DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.04 of 2010
Sri Prinshu Gupta,
S/o Sri Raj Kapoor Gupta ,
R/o Sadar Bazar, Subzi Mandi,
Sandila, Hardoi.
……Complainant
Versus
1. The National Insurance Co. Ltd.,
Through Branch Manager,
141, Civil Lines,
Hardoi.
2. The National Insurance Co. Ltd.,
Regd. Office- Jeewan Bhawan-II,
Nawal Kishore Road, Hazratganj,
Lucknow. .......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint has been filed by the Complainant against the OPs for payment of difference amount of Rs.28,465.00 with 18% interest, compensation of Rs.25,000.00 and cost of suit of Rs.5,000.00.
The case in brief of the Complainant is that on 26.12.2005 the Complainant had taken out from the OPs a comprehensive insurance policy for mini truck Swaraj Mazda bearing registration No.UP30 A-6798 by depositing a premium of Rs.16,678.00. The said policy was for a period of one year against all risks including accident on the said vehicle of the Complainant which commenced from 27.12.2005 and expired on 26.12.2006 and under the said insurance the vehicle of the Complainant was insured for a sum of Rs.6,97,000.00. On 05/06.07.2006 during the currency of said policy the said
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Swaraj Mazda of the Complainant met with an accident. The OPs were informed about the accident and the OPs deputed Sri Manish Kumar for on the spot inspection/survey of the site. After the damaged Swaraj Mazda of the Complainant was surveyed, then on the advice of OPs the Complainant took the vehicle to an authorized workshop for repairs at Bhagwati Motors, Lucknow. At the workshop the said accidental Swaraj Mazda of the Complainant was again surveyed by the surveyor of the OPs for the assessment of final loss due to said accident. In the estimate for repairs given by the dealer of Swaraj Mazda a sum of Rs.1,69,772.00 was assessed for the repair of said vehicle. After completion of formalities of survey, the surveyor of OPs against the total repair estimate of Rs.1,69,772.00 assessed the total loss of the repair of said vehicle to the tune of Rs.1,07,607.00. The Complainant got the knowledge of surveyor’s assessment of loss when in the month of March 2009 the OPs furnished copy of surveyor report in response to Complainant’s letter under RTI Act for furnishing surveyor report. Some dispute arose with the repairer Bhagwati Motors regarding handing over of salvage to the Complainant for the resolution of which the Complainant filed a complaint before the District Consumer Forum, Lucknow which was registered as complaint No.237/07. The crux of the dispute with the repair was that the Insurance Co. was demanding salvage as a pre-requisite before payment of settled insurance amount whereas the repairer refused to hand over the salvage unless and until his total payment for the repair of vehicle amounting to Rs.1,11,498.00 was paid. In the reply filed by the Insurance Co. it was claimed by the OPs that they have settled the insurance claim of Complainant to the tune of Rs.79,142.00. The said complaint was decided by the Forum on 29.01.2009 in favour of Complainant whereby the insurance Co. was directed to pay the settled insurance amount plus surveyor fee to the Complainant alongwith 9% interest
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within 30 days on which the Insurance Co. paid the settled amount plus surveyor fee to the Complainant amounting to Rs.84,757.00. After the receipt of surveyor report in the month of March, 2009, the Complainant was shocked as although the surveyor of OPs has assessed and recommended a payment of Rs.1,07,607.00 being liability of OPs but the OPs in utter disregard to surveyor report has settled the amount of insurance to the tune of Rs.79,142.00. On 27.03.2009 the Complainant moved written representation before the OPs demanding from them payment of difference amount of assessed and paid amount of Rs.28,465.00 on which the OPs on 20.04.2009 repudiated the further demand of the Complainant through letter on ground that at the time of accident there was overloading observed besides this the accidental vehicle was also removed from the spot of accident, hence the claim of Complainant was settled on non standard basis after deducting 25% plus Rs.1,000.00 as excess clause from the assessed amount. At the time of accident there was no overloading of Complainant’s vehicle. The total weight capacity of Complainant’s vehicle was 8800 kg whereas at the time of accident the vehicle was just carrying 5200 kg which is much less than the total carrying capacity of vehicle. Neither the surveyor in his survey report at any point of time held that the vehicle of the Complainant was overloaded nor the OPs ever brought the said issue before the Complainant or issued show cause notice. The second ground of settlement of claim on the basis of non standard basis is that the Complainant removed the vehicle from the spot only after the spot inspection was carried by the surveyor of the OPs. The vehicle of the Complainant met with an accident on 05/06-07-2006 whereas the accidental vehicle of the Complainant was removed from the site on 07.07.2006. The vehicle of the Complainant is still in the custody of repairer and the Complainant is facing loss in terms of time and money. The
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OPs are guilty of deficiency in service and negligence, hence this complaint.
The OPs have filed the WS wherein it is mainly submitted that the vehicle of the Complainant was insured with the OP for the period 27.12.2005 to 26.12.2006. The vehicle of the Complainant met with an accident but it is denied that the accident occurred because the driver of the vehicle tried to save the cyclist. On getting the information about the accident the OPs had employed a surveyor. The vehicle, after having been surveyed, was taken to the Bhagwati Motors for repairs and Bhagwati Motors had given an estimate of Rs.1,69,772.00 as the amount to be spent on repairs. But the surveyor had assessed the loss to the tune of Rs.1,07,607.00 thereafter the OP allowed the claim for Rs.79,142.00 and the Complainant was required to deposit the salvage for Rs.7,000.00 to be deposited with the OPs but the Complainant did not do so and thereafter the Complainant filed a case No.237/07 in District Consumer Forum, II, Lucknow where the Forum had ordered the OP to pay Rs.79,142.00 with 9% interest and in compliance of the orders of the Forum the OP paid Rs.84,757.00 through cheque and the amount was received by the Complainant. This complaint is not maintainable as it is barred by the principle of res-judicata as the Case No.237/07 had already been decided by the Forum, therefore this case deserves to be dismissed on that ground. Since there is no merit in this case, therefore it is liable to be dismissed with costs.
The Complainant has filed his affidavit and 12 annexures with the complaint. The Complainant has also filed written arguments. The OPs have filed the affidavit of Sri Adarsh Jauhari, Senior Zonal Manager, National Insurance Co. Ltd. with 1 annexure.
Heard Counsel for the OP but none was present from the side of the Complainant to argue the case. The OPs have
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filed written arguments subsequently. Perused the entire record.
Now, it is to be seen as to whether this case is barred by the principle of res-judicata or not and if not then whether the OPs have committed deficiency in service in not allowing the claim of the Complainant in its entirety, if so, its consequences.
We first take up the point that whether this case is barred by the principle of res-judicata or not. The OPs have taken the stand that with regard to the matter in issue a case No.237/07 was filed in the District Consumer Forum, II, Lucknow where it was ordered by the Hon’ble Forum for payment of Rs.79,142.00 with 9% interest and in compliance thereof the OPs have made payment of Rs.84,757.00 through cheque which has since been received by the Complainant. The Complainant has also made mention of the fact that he had filed a case with regard to the matter in issue in District Consumer Forum as Case No.237/07 and the Hon’ble Forum had settled the insurance claim to the tune of Rs.79,142.00 with 9% interest and it is also admitted that the insurance Co. had paid the amount Rs.84,757.00 through cheque. Now, the Complainant has come up with the case that his claim was not settled as per the report of the surveyor, hence this case for payment of balance amount by the OPs. Under the circumstances, there does not remain a iota of doubt about the fact that the subject matter of this complaint has been decided by the District Consumer Forum, II in complaint Case No.237/07 and that the order has also been complied with by the OP, therefore on the same subject matter there is no question of filing another case and therefore this complaint case is obviously barred by the principle of res-judicata and the Complainant is barred from raising the same issue which has already been decided by the Forum in an earlier complaint case. Therefore, this complaint deserves to be dismissed on
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this score itself. Since the complaint deserves to be dismissed on the aforesaid ground of res-judicata, therefore there is no question of getting into the point of deficiency in service of the OPs which had already been decided by the then Forum in the aforesaid case. If the Complainant was not satisfied with the judgment passed by the then Forum then he could have gone in an appeal against the judgment passed by the Forum but he just cannot file a case in this Forum on a subject matter which has already been decided by another Forum. Therefore, in fact this is a complaint which is vexatious in nature and because of this complaint that the OPs have to keep appearing before the Forum for the last about 5 years, therefore this complaint deserves to be dismissed with special costs to the OPs under Section 26 of the Consumer Protection Act, 1986.
ORDER
The complaint is dismissed with special cost of Rs.2,000.00 to be paid by the Complainant to the OPs.
(Anju Awasthy) (Vijai Varma)
Member President Dated: 5 June, 2015
