National Consumer Disputes Redressal
M/S. Nitin Printers vs National Insurance Co. Ltd. & Anr. on 13 July, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 505 OF 2017 (Against the Order dated 25/10/2016 in Appeal No. 2715/2012 of the State Commission Uttar Pradesh) 1. M/S. NITIN PRINTERS THROUGH ITS PROPRIETOR SHRI SURESH KUMAR S/O. SHRI VISHNU, R/O. CHIPIWADA PILAKHUA GHAZIABAD UTTAR PRADESH ...........Petitioner(s) Versus 1. NATIONAL INSURANCE CO. LTD. & ANR. THROUGH ITS MANAGER, REGIONAL OFFICE HAZRATGANJ LUCKNOW UTTAR PRADESH 2. STATE BANK OF INDIA THROUGH ITS BRANCH MANAGER, PILAKHUA GHAZIABAD UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Ms. Rashmi Priya, Advocate For the Respondent : For the Respondent no.1: Ms. Sonia Sharma, Advocate
For the Respondent no.2: Ex parte
Dated : 13 Jul 2020 ORDER
This petitioner M/s. Nitin Printers has challenged the order dated 25.10.2016 of the State Consumer Disputes Redressal Commission, Uttar Pradesh (in short 'the State Commission') passed in First Appeal No.2715/2012 by way of present revision petition.
2. Brief facts of the case are that the complainant/petitioner herein is running a cloth shop under the name and style of M/s. Nitin Printers. For the said shop, complainant took a loan of Rs.2 lakhs from the SBI, Pilakhua, Dist. Ghaziabad and also took an Insurance Policy, through SBI, for the said shop from OP-1/respondent no.1 herein with following details.
Policy no.
Policy period Total sum insured 2001/7501225 30.01.2002 to 01.08.2002 Rs.3.50 lakhs
3. On 08.02.2002 in the midnight, theft has taken place in the insured shop and the complainant has suffered the loss to the tune of Rs.2,78,403/-. On 13.02.2002, FIR has been lodged and the matter was reported to the bank. On 20.02.2002, police has submitted its final investigation report, which has been accepted by the Magistrate. On 26.09.2002, the OP/respondent has sent a letter to the complainant approving the claim amount of Rs.41,377/-. The complainant has initially filed a CC/197/2003 which has been dismissed in default on 25.04.2004 and the application seeking restoration of the complaint was also dismissed vide order dated 07.08.2006. Thereafter, the complainant has filed another CC/253/2012 before the District Forum Ghaziabad against the OPs seeking direction against the OP-1 to pay Rs.2,78,403 with interest @ 18% p.a. w.e.f. 08.02.2002 in favour of SBI + restraining the bank from initiating any recovery proceedings against the complainant + award of Rs.10,000/- for mental agony and legal costs. The consumer complaint was allowed vide its order dated 10.10.2012.
4. Aggrieved with the above order of the District Forum, the opposite party/respondent filed an appeal before the State Commission, which was allowed vide its order dated 25.10.2016.
5. Hence the present revision petition.
6. Heard the learned counsel for the petitioner as well as for respondent no.1. Respondent no.2 was proceeded ex-parte vide order dated 27.09.2018.
7. Learned counsel for the petitioner stated that State Commission has treated the second complaint as review before the District Forum and have relied upon the judgment of the Hon'ble Supreme Court in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr., Civil Appeal No.4307 of 2007, decided on 19.08.2011. The fact is that the first complaint was dismissed in default on 25.4.2004. The complainant filed a restoration before the District Forum and the same was also dismissed on 07.08.2006, therefore, the complainant filed the second complaint on 17.08.2006. The earlier number given to the complaint was 213 of 2006, however, the complaint was renumbered as complaint no.253 of 2012. The District Forum directed the opposite party Insurance Company to pay an amount of Rs.2,25,000/- instead of Rs.2,78,403/- along with interest @8% p.a. along with a sum of Rs.1000/- as litigation cost. The same shall be paid by the Insurance Company within a period of 30 days. The State Commission has not relied upon the judgment of the Hon'ble Supreme Court in Indian Machinery Company Vs. Ansal Housing & Construction Ltd., Civil Appeal No.557 of 2016, decided on 27.01.2016. In this judgment the Hon'ble Supreme Court has clearly held that a second complaint where the first complaint has been dismissed in default, is maintainable and Order IX Rule 1 CPC is not applicable in the cases under Consumer Protection Act, 1986. The Hon'ble Supreme Court in its another judgment "New India Assurance Co. Ltd. Vs. R.Srinivasan, Appeal (Civil) 11439 of 1996, decided on 28.2.2000 has also held that second complaint may be maintainable in case the first complaint has been dismissed as the substantive complaint cannot be denied on technicality. The State Commission has relied on the judgment of the Hon'ble Supreme Court in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr. (supra), which is mainly in respect of restrictions on the District Forum as well as on the State Commission that they cannot review their own orders. The question of second complaint has not been discussed in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr. (supra).
8. Learned counsel for the petitioner further argued that the District Forum has not accepted the report of the surveyor and has allowed the claim of Rs.2,25,000/-. It was requested to set aside the order of the State Commission and upheld the order of the District Forum.
9. On the other hand, learned counsel for the respondent Insurance Company stated that the State Commission has rightly observed that the order of dismissal of the first complaint dated 25.4.2004 has become final as no appeal has been preferred against that order. The passing of the final order in the second complaint by the District Forum is nothing but review of earlier order passed in the first complaint and therefore, the judgment of the Honble Supreme Court in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr. (supra) is fully applicable in the present case. It was also argued that the surveyor has assessed the claim for Rs.41,377/- and nothing more than this amount could have been given to the complainant. The surveyors are appointed under the provisions of Insurance Act, 1938 and their report forms the basis of settlement of the insurance claim. The District Forum has not clearly stated as to what are the shortcomings in the surveyor's report. The District Forum has tried to assess the loss themselves which is not the role of the District Forum.
10. I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. The issue of second complaint has been settled by the Hon'ble Supreme Court by their order in Indian Machinery Company Vs. Ansal Housing & Construction Ltd., (supra), wherein the Apex Court has relied on their earlier judgment in New India Assurance Co. Ltd. Vs. R.Srinivasan, (supra), where it has been held that a second complaint may be maintainable if the first complaint has been dismissed in default. When a complaint has been dismissed in default, clearly no issue between the parties has been adjudicated and therefore, the question of res judicata does not arise and consequently the second complaint may be maintainable for deciding the issue between the parties. Clearly, the judgment of the Hon'ble Supreme Court in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr. (supra) is in respect of the power of review and it has been held that the District Forums and the State Commissions do not have power of review of their own orders as this power has been given to the National Commission vide Section 22(2) of the Consumer Protection Act, 1986. The order passed by the District Forum in the second complaint cannot be considered as a review order and therefore, the judgment of the Hon'ble Supreme Court in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr. (supra) does not seem to be applicable in the facts of the present case.
11. It is true that the second complaint is maintainable if the first complaint has been dismissed in default, but the second complaint is also to be treated as fresh complaint filed under Consumer Protection Act, 1986 in respect of question of limitation which becomes important. The complainant in his complaint has stated that in the light of the decision of the Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. R.Srinivasan, (supra) where the Hon'ble Supreme Court has held that for substantive justice technicality is not to be seen and the complainant has requested for condonation of delay in the light of this judgment. The use of the word 'technicality' in that judgment is in respect of filing of the second complaint and it is not in respect of limitation or any other shortcoming in the complaint. As the reason for delay is clear in the present case and it has been requested to condone the delay, in the light of the fact that the second complaint has been held to be maintainable in such cases, I deem it appropriate to condone the delay in filing the present complaint.
12. As the matter relates to an incident in the year 2002 and the claim has not yet been settled, I do not see any point for remitting the matter back to the State Commission for deciding the appeal afresh. The petitioner/complainant has not filed the copy of the surveyor's report and therefore, it is not possible to examine the report of the surveyor in the light of the order of the District Forum. Therefore, I deem it appropriate to allow the insurance claim of the complainant on the basis of the report of the surveyor. Otherwise also, a report of the surveyor is an important document and there should be cogent reason to discard the same as held by the Hon'ble Supreme Court in Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, as under:-
"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.
32. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report."
13. Thus, I do not find any reason for not accepting the report of the surveyor and the complaint can be allowed only on the basis of the report of the surveyor. Thus, revision petition no.505 of 2017 is allowed and the respondent No.1/opposite party National Insurance Company Limited is directed to pay Rs.41,377/- (rupees forty one thousand three hundred seventy seven only) along with interest @ 6% p.a. from the date of filing of the second complaint i.e. 17.8.2006 for settlement of the insurance claim to the petitioner/complainant. The cost of litigation of Rs.10,000/- be also paid by the Insurance Company to the petitioner/complainant. The order be complied within a period of 45 days from the date of receipt of the order.
...................... PREM NARAIN PRESIDING MEMBER