This C.C. came before us for hearing in the presence of Sri P. Madhava Rao, Advocate for complainants and of Sri B. Gangadhar, Advocate for opposite party; upon perusing the material papers on record; upon hearing arguments and having stood over for consideration, this Forum passed the following:-
ORDER
(Per Smt.V.Vijaya Rekha, Member)
This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The brief facts as stated in the complaint are that the complainant No.1 insured his two wheeler bearing No. AP 20 L 5293 with the opposite party and got obtained Insurance Policy bearing No.UM00476759000100, contains Personal Accident Coverage @Rs.1,00,000/- for owner-cum-driver u/sec.III(CSI). The insured vehicle met with an accident on 09-04-2005, while the son of the complainant was proceeding on it, the driver of the tractor bearing No.AP-16-T-4507 dashed against the son of the complainants motors cycle, due to which, he died on the spot, the Police, Burgampad Registered a case u/sec.304 (A) of IPC against the driver of the Tractor. Thereafter, the complainants made many representations to the opposite party for payment of assured amounts under said policy and as there is no response, got issued legal notice on 22-10-2007 and in the absence of proper response, the complainants issued another legal notice on 28-08-2008. Despite issuance of second legal notice, the opposite party failed to settle the claim. The complainants further alleges that the attitude of opposite party is amounts to deficiency of service and having no other option, the complainants constrained to file the present complaint by praying to direct the opposite party to pay an amount of Rs.1,00,000/- under policy bearing No. UM00476759000100 and Rs.25,000/- towards damages.
2. Along with the complaint, the complainants filed the following documents, those were marked as Exhibits A1 & A7.
Ex.A1:- Photocopy of F.I.R.
Ex.A2:- Photocopy of Panchanama in Crime No.62/2005 of P.S. Burgampad.
Ex.A3:- Photocopy of P.M.E.
Ex.A4:- Photocopy of Death Declaration Certificate, issued by Panchayat Secretary, Musalamadugu.
Ex.A5:- Legal notice dt.28-08-2008.
Ex.A6:- Photocopy of legal notice, dt.22-10-2007.
Ex.A7:- Photocopy of Policy Schedule.
3. After receipt of notice, the opposite party appeared through its counsel and filed counter.
4. In the counter the opposite party denied all the averments and submitted that prior to the present complaint, the complainant No.1 had filed C.C. No.73/2006 before this Forum for payment of Personal Accident benefits on account of death of his son, who died on 09-04-2005. Subsequently, he filed the present complaint along with his wife on same cause of action and with the same facts against the same opposite party, the first complaint was dismissed on merits on 11-12-2007, intentionally suppressed the same filed the present complaint with ill-motive and also submitted that if the complainants aggrieved the orders of District Forum, they will prefer the appeal before the State Forum, despite that, the present complaint was filed and as such prayed to dismiss the complaint with exemplary costs.
5. Along with the counter, the opposite party filed copy of order of the District Forum, Khammam in C.C. No.73/2006.
6. Both the parties filed written arguments by reiterating the same averments as mentioned in the complaint and counter.
7. In view of the above submissions, now the point that arose for consideration is,
Whether the complainants are entitled to the relief
as prayed for?
Point:-
As seen from the above facts & material on record, a material point involved in the present case that the second compliant on the same facts has been made by the complainants after the first complaint was dismissed on merits. The present complaint was filed nearly after two years from the date of disposal of first complaint, which was disposed on merits on 11-12-2007 by the District Forum, Khammam. After having perused the facts of the case, we have observed that the complainants have filed said two complaints on same cause of action with the same facts against the same opposite party by praying the same relief. Therefore, it is clear that the complainants filed the present complaint by concealing the filing of earlier complaint on their behalf and the filing of second complaint on the same facts and circumstances has not been provided anywhere as per the established legal provisions and also legally not maintainable and it is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands, the same view was expressed by the Hon’ble Apex Court in Faquir Chand Gulati Vs M/s Uppal Agencies Pvt. Ltd. & Anr. Special Leave Petition (c) Nos.18225-18226 of 2011, dt.14-08-2011. In view of the above decision and basing on the facts as stated in the complaint and counter, we opined that the complaint is not maintainable according to the established legal provisions and as such the point is answered accordingly against the complainants.
8. In the result the complaint is dismissed. No costs.
Typed to my dictation, corrected by me and pronounced by us, in this Forum on this 11th day of October, 2013.
FAC President Member
District Consumer Forum, Khammam
APPENDIX OF EVIDENCE
Witnesses examined for complainants and opposite party: -None-
Exhibits marked for complainants:-
Ex.A1:- Photocopy of F.I.R.
Ex.A2:- Photocopy of Panchanama in Crime No.62/2005 of P.S. Burgampad.
Ex.A3:- Photocopy of P.M.E.
Ex.A4:- Photocopy of Death Declaration Certificate, issued by Panchayat Secretary, Musalamadugu.
Ex.A5:- Legal notice dt.28-08-2008.
Ex.A6:- Photocopy of legal notice, dt.22-10-2007.
Ex.A7:- Photocopy of Policy Schedule.
Exhibits marked for opposite party:- NIL
FAC President Member
District Consumer Forum, Khammam.
