Rajasthan

StateCommission

CC/09/34

Genus Power Infrastructures Limited - Complainant(s)

Versus

Bajaj Allianz General Insurance Company Ltd - Opp.Party(s)

Gopal Shastri

19 May 2016

ORDER

 

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

COMPLAINT CASE NO: 34/2009

 

Genus Power Infrastructures Ltd. (Formerly Genus Overseas Electronics Ltd.) SPL -3 RIICO Industrial Area,Sitapura, Tonk Road, Jaipur.

 

Vs.

 

Bajaj Allianze General Insurance Co. Ltd., O-12-A, Ashok Marg, C-Scheme,Jaipur.

 

Date of Order 19.5.2016

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mr. Kailash Soyal -Member

 

Mr.Gopal Shastri counsel for the complainant

Mr. Prashant Mantri and Mr.Vizzy Agarwal counsel for the respondent

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BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This complaint has been filed against the respondent with the contention that complainant company is a corporate company involved in manufacturing of electronic meters. On the demand of West Bengal State Electricity Board the complainant company has supplied and installed meters in West Bengal and to cover the risk two insurance policies were taken from the respondent for the period from 11.10.2006 to 11.10.2008 and sum assured was respectively Rs. 24,48,91,681/- and Rs.64,84,82,319/-. In the policy period some meters were get defective. Claim was filed before the respondent which was repudiated vide letter dated 14.3.2009. Hence, complaint has been filed before this Commission.

 

The respondent came with preliminary objection that as compensation is claimed Rs.99,44,506/- alongwith interest hence, it exceeds pecuniary jurisdiction of the Commission. On 17.4.2013 the complainant moved an application. He has relinquished his claim as regard to interest and only claimed compensation to the tune of Rs. 99,44,506/- and the

 

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Commission held that complaint is within jurisdiction of this Commission.

 

Again the respondent moved an application that two other complaints bearing no. 629/2009 and 630/2009 are pending before the District Forum, Jaipur 2^nd be called and all these three complaints are arising out of the same policy or challenging the same repudiation letter. Hence, appropriate order should be passed on all three complaints.

 

Today documents in regard to complaints no. 629/2009 and 630/2009 were submitted hence, now seems no need to call for the record of the above complaints.

 

The contention of the respondent is that as all the three complaints are related to the same policies a consolidated claim form was filed and repudiation letter is also one hence, relief could not be bifurcated. Only one complaint should have been filed and as it exceeds the jurisdiction of the State Commission as well as the District Forum same could not be maintained here.

 

 

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Per contra the contention of the complainant is that cause of action has arisen when loss has been caused to the meters in 2006, 2007 and 2008 and when cause of action are different, complaints are competent and it does not exceeds the jurisdiction of the Forums and further relied on Order II Rule 2 CPC.

 

Heard the learned counsel for the parties and perused the documents submitted alongwith the complaint. Today the respondent has also submitted the documents as regard to the complaint nos. 629/2009 and 630/2009 pending before the District Forum, Jaipur 2^nd.

 

The facts are not in dispute that two policies were taken by the complainant which was effective from 11.10.2006 to 11.10.2008 and meters were damaged during 2006, 2007 and 2008 for which a consolidated claim form was submitted to the respondent and same was rejected vide repudiation letter dated 14.3.2009. Surveyor has also assessed the loss in single event for all the losses occurred in 2006 , 2007 and 2008 and further more the complaint before this Commission was filed on 11.8.2009 after expiry of insurance policy i.e. 11.10.2008 and after filing of this complaint two other complaints were filed

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bearing nos. 629/2009 and 630/2009 before the District Forum,Jaipur 2^nd.

 

The contention of the complainant is that he was having distinct cause of action for the year 2006, 2007 and 2008 and as per provisions of Order II Rule 2 CPC, he is competent to file different complaints. Order II Rule 2 CPC reads as under:

 

“2. Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within jurisdiction of any court.”

 

The plain reading of the provision clearly speaks out that the suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Here in the present case it is true that damage has been caused to the electronic meters in 2006 to 2008 on different occasions but for all losses/ damages a single claim was filed with the respondent which was repudiated by the single letter dated 14.3.2009 and provision is very clear that if the claim is founded on the cause of action distinct from that which was the foundation of the former suit, it will not come under the

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mischief of Order II Rule 2 but here in the present case the foundation of the suit is insurance policies which are one in all the three complaints. The claim was filed also on consolidated basis and it was repudiated by a single order and evidence to support all the claims are also same, meaning thereby that cause of action, relief claimed and evidence to prove the claim are in substance identical and further more all the reliefs as to the loss incurred in the year 2006 to 2008 were available to the complainant on filing of this complaint dated 11.8.2009. Hence, three different complaints are not competent.

 

The gist of the law as explained in Order II Rule 2 CPC is that every suit should contain the whole of the claim which the plaintiff is entitled to make in respect of cause of action on the relevant date and admittedly here in the present case on 11.8.2009 when this complaint was filed, the complainant was entitled to include whole of the claim as regard to losses which he has incurred from the year 2006 to 2008. Further more one significant fact is also there that from 2006 to 2008 on different dates damage/loss were caused but for whole year a single complaint has been presented by the complainant stating therein that in the years 2006, 2007 and 2008 he has suffered a particular loss. On this analogy also the complainant was

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entitled to present only one claim for the cause of action which has arose to the complainant on the repudiation of his claim vide letter dated 14.3.2009.

 

Cause of action means every fact which is necessary for the party to prove here in the present matter policies were taken for year 2006 to 2008, complainant suffered loss for the same period which is the initiation of cause of action. Claim was filed and finally the cause of action ripened for action when claim was repudiated vide letter dated 14.3.2009 hence, from any angle three complaints are not maintainable. Further the basic principle as per provision under Order II Rule 2 is to avoid the multiplicity of the proceedings and a safeguard against passing of contradictory order as regards to same cause of action. In view of the above, the complaints are not maintainable.

 

Hence, in the light of above, three complaints are not competent. They should have been clubbed into one and the necessary implication is that they exceed the pecuniary jurisdiction of this Commission and so also the District Forum. The complaint before this Commission is at the stage of final argument and as held above it exceed the pecuniary jurisdiction should have been dismissed but looking to the peculiar fact of

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the case that for particular policy single claim was filed and singally repudiated but relying on the preposition that complete justice should be done, it would be in the fitness of the things that all the three original complaints be returned to the complainant to be presented before the appropriate Forum. In the light of above, all the three complaints are disposed of . The copy of this order be also sent to the District Forum, Jaipur 2^nd for necessary compliance in Complaint Nos. 629/2009 and 630/2009.

 

(Kailash Soyal) (Nisha Gupta )

Member President

 

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