M/S ACME CLEANTECH SOLUTIONS PRIVATE LIMITEDversusM/S UNITED INDIA INSURANCE COMPANY LIMITED & ANR

578                       [2021]
               SUPREME COURT     12 S.C.R. 578
                              REPORTS                      [2021] 12 S.C.R.


A       M/S ACME CLEANTECH SOLUTIONS PRIVATE LIMITED
                                         v.
          M/S UNITED INDIA INSURANCE COMPANY LIMITED
                              & ANR
B                     (Civil Appeal Nos. 4476-4477 of 2021)
                              DECEMBER 09, 2021
         [DR. DHANANJAYA Y CHANDRACHUD, SURYA KANT
                         AND VIKRAM NATH, JJ.]
             Pleadings: Amendment of plaint/complaint – Whether the
C     pleading in the nature of a plaint in a civil suit or a complaint before
      the consumer forum should be amended is a matter for the plaintiff
      or, as the case may be, the complainant to determine – The party
      which moves the forum is dominus litis and is entitled to decide
      whether or not to amend the pleading or to pursue the complaint,
D     as it stands – Consumer Protection Act 1986.
             Consumer Protection Act 1986: s.13(1) – Insured-appellant
      filed complaint against insurer-respondent alleging that the insurer
      failed to settle the insurance claim of the insured arising out of
      storms which damaged the solar power plants of the insured – Insurer
      did not file written statement within the time stipulated by s.13(1) of
E
      the Act – Insurer filed IA seeking dismissal of claim – No reference
      was made in the IA to the repudiation of contract – On the same
      day, insurer issued a letter repudiating the claim of the insured – In
      the meantime, insured filed IA seeking final survey report – National
      Commission disposed of IAs and directed the insured to file amended
F     complaint and granted opportunity to the insurer to file a written
      statement – Challenge against – Held: It was for the insured to
      decide as to whether the complaint should be amended or whether
      it would pursue the option of proceeding with the pleadings as they
      stand – Insured could not have been directed to amend the complaint
      to challenge the repudiation of the contract of insurance – Insured
G
      stated that it did not wish to do so – In view thereof, it cannot be
      compelled to amend the complaint.
            Disposing of the appeals, the Court
           HELD : 1. The complaint filed by the appellant, as it stands,
H     requires the insurer to settle the claim and to make payment.
                                     578
  M/S ACME CLEANTECH SOLUTIONS PVT. LTD. v. M/S UNITED INDIA             579
                 INSURANCE COMPANY LTD.


The insurer repudiated the claim. There is merit in the contention       A
for the appellant that the appellant cannot be compelled to amend
the complaint. Whether the pleading in the nature of a plaint in a
civil suit or a complaint before the consumer forum should be
amended is a matter for the plaintiff or, as the case may be, the
complainant to determine. The party which moves the forum is
                                                                         B
dominus litis and is entitled to decide whether or not to amend
the pleading or to pursue the complaint, as it stands. It is the
contention of the appellant that the relief which has been sought
in the complaint is not only for the settlement of the complaint,
but also, in addition for the payment of the amount due and hence,
the complaint has not been rendered infructuous. According               C
to the appellant, the belated repudiation of the claim beyond
a reasonable period has no consequence. [Para 9][582-H;
583-A-C]
      2. In the situation as it stands at present, the appellant
could take recourse to either of three courses of action, namely:        D
(i) pursue the complaint as it stands; or (ii) amend the complaint
to challenge the letter of repudiation; or (iii) withdraw the existing
complaint with liberty to institute a fresh complaint to challenge
the letter of repudiation. [Para 11][583-F-G]
      New India Assurance Company Limited v Hilli                        E
      Multipurpose Cold Storage Private Limited (2020) 5
      SCC 757 – followed.
                       Case Law Reference
(2020) 5 SCC 757                followed                 Para 5
                                                                         F
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.4476-
4477 of 2021.
      From the Judgment and Order dated 11.03.2021 of the National
Consumer Disputes Redressal Commission, New Delhi in IA No.3463
of 2020 and IA No.1346 of 2021 in Consumer Case No.1934 of 2019.
                                                                         G
      Mohit D. Ram, Adv. for the Appellant.
      Amit Kumar Singh, Mrs. K. Enatoli Sema, Ms. Chubalema Chang,
Advs. for the Respondents.

                                                                         H
580             SUPREME COURT REPORTS                         [2021] 12 S.C.R.


A            The Judgment of the Court was delivered by
             DR. DHANANJAYA Y CHANDRACHUD, J.
            1. These appeals arise from an order of the National Consumer
      Disputes Redressal Commission1 dated 11 March 2021 in IA 3463 of
      2020 and IA 1346 of 2021.
B
             2. The appellant instituted a consumer complaint before the
      NCDRC on 28 September 2019, being Consumer Complaint No 1934 of
      2019. Briefly stated, the grievance of the appellant was that the first
      respondent had failed to settle the insurance claim of the appellant arising
      out of the two alleged storms which damaged the solar power plants of
C     the appellants. The relief which was claimed in the complaint is set out
      below, for convenience of reference:
             “(i) Direct the Respondents to immediately settle the Claim of the
             Complainant as per the Insurance Policy and make payment of:

D               A. insurance claim towards material damage to the tune of
                INR 13,91,78,987.75/- and
                B. insurance claim towards business interruption to the tune of
                INR 6,00,00,000/-
             (ii) Direct the Respondents to pay interest @ 18% per annum for
E            the period of delay from 13.06.2016 being the date when the
             Complainant intimated about the incident and claim, till the date of
             actual payment of the Claim of the Complainant; and
             (iii) Direct the Respondents to pay compensation to the tune of
             INR 1,00,00,000/- on account of harassment, mental agony, fraud
F            & deception, hardship and inconvenience caused to the
             Complainant due to acts of deficiency in services, negligence and
             unfair trade practices on part of the Respondents; and
             (iv) Direct the Respondents to pay INR 5,00,000/- towards litigation
             expenses.”
G            3. On 17 October 2019, the NCDRC passed the following order:
             “Heard.
             Complaint is admitted subject to just exceptions.
      1
          “NCDRC”
H
      M/S ACME CLEANTECH SOLUTIONS PVT. LTD. v. M/S UNITED INDIA                581
    INSURANCE COMPANY LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


         Issue notice of the complaint to the opposite party under Section      A
         13(2) of the Consumer Protection Act, 1986 making it clear that if
         opposite party wishes to file its written statement, it may do so
         within 30 days from the date of service of the notice of the
         complaint, failing which right to file the written statement may be
         closed.”
                                                                                B
       4. Notice of the complaint was served on the first respondent on
5 November 2019. The first respondent did not file its written statement
within the period stipulated by Section 13(1) of the Consumer Protection
Act 19862. On 6 March 2020, the first respondent filed IA 3463 of 2020
seeking the dismissal of the consumer complaint on the ground that it
was premature. In paragraph 10 of the application, the averment was to          C
the following effect:
         “10. It is stated that the non-cooperative attitude of the
         Complainant has caused hindrance to the insurer in examining the
         claim and therefore the progress of verifying and scrutinizing the
         documents including the survey report is under progress and            D
         therefore the instant Complaint is premature and deserves to be
         dismissed on this ground alone.”
        5. No reference was made in the IA to the repudiation of the
claim. On the same day, 6 March 2020, the first respondent issued a
letter repudiating the claim of the appellant. In the meantime, the appellant   E
sought copies of the final survey report. In its response to IA 3463 of
2020, the appellant, inter alia, raised the plea that the right to file the
written statement had been barred in view of the judgment of the
Constitution Bench of this Court in New India Assurance Company
Limited v Hilli Multipurpose Cold Storage Private Limited3.                     F
        6. The appellant filed IA 1346 of 2021 on 11 February 2021 seeking
production of the final survey report. Both IA 3463 of 2020 filed by the
first respondent and IA 1346 of 2021 filed by the appellant were heard
by the NCDRC and, by an order dated 11 March 2021, have been
disposed of. The NCDRC has directed the appellant to file an amended            G
complaint and has granted an opportunity to the first respondent to file a
written statement. The appellant has accordingly challenged the order
to the extent that it directs the appellant to file an amended complaint
2
    “Act”
3
    (2020) 5 SCC 757                                                            H
582             SUPREME COURT REPORTS                           [2021] 12 S.C.R.


A     and allows the first respondent to file a written statement to the amended
      complaint on the ground that this is contrary to the provisions of Section
      13(2) read with Section 22 of the Act.
             7. On behalf of the appellant, the submission which has been urged
      by Counsel is that the first respondent failed to file the written statement
B     within the outer limit which is prescribed by Section 13(1) (as made
      applicable to the NCDRC by the provisions of Section 22). Consequently,
      it has been urged that the procedure which has been adopted by the
      NCDRC of requiring the appellant to amend the complaint and granting
      an opportunity to the first respondent to file a written statement to the
      amended complaint would deprive the appellant of a right which has
C     accrued by the failure of the first respondent to lodge the written
      statement within the time stipulated by the statute. In this context, reliance
      has been placed on the judgment of the Constitution Bench in Hilli
      Multipurpose Cold Storage Private Limited (supra).
             8. On the other hand, the submission which has been urged on
D     behalf of the first respondent is that the relief which was sought in the
      complaint was for the insurer to settle the claim by making the payment
      of the claim. It has been submitted that while it is true that there was no
      written statement by the insurer within the prescribed period as set out
      in Section 13(1), the insurer having repudiated the claim on 6 March
E     2020, the relief which was sought in the complaint worked itself out and
      it would, hence, be the submission of the insurer that the complaint has
      been rendered infructuous. In this backdrop, it was submitted that the
      NCDRC was justified in issuing a direction that the appellant should
      amend the complaint. Moreover, once the complaint is amended, a right
      would accrue to the insurer to file a written statement to the amended
F     complaint.
             9. While assessing the merits of the rival submissions, it is
      necessary to state, at the outset, that no written statement was filed by
      the insurer within the period prescribed in the statute. The judgment of
      the Constitution Bench in Hilli Multipurpose Cold Storage Private
G     Limited (supra) has held the period provided in Section 13 of the
      Consumer protection Act, 1986 (thirty days with a further condonation
      of up to fifteen days) to be mandatory. However, the decision has been
      given prospective effect. The complaint filed by the appellant, as it stands,
      requires the insurer to settle the claim and to make payment. The insurer
H     repudiated the claim on 6 March 2020. There is merit in the contention
  M/S ACME CLEANTECH SOLUTIONS PVT. LTD. v. M/S UNITED INDIA                   583
INSURANCE COMPANY LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


of Counsel for the appellant that the appellant cannot be compelled to         A
amend the complaint. Whether the pleading in the nature of a plaint in a
civil suit or a complaint before the consumer forum should be amended
is a matter for the plaintiff or, as the case may be, the complainant to
determine. The party which moves the forum is dominus litis and is
entitled to decide whether or not to amend the pleading or to pursue the
                                                                               B
complaint, as it stands. We may note at this stage that it is the contention
of the appellant that the relief which has been sought in the complaint is
not only for the settlement of the complaint, but also, in addition for the
payment of the amount due and hence, the complaint has not been
rendered infructuous. According to the appellant, the belated repudiation
of the claim beyond a reasonable period has no consequence. On this            C
aspect, we need not dilate any further since the issue has to be decided
by the NCDRC in the pending proceedings.
      10. Be that as it may, it is for the appellant to decide as to whether
the complaint should be amended or whether it would pursue the option
of proceeding with the pleadings as they stand. It is for the appellant to     D
decide as to whether instead of pursuing the complaint, as it stands, it
should either:
      (i)     amend the complaint to challenge the repudiation of the
              insurance claim; or
      (ii)    withdraw the existing complaint with liberty to file a fresh     E
              complaint challenging the repudiation of the claim.
      11. To recapitulate, in the situation as it stands at present, the
appellant could take recourse to either of three courses of action, namely:
      (i)     pursue the complaint as it stands; or                            F
      (ii)    amend the complaint to challenge the letter of repudiation;
              or
      (iii)   withdraw the existing complaint with liberty to institute a
              fresh complaint to challenge the letter of repudiation.
                                                                               G
       12. The error in the order of the NCDRC was to compel the
appellant to amend the complaint, as a consequence of which, it granted
permission to the first respondent to file a written statement to the
amended complaint. The effect of this would be to deprive the appellant
of the benefit of urging that written statement cannot be filed at this
                                                                               H
584                 SUPREME COURT REPORTS                      [2021] 12 S.C.R.


A     stage in view of the judgment of the Constitution Bench in Hilli
      Multipurpose Cold Storage Private Limited (supra). The deprivation
      of the right to set up such a plea is a matter of prejudice to the appellant
      which is a result of the impugned order of the NCDRC. We clarify that
      we have not expressed any opinion on whether the respondent can file a
      written statement since this does not form the subject matter of the
B
      present appeal. We hold that the appellant could not have been directed
      to amend the complaint to challenge the repudiation of the contract of
      insurance. The appellant has stated that it does not wish to do so. This is
      a decision which has to be taken by the appellant and it cannot be
      compelled to amend the complaint.
C
              13. For the above reasons, we are of the view that the NCDRC
      was in error in issuing a direction to the appellant to amend the complaint
      and in permitting the first respondent to file its written statement to the
      amended complaint, subject to the payment of costs. Essentially, the IA
      which was filed by the first respondent was on the basis that the complaint
D     was premature since the process of verifying the claim was still to be
      completed. Now, that the claim has been repudiated, according to the
      first respondent, the IA would not survive. We, however, clarify that we
      have not expressed any view on the effect or the consequence of the
      alleged act of repudiation by the insurer since the matter is still to be
E     urged before the NCDRC. All the rights and contentions of the parties
      in that regard are kept open. Accordingly, the impugned order of the
      NCDRC dated 11 March 2021 to the extent that it decides IA 3463 of
      2020 is set aside. We clarify that the appellant could be at liberty to
      follow either of the three courses of action, as indicated in the earlier
      part of this order, namely:
F
             (i)      to pursue the complaint as it stands without any amendment;
                      or
             (ii)     to seek an amendment to the complaint; or
             (iii)    to withdraw the complaint with liberty to file a fresh
G
                      complaint to challenge the alleged act of repudiation.
              14. In the event that the appellant exercises option (ii) above, the
      first respondent would be at liberty to file a written statement to the
      amended complaint within the stipulated period. In the event that the
      appellant exercises option (iii), namely, to institute a fresh complaint, the
H
  M/S ACME CLEANTECH SOLUTIONS PVT. LTD. v. M/S UNITED INDIA                    585
INSURANCE COMPANY LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


first respondent would be at liberty to file a written statement in             A
accordance with law.
       15. The appeals are accordingly disposed of.
       16. Pending application, if any, stands disposed of.
                                                                                B
Devika Gujral                                            Appeals disposed of.




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