The plaintiff has approached the Hon''ble Consumer Forum for redressal of their grievances and the matters are pending before the Hon''ble State Consumer Forum. The plaintiff has now come forward to this Hon''ble Court, even though the matters are pending before the Hon''ble State Consumer Forum, as the time limit for filing the civil suit ends on 9.4.1999."

On the basis of the averments in the plaint as reflected above, it goes without saying that the High Court of Judicature, Madras, is ceased of the subject matter of dispute between the parties as projected in the complaint before this Commission. Such being the case, the decision of the National Commission as referred to above is squarely applicable to the facts of the instant case. The complaint filed, as such, therefore, deserves dismissal and it is accordingly dismissed. We, however, observe that the dismissal of this complaint will not operate to the prejudice of the complainant before the High Court of Judicature at Madras. We however make no order as to costs on the facts and in the circumstances of the case. Complaint dismissed.