Karnataka

Kolar

CC/16/2022

Sri.Subramani V - Complainant(s)

Versus

The Manager, SBI General Insurance Company Ltd - Opp.Party(s)

26 Aug 2022

ORDER

                          Date of Filing: 13.04.2022

Date of Disposal: 26.08.2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 26^TH DAY OF AUGUST 2022

PRESENT

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI,B.A.L., LL.M., …..LADY MEMBER

 

CONSUMER COMPLAINT NO. 16 OF 2022

Sri. Subramani,

S/o. Late Venkateshappa,

Aged About 41 years,

The Proprietor,

R/at: Sy No’s. 178/3, 178/4,

Vadagur Village,

Kembodi Post, Kolar Taluk.                                         ….  COMPLAINANT.

(Rep. by Sri. S.D. Chowde Gowda, Advocate)

- V/s –

1) The Manager,

M/s. SBI General Insurance Co. Ltd.,

III Floor, Good Shepard Square,

No.82, Kodambakkam High Road,

Numgambakkam, Chennai-600034.

(Rep. by Sri.B.Kumar, Advocate)

 

2) The Manager,

M/s. SBI General Insurance Co. Ltd.,

Ground and 1^st Floor, Rukmini Towers,

3/1, Platform Road/Railway Approach

Road, Sheshadripuram, Bangalore-560020.

(Rep. by Sri.B.Kumar, Advocate)                         …. OPPOSITE PARTIES.

ORDER

BY SRI. SYED ANSER KALEEM, PRESIDENT

01.   The complainant has filed this Consumer Complaint Under Section 35 of the Consumer protection Act, 2019 against the Opposite parties and prays to direct the Ops to pay a sum of Rs.19,86,938/- towards unsettled claim covered under the insurance policy No.0000000005100581 along with interest @ 12% per annum from the date of fire accident i.e., 10.07.2017 till disposal of this complaint and such other reliefs as this Hon’ble Commission deems fit.

02.   The brief facts of the complaint is that, the complainant has obtained the loan amount of Rs.42,00,000/- from the State Bank of Mysore for his proprietary concern Sri Venkateshawara Traders and he is running business of trading fruits and vegetables at Vadugur Village, Kembodi Post, Kolar Taluk. On the advice of the State Bank of Mysore that the complainant insured his stock with the opposite parties insurance company covering risk of fire and allied perils and burglary under the policy No: 0000000005100581 dated: 18.10.2016.  The validity of the said policy is for the period from 14.07.2016 till 13.07.2017.  The complainant states that, on 10.07.2017 during the currency of the policy the entire property including the plant, machinery and stock was completely damaged by fire due to short circuit.  The complainant immediately informed to the rural police station and the complaint was registered and also informed to the State Bank of Mysore and to the OP insurance company.  Further concerned electric inspector inspected the building and the stock damaged due to fire incident and submitted the report to the Additional Chief Secretary, Government of Karnataka.  Further concerned Officer of the Fire Station, Kolar, also inspected the property on 12.07.2017 and found that, building including cold storage, godown, wherein fruits as mango, Guava, Apple, Papaya and Orange kept were damaged by fire.  So also fans, office chambers and records kept therein, computers, electrical instruments, zinc sheets, wires and glasses were burnt down.  It is also stated that walls have developed very big cracks and entire report prepared by the concerned officer of the fire station.  Thereafter complainant made claim with the OP insurance company by submitting the claim form on 09.08.2017 claiming a total compensation of Rs.41,00,000/- for loss of stock.  It is stated that after submitting the claim papers OP insurance company team visited the fire accidental place and OP insurances company considered only a part of claim and settled only Rs.21,13,062/- against the claim amount of Rs.41,00,000/-.  Hence the complainant once again requested the OP insurance company to pay the balance amount of Rs.19,86,938/-, whereas OP insurance company did not yield to the request of the complainant and thereon complainant got issued legal notice demanding OPs to pay the balance of Rs.19,86,938/-as covered under the insurance policy.  But the OPs not replied to the legal notice issued by the complainant.  Further complainant states that due to non-honour of the claim the complainant approached this Commission by filing Consumer Complaint bearing No. CC No.99/2018 claiming a sum of Rs.19,86,938/- along with the interest at the rate of 12% per annum.  Further the complainant states that, the Predecessor has returned the Consumer Complaint to file it before the Competent Forum as this Commission lacks the pecuniary jurisdiction, thereafter the complainant approached the Hon’ble State Commission and filed Complaint bearing CC No.329/2019 for the above said relief.  However the complainant also filed the Orders passed by the Hon’ble State Commission dated: 19.03.2021.  Further the Hon’ble State Commission has directed this Commission to receive the complaint and decide the case in accordance with law.  Hence this complaint.

03.   On issuance of notice from this Commission to the OPs, the OPs appeared through their counsel and filed their version.

04.   In the version it is contended that, the complaint is barred by res sub-judice, as the matter in issued in this case is also directly and substantially in issue in a previously instituted complaint before the Hon’ble National Commission.  Wherein the complainant had clubbed another claim as well and prays relief for both.  Further contended that, as per the assessment of the insurance surveyor, the claim amount of Rs.21,13,062/-was duly accepted by the complainant towards full and final discharge of liability under the policy.  It is also contended that, the complainant is not a Consumer who is having commercial establishment run for earning profits and the transaction is purely a commercial activity.  That the complainant in addition to the policy in question was also obtained another policy bearing No. 4803584- SME package policy (building, contents and stocks).  It is contended that the complainant has filed the complaint bearing CC No.498/2019 before the Hon’ble National Commission and sought the relief of Rs.19,86,938/- under the policy in question and also prayed for Rs.1,60,64,464/- and  the said complaint is pending for consideration.  On the above said grounds OP insurance company contended that there is no deficiency in service from their part and finally pray to dismiss the complaint.

05.   In order to prove the case of the complainant and OP Nos.1 & 2 both the parties have filed their respective affidavit evidence.

06.   On the basis of the pleadings of the parties the following points will do arise for our consideration:-

1. Whether the complaint is hit by law of res sub-judice as contended by the OP insurance company?

 

2. Whether the complainant is the Consumer?

 

3. Whether the complainant proves that OPs are deficient in their service?

 

4. Whether the complainant is entitled

for the reliefas sought in the complaint?

 

5. What order?

 

07.   Heard the arguments of the parties.

08.   Our answers to the above Points are as under:-

POINT NO. (1):-            Is in the Affirmative

POINT NOs. (2) to (4):- Does not arise for

     our consideration

POINT NO.(5):-             As per the final order

                                             for the following:-

5299419885.  

09.   POINT NO.(1):-        The question of res sub-juidice being the pure question of law and hence taken initially for consideration prior to deciding other issues and the said issue will come forefront before other issues. 

10.   On perusing the pleadings of the parties and the evidence placed on record, it is an undisputed fact that, the complainant being the owner of the Shri Venkateswara Traders and doing business of trading in fruits and vegetables at Vadagur Village, Kolar Taluk.  It is also not in dispute that, the complainant obtained the term loan amount of Rs.42,00,000/- from the State Bank of Mysore by hypothecating the stock in trade and assignment of receivables.  Further it is also not in dispute that, the complainant for his stock in trade for covering the risk of loss or damage to the stock and hence complainant obtained the insurance policy for the coverage of the said risk under the nature of policy i.e., for covering the risk SME Package Insurance and the validity of the insurance is from 14.07.2016 to 13.07.2017 and the total sum insured is for Rs.5,000,000/-.

11.   The main allegation of the complainant is that, on 10.07.2017 due to the short-circuit the entire property which was insured was caught fire and thereafter complainant intimated to the jurisdictional police, fire department, electrical department and also the insurance company.  It is alleged that, the insurance surveyor visited the spot and noticed the loss sustained by the complainant due to fire on account of short circuit.  It is the specific allegations of the complainant that, due to the short circuit fire caught and entire stock of fruits and vegetables, computers, machinery are all burnt down and sustained loss of Rs.41,00,000/-whereas the OP – insurance company settled the claim for Rs.21,13,062/- and a difference claim amount of Rs.19,86,939/- is not honored.  Hence the complainant initially filed the complaint bearing CC No.99/2018 before this Hon’ble the District Commission for claiming difference claim amount of Rs.19,86,939/- along with interest at the rate of 12% per annum, however my Predecessor on the ground of not attracting the pecuniary jurisdiction of this Commission finally ordered to return the complaint to the complainant to file before the appropriate Forum/Commission having pecuniary jurisdiction to try the complaint.  Accordingly complainant filed the complaint bearing C.C. No.329/2019 before the Hon’ble State Commission, Bangalore, for the above said claim, ultimately the Hon’ble State Commission by its order dated: 19.03.2021 pleased to direct this Commission to receive the complaint and decide the case in accordance with law.  Hence the complainant brought this present complaint before this Commission.

12.   On perusal of the complaint petition nowhere in the said complaint not whispered a single sentence regarding filing of Consumer Complaint before the Hon’ble National Commission bearing CC No.498/2019.  In the version the OPs have contended that, the complainant had already filed consumer complaint bearing C.C. No.498/2019 before the Hon’ble National Commission in respect of insurance policy in question.  On perusal of the affidavit evidence filed by the complainant even in his evidence the complainant has failed to depose about the filing of the Consumer Complaint before the Hon’ble National Commission for the relief as sought in the complaint and it is nothing but suppression of material facts. 

13.   On the basis of the evidence placed on record by the OPs and on perusal of Document No.1 it is crystal clear that, prior to filing of this present consumer complaint the complainant had already filed the consumer complaint bearing C.C. No.498/2019 before the Hon’ble National Commission which is pending for consideration.  If such being the case the OP has rightly contended that, the complaint is barred by res sub-judice, as the matter in issue in this case is also directly and substantially in issue in a previously instituted complaint before the Hon’ble National Commission.

14.   On perusal Section 10 of the CPC it reads thus:-

“Stay of Suit:No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court”.

15.   In the light of the above decision of law on analyzing the facts of the present consumer complaint it is not in dispute that the complainant had already instituted consumer complaint on the same cause of action before the Hon’ble National Commission prior to filing of the present complaint and the matter in issue is also directly and substantially in issue in a previously instituted complaint between the same parties, or between the parties under whom they are any of them claim litigating under the same title where such complaint is pending in the same or any other Court having jurisdiction to grant the relief claim.  Under these circumstances we are of the considered opinion that, the complainant cannot agitate the same matter/relief before the two different Commissions and hence the present complaint is hereby dismissed on the ground of res sub-judice.  However complainant is at liberty to pursue the matter before the Hon’ble National Commission as the complaint bearing CC No.498/2019 is pending for consideration.  Accordingly we answered Point No.(1) is in the Affirmative.

16.   POINT NOs. (2) TO (4):-   These points are interlinked to each other and taken up together for the sake of convenience for common discussion.

17.   On the basis of the reasons assigned while discussing Point No.(1) and the result thereon we are of the considered opinion that, the discussion of Point Nos.(2) to (4) does not arise for our consideration.  Hence the Point Nos.(2) to (4) are accordingly answered.

POINT (5):-

18.   On the basis of the reasons assigned while answering Points Nos. (1) to (4) we proceed to pass the following:-

ORDER

01.   The complaint is dismissed on the ground of res sub-judice.  No order as to costs.

02.   Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 26^th  DAY OF AUGUST 2022.

 

 

    LADY MEMBER                               PRESIDENT