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2023 DIGILAW 591 (JK)

Farooq Ahmad Parra v. Oriental Insurance Co. Ltd.

2023-10-07

JAVED IQBAL WANI, N.KOTISWAR SINGH

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JUDGMENT : N.KOTISWAR SINGH, J 1. The present petition has been preferred against the order dated 09.06.2003 passed by the J&K State Consumers Protection Commission, Srinagar in Appeal No. 51 of 2002, where the complaint filed by the petitioner before Divisional Consumers Protection Forum, Srinagar which granted relief to the petitioner was set aside as not maintainable. 2. The facts in brief as may be relevant for the purpose of this petition may be stated as follows: 3. The insured Truck of the petitioner purchased from another person, was totally damaged while travelling on the National Highway on 01.05.1984. The Insurance Company was, accordingly, informed about the loss of the vehicle and, as no action was taken by the Company, the petitioner served a notice and thereafter, file a suit for declaration and injunction in the Court of Judge, Small Causes, Srinagar which was decreed in his favour with the direction to the Insurance Company to make assessment of the loss of the insured vehicle. The Insurance Company preferred an appeal against the decree of the Court of Judge, Small Causes, which was dismissed in the year 1996. 4. The petitioner thereafter, approached the Divisional Consumers Protection Forum, Srinagar ( for short ‘Consumer Protection Forum’) seeking to enforce his claim based on the decree by filing the Case No. 79 of 2000 on 29.03.2000 which was resisted by the Company on the ground that the claim was time barred. 5. The Consumers Protection Forum, relying on the decision of the Hon’ble Supreme Court, reported in Lucknow Development Authority vs. M. K. Gupta, AIR 1994 SC 787 : (1994) 1 SCC 243 in which it was held that the provisions of the Consumer Protection Act, 1986 have to be construed liberally in favour of the consumers to achieve the beneficial purpose for which the statute had been enacted, held that it was not time barred. In Para 2 Supreme Court held as under:- “2. …………The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to the attempted objective of the enactment.” 6. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to the attempted objective of the enactment.” 6. The Consumers Protection Forum also took into consideration the submission that the valley was afflicted by militancy and because of the disturbed condition prevailing at the relevant time even if there was certain delay, the delay was not fatal. 7. The Consumers Protection Forum also noted that the Company did not deny the fact that the accident had occurred which led to the total damage of the vehicle. The Consumers Protection Forum also noted that the Company had failed to conduct the assessment of the damage as directed by the Court of Small Causes in terms of the decree, but the Company merely resisted the claim of the claimant on the ground of delay. 8. The other ground on which the Company opposed the claim was that though the vehicle was transferred by the original owner to the claimant/petitioner, since the insurance policy was still in the name of the original owner of the vehicle, the Insurance Company was not liable to pay any amount to the petitioner. This aspect was dealt with by the Consumers Protection Forum by holding that Insurance Company had issued a Circular under No. CHRO:MOT:JR:A:16:97 dated 19.11.1997 and the claimant can take the benefit of insurance taken by the original owner. 9. When the matter was pending before it, the Consumers Protection Forum vide its order dated 26.11.2001 directed the Insurance Company to assess the loss and submit the Final Survey Report, which was duly submitted by the Company. The Consumers Protection Forum thereafter considering that the vehicle had fallen in a deep gorge and could not be retrieved did not allow any deduction on account of damage value. The Consumers Protection Forum considering the fact that the insured vehicle was of 1981 model and the accident took place in 1984 after deducting 15% as depreciation, the loss was assessed to Rs. 1,70,000/- and interest at the rate of 12% per annum from the date of two years after the occurrence was also awarded. The Consumers Protection Forum also awarded a sum of Rs. 25,000/- due to the negligent act of the Insurance Company. 10. 1,70,000/- and interest at the rate of 12% per annum from the date of two years after the occurrence was also awarded. The Consumers Protection Forum also awarded a sum of Rs. 25,000/- due to the negligent act of the Insurance Company. 10. Being aggrieved by the aforesaid decision of the Consumers Protection Forum, the Insurance Company preferred an appeal before the J&K State Consumers Protection Commission, Srinagar, (for short the ‘Commission’) which was registered as Appeal No. 51 of 2002. 11. The Commission on the basis of the materials on record framed three issues, as follows: i) Whether the complaint filed before the Divisional Forum was not maintainable on the ground of res judicata? ii) Whether the complaint was barred by time, as it was filed up to 16 years of the occurrence? iii) Whether the complainant had no insurable interest as the vehicle was purchased by the claimant from the original order, in whose name the insurance stood? 12. As to whether the complaint made by the claimant before the Consumers Protection Forum was barred by res judicata, it was held that since the parties were same, the facts and issues were same before the Court of small causes and the Consumers Protection Forum and since the principle of res judicata is also applicable before the Consumers Protection Forum, the complaint filed by the claimant was clearly barred by res judicata. 13. The Commission on being satisfied that the claim made before the Consumers Protection Forum was barred by the principle of res judicata, allowed the appeal and held that the complaint before the Consumers Protection Forum was not maintainable and further held that the other two issues raised need not be considered, and, accordingly, allowed the appeal filed by the Insurance Company. Being aggrieved the claimant is before us challenging the said order of the Commission. 14. We have heard the learned counsel for the parties and perused the record. 15. Since the appeal preferred by the Insurance Company was allowed and the decision of the Consumers Protection Forum was nullified on the ground of res judicata, it would be necessary for us to first examine this issue about the applicability of the principle of res judicata in the present case. 16. 15. Since the appeal preferred by the Insurance Company was allowed and the decision of the Consumers Protection Forum was nullified on the ground of res judicata, it would be necessary for us to first examine this issue about the applicability of the principle of res judicata in the present case. 16. In support of the plea of the Insurance Company that the complainant before the Consumers Protection Forum was hit by the principle of res-judicata, the learned counsel for the respondent Insurance Company has relied on the following decisions: 1. Syed Mohd. Salie Labbai (Dead) by L.Rs and others Vs. Mohd Haniefa (Dead by L/Rs) and others, 1976 4 SCC 780 . 2. K. V. George vs. The Secretary to Govt. Water and Power Deptt. Trivandrum and another, 1998 4 SCC 595. 3. Vijayabai & Ors. Vs. Shriram Tukaram and others, 1999 (1) SCC 693 . 4. M/s Bharat Bareel and Drum Manufacturing Co. Pvt. Ltd. vs. Bharat Barrel Employees Union, 1987 (2 ) SCC 591. 5. Ishwardas vs. The State of M.P. and others, 1979 AIR (SC) 551. 6. Sri Bhavanarayana swamivari Temple vs, Vadapalli Venkata Bhavanarayana Charyulu, 1970 (1 )SCC 673. 17. In our view, the principle of res judicata will be applicable not only before the Court but also in a proceeding before the Tribunal i.e., the Consumers Protection Forum and as such, we may not re-examine the decisions cited. However, we have to examine as to whether in the facts and circumstances as revealed from the record whether the principle of res-judicata could have been invoked in the present case. In our view the principle of res judicata will not be applicable in the present case for the reasons discussed herein below 18. The claimant did not raise a fresh claim before the Consumers Protection Forum as a decree had been already passed in favour of the claimant by the Court of Small Causes and the Court of the Small Causes had already issued a direction to the insurance Company to make assessment of the damage sustained by the claimant within two months from the date of the decree, vide decree dated 22.08.1990. 19. The Insurance Company had filed an appeal against the aforesaid decree, but it was dismissed sometime in 1996, which fact has not been denied by the Insurance Company. 19. The Insurance Company had filed an appeal against the aforesaid decree, but it was dismissed sometime in 1996, which fact has not been denied by the Insurance Company. However, in spite of the dismissal of the appeal, the Company did not make any assessment of the damage in terms of the decree. In the meantime the Jammu and Kashmir Consumers Protection, Act 1997 came into operation which provided an efficacious mode of providing relief for deficiency of service and accordingly, the claimant instead of resorting to the mode of execution of a decree of a civil suit, available under the Civil Procedure Code, approached the Divisional Forum by invoking the provisions of the Consumers Protection Act seeking compensation from the Forum on the basis of the accrued right in terms of the decree of the Court of Small Causes. In our view, the approach by the petitioner to the Consumer Forum under the Consumers Protection, Act was not to reagitate his claim, but to enforce the accrued right for getting compensation under the insurance policy in terms of the decree in as much as the liability of the Insurance Company was already established by the decree and the Insurance Company did not deny any such liability before the Consumer Forum, but resisted the same only on the ground that the claim was belated. In fact, the Consumer Forum allowed the claim of the petitioner on the basis of the decree passed by the Court of Small Causes and the Consumer Forum also considered the fact that the Jammu and Kashmir Consumers Protection, Act came into existence in 1987 after the claimant invoked the Court of Small Causes seeking damages. 20. We are also the view that the claimant–petitioner could not have approached the Consumer Forum in 1984 when the accident took place, since the Consumers Protection Act came into existence only in 1987 after the accident had occurred for which the claimant had approached the Civil Court for redressal of his grievances. 21. As regards the issue of delay, even though the decree was passed in 1990, the same could not have been executed as the company had preferred an appeal against the said decree, which was dismissed only on 12.04.1996. Thereafter, the claimant approached the Consumer Forum on 29.03.2000, i.e., within 4 years, from the date the decree attained finality. 22. 21. As regards the issue of delay, even though the decree was passed in 1990, the same could not have been executed as the company had preferred an appeal against the said decree, which was dismissed only on 12.04.1996. Thereafter, the claimant approached the Consumer Forum on 29.03.2000, i.e., within 4 years, from the date the decree attained finality. 22. We have also noted that the Consumer Forum took into consideration the fact that at the relevant time, the valley was disturbed with militant activities which made life much difficult and as such, under these difficult circumstances, if there was certain delay in approaching the Consumer Forum for enforcement of his right and if the Consumer Forum held the complaint could be entertained in view of the beneficial statutory provisions of the consumer forum, we are of the opinion that such a view of the Divisional Forum can be said to be wholly illegal and not in accordance with law. 23. We also have noted that Consumer Forum had relied on a decision rendered in Lucknow Development Authority’s case (supra), and the Consumer Forum held that the State Commission has the power of condoning delay in entertaining a complaint, since the Act is a social oriented legislation and should be liberally construed in favour of the consumer. 24. In our opinion, the complaint filed by the petitioner before the Divisional Forum was to enforce his accrued right in terms of the decree passed by the Court of Small Causes, and in fact that is what the Divisional Forum also did, by relying on the decree of the Court of Small Causes. During its proceedings, the Forum directed vide order dated 26.11 2001 to make assessment of the damage and submit the final survey report, which was duly submitted by the Insurance Company. It is to be noted that it was a power which could have been exercised by an Executing Court for executing the decree of the Civil Court. The complainant could have resorted to the normal course available under the Civil Procedure Code for execution of the decree. However, instead, the complainant approached the Divisional Forum seeking compensation based on the decree of the Court of Small Causes. The complainant could have resorted to the normal course available under the Civil Procedure Code for execution of the decree. However, instead, the complainant approached the Divisional Forum seeking compensation based on the decree of the Court of Small Causes. Thus, we are of the view that since the complainant was not reagitating his claim for compensation based on the insurance, but was merely seeking to enforce the decree of the Court of Small Causes, Srinagar through the Divisional Forum, it cannot be said that the principle of res judicata will apply. The principle of res judicata will be applicable only when a claimant seeks to reagitate or reestablish a claim which has already been decided by the competent forum between the same parties. However, that is not so in the present case and invoking of the Divisional Forum by the complainant was not for reagitating his claim, but merely to carry forward and actualize the right which have been conferred by a decree by the Court of Small Causes. 25. For the aforesaid reasons we are unable to agree with the view taken by the Jammu and Kashmir Consumers Protection Commission that the claim made by the claimant before the Divisional Forum was not maintainable and, accordingly, the decision of the Jammu and Kashmir Consumers Protection Commission rendered on 09.06.2003 is liable to be set aside. 26. We are aware of the fact that the Commission did not decide the case on other grounds raised before it. There were other two issues raised as to whether the complaint was barred by time as it was filed after 16 years of the occurrence, and that the complainant had no insurable interest as the vehicle was purchased by the complainant from the original owner, in whose name the insurance stood at the time of occurrence of the accident. 27. As regards the issue of the claim being timed barred, we are of the view that the same cannot be accepted under the facts and circumstances of the case. The accident occurred in 1984 and the complainant approached the Civil Court in 1985. Thus, the claim was within time. The claimant obtained the decree in 1990 and thereafter, an appeal was preferred against a said decree by the Insurance Company which was dismissed in the year 1996. The accident occurred in 1984 and the complainant approached the Civil Court in 1985. Thus, the claim was within time. The claimant obtained the decree in 1990 and thereafter, an appeal was preferred against a said decree by the Insurance Company which was dismissed in the year 1996. A decree of a civil court is executable within 12 years of the passing of the decree. The purpose for which the petitioner approached the Divisional Forum was primarily for enforcement and execution of the decree passed by the Court of Small Causes, Srinagar. Thus, in our view the complaint filed by the petitioner before the Divisional Consumers Protection Forum was not barred by time. 28. As far as the other issue is concerned that the complainant had no insurable interest in the Insurance Policy, the Insurance Company cannot raise this issue as the Company would be barred by the principle of res-judicata to raise this issue, after the Civil Court had passed a decree in favour of the claimant and the decree stood affirmed after the appeal against it was dismissed. Thus, it would not be open to the Insurance Company to raise this issue at this stage. 29. Accordingly, for the reasons discussed above, we allow this petition by setting aside the order dated 09.06.2003 passed by the J&K Consumer Protection Commission passed in the Appeal No. 51 of 2002, and uphold the decision of the Divisional Consumers Protection Forum dated 19.04.2002 passed in Case No. 79 of 2000 and direct the Insurance Company to comply with the decision of the Divisional Consumer Protection Forum and pay the amount to the petitioner, so ordered by the Divisional Consumers Protection Forum.