Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant firm is owner of Swift Dezire Car bearing Reg.No.PB-13X-0054, Chassis No/Engine No.48407/81233 and the said vehicle was insured with Opposite Party No.1 vide policy No.36110031150100000302 valid for the period w.e.f.16.04.2015 to 15.04.2016 with IDV of Rs.3,42,756/-. Further alleges that on 04.04.2016 the above said vehicle met with an accident, intimation was given to the Opposite Parties who deployed surveyor  and the vehicle was sent to Opposite Party No.2 for repair. He stated that the vehicle in question fallen under the category of total loss as the IDV of the vehicle is Rs.3,42,756/- as the vehicle was completely damaged. But till date no report has been supplied to the complainant except that the information got received by the complainant under RTI, but the complainant surprised to note that the loss assessed by the surveyor is Rs.1,30,000/-, whereas the loss assessed by the Opposite Party No.1 is Rs.5,45,950/-, hence there is deficiency in service on the part of the Opposite Parties for not giving proper services to the complainant and not settling the claim of the complainant.  Vide instant complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to release the total amount of the claim of the complainant after considering the vehicle to be total loss and Opposite Parties be also directed to pay Rs.50,000/- on account of mental harassment and Rs.20,000/- on account of deficiency in service and Rs.11,000/- as litigation expenses.

2.       On notice, Opposite Party No.1 appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the matter has already been decided by this District Consumer Commission in complaint titled as M/s.Kishori Lal Roshan Lal Vs. New India Assurance Company vide CC No.30 of 2017 instituted on 09.03.2017 and decided on 12.07.2017 and the complainant has failed to disclose the above said facts from this District Consumer Commission and as such, the present complaint does not lie on the same cause of action. On merits, it is submitted that  complainant wants to make profits out of insurance policy/ claim in question by way of distorting the actual facts. The complainant has been insisting to decide the alleged claim on total loss basis, which is actually not permissible according to terms and conditions of the insurance policy in question.  On receipt of information of the alleged claim, it was entertained immediately and dealt with and the Opposite Party No.1 appointed Mr.Charanjit Garg to conduct the spot survey and M/s.Kapoor and Company i.e. Surveyor/ loss assessor to assess the loss. On receipt of the above said surveyor reports, the Opposite Party No.1 informed the complainant accordingly vide two registered letters dated 10.01.2017 and 14.02.2017 requesting the complainant to choose the mode of assessment of loss  either on the basis of cash loss basis or on repair basis but instead of giving its consent at that time, the complainant filed a false and frivolous complaint bearing No. 33 of 2017  vide which this Forum directed the Opposite Party No.1 to reconsider the claim of the complainant afresh by appointing another surveyor to investigate the vehicle of the complainant on spot and to assess the los of the vehicle as per the actual and factual position of the vehicle in question. Accordingly, after the receipt of the order of this Commission, without any delay M/s.R.P.Bhasin & Company was appointed as an independent surveyor, who served five registered letters dated 22.08.2017, 05.09.2017, 16.09.2017, 25.09.2017 and 03.10.2017 (Ex.OP9 to Ex.OP130 and respective postal receipts are Ex.OP14 to OP26) to the complainant and also personally contacted the complainant through phones, but the complainant did not pay any heed to the request of the Opposite Party No.1. However, on the basis of spot inspection and entire record, the independent surveyor M/s.R.P.Bhasin & Company submitted its final surveyor report dated 04.10.2017 wherein  the loss has been assessed on cash loss basis upto the extent of Rs.1,22,000/- and on repair basis for Rs.2,00,309/- and on the basis of said final report and after reconsideration of the claim in question, the Opposite Parties served  a registered letter dated 09.10.2017 upon the complainant requesting again to send its  consent on the mode of settlement acceptable to the complainant, enabling the insurance company to pay the claim after completion of necessary formalities applicable for particular/ chosen mode of assessment. But instead of complying with the said letters, the complainant filed a false execution petition which was ultimately  withdrawn by the complainant. However, the complainant has  again filed the present ditto/ similar false and frivolous complaint without having any cause of action, which is liable to be dismissed with compensatory costs. On merits, the Opposite Party No.1 took up almost same and similar pleas as taken up by them in the preliminary objections  and hence, there is no deficiency in service on the part of the Opposite Party No.1.

3.       On notice, Opposite Party No.2 appeared separately through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that there is no deficiency in service on the part of the answering Opposite Party as no specific allegations leveled by the complainant against the answering Opposite Party and the complainant has filed the present complaint against Opposite Party No.2 being proforma Opposite Party. Actually, the vehicle in question met with an accident and the spot survey was done by Sh.Charanjit Garg and after that the vehicle was parked by the complainant in the workshop of Opposite Party No.2 on 05.04.2016. Opposite Party No.1 appointed the surveyor who submitted its report. Number of times, the employees of Opposite Party No.2 made telephonic calls to the complainant to take away the vehicle from their workshop or to get it repaired, otherwise the parking charges will be imposed Rs.200/- per day, so Opposite Party No.2  is entitled to get about Rs.73,000/- from the complainant  or answering Opposite Party  is entitled to recover Rs.27,000/- for the preparation of estimation of the above said vehicle. In this way, the answering Opposite Party is entitled to recover about Rs.1 lakh from the complainant. On merits, the Opposite Party No.1 took up almost same and similar pleas as taken up by them in the preliminary objections  and hence, there is no deficiency in service on the part of the answering Opposite Party.

4.       In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C27 and closed his evidence.

5.       On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered   into evidence the affidavit of Sh.R.K.Jaiswal Ex.OP1/A alongwith copies of documents Ex.OP1 to Ex.OP29 and similarly, Opposite Party No.2 tendered into evidence affidavit of Sh.Neeraj Garg Ex.OP2/1 and thereafter, the Opposite Parties closed their respective evidence.      

6.       We have heard the ld.counsel for the parties and also gone through the documents placed on record.

7.       Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant firm is owner of Swift Dezire Car bearing Reg.No.PB-13X-0054, Chassis No/Engine No.48407/81233 and the said vehicle was insured with Opposite Party No.1 vide policy No.36110031150100000302 valid for the period w.e.f.16.04.2015 to 15.04.2016 with IDV of Rs.3,42,756/-. Further alleges that on 04.04.2016 the above said vehicle met with an accident, intimation was given to the Opposite Parties who deployed surveyor  and the vehicle was sent to Opposite Party No.2 for repair. He stated that the vehicle in question fallen under the category of total loss as the IDV of the vehicle is Rs.3,42,756/- as the vehicle was completely damaged. But till date no report has been supplied to the complainant except that the information got received by the complainant under RTI, but the complainant surprised to note that the loss assessed by the surveyor is Rs.1,30,000/-, whereas the loss assessed by the Opposite Party No.1 is Rs.5,45,950/-, hence there is deficiency in service on the part of the Opposite Parties for not giving proper services to the complainant and not settling the claim of the complainant.

8.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the matter has already been decided by this District Consumer Commission in complaint titled as M/s.Kishori Lal Roshan Lal Vs. New India Assurance Company vide CC No.30 of 2017 instituted on 09.03.2017 and decided on 12.07.2017 and the complainant has failed to disclose the above said facts from this District Consumer Commission and as such, the present complaint does not lie on the same cause of action. On merits, it is submitted that  complainant wants to make profits out of insurance policy/ claim in question by way of distorting the actual facts. The complainant has been insisting to decide the alleged claim on total loss basis, which is actually not permissible according to terms and conditions of the insurance policy in question.  On receipt of information of the alleged claim, it was entertained immediately and dealt with and the Opposite Party No.1 appointed Mr.Charanjit Garg to conduct the spot survey and M/s.Kapoor and Company i.e. Surveyor/ loss assessor to assess the loss. On receipt of the above said surveyor reports, the Opposite Party No.1 informed the complainant accordingly vide two registered letters dated 10.01.2017 and 14.02.2017 requesting the complainant to choose the mode of assessment of loss  either on the basis of cash loss basis or on repair basis but instead of giving its consent at that time, the complainant filed a false and frivolous complaint bearing No. 33 of 2017  vide which this Forum directed the Opposite Party No.1 to reconsider the claim of the complainant afresh by appointing another surveyor to investigate the vehicle of the complainant on spot and to assess the loss of the vehicle as per the actual and factual position of the vehicle in question. Accordingly, after the receipt of the order of this Commission, without any delay M/s.R.P.Bhasin & Company was appointed as an independent surveyor, who served five registered letters dated 22.08.2017, 05.09.2017, 16.09.2017, 25.09.2017 and 03.10.2017 (Ex.OP9 to Ex.OP13) and respective postal receipts are Ex.OP14 to OP26) to the complainant and also personally contacted the complainant through phones, but the complainant did not pay any heed to the request of the Opposite Party No.1. However, on the basis of spot inspection and entire record, the independent surveyor M/s.R.P.Bhasin & Company submitted its final surveyor report dated 04.10.2017 wherein  the loss has been assessed on cash loss basis upto the extent of Rs.1,22,000/- and on repair basis for Rs.2,00,309/- and on the basis of said final report and after reconsideration of the claim in question, the Opposite Parties served  a registered letter dated 09.10.2017 upon the complainant requesting again to send its  consent on the mode of settlement acceptable to the complainant, enabling the insurance company to pay the claim after completion of necessary formalities applicable for particular/ chosen mode of assessment. But instead of complying with the said letters, the complainant filed a false execution petition which was ultimately withdrawn by the complainant. However, the complainant has  again filed the present ditto/ similar false and frivolous complaint without having any cause of action, which is liable to be dismissed

9.       It is not disputed that earlier the complainant has filed the same and similar complaint bearing CC No.30 of 2017, decided on 12.07.2017 and this District Consumer Commission, Moga has passed the following orders:-

“10.  In view of the above discussion, the present complaint stands allowed against opposite party no.1 and it is directed to reconsider the claim of the complainant afresh by appointing another surveyor to investigate the vehicle of the complainant on spot and to assess the loss of the vehicle as per actual and factual position of the vehicle in question. The complaint against opposite party no.2 stands dismissed. Opposite party no.1 is further directed to settle and pay the claim of the complainant within 60 days from the receipt of copy of this order, failing which, the complainant shall be entitled to initiate proceedings under section 25 & 27 of the Consumer Protection Act.  Copy of the order be supplied to the parties free of costs. File be consigned to record room.”

Not only this, the complainant also filed the execution application before this District Consumer Commission, but the same was  withdrawn by the complainant.

10.     Perusal of the record shows that now the complainant has filed another complaint on the same cause of action, but we are of the view that if the complainant was not satisfied with the previous order dated 12.07.2017 passed by this District Consumer Commission, he could chose to file an appeal against the impugned order before the competent authority, but he did not do so.  Now the question is whether the complainant has remedy to file the second complaint before this District Consumer Commission for the same redressal of its  grievances if he was not satisfied from the previous order passed by this District Consumer Commission?.

11.     The answer to this question is in negative. Hon’ble State Commission, Punjab Chandigarh in Revision Petition No.86 of 2013, decided on 2.4.2014 in case  Ludhiana Beverages Pvt. Limited vs Jagvinder Singh on 2nd April, 2014, has specifically held that the second complaint on the same cause of action does not lie. The relevant portion of the judgement is reproduced as under:-

10. In view of our above discussion, we conclude that the second complaint is not maintainable and, as such, the complainant cannot be permitted to proceed with the same and the same is hereby dismissed without prejudice to his rights to avail of the proper remedy under the Act."

6. Therefore, we conclude that the second complaint by the complainant was not maintainable and the findings recorded to the contrary by the District Forum suffer from illegality and are liable to be set aside.”

12.     Keeping in view the aforesaid facts and circumstances of the case, we do not find any merit in the present complaint and the same is hereby dismissed. However, the complainant is at liberty to initiate execution proceedings for the compliance of the earlier order passed by this District Consumer Commission in accordance with law.   Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

13.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not  appointed any of the Whole Time Member in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 30.11.2021.