O R D E R <br /> <br /> A. Rajesh, President.<br /> <br /> A brief summary of facts as stated by the complainant is as follows: The complainant was conducting a bakery, fruit and light refreshment stall in stall No. 3 of Kerala State Transport Corporation(forshort K.S.T.R.C.) bus station, Aluva as a licencee of the said Corporation. The aforesaid shop was insured by the complainant under the scheme of shop keepers insurance policy. He was the holder of policy No. 441/505/934/2002 (Ext. A1) for the period from 19-01-2002 to 18-01-2003. The insured amount was Rs. 4,05,000/-. Apprehending imminent eviction, the complainant filed O.S. No. 296/99 before the Hon'ble Munisiff's Court, Aluva and accordingly, K.S.R.T.C. was restrained by the Hon'ble Court from evicting the complainant from the stall without due process of law. Thereafter, the complainant filed O.S. No. 541/01 before the Hon'ble Munisiff's Court, Aluva for rendition of accounts to realise approximately one lakh rupees that was outstanding against K.S.R.T.C. He also filed interlocutory application to restrain K.S.R.T.C. from evicting the complainant from the stall. The Interlocutory Application was heard on 24-12-2001. (In the course of the proceedings, the counsel for K.S.R.T.C. had given an undertaking in the open Court not to evict the complainant during the pendency of the suit). The I.A. was posted for orders to 01-02-02. Meanwhile on 26-01-02, in violation of decree in O.S. 296/99 of the Munisiff's Court, ,Aluva and in breach of the assurance given by the counsel on behalf of K.S.R.T.C. before the Hon'ble Munisiff's Court, Aluva, the K.S.R.T.C. forcefully evicted the complainant from stall No.3 and locked the stall and thereafter on 30-01-2002 entire valuables kept in the stall were destroyed causing him a loss of approximately Rs. 9,75,000/-. The complainant has duly submitted the claim form on 19-02-04 before the opposite party claiming the amount of insurance. The claim was turned down by the insurance company, the opposite party on the ground that the loss was caused due to eviction, validly effected by the owner of the building. Aggrieved by the action of the opposite party, the complainant filed a complaint before this Forum in O.P. 111/03. This Forum directed the opposite party to reconsider the claim by order dt. 11-11-03 (Ext. A5). Accordingly, a surveyor was deputed by the opposite party to assess the loss suffered by the complainant. The surveyor in his report (Ext. A6) stated that the act in question could be described as malicious act and the amount of loss was calculated to be Rs. 3,7,500/-. Unfortunately, the opposite party preferred to ignore the report for want of final investigation report of the police. Hence the execution petition No. 102/05 filed by the complainant was dismissed by the Forum by Order dated 08-12-05 (Ext. A7) on the ground that judgment debtor had reconsidered the matter. It is the dismissal of the said Execution Petition that has brought the complainant once again, before this Forum claiming an amount of Rs. 3,37,500/- with 12% interest thereon and an amount of Rs. 5,000/- as costs of this litigation. <br /> 2. The disputed facts of the opposite party :<br /> The above facts are disputed by the opposite party in its version filed before this Forum, eventhough it is admitted that the complainant is the holder of Ext. A1 shop keepers' policy. But he maintains that the complainant filed O.P. 111/03 claiming damages for loss sustained by him due to an incident of looting in stall No.3. The opposite party states that the relationship of complainant and K.S.R.T.C. was that of landlord and tenant. This Forum on 11-11-03 disposed off the complaint directing the opposite party to reconsider the claim and pass appropriate order within 2 months from the date of receipt of the copy of the order. The opposite party was also directed to take into account the F.I.R. and other developments thereafter. The opposite party informed the complainant by Ext. B2 letter that his claim file would be kept in abeyance till the receipt of final investigation report of the police. The complainant thereafter filed E.P. No. 102/05 in O.P. 111/03 which was dismissed by this Forum on 8-12-2005 by Ext. A7 stating that the judgment debtor has not taken a final decision for want of the final report of the police. The complainant had filed O.P. No. 7971/02 before the Hon'ble High Court of Kerala praying for a direction to C.B.I. to investigate the alleged incident of looting by K.S.R.T.C. with the help/connivance of Police, which was allowed by the single bench. In W. A No. 2844 of 2002 dated 25-11-02 (Ext.B3), the Hon'ble Court set aside the above order and directed the complainant to make a complaint to the D.G.P., who should ensure that the complaint would be investigated by a competent officer of the Kerala Police above the rank of Superintendent of Police and file the final report within 3 months. The opposite party forwarded a letter (<br /> Ext. B4) on 04-01-06 to the complainant requesting him to submit a copy of the final report of the police. Till now, that has not been done. According to the opposite party, the subject matter of the present complaint and that of O.P. No. 111/03 are one and the same except that the term looting used in the earlier petition has been substituted by the expression 'malicious act' in the present complaint. The discrepency in the date of occurrence of the incident also is pointed out. The opposite party ex;presses its willingness to pay the amount of claim provided the final report of the police is produced. It is pertinent to note that the heart and soul of the objection of the opposite party in paying the amount is the want of final report of the police.<br /> 4. The opposite party also contends that as the loss has been allegedly the creation of the K.S.R.T.C., the K.S.R.T.C. should have been necessarily made a party to the present complaint. The opposite party maintains that there is no mention of malicious activities in either of Ext. A2 and A3 judgments. According to the opposite party, the loss sustained by the complainant is of his own creation, due to his resistance against the valid act of eviction effected by K.S.R.T.C. as the landlord. The opposite party also refers to the parallel proceeding instituted by the complainant before the Hobn'ble Sub-Court, North Parur claiming damages from corporation, the fate of which is not known. Lastly, the opposite party asserts that at the time of eviction, there was neither any Court order nor injunction in existence to be violated.<br /> 5. The complainant was examined as PW1 on his proof affidavit and he produced documents Exts. A1 to A8 which were marked in support of his case. The opposite party has filed documents Exts. B1 to B4 which were marked. Arguments of learned counsel from both sides<br /> were heard. <br /> 6. On careful reading of the complaint, version, documents and evidence, we have identified the following points for our consideration and decision. They are : <br /> I) Whether the complaint is maintainable or not?<br /> ii) Whether final police report has any bearing on the settlement of insurance claim by the complainant?<br /> <br /> Iii) Whether the act in dispute is a malicious act or not?<br /> iv) Whether K.S.R.T.C. Should be made a necessary party to complaint or not?<br /> <br /> v) Whether parallel proceedings can be pursued simultaneously or not?<br /> <br /> vi) Reliefs and costs, if any?<br /> Point No. I) :- <br /> 7.We will begin the discussion of the points highlighted by the learned counsel with that of maintainability of this complaint in the face of previous complaint filed under O.P. No. 111/03 before the Forum which has culminated in an order directing the opposite party to reconsider the claim within two months from the date of receipt of a copy of the order. It is regretted that the aforesaid order was couched in uncertain terms, virtually granting a blank cheque to the opposite party to do as it liked. The E.P.No. 102/05 in O.P. 111/03 was dismissed by stating that the opposite party had not taken a final decision for want of final report of the police. Actually in the order, there was no mention of any final report of the police. This uncertainty created by the vague order has landed the complainant in trouble. Thereafter, he has been frantically rushing from pillar to post craving for justice. Unfortunately, all these attempts were in vain. It is interesting to note that evenafter the dismissal of the Execution Petition, the opposite party sent a letter asking the complainant to produce copy of final police report so as to execute the order in O.P. 111/03. It is this cloud of uncertainty created around the vague order that has compelled the complainant to reappear before thisForum with a fresh complaint. Since the earlier petition has not culminated in a definite order which could be executed. We think that nothing comes in the way of admitting this complaint. Moreover, it has to be borne in mind that the principles behind the doctrine of resjudicata and related doctrines need not be strictly followed in proceedings under benevolent statutes like Consumer Protection Act 1986. Hence this complaint stands maintainable.<br /> Point No. ii) :-<br /> 8. We will now turn to the question of the final investigation report of the police. We think the said report lies at the focal point of the contention of the opposite party. In this regard, attention is drawn to Ext. B4 wherein the opposite party requests the complainant to produce the final report in order to take decision on disbursement of the claim amount. It is strange to note that this letter was forwarded after the dismissal of the E.P. No. 102/05 in O.P. No. 111/03 of this Forum. The same frame of mind is disclosed in its version and argument note filed by the opposite party. Para 9 of the version is extracted to elucidate the point it reads:<br /> “9. It is submitted that the directions contained in the orders of the Hon'ble Forum in O.P. No. 111/03 and E.P. No. 102/05 will be executed as soon as the Final Report of the police is produced by the complainant.”<br /> <br /> The same intention is again revealed when the opposite party says in the same document at Para 11 (f) as follows: “The opposite party has not repudiated the complainant's claim which is kept in abeyance. The complainant may be directed to furnish the final report of police and this opposite party will decide the matter on merits.” The willingness to pay is reiterated when it discloses in para 7 of the argument note that the complainant's claim has not yet been repudiated and it has been kept in abeyance awaiting the final report of the police. The above disclosures go to show that the only inpediment in allowing the claim is the want of final report of the police. But we find it difficult to understand and appreciate the relevance of that document in settling the claim. In our view, the misconstruction of respective judgments of the Hon'ble high Court and this Forum has brought about such a situation. While in the order of this Forum in O.P. 111/03, there is not even a whisper of the final police report, there is mention of police report in the order of the High Court in Ext. B3 judgment, but unfortunately it has been misunderstood by the opposite party. For the sake of clarity, we extract the relevant portions. The operative part of the order in O.P. 111/03 reads as follows:<br /> “In the result, the complaint is allowed as follows: We direct the opposite party to consider the FIR and other developments thereafter and an appropriate orders after reconsideration of the entire matter. For this, the opposite party may conduct an investigation and call for details from the complainant. Fresh orders on the claim made by the complainant shall be made within two months from the date of receipt of a copy of this order.”<br /> <br /> We cannot resist our temptation to state that this vague and uncertain order has provided sufficient room to the opposite party to read into it the requirement of final police report as a condition precedent to take a final decision on the claim. In Ext. B3 judgment of the High Court, it is true that the Court has asked to submit the final police report within 3 months from the date of complaint. But it has to be noted that police will have to do it only if a proper complaint is lodged by the complainant. The relevant portion of page 8 reads as follows: <br /> “If the petitioners in the original petition make a proper complaint to the Director General of Police, Trivandrum within two weeks from today, the Director General of Police shall ensure that the said complaint <br /> will be investigated by a competent officer of the Kerala Police above the rank of Superintendent of Police and that such investigation will be completed and final report filed within three months from the submission of the complaint.” <br /> <br /> A plain reading of the above portion will reveal that necessity of police report arises only if the complainant submits a petition in this regard to the Director General of Police. It is clear that it is an afterthought of the opposite party to connect the insurance claim with the final report of the police. In this context, we think that it is appropriate to cite the case of <br /> M/s. Abhilash Jewellary Vs. The New India Assurance Company Ltd. Reported in 2003 (1) CPR 85 NC, wherein the Hon'ble National Commission has held that “Consumer fora should not allow insurance company to take up plea of violation of term of policy which had not been a ground for repudiation of claim”. <br /> 9. We do not think that police report has any bearing in settling disputes regarding insurance claim. Police report is the culmination of police investigation to nail the culprits in criminal cases. In fact, Ext. B3 judgment is the final outcome of efforts of the complainant seeking criminal investigation of offences under Section 120 B, 143, 147 and 139 Indian Penal Code. His main grievance was against the local police whose support and connivance has encouraged coporation to commit the atrocities in the guise of eviction from its premises. The petition was preferred in the High Court to get the real culprits booked. No stretch of imagination would permit us to connect the order in his petition with the claim application pending before the insurance company. Even if no police investigation is conducted the insurance claim based on contract can be settled. In the instant case, the settlement of dispute depends on the nature of the act, so as to determine whether the act is malicious or not. Police is not the competent authority to look into that aspect. The purpose served by a police investigation is to find out whether the act under investigation would constitute an offence or not and if an offence was found to have been committed, who were the persons responsible for it. Therefore it is our considered view that final report of police is not having any bearing on the insurance claim made by the complainant. The liability to pay springs out of the contract of insurance. Hence we come to the inescapable conclusion that the opposite party need not wait for final report of the police, to pay the amount claimed by the complainant.<br /> Point No.iii) :-<br /> 10. This take us to the related question as to whether the act in dispute is malicious or not. This examination is necessary because according to Ext.A1, the opposite party would be liable to indemnify the loss only if it has been caused by a malicious act. Before answering that issue, let us find out the actual connotation of the expression 'malicious act'. As we know, the malicious act is one motivated by malice. But we have to keep in view the fact that malice in common usage and legal parlance are different concepts. The lexicographical meaning of the word malice as given in the Oxford Advanced Learner's Dictionary is that 'a feeling of hatred for someone that causes a desire to harm them'.<br /> 11. In the legal sense, the word as pointed out by the Hon'ble Supreme Court in Muralidhar Sarangi Vs. New India Assurance Company Ltd. (2002 SCC 466) means an act prohibited by law, which is done with the intention to cause loss to another Thus in the legal comprehension of the expression malicious act it indicates a wrongful act committed intentionally without just cause or excuse. In the light of the exposition of the legal meaning, we shall try to find out whether the act of eviction in this case constitutes a malicious act or not. Fortunately two judgments rendered by Courts of Law in connection with this incident (Exts. A2 and A3) will conclusively prove that the act that caused the loss was malicious one. His lordship Krishnan Nair.J. Held in Ext. A3 <br /> judgment as follows:<br /> “According to me, the action taken by the corporation in evicting the petitioners during the pendency of the application for injunction is not in accordance with law.”<br /> <br /> In the light of this statement, the relevant passage of the judgment of the learned Munisiff to the the same effect need not be reproduced. In view of the Ext. A2 and A3 judgments, it does not require much effort to establish that the forceful eviction of the complainant from stall No.3 as well as destruction of valuables in the store, while interlocutary application was pending before the Court praying against eviction, tantamount to a malicious act. <br /> Point No.iv) :-<br /> 12. As the findings in the Exts. A2 and A3 judgments stand testimony to show that K.S.R.T.C. has committed malicious act under the pretext of eviction, there remains nothing to be established by making it a necessary party. Hence we do not find any merit in the contention that K.S.R.T.C. ought to have been made a necessary party to the complaint. <br /> Point No. v) :-<br /> 13. Another objection raised by the opposite party was that the complainant has been pursuing parallel proceeding in the form of Civil Suit in Hon'ble Sub-Court, North Parur claiming damages against K.S.R.T.C. for injuries to property and person. The complainant has produced before the Forum, the copy of the order (Ext.A8) of the Court dismissing the petition, making any further examination of the point redundant. <br /> 14. Before parting with this complaint, this much has to be stated, that this complaint tells the ordeal of a young man who had set out in search of justice when his life was run over by the transport corporation in the guise of legitimate exercise of the right of a landlord. Unlike all other Indians, he would wish to forget the republic day of the year 2002, since it was on that day, he was deprived of his daily bread and his never ending pursuit of justice commenced thereafter. It still continues, evenafter the lapse of seven years. This brings to focus the manner in which the public sector insurance companies behave with their clients at their moments of distress. It is a matter of concern that all these years the insurance company has been doing research in finding some means to evade its liability to the complainant under some pretext or the other. It is a pious hope that insurance companies like the one before us would approach their claimants with a 'healing touch', at the moments of distress. If somebody thinks that it is an unwarranted comment, we have only this much to say that the facts of the instant case are eloquent enough to justify us.<br /> <br /> <br /> Point No. vi) :-<br /> 15. In conclusion, the Forum allows the complaint and direct as follows:-<br /> I) The opposite party shall pay to the complainant Rs. 3,37,500/- (Rupees Three lakh and thirty seven thousand and five hundred only) being the amount of loss calculated by the assessors appointed by the insurance company, with interest at the rate of 12% p.a. from the date of filing this complaint till realisation. <br /> ii) An amount of Rs. 3,000/- (Rupees Three thousand only) as costs of these proceedings.<br /> 16. The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.<br /> Pronounced in open Forum on this the 31st day of March 2008.<br /> <br /> Sd/-<br /> ` A. Rajesh, President.<br /> Sd/-<br /> Paul Gomez, Member<br /> Sd/-<br /> C.K. Lekhamma, Member.<br /> <br /> Forwarded/By Order,<br /> <br /> <br /> <br /> <br /> Senior Superintendent.