Farooq Ahmad Parra vs Oriental Insurance Co. Ltd
2023 Latest Caselaw 1279 j&K/2

                                                                          Sr. No.



     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                    (Through Virtual Mode)

CJ Court

Case: OWP No. 385/2003
CM No. 5415/2022

Reserved on 13.07.2023
Pronounced on 07.10.2023


Farooq Ahmad Parra                                       .....Appellant/Petitioner(s)

                                  Through :- Mr. G. A. Lone, Advocate
                                             Mr. Mujeeb Andrabi, Advocate
                            v/s

Oriental Insurance Co. Ltd.                                       .....Respondent(s)

                                  Through :- Mr. N. H. Khuroo

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                   JUDGMENT

N.KOTISWAR SINGH-CJ

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 pettioner 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.

2 OWP 385 of 2003

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."

3 OWP 385 of 2003

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 petitoiner. 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 4 OWP 385 of 2003

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. 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.

5 OWP 385 of 2003

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. 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     OWP 385 of 2003


      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. 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 7 OWP 385 of 2003

basis of the accrued right in terms of the decree of the Court of Smalll 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. 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 8 OWP 385 of 2003

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. 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 9 OWP 385 of 2003

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. A decree of a

civil court is executable within 12 years of the passing of the decree. The 10 OWP 385 of 2003

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.

             ( JAVED IQBAL WANI)           (N. KOTISWAR SINGH)
                    JUDGE                        CHIEF JUSTICE


JAMMU
07.10.2023
BIR