Pawan Kumar Proprietor of M/s. Ramesh Cloth House, (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against the Universal Sompo General Insurance Co. Ltd & others (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that he is running business of cloth merchant under the name and style of Ramesh Cloth House at Nangal Kotli Opp.Buttan Wali Gali Gurdaspur. It is alleged that he obtained loan from the opposite party no.2 against the shop and stock lying therein and his entire stock was hypothecated with opposite party no.2. The opposite party no.2 himself got the shop and stock lying therein insured with the opposite party no.1 under Shopkeeper package policy Schedule; he had been making payment of premiums through opposite party no.2 regularly. Hence he is consumer of the opposite parties. The insurance policy was in force from 00:00 of 21/3/2015 to 23:59 of 20/3/2016. His shop was insured for Rs.16 lacs on account of Fire and alliance perils building and content and Rs.16 lacs for burglary and robbery, as fully mentioned in the policy cover note bearing no.2939/52133054/03/000. It is further alleged that on 9.4.2015 at about 11 p.m. all of a sudden his shop caught fire due to short circuit of electricity connection installed in the shop and his entire stock/articles lying in the shop including some cash, accounts bills, bill books etc. were converted into ashes within no time. In this incident he suffered loss of more than Rs.18 lacs. Publication to this effect was also made in newspapers. It is further alleged that the matter was reported to the police and other authorities and DDR no.33 dated 10.4.2015 was lodged at P.S. City Gurdaspur. He made phone call on toll free number of opposite party no.1 and also intimated to opposite party no.2 on 10/04/2015. It is further alleged that opposite party no.1 deputed its surveyor namely Parveen Goyal from Ludhiana who visited the shop on 11.04.2015 and clicked photographs of totally burnt stock of the shop, balance sheets, copy of monthly stock statement etc but thereafter he raised illegal demand of bribe amounting to Rs.50,000/- to settle his claim to which complainant refused and the opposite party left the site without preparing/assessing loss suffered by him. Thereafter he gave intimation to the opposite party no.1 on the same day regarding act and conduct of their deputed surveyor Parveen Goyal. A Surveyor namely Arun Kumar from Jalandhar was again deputed by the opposite party no.1 who visited his shop on 18.4.2015, after making him repeated requests to visit his shop and assess the loss and settle his claim in time said surveyor also took the photographs and obtained balance sheets etc. and left the spot with assurance that he will get full insured amount within fifteen days as he had suffered a total loss, but later on he also connived with above said Parveen Goyal and did not take any action into the matter till today, complainant has suffered loss more than Rs.18 lacs. It is further alleged that shop of the complainant is lying closed for a period of more than 3 months continuously due to financial crunch and during this period he approached the opposite parties number of times and requested for settlement of his claim and to pay the amount of insurance for the loss suffered by him, but all in vain. It is further alleged that the opposite party no.1 by not making payment of insured amount to him on baseless observations is trying to back out from its pious obligation of making payment of the sum assured with malafide intention and ulterior motive without any reason or rhyme. It is further alleged that left with no alternative, he approached this Hon'ble Commission and filed complaint U/s 12 of C.P. Act which was allowed by this Ld. Commission vide order dated 3.8.2016 with the observations that the act of the Opposite party No.1 is an unfair trade practice coupled with deficiency in service and that renders it liable to an adverse statutory award under applicable Act and the opposite party no.1 was directed to settle the claim on merits strictly in terms of the related policy in accordance with the IRDA guidelines on "Settlement of claims" besides to pay Rs.5000/- as compensation and Rs.3000/- as litigation expenses to him. It is further alleged that thereafter, he filed Execution application No. 88 on 4.10.2016, in which the opposite party no.1 paid Rs.1,86,670/- and Rs.8000/- as compensation and litigation expenses only instead of payment of the loss suffered by him. The amount paid by the opposite party no.1 is totally inadequate, unjust and not according to the loss suffered by him. The opposite party no.1 while making payment has totally ignored the stock statement prepared by the opposite party no.2 and even the same is against spirits of order dated 03.08.2016 passed by this Ld. Commission. He made statement in this Ld. Commission that he is not satisfied with the settlement of the claim made by the opposite party no.1 and the execution application was dismissed as withdrawn vide order dated 23.12.2016. So, the present complaint is 2nd complaint. First complaint has been partly allowed vide order dated 3.8.2016 as fully mentioned above. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental harassment and inconvenience. So, there is a clear cut deficiency on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions be issued to the opposite party no.1 to make payment of full insurance amount i.e. Rs.16 lacs due to fire occurred in the shop due to short circuit of electricity alongwith interest @ 12% P.A. from the date of suffering loss till actual realization to him. Opposite party no.1 be further directed to pay compensation amounting to Rs.2,00,000/- on account of mental agony, physical harassment and torture caused by the opposite parties for no fault on his part alongwith Rs.10,000/- as litigation expenses, in the interest of justice.

3.       Upon notice, Opposite Party No.1 appeared through their counsel and filed their written reply by taking preliminary objections that the complainant has no cause of action to file the present complaint; the complainant does not fall within the definition of consumer. The matter of fact is that the complainant previously also filed complaint on the same subject matter and that complaint has been decided and the answering respondent was directed to settle the claim as per policy. The claim has been duly decided and the amount of Rs.1,86,670/ along with compensation of Rs.8000/- has been duly paid. After such payment the complainant left with no cause of action to file the present complaint and as such the complaint is liable to be dismissed. It is pleaded that as the claim has already been decided and the payment has been duly made. In the present complaint, the complainant is alleging that he is entitled for more payment and he is not satisfied with the payment made by the insurance co. It is pertinent to mention here that in such type of cases the proper remedy is to file civil suit as such type of matters can only be decided in civil court and the complainant has not come to the court with clean hands and as such the present complaint is liable to be dismissed. It is further pleaded that it is settled law that the liability of the insurance co. is only as per survey report. The payment has already been made to the complainant as per policy terms and conditions and as such the present complaint is liable to be dismissed.

          On merits, the opposite party no.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint. In the end, the opposite party no.1 prayed for dismissal of complaint with cost.

4.       Upon notice, Opposite Party No.2 appeared through their counsel and filed their written reply by taking preliminary objections that the present complaint is not maintainable, as complaint has already been decided by this Hon’ble Commission vide order dated 03.08.2016 in Complaint No.365/2015. It is pleaded that the opposite party has no personal knowledge about the time of occurrence of incident and about the loss to the complaint, but the opposite party only received information on 10.4.2015 from the complainant regarding occurrence and loss.

          On merits, the opposite party no.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint. In the end, the opposite party no.2 prayed for dismissal of complaint with cost.

5.       Opposite Party No.2 appeared through their counsel and filed their written reply and at the time of producing evidence opposite party no.2 failed to appear and was proceeded against exparte vide order date 15.01.2018.

6.       Learned counsel for the complainant has tendered into evidence affidavit of Pawan Kumar, Prop. Of M/s Ramesh Cloth House (Complainant) as Ex.CW-1/A along-with other documents as Ex.C-1 to Ex.C-34.

7.       Learned counsel for the Opposite Party No.1 has tendered into evidence affidavit of Piyush Shankar, Assistant General Manager (Legal Claims), Universal Sompo Gen. Ins. Company Ltd, as Ex.OP-1/1 along-with other documents as Ex.OP-1/2 to Ex.OP-1/16.

8.       Written arguments on behalf of complainant filed, not filed by the opposite party no.1.

9.       Counsel for the complainant has argued that complainant has urchased a policy of insurance from opposite party No.1 through opposite party No.2 banker and get the stock insured for sum assured of Rs.16 Lacs. It is further argued that complainant had lodged claim with the opposite party No.1 in respect of loss suffered due to fire which took place on 09.04.2015. Opposite parties have paid claim amount of Rs.1,86,670/- and compensation of Rs.8,000/- to the complainant on the basis of report of the surveyor, whereas the complainant has suffered net loss of Rs.16 Lac, as such opposite parties be directed to pay Rs.16 Lacs to the complainant after deducting the already paid amount. It is further argued that earlier also complainant had filed complaint against the opposite parties in respect of same subject matter which was allowed by the Predecessor of this Commission vide order Ex.C5 which is on record. The act of the opposite parties having failed to pay balance amount amounts to deficiency in service.

10.     On the other hand counsel for the opposite party No.1 has argued that complainant had filed previous complaint on the same subject matter which was allowed vide order Ex.C5 and the payable amount of Rs.1,86,670/- alongwith compensation of Rs.8,000/- was paid to the complainant. It is further argued that payment has been made on the basis of report of the surveyor which legally acceptable document and as such there is no deficiency in service on the part of opposite party No.1 and as such complaint is liable to be dismissed. 11.         We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant had purchased a policy of insurance from opposite party No.1 and insurance cover given to the complainant was of Rs.16 Lacs. It is further admitted fact that on 09.04.2015 at about 11.00 P.M. a fire took place in the shop of the complainant and complainant suffered loss. It is further admitted fact that complainant had lodged claim with the opposite party No.1 and on account failure to settle the claim, complainant had filed complaint No.365 of 24.09.2015 before the Predecessor of this Commission which was allowed vide order dated 03.08.2016 Ex.C5. It is further admitted fact that on Execution  having been filed the opposite parties had paid Rs.1,86,670/- to the complainant alongwith compensation of Rs.8,000/- and the execution was withdrawn by the complainant as per order Ex.C6. The only question before this Commission is whether the complainant can file second complaint after having availed remedy before the Predecessor of this Commission. Perusal of order dated 03.08.2016 shows that the predecessor of this Commission has discussed and arrived at conclusion after perusing the evidence and allowed the complaint and opposite party No.1 was directed to settle the claim on merits strictly in terms of the related policy in accordance with IRDA guidelines on 'settlement of claims'. Even in the said order the reports of the surveyor have also been discussed and to some extent have been set aside.

12.     We are of the view that instead of agitating the matter in the execution, the complainant has wrongly filed second complaint on basis of same cause of action and same subject matter which is no permissible under law.

          We have also placed reliance upon order of Hon'ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram reported in (2003) CPJ 260 (Ker.) as per which The Hon'ble State Commission, Kerala held as under:-

          "Civil Procedure Code, 1908 - Section 11 - Consumer   Protection Act, 1986 - Section 15 - Res judicata - Applicability of principle - Mobile network services - life time   connection - Demand to recharge for continuation of  incoming calls - Litigant has to seek all reliefs that he wants in respect of cause of action in case filed by him - It is    not permissible for him to seek part of relief in first case and     then file second case for rest of relief that he wants - Appellant had approached TRAI with his complaint, where he had sought for restoration of his telephone connection and also compensation - Since TRAI did not grant any compensation, he filed this complaint - Appeal against order of TRAI is still   pending - Litigant who has two remedies with respect to same cause of action, cannot   be permitted to pursue both remedies simultaneously - He has to select one of the remedies, pursue same to its conclusion and take        consequences - Not open to appellant to agitate very same cause of action in subsequent complaint instituted by him - Earlier order which is still in force, that he himself has suffered, would bar complaint from which this appeal arises - Principles of res judicata would apply, disentitling appellant   from claiming any relief on same cause of action in these   proceedings". (Para 9).

13.     So, from the above discussion by Hon'ble State Commission, Kerala in clear cut terms second complaint on same subject matter and cause of action is not maintainable.

14.     Accordingly, we are of the view that second complaint filed by the complainant on the same subject matter and cause action is not maintainable. Accordingly, complaint being without merit is ordered to be dismissed with no order as to costs.

15.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

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

                               (Lalit Mohan Dogra)

                                                                        President.

Announced:                                          (B.S.Matharu)

Aug. 09, 2023                                               Member

*YP*