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Judgment
THE appeal is against the order of the District Consumer Disputes Redressal Forum, Madurai, dated 4.5.93 in O.P. No. 268/92. THE Complainant is the Appellant.
THE Complainant borrowed Rs. 3,26,000/- from the Opposite Party No. 1 for the purpose of purchasing Cows. THE Purchasing Committee of the 2nd Opposite Party purchased 58 Cows and delivered them to the Complainant in various stages. All these animals were insured with the 3rd Opposite Party by the Bank. As misfortune would have it, all these 58 Cows died. THE case of the complainant is that the Bank and the 3rd Opposite Party have fixed a low value and the Bank has received the valued sum as compensation. He has, therefore, filed this complaint for various reliefs against all the Opposite Parties. The Opposite Parties 1 & 2 inter alia contended that the Bank has already filed a suit in the Court of Subordinate Judge, Madurai in O.S. No. 672/91 claiming a sum of Rs. 3,34,976.45 and the complaint filed subsequent it not maintainable. The Insurance Company contended that the claim has been settled.
The District Forum held that the matter has to be agitated before the Civil Court and dismissed the complaint. Hence this appeal.
IT is admitted on both hands that the Complainant has borrowed a sum of Rs. 3,26,000/- from the 1st Opposite Party and the 1st Opposite Party has filed a Suit on O.S. No. 672/91 on the file of the Court of Subordinate Judge, Madurai for the recovery of the loan with interest and compensation. The question as to the quantum of the amount due from the Complainant to the Bank is the subject matter of the suit, which has been filed prior to the filing of this complaint. IT has been repeatedly pointed out both by the National Commission as well as by this Commission that where the subject matter of the complaint is pending before the Civil Court, it is neither proper nor desirable for the Forum constituted under the Act to go into the matter. Hence, the claim made by the complainant against the Opposite Parties 1 & 2 is not maintainable before this Commission in view of the pendency of the Suit O.S. No, 672/91 and has rightly held so by the District Forum. It is then urged by the learned Counsel for the Appellant/Complainant that the claim against the insurer is maintainable, as the insurer is not a party in the civil suit The insurer has settled the claim with the Bank, which is the insured, at a sum of Rs. 55,454/-. The contention of the learned Counsel for the Insurance Company that there is no privity of contract between the Complainant and the Insured is not acceptable, because the Policy has been taken by the Bank for the benefit of the Complainant. The Complainant is, therefore, the beneficiary under this Policy and is a consumer so far as the 3rd Opposite Party Insurer is concerned. But, the further question is whether the settlement of the claim between the insurer and the Bank at Rs. 55,454/- is a bar to the maintainability of the complaint against the insured. Ex. B5 is the Policy of Insurance which contains a Bank clause. This clause specifically lays down, "that the receipts of the Bank shall be at complete discharge of the Company therefore and shall be binding on all parties". In view of this Bank clause the settlement of the claim by the Bank with the insured at a sum of Rs. 55,454/- will be a bar to the maintainability of this claim against the insurer. But, it is , however, open to the Complainant to contend that there has been collusion between the Bank and the insurer in the settlement of the claim and agitate the matter before the Civil Court in O.S. No. 672/91 by impleading the insurer as a party therein. On this ground also the claim against the insurer can not be maintained by the Forum in this Act.
IN the result, the appeal fails and is dismissed. No costs. Appeal dismissed.