Complainant Bhupinder Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that opposite party may kindly be directed to make the payment of VAT/Surcharge Rs.1,34,865/- and Insurance Company be also directed to pay Rs.20,000/- to the complainant for mental torture, wastage of time and harassment including Rs.10,000/- as litigation expenses all in the interest of justice.

2. The case of the complainant in brief is that premises of his Firm were comprehensively insured by the opposite party with effect from 07.10.2010 to 6.10.2011 for a sum of Rs.28,85,000/- vide policy number 387160/581163. It was pleaded that during the intervening night of 30/31.12.2010 the premises of the complainant Firm caught fire and the opposite party paid a claim in the sum of Rs.5,45,598/- on 16.12.2011 by way of transfer of the money in the account of the complainant’s firm. It was further pleaded that complainant filed a complaint before this Hon’ble Forum and as per the order passed by this Hon’ble Forum an amount of Rs.1,58,349/- was paid more to the complainant Firm on 31.10.2012 along with interest. It was pleaded that as per the orders of this Hon’ble Forum Company also made the payment of Rs.2,39,156/- along with interest as costs of the spare parts. It was pleaded that complainant had borne the damages of more than Rs.15,25,000/- but the opposite party i.e. Insurance Company only paid Rs.9,43,103/- in total (i.e. Rs.5,45,598/- + Rs.1,58,349/- + Rs.2,39,156/-) and as per the rules the complainant was bound to pay VAT+Surcharge on this amount to the Sale Tax Department and the total VAT/Surcharge on this amount of Rs.9,43,103/- comes to Rs.1,34,865/- which was payable by the opposite party and the rate of VAT was 13% of the total amount of bill and the rate of Surcharge was 10% of the VAT amount. It was also pleaded that letters dated 10.02.2016 and 31.03.2016 was written by the complainant to the opposite party regarding the payment of the amount of VAT/Surcharge of Rs.1,34,865/- but the opposite party had turned a deaf ear to the same. It was next pleaded that the amount of VAT/Surcharge was to be deposited with the Sales Tax Department by two different bills i.e. Invoice No.235 dated 30.01.2016 for Rs.7,03,947/- the amount of VAT/Surcharge Rs.1,00665/- (Scooters & Motor Cycles), Invoice No.1477 dated 30.01.2016 for Rs.2,39,156/- and the amount of VAT/Surcharge Rs.34,200/- (Spare Parts). It was pleaded that complainant had filed this complaint due to the deficiency in service and also the unfair trade practice on the part of the opposite party, hence this complaint.

3. Notice of the complainant was served upon the opposite party who appeared through their counsel and filed the written reply by taking the preliminary objections that present complaint of the complainant is not maintainable as the matter is dispute had become Res judicata between the parties by passing the order dated 17.08.2012 by the District Consumer Disputes Redressal Forum, Gurdaspur and by passing the Judgment and Decree dated 28.10.2015 in Civil Suit No.01 of 02.01.2014 by Smt.Balvinder Kaur Dhaliwal, Civil Judge (Junior Division), Batala and it could not be re opened by the Hon’ble Forum. It was stated that after receiving the information of loss opposite party appointed Mr.Sanjay Sareen Surveyor and Loss Assessor for spot inspection and thereafter Sh.Sumant Sud Surveyor was appointed for assessment of loss of the complainant firm, due to fire and the opposite party paid Rs.5,45,558/- to the complainant as per final survey report of the said Surveyor. Complainant had accepted the above said amount and also given a consent letter but thereafter he had filed a complaint U/s 12 of the Consumer Protection Act before the District Forum Gurdaspur for the balance loss amount in which Hon’ble Forum ordered the opposite party to pay Rs.1,58,349/- along with interest and also to appoint a Surveyor on account of loss to Spare Parts and Accessories to the complainant along with interest and remaining claim of the complainant was not accepted by this Hon’ble Forum and complainant had left no claim against the opposite party except the claim mentioned in the order dated 17.08.2012 passed by this Hon’ble Forum and accordingly opposite party paid Rs.1,58,349/- (with interest total Rs.1,70,832/-). It was further stated that as per the order of the Consumer Forum, the opposite party paid Rs.2,39,156/- (with interest total Rs.2,66,282/-) to the complainant as loss of spare parts which was burnt in the fire and except the above said amount complainant received Rs.67,890/- as Salvage parts of motor cycles and spare parts and as such total amount which was paid to the firm comes to Rs.10,10,993/- and after receiving the above said amount complainant filed a recovery suit of Rs.4,05,787/- as arrears of insurance claim vide Civil Suit No.01 of 02.01.2014 against the opposite party which was dismissed by the Court of Smt.Balvinder Kaur Dhaliwal, Civil Judge (Junior Division), Batala vide judgment and decree dated 28.10.2015; that matter in disputed had already been decided by the District Consumer Forum Gurdaspur as well as Civil Courts Batala and as such present complaint is liable to be dismissed on this ground; that complainant had not come in the Forum with clean hands and he is guilty of suppression of material facts from this Hon’ble Forum and as such he is not entitled for any relief; that present complaint of the complainant is time barred and is liable to dismissed. On merits, the averments made in the para no.1 of the preliminary objections are again repeated in para no.3. It was denied that opposite party is liable to pay Rs.1,34,865/- as Vat and Surcharge to the complainant. All other averments made in the complaint have been denied and lastly prayed for dismissal of the complaint with exemplary costs along with other relief to which the opposite party is found entitled under the law.

4. Complainant had tendered into evidence his own affidavit Ex.C1 along with documents Ex.C2 to Ex.C12 and closed his evidence.

5. Counsel for the opposite party had tendered into evidence affidavit of Karam Singh Divisional Manager Ex.OP-1 along with copies of orders Ex.OP-2 and Ex.OP-3 and closed the evidence on behalf of opposite party.

6. We have carefully gone through the pleadings of the parties, arguments advanced by the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of both the counsel for the parties.

7. We analytically observe with the judicial precision & find that the OP insurers have validly refuted to entertain the complainant痴 present claim of Rs.134,865/- representing the applicable VAT (@ 13% of the invoice amount plus surcharge of 10% of the VAT amount) on the invoice value of Rs.943,103/- of the insured goods lost in fire and subsequent receipt of the applicable insurance claim received from the above titled OP insurers in compliance of the Forum痴 orders dated 17.08.2012 (Ex.OP2); duly followed by the dismissal of his civil suit filed subsequently on the same cause of action vide the honorable civil judge痴 orders dated 28.10.2015 (Ex.OP3). We find that in his hasty endeavor to undue enrichments through litigation the present complainant has filed the present complaint in utter disregard and explicit ignorance of the applicable bar of resjudicata in civil law.

8. The complainant has also produced forth his affidavit Ex.C1 duly supported by other documents Ex.C2 to Ex.C12 in his futile attempt (and ignorance of law) to lay his hands on an otherwise invalid insurance claim little realizing that legal jurisprudence works through the legislated statutes in law that judiciously separates the 'straw' from the 'grain'.

9. The OP insurers have clearly stated in their reply and affidavit that they shall not consider the complainant 'insurance claim' for the reasons that the matter in issue on the same cause of action stands already adjudicated by the present forum vide its orders dated 17.08.2012 and was subsequently further dismissed on the grounds of resjudicata by the honorable civil court vide its orders dated 28.10.2015.

10. In the light of the all above, we are of the considered opinion that the OP insurers have validly refuted to entertain the impugned insurance claim and finding 'no merit' in the present complaint, we order for its dismissal with however no orders as to its costs since the present complaint has not been apparently filed by the complainant not on his own but upon receipt of some inadvertent legal advice.

11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

(Naveen Puri)

                                                                                  President.

ANNOUNCED:                                                (Jagdeep Kaur)

OCT. 27, 2016                                                             Member.

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