Madhya Pradesh High Court
Basant Kumar vs The United India Insurance Co. Ltd. And ... on 9 October, 2002
Equivalent citations: AIR2003MP203, 2003(3)ARBLR222(MP), 2003(2)MPHT5, AIR 2003 MADHYA PRADESH 203, 2003 (3) ARBI LR 222, (2003) 2 MPLJ 257, (2003) 3 ARBILR 222, (2003) 2 MPHT 5, (2003) 3 CIVLJ 613, (2003) 7 ALLINDCAS 836 (MP)
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. The question for consideration in the instant writ petition is whether after availing the remedy available under the Consumer Protection Act, 1986 and having obtained an order in his favour granting compensation, petitioner can have recourse to proceeding for arbitration as per arbitration clause in agreement, being dissatisfied with the amount granted by the District Consumer Forum.
2. Petitioner owns Mahendra Jeep 1995 Model which is insured with the respondent-United India Insurance Company Ltd.; claim was lodged by the petitioner with respect to the damage caused to the Jeep in an accident on 4-1-99; the surveyor assessed the net loss of Rs. 12,060/-; petitioner claimed the damage to the extent of Rs. 67,764/-. Complaint was filed before the District Consumer Forum which was resisted by the Insurance Company; the District Forum after considering the material on record and the fact that the chassis was not in a good condition which was the cause of the accident, hence the District Forum ordered to pay the labour charge of replacement of chassis of Rs. 12.060A and cost of new chassis of Rs. 28,440/-, in all Rs. 40,500/- with interest on the amount of Rs. 28,440/- at the rate of 12% p.a. from 18-5-99 and Rs. 1,000/- as costs of the proceedings.
3. An objection was raised by the Insurance Company that appropriate remedy for the complaint is to raise the dispute for adjudication of the Arbitrator in accordance with the terms and conditions of the policy. However, the Insurance Company deposited the amount as ordered by the District Consumer Forum. On reappraisal of evidence, the M.P. State Consumer Disputes Redressal Commission has come to the conclusion as per order (P-8), dated 19-4-2001 that the order passed by the District Forum does not call for any interference nor the enhancement of the amount is required. The direction was issued to deposit the interest as ordered by the District Forum.
4. After decision of appeal by State Consumer Dispute Redressal Commission, petitioner filed a suit for appointment of Arbitrator to claim further amount. The learned XIth Addl. District Judge, Jabalpur as per order (P-14), dated 2-5-2002 held that the application is not maintainable as the petitioner has availed the remedy under Consumer Protection Act, 1986 and compensation has been awarded by the District Forum/State Consumer Disputes Redressal Commission.
5. Learned Counsel for petitioner submits that as the objection was raised by the insurer before the District Forum and State Forum opposing the claim that petitioner has to raise the dispute for adjudication of the Arbitrator in accordance with the terms and conditions of the policy or to institute a civil suit, the impugned order (P-14) passed by learned Addl. District Judge is bad in law. Even otherwise the remedy of arbitration is available in spite of the fact that petitioner has availed the benefit of Consumer Protection Act and award has been passed.
6. Shri S.K. Rao, learned Counsel for respondents has placed reliance on a decision of the Apex Court in Fair Air Engineers Pvt. Ltd. and another v. N.K. Modi, AIR 1997 SC 533 to contend that now Arbitrator cannot be appointed; once decision is rendered under Consumer Protection Act, 1986.
7. The only question for consideration is whether after decision of dispute on merits under Consumer Protection Act and obtaining an award in favour, it is open to petitioner to fall back on arbitration clause and claim additional amount. In Fair Air Engineers Pvt. Ltd. and another v. N.K. Modi (supra) the Apex Court held that the Consumer Protection Act provides an additional forum though the remedy of Arbitration Act is initially available. In order to relieve the consumers of the cumbersome arbitration proceedings or civil action, the Act has been enacted and the Consumer Forum has jurisdiction to adjudicate on merit of claim in spite of availability of arbitration proceedings. The Apex Court held that matter need not be referred to the arbitration and the State Commission should decide it on merits.
8. In my opinion, once claim has been adjudicated on merit, it is not open to challenge that order by having recourse before Arbitrator. Though remedy of arbitration was available initially; that ought to have been availed without approaching Consumer Forum if petitioner so desired but after award has been passed on merits, an Arbitrator cannot sit over the order passed by the District Consumer Forum and State Consumer Redressal Commission.
9. Section 24 of the Consumer Protection Act, 1986, attaches finality to the orders of District Forum, State Commission or the National Commission if no appeal has been preferred against such an order under the provisions of this Act. It is not a case where lack of jurisdiction is alleged; petitioner has been benefited by the award made by the Consumer Forum; by enacting Section 23 any person if aggrieved by an order made by National Commission in exercise of its power conferred by Sub-clause (i) of Clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order. The intention of the Act is to make the order final as provided in Section 24 of the Act. Section 24 of the Act reads as under:--
"24. Finality of orders.-- Every order of a District Forum, State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final."
10. An Arbitrator cannot be allowed to sit over the order of the District Forum and State Commission particularly when the matter has been adjudicated on merits. In my opinion, considering the scheme of the Consumer Protection Act, petitioner cannot now avail the benefit of arbitration proceedings though initially it was open for him to choose the remedy before the Arbitrator. Once the matter has been entertained and decided by the District Forum; award has been passed, it is not open for the petitioner to claim further amount by having recourse to the arbitration clause in the agreement. The order passed under Consumer Protection Act is final.
11. The order passed by the Court below is just and proper and calls for no interference.
12. Resultantly, the writ petition is devoid of merit and is dismissed. Costs on parties.