State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs M/S Batra Agro Industries on 12 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1.First Appeal No.518 of 2017 Date of institution : 04.07.2017 Date of decision : 12.07.2017
1. United India Insurance Company Ltd., G.T. Road, Near New Bus Stand, Khanna, District Ludhiana through its Branch Manager.
2. United India Insurance Company Ltd., Feroze Gandhi Market, Ludhiana through its Regional Manager.
Appellants' no.1 and 2 are now represented through the duly authorized signatory of Regional Office, 136, Feroze Gandhi Market, Ludhiana.
......Appellants/Opposite Parties Versus M/s Batra Agro Industries, Village Shahpur, Tehsil Amloh, District Fatehgarh Sahib through its partner. Sh. Madan Lal.
......Respondent/Complainant
2. First Appeal No.519 of 2017 Date of institution : 04.07.2017 Date of decision : 12.07.2017
1. United India Insurance Company Ltd., G.T. Road, Near New Bus Stand, Khanna, District Ludhiana through its Branch Manager.
2. United India Insurance Company Ltd., Feroze Gandhi Market, Ludhiana through its Regional Manager.
Appellants' no.1 and 2 are now represented through the duly authorized signatory of Regional Office, 136, Feroze Gandhi Market, Ludhiana.
......Appellants/Opposite Parties Versus First Appeal No.518 of 2017 2 M/s Batra Enterprises, Tehsil Khanna, District Ludhiana through its Partner, Shri Madan Lal.
......Respondent/Complainant First Appeal against the orders dated 15.5.2017 of the District Consumer Disputes Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the appellants : Shri Nitin Gupta, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
Both the above mentioned First Appeals are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these appeals. The facts are being taken from First Appeal No.518 of 2017.
2. The instant First Appeal (FA No.518 of 2017) has been preferred by the appellants/opposite parties against the order dated 15.5.2017 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short, "District Forum"), vide which the complaint filed by the respondent-firm under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") was allowed in terms that the opposite parties will pay the balance amount of ₹1,32,575/- to the complainant within 30 days from the date of receipt of copy of this order along with interest @ 8% per annum from the date of complaint i.e. 9.6.2015 till payment. Compensation of ₹20,000/- for mental harassment and agony and litigation expenses of ₹10,000/- First Appeal No.518 of 2017 3
were also allowed in favour of the complainant-firm and against the opposite parties.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of Complaint:
4. Brief facts, as averred in the complaint, are that the complainant is a partnership firm owned by Hindu Joint Family. They used to collect the cash of their firm in the office of Batra Motors for business requirement. The complainant purchased insurance policy bearing No.200600/48/09/07/00000199 from the opposite parties, which was valid from 19.9.2009 to 18.9.2010 for the sums insured of ₹2,00,000/-. On 24.5.2010 Madan Lal, Partner of the complainant-firm reached in the office situated at Samrala Chowk in routine at about 5.15 A.M. In the meantime, one Raj Kumar, along with bag containing cash of ₹2,25,000/- belonging to Batra Enterprises, sister concern of the complainant-firm, also reached there. Madan Lal, partner of the complainant-firm, handed over the keys to Raj Kumar, who after opening the office put the bag containing cash on the table of the office. Thereafter Madan Lal opened the safe lying in the office and took out ₹4,50,000/- and also placed the same on the table. Out of this total amount, ₹2,50,000/- belonged to Batra Enterprises and ₹2,00,000/- belonged to Batra Agro Industries. In this manner there was a total cash of ₹6,75,000/- on the table of the office of the complainant-firm at that particular time. Madan Lal, partner of the complainant-firm, started counting the cash to hand over the same to the persons as per requirement. First Appeal No.518 of 2017 4 In the meanwhile, three unidentified clean shaven persons having revolvers in their hands entered the office and attacked Madan Lal and Raj Kumar. They gave beatings to both Madan Lal and Raj Kumar and took away the cash of ₹6,75,000/- in black bag. Both Madan Lal and Raj Kumar received multiple injuries and they were taken to Civil Hospital, Khanna for treatment. FIR No.132 dated 24.5.2010 was lodged by Madan Lal in PS-City, Khanna. The opposite parties were informed about the incident. The complainant after completing all the required formalities submitted its claim but the opposite parties repudiated the same, vide letter dated 20.7.2010, Annexure A-5. Aggrieved against the repudiation, the complainant filed Consumer Complaint No.689 of 2011 before the District Forum, which was decided on 31.5.2012 and the opposite parties were directed to re-consider the claim of the complainant. The opposite parties again repudiated the claim, vide letter dated 27.9.2012, Annexure A-8. The complainant again filed Consumer Complaint No.359 of 2013 which was decided by the District Forum on 26.12.2014 directing the opposite parties to consider the claim of the complainant-firm as per the terms and conditions of the insurance policy within 30 days. The opposite parties were also directed to pay compensation of ₹12,000/- and litigation expenses of ₹5,000/-. However, this time the opposite parties settled the claim by paying ₹67,425/-, whereas the total liability as per the Policy was ₹2,00,000/-. Thereafter the third complaint; namely, CC No.371 of 2015 was filed by the complainant-firm out of which the present appeal arises. The District Forum directed the opposite parties to First Appeal No.518 of 2017 5 pay the remaining amount i.e. ₹2,00,000/- minus ₹67,425/- along with interest @ 8% per annum. The District Forum also directed the opposite parties to pay ₹20,000/-, as compensation and ₹10,000/-, as litigation expenses.
Defence of the Opposite Parties:
5. The opposite parties in their joint reply took preliminary objections that the complaint is not maintainable. The complaint is bad for misjoinder and non-joinder of necessary parties. The same is barred by limitation and the principle of res judicata applies. The complainant cannot file repeated complaints before the District Forum and he should have availed the remedy by way of filing execution. The matter cannot be decided in the summary proceedings in view of the involvement of intricate questions of law and facts. It is averred that the claim of the complainant was found payable to the extent of ₹50,425/- and by adding the amount of ₹12,000/- as compensation and ₹5,000/- as litigation expenses, cheque of ₹67,425/- bearing No.878821 dated 24.2.2015 drawn on HDFC Bank Ltd., Khanna was prepared and deposited in the District Forum, vide receipt dated 26.2.2015. After receipt of intimation regarding the alleged loss, N. Kumar, Surveyor Pvt. Ltd. was deputed by the opposite parties for assessing the loss. That Surveyor visited the spot and submitted the detailed survey report dated 25.6.2010 disclosing therein that cash looting incident does not fall under any peril of the policy and that is why insurer was considered not liable for indemnifying the insured. It is further First Appeal No.518 of 2017 6 averred that the opposite parties found that cash on counter is not covered under the policy and that robbery did not take place during normal working hours because it was 5.00 A.M. In view of loss falling outside the purview of the terms and conditions of the Policy, earlier claim of the complainant was repudiated, vide letter dated 20.7.2010. It is claimed that Surveyor after considering all aspects assessed the loss at ₹50,425/- but assessed the liability of the opposite parties as 'Nil' but that action was challenged through earlier complaint No.689 of 2011. Denying all other averments a prayer for dismissal of the complaint has been made.
Finding of the District Forum:
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence, this appeal.
7. I have heard learned counsel for the parties and have carefully gone through the records of the case.
Contentions of the appellants/opposite parties:
8. Learned counsel for the appellants/opposite parties has vehemently argued that the complainant had earlier filed complaints and in pursuance of the order dated 26.12.2014 passed by the District Forum in Consumer Complaint No.359 of 2013 the appellants-opposite parties deposited cheque No.878821 dated 24.2.2015 drawn on HDFC Bank Ltd., Khanna, for a sum of ₹67,425/- i.e. ₹50,425/-, as assessed loss + ₹12,000/-, as compensation + ₹5,000/-, as litigation expenses in the District First Appeal No.518 of 2017 7 Forum. Learned counsel has further argued that as per the books of accounts, the total cash held by the complainant-firm at the close of business hours immediately prior to the incidence was ₹7,93,251/-, whereas the insurance cover was obtained only to the extent of ₹2,00,000/-, which is under-insurance. Hence the opposite parties rightly applied average clause and made proportionate deduction on account of under-insurance and assessed the net adjusted loss at ₹50,425/- and the same has been deposited as stated above.
Moreover, since repeated complaints have been filed by the complainant, therefore, the principle of res judicata applies in the present case. It has been prayed that the present appeal be accepted and the impugned order dated 15.5.2017 be set aside. Consideration of Contentions:
9. I have given thoughtful consideration to the contentions raised by the learned counsel for the appellants/opposite parties.
10. Firstly it would be appropriate to deal with the issue of application of principle of res judicata in this case. It is to be seen whether the principle of res judicata applies to the summary proceedings under the C.P. Act. It is an admitted fact that the proceedings under the C.P. Act are summary in nature and the complaints have been filed by the complainant in view of the fact that the opposite parties failed to decide the insurance claim as per the terms and conditions of the insurance policies in question. When the complainant filed first complaint (CC No.689 of 2011), a direction was issued to re-consider and reassess the claim in view of the terms and conditions of the impugned policy, vide order dated First Appeal No.518 of 2017 8 31.5.2012. Again the claim of the complainant was rejected by the opposite parties, vide repudiation letter dated 27.9.2012 and against that the complainant filed another complaint (CC No.359 of 2013), which was allowed, vide order dated 26.12.2014. The repudiation letter was set aside and the opposite parties were directed to settle and pay the claim of the complainant as per the terms and conditions of the insurance policy after considering the insured value of the insurance policy. In-spite of the aforesaid order passed by the District Forum, the complainant-firm was paid only ₹67,425/- against the total insured value of ₹2,00,000/-. For that reason the complainant has filed the present (third) complaint i.e. CC No.371 of 2015 for the issuance of directions to the opposite parties to pay the remaining payable amount along with ₹1,00,000/-, as compensation for unnecessary harassment and ₹22,000/-, as litigation expenses.
A perusal of the above facts reveals that the cause of action was separate cause of action at the time of filing of each complaint.
11. Now the question arises whether the principle of res judicata is applicable or not? This issue is no more res integra. Hon'ble Supreme Court in "INDER SINGH AND ANOTHER v. THE FINANCIAL COMMISSIONER, PUNJAB AND OTHERS" 1997 (1) PLJ 52 was pleased to hold that doctrine of res judicata is not applicable to summary proceedings unless the statute expressly applies to such orders. One of the contentions raised before their Lordships in this case was in regard to maintainability of second application under the Pepsu Tenancy and Agricultural Lands Act by the tenant for proprietary rights, after dismissal of first application. It First Appeal No.518 of 2017 9 was contended therein that since the proceedings before the Authorities are of summary nature, the doctrine of res judicata has no application. Their Lordships of the Supreme Court finding force in the contention, held that it is not in dispute that the order passed by the Authorities is without any elaborate trial like in a suit but in a summary manner. It is well-settled law that the doctrine of res judicata envisaged in Section 11 of the Code of Civil Procedure has no application to summary proceedings unless the statute expressly applies to such orders. The authorities are not Civil Court nor the petition a plaint. No issues are framed nor tried as a civil suit. Similarly a Division Bench of Punjab and Haryana High Court in "GRAM PANCHAYAT SUREWALA v. COMMISSIONER, FEROZEPUR AND OTHERS" 1998 (1) PLJ 240 has also taken the same view.
12. Admittedly the proceedings under the C.P. Act are summary in nature and there is no provision for applicability of the doctrine of res judicata as well as the other provisions of the CPC except mentioned in Section 13 of the C.P. Act. In this view of the matter I am of the considered view that the present complaint is very much maintainable.
13. Another contention of the learned counsel for the appellants/opposite parties was that when the incident took place an amount of ₹6,75,000/- was taken away and since there was more amount than the insured amount in the office of the complainant- firm, therefore, the insurance policy taken by the complainant-firm was underinsurance. As such, the opposite parties have rightly First Appeal No.518 of 2017 10 applied average clause and made proportionate deduction on account of under-insurance and assessed the net adjusted loss at ₹50,425/-. Be that as it may, the liability of the Insurance Company is to compensate only to the extent of the amount insured as per the terms and conditions of the Policy. Admittedly the insurance policy was taken by the complainant-firm in the sum of ₹2,00,000/-. Therefore, the liability of the Insurance Company is limited to ₹2,00,000/- in-spite of the fact that there may be loss of more amount. District Forum has rightly fixed the liability of the opposite parties in para no.10 of the impugned order and I do not find any illegality or infirmity in the same.
14. In view of my above discussion, I do not find any merit in the present appeal (FA No.518 of 2017) and dismiss the same in limine.
15. The appellants had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant-firm may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard. FA No.519 of 2017:
16. In this complaint, the number of the policy was different i.e. 200600/48/09/07/00000199 valid from 19.9.2009 to 18.9.2010, however, the same was also for the sum insured of ₹2,00,000/-. Incident was the same. The Surveyor was appointed by the opposite parties and the claim was repudiated. The complainant- First Appeal No.518 of 2017 11 firm filed CC No.688 of 2011, which was decided by the District Forum on 31.5.2012 directing the opposite parties to reconsider the claim of the complainant. After reconsideration the opposite parties again repudiated the claim, vide letter dated 27.9.2012. That repudiation was also challenged by the complainant-firm by filing CC No.309 of 2013 and the same was decided by the District Forum, vide order dated 26.12.2014 directing the opposite parties to consider the claim of the complainant-firm as per terms and conditions of the insurance policy and to pay ₹22,000/- as compensation for mental pain, agony and harassment and ₹5,000/- as litigation expenses. However, the opposite parties settled the claim at ₹1,26,620/- despite the fact that they were liable to pay ₹2,00,000/-, as insured sum. Thereafter the present (third) complaint (CC No.373 of 2015) was filed for payment of remaining claim amount after adjusting the amount of ₹1,26,620/- along with ₹1,00,000/- as compensation for mental agony and harassment and ₹22,000/- as litigation expenses. The opposite parties took the same stand as has been taken in the above appeal and the learned counsel for the appellants/opposite parties argued on the same lines.
18. In view of my above discussion held in FA No.518 of 2017, this appeal (FA No.519 of 2017) is also dismissed in limine.
19. The appellants had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant-firm may approach the First Appeal No.518 of 2017 12 District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 12, 2017 Bansal