ORDER

(Per: Mr. D.K. Tyagi, Member):

This is an appeal, under Section 15 of the Consumer Protection Act, 1986, against the judgment and order dated 11.02.2014 passed by the District Forum, Haridwar in consumer complaint No. 270 of 2012.  By the order impugned the District Forum has allowed the consumer complaint against the appellant-opposite party No. 1 and directed the opposite party No. 1-insurance company to pay an amount of Rs. 12,15,000/- to the complainant within a month from the date of order.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant had purchased tractor bearing registration No. UA08-K-3393 for agriculture purpose. The tractor was insured with The New India Assurance Company-opposite party No. 1 through State Bank of India-opposite party No. 2 for the period from 31.07.2007 to 30.07.2008.  The tractor met with an accident with Santro car on 12.01.2008 at about 08:00 p.m. and badly damaged and divided into two parts, for which the complainant informed the Police Station, Kotwali, Mangalore and also informed the opposite parties.  On the direction of opposite party No. 1, the tractor was sent to the authorized dealer-Chaudhary Tractors, Laksar for repairs.  The surveyor of the opposite party No. 1 inspected the damaged tractor.  The authorized dealer had issued a bill of Rs. 79,542/- for repairs of tractor to the complainant. Due to non-payment of bill to the authorized dealer, the complainant could not use this tractor in his agriculture of 72Bigha land, which caused loss of                 Rs. 5.00 lacs to the complainant. The complainant hired another tractor for his agriculture on payment of Rs. 1,50,000/-.  The complainant has to pay interest on loan to the bank.  He has suffered a total loss of Rs. 10.00 lacs in agriculture as well as payment of interest. This loss is caused due to deficiency in service on the part of the opposite parties. The surveyor of the opposite party No. 2 demanded Rs. 20,000/- as bribe, which was not paid by the complainant to him, therefore, he assessed the loss of tractor for    Rs. 25,746/- only. The complainant filed a consumer complaint before the District Forum for a relief of actual claim and also went into appeal before this Commission. On the direction of this Commission, the claimant received claim from the opposite party No. 1-insurance company, but due to delay in payment of claim by the opposite party No. 1 and also delay in payment of loan, the complainant suffered mental, physical and economic loss.  The opposite party No. 2-State Bank of India issued a recovery notice of Rs. 4,67,563.70ps. against the complainant. The complainant, after taking the claim amount, deposited Rs. 1,20,000/- against the loan account. Due to delay non-payment of claim amount, the complainant could not take yield/crop from his agriculture land.  Later on he spent Rs. 1,50,000/- and hired a tractor to do work in his agriculture land. The complainant has suffered a loss of Rs. 10.00 lacs due to deficiency in service of opposite parties and also suffered mental & physical hardship and economic loss. The complainant prayed for Rs. 10.00 lacs as compensation against the loss in the agriculture as well as for Rs. 2.00 lacs for mental & physical hardship and economic loss and also for Rs. 50,000/- towards litigation expenses.

3.       The opposite party No. 1-The New India Assurance Co. Ltd. has filed objections with the Consumer Forum and has pleaded that the answering opposite party charged only amount of premium to issue insurance policy in favour of complainant, therefore, the complainant is not a consumer of the answering opposite party.  There is no deficiency in service on the part of the answering opposite party. The consumer complaint is not legally maintainable. It is not admitted to the answering opposite party that the tractor of the complainant made an accident with Santro car on 12.01.2008 and became damaged, which caused loss to the complainant. The real fact is that the claimant pressurized the surveyor for wrong and manipulated report, who had denied to do the same.  Therefore, the complainant made wrong allegations against the surveyor, who has rightly assessed the loss and fair report was given. The answering opposite party has pleaded that the complainant had filed a consumer complaint earlier before the District Forum, which was decided ono 18.10.2010 and the District Forum has awarded Rs. 50,000/- and directed the answering opposite party to pay the said amount to the claimant, but the claimant went into appeal before the State Consumer Commission, who had passed order dated 30.09.2011 and incompliance of order of the State Commission the answering opposite party-insurance company has paid Rs. 89,004/- vide cheque No. 391515 dated 21.12.2011 to the complainant without any delay.  After payment of the said decretal amount, the complainant has no legal right to file a fresh consumer case, therefore, the present consumer complaint is not maintainable. It is denied that the answering opposite party caused delay in payment of claim amount, as directed. There is no concern with the recovery proceedings by the opposite party No. 2-State Bank of India against the complainant. Similarly, the answering opposite party has no concern with the issuance of recovery certificate to the Collector against default of the complainant. The answering opposite party did not cause any delay in payment of claim amount, therefore, no harm has been caused to the complainant. There is no deficiency in service on the part of answering opposite party.  It is wrong to say that the claimant suffered economic loss or mental agony due to any deficiency in service of answering opposite party.

4.       The opposite party No. 2-State Bank of India has filed written statement/objections before the District Forum and pleaded that prior to this consumer complaint, the complaint had filed a consumer complaint No. 34 of 2010 before the District Forum, Haridwar against the opposite parties on 08.02.2010 and the same was decided on 18.10.2010 by the District Forum and it was directed to the opposite party No. 1-insurance company to pay Rs. 50,000/- as compensation to the complainant. Aggrieved by the said order, the complainant had filed First Appeal         No. 373 of 2010 and the insurance company had also filed First Appeal   No. 378 of 2010 before this Commission. This Commission has dismissed the First Appeal No. 378 of 2010 filed by the insurance company and allowed the First Appeal No. 373 of 2010 filed by the appellant-Deep Singh against the insurance company and directed the insurance company to pay a sum of Rs. 79,542/- together with interest @9% per annum.  Thereafter, in compliance of the judgment passed by this Commission, the insurance company paid Rs. 89,004/- to the complainant. In these circumstances the consumer complaint filed by the complainant for the second time, is not maintainable and is liable to be dismissed. The recovery notice dated 30.07.2010 was issued against the complainant by the bank on account of breach of condition of concerned agriculture loan and non-payment of loan amount as well as interest to the bank by the complainant. The complainant has filed the consumer complaint malafidely, although he had already received the amount awarded by the State Consumer Commission in the earlier case. No consumer complaint is maintainable against the recovery certificate against loan issued by the bank before any Consumer Forum. There is no deficiency in service on the part of the answering opposite party.

5.       The District Forum on an appreciation of the facts and circumstances of the case, has allowed the consumer complaint vide its order dated 11.02.2014 in the above manner.  Aggrieved by the said order, the opposite party-insurance company has filed this appeal.

6.       We have heard Sh. Rajesh Kumar Devliyal, learned counsel for the appellant and Sh. Gopal Narson, learned counsel for respondent and have gone through the entire record of the District Forum and perused the material placed on record. None appeared on behalf of respondent No. 2.

7.       Learned counsel for the appellant-insurance company has submitted before this Commission that the impugned order passed by the District Forum is against the facts and evidence.  The District Forum has ignored the written statement, affidavit as well as evidence adduced by the appellant. The Forum below has not considered the order dated 30.04.2011 passed by the State Commission.  The State Commission has specifically mentioned in the order dated 30.04.2011 that the loss caused in the agriculture cannot be compensated in Consumer Protection Act, 1986. The respondent No. 1-complainant sought similar relief in consumer complaint      No. 270 of 2012 Deep Singh vs. New India Assurance Co. Ltd. and another and also in earlier consumer complaint No. 34 of 2010 Deep Singh vs. New India Assurance Co. Ltd., but the Fora below had not considered this fact and passed an illegal and arbitrary order dated 11.02.2014. The District Forum has passed an order dated 11.02.2014 beyond its jurisdiction. The respondent No. 1-complainant has filed similar case on similar facts and the parties are also same, therefore, order passed by the District Forum is barred by principal of res judicata.  Learned counsel for the appellant has cited a decision of Hon’ble National Commission in the case of Branch Manager, LIC of India & Anr. vs. Smt. Zareena Sulaiman; ( (1995) CPJ 4 (NC). 

8.       Learned counsel for respondent No. 1-complainant has submitted before this Commission that impugned judgment and order dated 11.02.2014 passed by the District Forum, Haridwar is not against the facts and evidence, rather the impugned order has been passed by the Forum below after hearing both the parties and after perusal of the documents filed on record. The facts in consumer complaint No. 270 of 2012 and consumer complaint No. 34 of 2012 were not same, therefore, impugned order is not barred by the principal of res judicata. In fact the consumer complaint    No. 34 of 2010 was filed against the insurance company for insurance claim of insured tractor, which was purchased after taking the loan from the State Bank of India-respondent No. 2 and that tractor met an accident, whereas the consumer complaint No. 270 of 2012 was filed for compensation for mental agony and economic loss due to delay in payment of claim amount as well as increase of bank interest. Relief sought in both the consumer complaints were not same and the cause of action was also different. Learned counsel for respondent No. 1 has relied on a judgments of the Hon’ble Supreme Court in the case of Ghaziabad Development Authority vs. Balbir Singh; (2004) Insc. 738 (3 December 2004) and also in the case of Union of India & Ors. vs. Adani Exports Ltd. & Anr.; Appeal (civil) 6320-6321 of 2009.  With due respect of the Hon’ble Apex Court, these citations are not applicable in the instant case.

9.       We have perused the judgment and order dated 30.09.2011 passed by this Commission in First Appeal No. 378 of 2010; New India Assurance Co. Ltd. vs. Deep Singh & another and First Appeal No. 373 of 2010; Deep Singh vs. New India Assurance Co. Ltd. and another. These two appeals were filed by both the parties and arise out of the order dated 18.10.2010 passed by the District Forum, Haridwar in consumer complaint No. 34 of 2010, whereby the District Forum has allowed the consumer complaint and has directed the opposite party No. 1-insurance company to pay to the complainant a sum of Rs. 50,000/- within a month from the date of order. This Commission in its judgment passed an order that the First Appeal    No. 378 of 2010 filed by the insurance company was dismissed, whereas the First Appeal No. 373 of 2010 filed by the complainant-Deep Singh was allowed and the impugned order dated 18.10.2010 passed by the District Forum was modified by enhancing the sum of Rs. 50,000/-, as awarded by the District Forum, to Rs. 79,542/-. The insurance company was also directed to pay to the complainant an interest @ 9% per annum on the said amount of Rs. 79,542/- from the date of filing the complaint till the date of actual payment. This amount, as directed by this Commission, was paid by the insurance company to the complainant. During judgment of First Appeal Nos. 378 of 2010 and 373 of 2010, this Commission has also mentioned at page No. 7 that “However, the losses occurred in profession/occupation, which in the case of the complainant is agriculture, cannot be compensated under the provisions of the Consumer Protection Act, 1986.”

10.     In the earlier consumer complaint No. 34 of 2010, the complainant-Deep Singh had sought relief of claim amount of Rs. 79,542/- against the policy No. 371905/31/07/01/00001891 alongwith Rs. 5.00 lacs against the loss occurred in his agriculture and also Rs. 1.00 lac for mental agony and harassment. Similarly, in consumer complaint No. 270 of 2012, the complainant-Deep Singh again sought Rs. 10.00 lacs against loss in agriculture due to deficiency of service on the part of the opposite parties as well as Rs. 2.00 lacs against mental agony and harassment.  As we have discussed above that this Commission in First Appeal No. 373 of 2010 filed by the complainant-Deep Singh was allowed and order of the District Forum, Haridwar passed in consumer complaint No. 34 of 2010 was modified by enhancing the sum of Rs. 50,000/- to Rs. 79,542/-, but in the same appeal this Commission has clearly mentioned that the losses occurred in profession/occupation, which in the case of the complainant is agriculture, cannot be compensated under the provisions of the Consumer Protection Act, 1986. Even then the complainant-Deep Singh filed a consumer complaint for the second time almost on the similar grounds for compensation due to loss occurred in agriculture in absence of his tractor or due to delay in payment by the insurance company, the claim amount to the claimant-Deep Singh, as directed by the District Forum and State Commission. There is no provision of compensation for the losses occurred in profession/occupation under the provisions of the Consumer Protection Act, 1986, as already held by this Commission in First Appeal No. 373 of 2010.  No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties.  Therefore, the consumer complaint No. 270 of 2012 filed by the complainant-Deep Singh is also barred by the principal of res judicata. The District Forum has acted illegally by entertaining the second consumer complaint of the complainant by ignoring the order of this Commission passed in First Appeal No. 373 of 2010.  The District Forum has also committed manifest error of law.

11.     The District Forum has not properly considered all the facts and circumstances of the case and has wrongly allowed the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside. Consequently, the appeal is fit to be allowed.

12.     For the reasons aforesaid, the appeal is allowed.  The order impugned dated 11.02.2014 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 270 of 2012 is dismissed. No order as to costs.  The statutory amount at the time of filing the appeal and 50% of the awarded amount deposited by the appellant be released in appellant’s favour.