Prabha Tyagi vs National Insurance Co. Ltd

This revision petition has been filed by the petitioner Prabha Tyagi against the order dated 07.12.2016 of the State Consumer Disputes Redressal Commission, Uttarkhand, (in short 'the State Commission') passed in First Appeal No.215 of 2013.

Brief facts of the case are that the vehicle of the petitioner was insured with the opposite party for Rs.2,64,550/- from 12.6.2005 to 11.6.2006. Personal accident cover for Rs.2,00,000/- was also there. On 15.07.2005 vehicle met with an accident. Complainant filed CC No.58 of 2010 seeking Rs.1,00,000/- towards personal accident cover. The complaint was allowed by the District Forum vide order dated 20.09.2010. Then complainant filed CC No.243 of 2011 seeking balance of the personal accident cover and salvage value of the vehicle Rs.1,17,000/-. District Forum allowed the complaint vide its order dated 08.07.2013 and directed Insurance Company to pay the total amount of Rs.3,00,000/- to the complainant. State Commission allowed the appeal of the Insurance Company vide its order dated 07.12.2016.

Hence the present revision petition.

Heard the learned counsel for the petitioner at admission stage.

Learned counsel for the petitioner stated that earlier this fact was not known to the petitioner that the Personal Accident cover was for Rs.2,00,000/-. The petitioner was under a wrong impression that the policy was for only Rs.1,00,000/- and therefore, the earlier complaint was filed only for Rs.1,00,000/-. As per the policy, the petitioner is entitled to total amount of Rs.2,00,000/- under the Personal Accident cover and therefore, the present complaint was filed, which was allowed by the District Forum vide its order dated 08.07.2013. However, the State Commission has accepted the appeal of the Insurance Company and disallowed complaint on the ground of constructive res judicata and on the ground of limitation.

It was further argued by the learned counsel that res judicata will only operate when the claim is same between the parties, whereas in the present case, the claim is now for additional amount of Rs.1,00,000/- as Rs.1,00,000/- has already been paid by the Insurance Company as per the order dated 20.09.2010 of the District Forum passed in earlier complaint. To support his case learned counsel referred to the following judgements:-

(1) Allahabad Development Authority Vs. Nasiruzzaman & Ors., dated 02.09.1996 (Supreme Court). It has been held that:

"In view of the above ratio, it is seen that when the Legislature has directed to act in a particular manner and the failure to act results in a consequence, the question is whether the previous order operates as res judicata or estoppel as against the persons in dispute. When the previous decision was found to be erroneous on its face, this court held in the above judgment that it does not operate as res Judgment. We respectfully follow the ratio therein. The principle of estoppel or res Judgment does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be over-ridden or defeated by a previous judgment between the parties."

(2) Mahesh Chand Vs. B. Janardhan Reddy & Anr., Appeal (crl.) 1276 of 2002, decided on 04.12.2002, (SC). It has been held that:-

"Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Sec. 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar's case (supra) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."

The learned counsel further argued that execution of discharge voucher for settlement of earlier claim of Rs.1,00,000/- does not debar the complainant to pursue his remaining claim of Rs.1,00,000/- in a court of law like the consumer forum. In this regard, the learned counsel relied upon the following pronouncements:-

(1) Ramdas Sales Corporation Vs. New India Assurance Company Ltd., III (2016) CPJ 40 (NC). It has been held that:-

"3. The learned counsel for the complainant has placed before us a Circular No.IRDA/NL/CIR/Misc/173/09/2015 dated 24.09.2015 issued by Insurance Regulatory Development Authority of India (IRDA) to all the General Insurance Companies, with regard to the use of discharge vouchers in settlement of claim. The said circular reads as under:-

"The Insurance Companies are using 'discharge voucher' or "settlement intimation voucher" or in some other name, so that the claim is closed and does not remain outstanding in their books. However, of late, the Authority has been receiving complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policyholders extinguish their rights to contest the claim before the Courts.

While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurer shall not use the instrument of discharge voucher as a means of estoppel against the aggrieved policy holders when such policy holder approaches judicial fora.

Accordingly insurers are hereby advised as under:

Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts. However, it would be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law.

All insurers are directed to comply with the above instructions."

(2) United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors., II (1999) CPJ 10 (SC). It has been held that:-

"The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the Commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier. ............................."

I have carefully considered the arguments advanced by the learned counsel for the petitioner and have examined the material on record. First of all, the State Commission has clearly stated that the accident took place on 15.07.2005 and the complaint has been filed on 11.08.2011. The State Commission has held that complaint is clearly barred by limitation. During the argument, the learned counsel did not argue on the point of limitation. However, in the revision petition following ground has been taken:-

"16. For that the Hon'ble State Commission failed to appreciate that the present complaint has been filed subsequent to the disposal of earlier complaint No.58 of 2010, hence, the cause of action is still continuing and not barred by limitation, which has been filed on subsequent cause of action after gathering information under Right to Information Act."

The assertion that the cause of action is continuing cause cannot be accepted as the cause of action came to a close once the first complaint was filed. The complainant did not discover any new information under the RTI as the same contract of policy was there right from the very beginning. Hence, the contention of the petitioner cannot be accepted. I agree with the finding of the State Commission that the complaint is time barred.

So far as res judicata is concerned, it is clear that the cause of action in the earlier complaint and the present complaint is the same, which is relating to insurance claim for the damage to the vehicle and under the Personal Accident cover. The judgment of the Hon'ble Supreme Court in Allahabad Development Authority Vs. Nasiruzzaman & Ors.(supra) is related to change in law and any previous order in respect of some disputing parties shall not operate as resjudicata against any statutory provisions or prohibitions. In the present case, there is no change in law as the policy was the same and the law was the same. Therefore, this judgment is not attracted towards the present case. So far as the judgment of Hon'ble Supreme Court in Mahesh Chand Vs. B. Janardhan Reddy & Anr. (supra) is concerned, this is in respect of criminal matter and the judgment of a criminal case is not applicable in the matter of civil nature. Moreover, the complaint in a criminal case is filed under CrPC, whereas the present complaint is under the Consumer Protection Act, 1986. The nature of a criminal complaint and a common complaint is totally different. Thus, the observations in this judgment cannot be made applicable in the present case where the principle of res judicata is applicable.

Last two judgments of this Commission and judgment of Hon'ble Supreme Court Ramdas Sales Corporation Vs. New India Assurance Company Ltd.(supra) and United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. (supra) are related to the discharge voucher and in these judgments it has been held that inspite of signing of the discharge voucher the claim can be filed before a consumer forum. In the present case, the matter is related to the second complaint on the same cause of action. These judgments do not throw any light in respect of second complaint filed before a consumer forum. The only point that the petitioner wants to substantiate through these two judgments is that he wants to object to the finding of the State Commission that the petitioner does not have a case on merits as she has given a consent letter for accepting the claim. First of all discharge voucher is a different thing then the consent letter and if the discharge voucher is signed with consent letter then petitioner needs to show that the consent was obtained either by coercion and fraud or misrepresentation or the like. No such ground has been taken by the petitioner before the State Commission. Moreover, these judgments only authorize the insured to approach a judicial forum for redressal of his grievance even if discharge voucher has been executed. In the present case, the complainant has already availed the services of a consumer forum, hence benefit of these judgments has already been drawn by the complainant. These judgments do not throw any light on the aspect of second complaint.

Under Order II Rule 1 & 2 of the Code of Civil Procedure, 1908 the following is provided:-

"1. Frame of suit- Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."

From the above, it is clear that the complainant was required to include his whole claim in the original complaint itself. These rules are framed to prevent further litigation between the same parties. Thus, no ground is made out for filing another complaint on the same cause of action for pursuing part of the claim, which he had left in the first complaint.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 07.12.2016 of the State Commission which calls for any interference from this Commission. Accordingly, the RP No.568 of 2017 is dismissed at the admission stage.