This appeal is directed against the Final Order dated 08.02.2019 delivered by Ld. D.C.D.R.F., Siliguri in CC No 12 of 2019. The fact of the case in nutshell is that the Complainant/Appellant Pradyut Das was owner of a vehicle which was duly covered with first party insurance and the vehicle was theft away and a theft case was registered before the Phasidewa P.S. Bearing No 349 of 2012. The Complainant/Appellant raised the claim before the Insurance Company to the tune of Rs. 6,81,553/- as the valuation of the vehicle at the time of theft but the Insurance Company after process of assessment through Investigator was ready to pay Rs. 4,28,387/-. The Insurance Company has contested the case and contended that as per assessed value through Investigator/Assessor the Insurance Company was ready to settle the claim at Rs. 4,28,387/- but the Complainant was not satisfied with the said amount and he raised the claim for further payment of Rs. 2,53,166/- as because at the time of theft of the vehicle the value of the same was Rs. 6,81,553/- but Ld. Forum was not satisfied with the case of the Complainant and for that reason the case was dismissed on contest on 09.12.2016. An appeal was registered against the said order before the Ld. S.C.D.R.C., Calcutta but the said appeal was dismissed for registering in a belated stage and the prayer of condonation of delay was not granted and for that reason the order of Ld. Forum in CC No 119 S of 2014 dated 09.12.2016 remains intact.  Thereafter, the Complainant instituted the CC No 12 of 2019 by which he claimed to get the said assessed money of the Insurance Company to the tune of Rs. 4,28,387/- as the Appellant/Complainant did not receive the said money from the Insurance Company in respect of this alleged incident. The case was registered in the year 2019 and on the date of admission 08.02.2019 Ld. Forum came into conclusion that the instant case was a continuation of the prior case CC No 119 S 2014 and the matter of the parties being the same and the Final Order in CC No 119 S 2014 has already passed by the Order dated 09.12.2016 and at this stage the Complainant has no authority in legal prospect to register again the same Consumer Complaint as the Res judicata laid down in Section 11 of C.P Act, 1908 hits the case of the Complainant. So, at admission stage the case was dismissed. Being aggrieved with this order this appeal follows on the ground that Ld. Forum has mis appreciated the fact of the case and the observation of Ld. Forum was not correct one as because the matter of Res judicata does not arise because in the said Final Order it was determined by the Ld. Forum the assessment of the value of the theft vehicle was to the tune of Rs. 4,28,387/- and by registering this Consumer Complaint the appellant has claimed the same amount. The appeal is contested by the Branch Manager of the New India Insurance Company Ltd. through Ld. Advocate Miss. Sanyal.

Decision with reasons

Ld. Advocate of the respondent submitted the Written Notes of Argument in this case and contended during the course of argument that on the basis of “nonstandard basis due to non-compliance of due diligence clause” the value of the theft vehicle was assessed at Rs. 4,28,387/- but the appellant did not accept the same for his wrongful gain. He further submits that the earlier Consumer Complaint of the appellant Bearing No 119/S of 2014 was completely concluded on 09.12.2016 and the said order was challenged in the appeal before the Hon’ble State Commission Calcutta where the appeal was dismissed being barred by limitation and after elapse of two years the appellant again came to the Consumer Forum by registering the instant Consumer Case Bearing No 12/S 2019 and the Ld. Forum has rightly dismissed the instant Consumer Complaint on the ground of Res judicata. Here, Ld. Advocate of the appellant who submits that the appellant is a poor man who has lost vehicle, he was not satisfied with the assessment of the value of the vehicle and for that reason he registered the Consumer Complaint but his Consumer Complaint in CC No 119 s 2014 was dismissed on the ground that he did not accept the amount of Rs. 4,28,384 assessed by the Insurance Company and for that reason the case was dismissed. Now, the said money is still lying in the exchequer of the Insurance Company and as a bonafide insured person he has every right to get the said money as he purchased the Insurance Policy and the alleged theft took place within the Insurance coverage period. Now, the question is whether the claim and the cause of action of the claim has already barred by law of limitation or not. According to, provision of Section 11 and 12 of the C.P Act, 1986 the Complainant case should be registered within two years from the date of cause of action. Here, the first case was instituted within due time since the date of repudiation of the claim on the part of the Insurance Company. The matter was adjudicated on 09.12.2016. The second case CC 12/S 2019 was registered in January 2019. So, there is a very little and short delay in registering the instant Consumer Complaint and if we consider the decision date of disposal of the appeal by the Ld. Hon’ble S.C.D.R.C Calcutta then there is no delay in registering the Consumer Complaint. Rather, until the payment of the insurance company’s assessed money the cause of action remains to be continued. Moreover, it was not determined that the Complainant was not entitled to get any relief from the Insurance Company rather it was determined in the said case that Rs. 4,28,387/- was already settled money in the said insurance claim but unfortunately the said money is still lying in the fund of the Insurance Company and that should be released in favour of the Complainant/Appellant. The Complainant/Appellant now relinquishes the demand of extra Rs. 2,53,166/-. Now in this case he only wants to get back the settled money of Rs. 4,28,387/- and such earnest prayer on the part of the Complainant/Appellant does not hit the maxim of Res judicata enunciated in the provisions of Section 11 of C.P Code 1908. The finding on the Ld. Forum is not appreciable in the eye of law and a bonafide Consumer should not be deprived from getting the relief under the provisions of the C.P Act, 1986. So, the impugned order of the Ld. Forum appears to be irregular and not vested in law. The insurance company in their contentions accept that the insured/complainant/appellant is entitled to get Rs. 4,28,387/- which was assessed by the assessor appointed by the insurance company. So, no further contentions are required in this instant consumer dispute.

Hence, it’s ordered

That the instant appeal be and the same is allowed on contest without cost. The order dated 08.12.2019 in CC No 12 of 2019 delivered by Ld. D.C.D.R.F., Siliguri sands set aside. The instant Consumer Complaint is hereby disposed of to the effect that the New India Assurance Co. Ltd. as respondent of this appeal case is hereby asked to make payment to the appellant/complainant to the tune of Rs. 4,28,387/- within 45 days, failing which 6% interest per-annum will be imposed upon the awarded money.

Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. Forum for doing the needful.