As per Hon’ble Shri.S.P. TAVADE, PRESIDENT
Being aggrieved and dissatisfied with the order passed by District Consumer Commission, Chandrapur in Consumer Complaint No.CC/12/29 dated 12/3/2012, the original Complainant has preferred this Appeal. The parties to this appeal shall be hereinafter called and referred as per their status in the original Complaint. Facts giving rise to this appeal can be summarized as under..
The complainant was owner of the truck bearing No.MH-34 L 9177. The complainant had insured his truck with Opponent by paying premium on Insured Declared Value (IDV) of Rs.9 lac. Accordingly the Opponent had issued a policy bearing certificate No.230202/31/08/01/00007395 valid for the period between 29/12/2008 to 28/12/2009. It was contended that the policy was issued to the Complainant without embodying terms and conditions of the policy along with the policy certificate. On 3/4/2009, the complainant loaded Sponge Iron in the truck at Chandrapur which was to be delivered and unloaded at factory of Sunvijay Rolling Mill, Butibori, Distt. Nagpur. Accordingly the driver of the truck namely Prafulla Kamble left Chandrapur with the truck and reached to Sunvijay Rolling Mill,Butibori on 5/4/2009 where the goods were unloaded and the truck left the premises of Sunvijay Rolling Mill, Butibori at 9 a.m.. But thereafter, the truck driver did not return to the premises of the complainant along with the truck and since then he is missing. As there was no whereabouts about the vehicle and the driver, the complainant along with his brother and friends went to the factory of Sunvijay Rolling Mill, Butibori where they came to know that the goods were unloaded on 5/4/2009 and the vehicle left the factory premises at 9 a.m. through gate pass. The said fact was immediately reported to the Police Station at Butibori but they did not register the crime and asked the Complainant to search for the vehicle and come after some days if the vehicle remains untraced. The complainant, having no other option, left for the residence of the driver at Warora, but he was not found. So the complainant again approached to the Police Station, Butibori for registration of FIR but the officer on duty asked the complainant to lodge FIR at Police Station, Hingana as the Sunvijay Rolling Mill, Butibori is in the jurisdiction of Police Station, Hingana. It was contended that the Butibori Police ought to have registered the crime and thereafter they could have transferred the same to the Police Station, Hingana but, instead of doing so, they asked the Complainant to approach to Hingana Police. Hence the complainant immediately approached to the Police Station, Hingana. But they were reluctant to register the crime. Hence on 9/4/2009, the complainant gave letter to the Superintendent of Police, (Rural), Nagpur, who asked the Police Station, Hingana to register the crime and investigate the same. But inspite of direction, the officer of the Hingana Police Station was reluctant to register the crime, but ultimately it recorded the FIR and registered the crime bearing No.105/09 U/s 406 of the IPC and started investigation. It is contended that the incident of missing of truck was immediately intimated to the Opponent Insurance Company but the Opponent did not give claim form to the Complainant to be filled up and submitted with them. On the contrary, the Opponent, as per their practice, asked the complainant to submit claim form after FIR is lodged and the crime is registered. After the registration of the crime, the complainant submitted the claim form to the Opponent on 24/8/2009 along with copy of FIR and insurance policy. The complainant, thereafter, submitted all the documents as per the direction of the Opponent, but the Opponent did not settle the claim. Since there was no action from the Opponent, the complainant served notice dated 1/8/2010 and asked it to settle the claim at the earliest, but there was no response from the Opponent to the notice of the Complainant. Hence second notice was sent on 3/11/2010 through Adv. Kullarwar but in spite of receipt of the said notice, there was no response from the Opponent. Hence the complainant filed Consumer Complaint before the learned District Consumer Commission, Chandrapur on 25/4/2011 bearing No.CC/11/66 wherein the Opponent appeared and filed its reply. After hearing the arguments of both the parties, the District Forum was pleased to direct the Opponent to take decision on the theft claim of the vehicle within two months from the date of receipt of the order.
After the said direction of the learned District Consumer Forum, the Opponent failed to comply with the order of the learned District Forum, Chandrapur. Hence the Complainant issued notice to the Opponent through his counsel Shri.Kullarwar and asked the Opponent to settle the claim to which the Opponent, through their counsel, replied that the matter has been referred to Head Office at Chennai for taking action as per order and they have applied for extension of time for compliance of order from the District Forum, Chandrapur. The complainant, thereafter, filed application U/s 27 of the Consumer Protection Act,1986 on 26/12/2011. Thereafter the notice U/s 27 of the C.P.Act was served upon the Opponent. However, after receipt of the notice, the Opponent repudiated the claim of the complainant on 9/2/2012 on vague grounds.
As the claim was repudiated, the complainant got fresh cause of action. Hence he filed fresh Consumer Complaint before the District Consumer Commission, Chandrapur bearing No.CC/12/29. The District Consumer Commission, Chandrapur, after hearing the matter, dismissed the complaint on the ground of Res-judicata without considering that due to the repudiation of claim by the Opponent, fresh Cause of Action arose to the Complainant/appellant. Hence the complainant preferred appeal against the impugned order dated 12/3/2012.
Notice of this appeal was served on the Opponent and the Opponent appeared through advocate. Complainant/appellant and Respondent filed their written notes of arguments. Heard arguments of both the parties.
Learned advocate for the Complainant submitted that the complaint No. CC/11/66 filed by the complainant was not decided by the learned District Forum on merits. Therefore, the principle of Res-judicata can not be applied. However, the learned District Forum has not considered the said principle of Res-judicata in proper perspective and came to a wrong decision.
On the other hand, learned advocate for the Opponent submitted that the first complaint of the Complainant was decided on merit. Therefore the District Forum has rightly applied the principle of Res-judicata.
In view of the said submission, one has to refer to the principle of Res-judicata which is laid down in Section 11 of the Civil Procedure Code,1908 as under,
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
We have gone through the provisions of Res-judicata as well as the order passed by the learned District Forum, Chandrapur dated 20/8/2011 in first consumer complaint filed by the complainant bearing No.CC/11/66. No doubt, in the said complaint No.CC/11/66, the Opponent had appeared and filed its written version and both the parties had led their evidence, but the learned District Forum has not considered the merits of the matter. In the said complaint, the complainant raised issue that the Insurance claim submitted by the complainant was not decided by the Opponent on merit. So, there was no repudiation of claim made by the Complainant. Therefore, the District Forum had directed the Opponent to decide the claim of the Complainant on its merits. The said fact is revealed from the observations of District Forum in para 10 of the judgement, which reads as under..
"१०. गै.अ. यांनी असा मुददा घेतला आहे की, तक्रारीत कोणतेही कारण घडले नाही. परंतु अर्जदाराने १९.६.१० ला कागदपत्र सादर केले.त्यानंतर गै.अ. यांनी विमा क्लेम न दिल्यामुळे २.२.२०११ ला सुध्दा क्लेम मिळण्याकरीता गै.अ.ला पत्र दिला. तरी गै.अ. यांनी आजपर्यंत कोणताही निर्णय घेतला नााही. तक्रारीतील कथन आणी गै.अ. यांचे कथनावरुन गुणदोषावर निकाली काढण्याचे पुर्वी गै.अ. यांनी चौकशी पूर्ण न झाले असल्याचे आक्षेप घेतल्याने गै.अ. यास चौकशी पूर्ण करुन निर्णय घेण्याची संधी देणे न्यायोचीत होईल या निर्णयाप्रत हे न्यायमंच आले आहे.’
There is specific observation of the District Forum that the District Forum had not decided the complaint on its merit. District Forum thought it fit to give one chance to the Opponent Insurance Company to settle the claim of the Complainant within two months. The said claim was repudiated by the Opponent. That gives fresh cause of action to the complainant to file a complaint. From the observation of the District Forum, it is crystal clear that the complaint was not decided on merits and, therefore, principle of Res-judicata can not be made applicable to the facts of the present case.
Learned advocate for the Opponent has relied on the ratio laid down in the case of Force Motors Ltd. Vs. DPS Sec.School reported in 2014 (4) CPR 495 (NC), wherein it is held that,
“Once relief is granted on the basis of first complaint and the Opposite party complies with the directions of the Forum, second Complaint on the same cause of action will be barred by the principal of res judicata and will amount to misuse and gross abuse of process of the law”
However, there is no legal implication of the said ratio on the facts of the present case because for applying the said ratio, the first complaint must be decided on merit between the parties. In the present case, the District Forum has specifically mentioned that it has not decided the complaint on its merits but simply directed the Opponent to consider the claim of the Complainant and pass necessary orders. So, the complaint was not decided by the District Forum on merit and, therefore, that ratio is not applicable.
As far as claim of the complainant is concerned, it is admitted fact that the complainant was owner of the truck bearing No.MH-34 L 9177 and it was insured with the Opponent by paying premium on IDV of Rs.9 lac. Accordingly the Opponent had issued a policy certificate bearing No.230202/31/08/01/00007395 for the period between 29/12/2008 to 28/12/2009. So, it can be said that the incident of missing of the truck occurred on 5/4/2009 during the validity of the Insurance policy.
The complainant has come up with a specific case that his driver did not bring his truck to his premises in the evening of 5/4/2009. Therefore he made enquiry. As 6th of April,2009 was a Sunday, he went to the factory premises of Sunvijay Rolling Mill, Butibori on 7/4/2009, where he got information about unloading of goods on 5/4/2009 by the driver of the vehicle and thereafter, the vehicle left the factory premises at 9 a.m. through gate pass. It is the specific case of the complainant that he immediately went to the Police Station at Butibori for lodging complaint but it was not registered on the ground that Sunvijay Rolling Mill, Butibori falls within the jurisdiction of Police Station, Hingana. Hence the complainant immediately went to Police Station, Hingana to lodge FIR. However, the Police at, Hingana Poliece Station were reluctant to register the crime. Hence on 9/4/2009, the complainant gave letter to the Superintendent of Police, (Rural), Nagpur, who asked the Police Station, Hingana to register the crime and investigate the same. The letter written by the complainant to the Superintendent of Police, Rural Nagpur is filed on record. It shows that the said letter was received by the S.P.Office on 9/4/2009 and the complainant was directed to visit the Hingana Police Station. Hence the complainant again went to Police Station, Hingana and gave written complaint. But no action was taken by the Hingana Police Station till 19/5/2009. So, from above facts, it is crystal clear that the complainant was keen to lodge FIR after receiving the information of missing of his truck but neither the Butibori police station nor the Hingana Police Station registered his FIR. The complainant has also given an appliation to the Superintendent of Police, Rural Nagpur copy of which is filed on record. The endorsement on the said letter shows that the said letter was received by the S.P.Office on 9/4/2009 and the complainant was directed to visit the Hingana Police Station. The complainant, therefore visited Hingana Police Station and gave written complaint but it was not considered by the Hingana Police Station. Therefore it can not be said that complaint was lodged at a belated stage.
It is also the case of the complainant that the complainant had intimated the incident of missing of truck to the Opponent, but the Opponent directed him to furnish copy of FIR which the complainant has done after receiving the copy of the FIR. The complainant has filed his claim form on 24/8/2009 along with the copy of FIR and copy of Insurance Policy. It is also an admitted fact that the complainant has also issued two notices to the Opponent to consider his claim sympathetically, but no action was taken by the Opponent. Hence the complainant was required to file complaint bearing No.CC/11/66 with the District Forum, Chandrapur on 25/4/2011. So it can be said that since the intimation of missing of truck till filing of the consumer complaint, the Opponent did not take any action either to settle the claim or to repudiate the same. Hence the District Forum asked the Opponent to consider the claim of the complainant. The said decision was taken by the Opponent on 9/2/2012 whereby the claim of the complainant was repudiated. So, it cannot be said that the complainant had delayed the process of filing claim.
Learned advocate for the Opponent submitted that on perusal of documents it appears that there was inordinate delay of 15 days in reporting the incident of missing of truck to the police. It is submitted that the complainant lodged FIR on 19/5/2009 and gave information of missing of truck to RTO, Chandrapur on 27/5/2009. Such a delay creates doubt about missing of truck itself. It is contended that it was incumbent upon the complainant to file FIR immediately after the incident of missing of truck took place. Similarly it was incumbent upon him to inform the said fact to the Opponent but there was inordinate delay in filing the FIR as well as giving information of missing of truck to the Opponent and, therefore, the claim is not maintainable. To substantiate his point, he relied upon the ratio laid down in the case of Shriram General Insurance Co.Ltd. Vs.Mahinder Jat reported in I (2015) CPJ 74 (NC) wherein it was held that,
“ Complainant was bound to give notice of theft in writing to company immediately upon occurrence of theft as also to give immediate notice to police and cooperate with company for securing conviction of offender. Delay deprives the Insurance Company of its legitimate right to get inquiry conducted into alleged theft of vehicle and make endeavour to recover the same- Repudiation justified.”
Advocate for the Opponent also relied on the ratio laid down in the case of Cholamandalam Ms General Insurance Co.Vs.Maheshkumar & Anr. Reported in 2016 (1) CPR 141 (NC) wherein it was laid down that,
“It is complainant and nobody else who is to carry ball in proving the case-There is no evidence on record that driver was lying unconscious for two days-There should be some authentic record which must be filed before Commission- View taken by State Commission is absolutely wrong-Order passed by State Commission set aside and order of District Forum restored.”
On the other hand, learned advocate for the Complainant has relied on ratio laid down by the Hon’ble Apex Court in the case of Gurshinder Singh Vs. Shriram General Insurance Co.Ltd.& Anr.in Civil Appeal No.653 of 2020 arising out of SLP(C) No.24370 of 2015 wherein it is rightly held that,
“20. We, therefore hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police, after investigation have lodged a final report after the vehicle was not traced and when the surviyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”
In the present case, Hingana Police Station had registered FIR and carried out investigation and filed charge sheet U/s 299 of Cr.PC wherein it is mentioned that the offence was committed but the accused was not found. Therefore, charge sheet is filed U/s 299 of Cr.PC. Similary the Opponent Insurance Company had appointed surveyor who carried out enquiry and submitted report which was produced by the Opponent in the complaint wherein the observation of the Surveyor is as under..
“Genuineness of alleged theft:
The theft of I.V.Tata LPT 2515 bearing registration No.MH-34, L 9177 having engine No.60N62531944 and chassis No.426031NTZ764666 by its driver Mr.Prafulla Kambale on 5th April,2009 after delivering the sponge iron shipment to SunVijay Rolling Mills Co.at 9/00 a.m. at Butibori MIDC Nagpur is true and genuine.”
On considering the investigation papers as well as the report of the surveyor, it is established that theory of missing of truck is true and genuine. In view of the ratio laid down by the Hon’ble Apex Court in the case of Gurshinder Singh Vs. Shriram General Insurance Co.Ltd.& Anr., we have no option but to allow the claim of the complainant. We hold that the complainant was not liable for delay in lodging FIR. He had taken utmost care by visiting two police stations as well as office of Superintendent of Police for registering the crime. But inspite of his efforts, Hingana Police Station could not register the crime immediately after the filing of written application by the complainant. Therefore the complainant can not be blamed for lodging FIR belatedly. The surveyor of the Opponent had also held that the missing of the truck of the complainant was true and genuine. Therefore we hold that the claim of the complainant regarding missing of the truck is true and genuine. Mere delay in intimating to the insurance company about the occurrence of theft can not be a ground to deny the claim of the insured.
Admittedly, the complainant had submitted the claim form alongwith copy of FIR and insurance policy to the Opponent, but the opponent did not take any action thereon. Thereafter the complainant issued two notices to the Opponent calling upon it to decide the application for compensation but the said application was also not decided by the Opponent inspite of having sufficient time. As the insurance claim was not decided by the Opponent, the complainant filed consumer complaint before the District Forum wherein the District Forum had directed the Opponent to decide the claim application within two months. But it was not decided by the Opponent. Hence the complainant was required to file application U/s 27 of the C.P.Act. Thereafter, the application for compensation was decided by the Opponent on 9/2/2012. Hence it can be concluded that the Opponent had committed delay in deciding the claim of the complainant for a long time. Hence the Opponent is guilty of deficiency in service.
In view of the above discussion, we hold that the finding of the District Forum, Chandrapur on the point of Res-judicata are not proper and correct and said findings are required to be set aside. Further, the complainant has proved his claim that his truck was missing since 5/4/2009 which was never traced out by the Police. Therefore, the complainant was entitled for the compensation under the insurance policy issued by the Opponent and by repudiating the claim, the Opponent has committed deficiency in service.
As far as amount of claim is concerned, the complainant had lodged FIR wherein he has specifically stated that due to missing of truck, he suffered loss of Rs.3 lac. Therefore, the complainant is entitled to get compensation to the extent of said amount of Rs.3 lac from the Opponent Insurance company. Therefore, we pass the following order.
ORDER :-
1. The appeal is allowed and the impugned order is set aside.
2. The complaint bearing No.CC/12/29 is allowed.
3. The Opponent is held guilty for deficiency in service.
4. The Opponent is directed to pay compensation of Rs.3 lac to the complainant along with interest @12% p.a. from 5/7/2009 till its realization.
5. The Opponent is also directed to pay compensation of Rs.50,000/- and cost of Rs.5000/- to the Complainant.
6. Copy of theis order be sent to both the parties by post.
