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Judgment
FACTS of the case, stated in brief, are that :
THE complainant preferred his claim for recovery of a sum of Rs. 1,46,870.20 against the opposite parties alongwith 24% per annum interest. According to the complainant, his firm is registered in which Mr. Mahesh Chandra is also a partner. The complainant sent 130 bags of Arhar costing Rs. 1,08,030/- on 25.12.1990 from Mathura to Ranchi through the Transport Compny of opposite party No. 3. G.R. No. 2137 dated 25.12.1990 was issued to the complainant and delivery of the material was to be made at Ranchi. Till today the delivery has not been affected by opposite party No. 3 Gupta Freight Carriers.
On enquiry it came to the notice that some miscreants murdered the Driver and Cleaner of the Truck and took away the goods.
A certificate of non-delivery of the material was issued by opposite party No. 3 and informed that they are not responsible for the loss. A registered notice was also given to opposite party No. 3. The complainant had also got these goods insured from opposite party No. 1 National Insurance Company at Mathura. Claim was preferred with opposite party No. 2 on 25.12.1990. A report to the police was made on 23.1.1991.
THE opposite parties have not paid the amount so far and total loss of the complainant comes to Rs. 1,08,030/-. The case was contested by the opposite parties 1 and 2. National Insurance Company in its written statement has alleged that the complainant had sent, during the continuance of the policy, goods worth more that Rs. 15 lacs while the policy was only for Rs. 5 lacs. It was a Marine Insurance Open Policy which came into existence on 19.12.1989. In view of this, terms and conditions of the policy have been broken, therefore, thay are not liable to pay the amount.
IT has been further alleged that on similar grounds the complainant has filed a civil suit. During the course of investigation, the Surveyor in his report has said that non-delivery certificate dated 8.2.1991 was not issued by opposite party No. 3.
OPPOSITE party No. 3 did not file any written statement and hence the case was contested ex parte against them. We have heard the learned Counsel for the opposite party who was present. None was present on behalf of the complainant. The opposite party was directed to inform the complainant of the date fixed by registered post. A letter was sent by opposite party to the complainant on 24.4.1999 intimating date fixed. The complainant was also informed by S.P.S. but not appeared on the date of hearing.
The complainant has not filed any evidence on affidavit. Hence the complainant has not been able to prove his case.
MOREOVER on similar grounds, the complainant has filed a civil suit in the Court of Civil Judge, Sr. Division, Mathura, being the Suit No. 266/93. A copy of the complaint of that suit is on record. A perusal of case goes to show that contents of the civil suit are exactly the same as that of the complaint in the present case. MOREOVER a copy of the judgment delivered by the Court on 22.1.1998 is on record. This judgment was delivered by 1st Additional Civil Judge, Sr. Division, Mathura. The claim of the complainant for Rs. 1,50,000/- was decreed against opposite party Nos. 1 and 2. Thus in view of the fact, that remedy by the complainant has already been availed through an alternative mode and that civil suit, filed by the complainant, has already been decreed in his favour, therefore, this complaint does not be and is liable to be dismissed. Order
THE complaint is dismissed. The complainant shall pay Rs. 2,000/- as cost to the opposite parties. Let compliance be made within a period of two months.
LET copies be issued as per norms. Complaint dismissed with costs.