First Appeal No. 257 of 2017 has been filed by the appellant National Insurance Co. Ltd. and First Appeal No. 736 of 2017 has been filed by the appellant Bhowmik Studio & Colour Lab & Anr. against the same order dated 26.10.2016 of the State Consumer Disputes Redressal Commission, West Bengal, (in short ‘the State Commission’) passed in Complaint Case No. CC/201/2014.
2. Complainant bought a fire policy & burglary policy bearing No. 153901/11.5.3100000916 from opposite party/ Insurance Company for insurance coverage of Rs. 50,55,000 for the period from 10.1.2006 to 9.1.2007 and the entire stocks in trade of complainant was hypothecated to opposite party No. 2/Bank. On midnight of 11.1.2006, fire broke out in the insured colour lab due to which machineries, furniture and other equipments were burnt. The incident of fire was duly informed to the police station and also to opposite party No. 2 vide letter dated 12.1.2006 and therefore Sr. Manager of opposite party No. 2 issued a report dated 17.1.2006 with a request to opposite party No. 1 to consider the claim of the complainant. Opposite party No. 1 appointed the surveyor Sri S. N. Mittra who vide letter dated 17.1.2006 asked complainant to supply the documents as per the list as contained in the letter. Complainant supplied all the documents to surveyor vide letter dated 6.2.2006. Opposite party No. 1 vide letter dated 18.2.2008 repudiated the claim of complainant finding discrepancies in the documents. In 2008, complainant filed first consumer complaint CC/8/2008 before State commission, in which State Commission vide order dated 15.12.2009 directed opposite parties to pay the amount of loss sustained by the complainant. Opposite parties made a payment of Rs. 10,05,030 on 11.10.2010 which was accepted by the complainant on 17.10.2010 under protest as part payment. In 2011, Complainant filed second consumer complaint CCS/3/2011 before state Commission, in which State Commission vide order dated 5.10.2012 observed that there was no proper explanation for payment of Rs. 10,05,030 and accordingly directed opposite parties to reassess the claim and settle it within 1 month. However, till 22.4.2013, opposite parties remained silent and therefore, finding no other alternative, the Complainant moved execution case 5/2013 seeking payment of Rs. 7,77,800.76 together with interest and penalty. Matter was heard on contest. It was later learnt that opposite parties already deposited the said amount to the bank behind the back of the Complainant on 26.6.2013. Therefore, vide order dated 6.3.2014, State Commission disposed of the execution case with the observation that the Insurance Company has fully and finally satisfied the claim, but no order was passed for awarding interest and compensation. Being dissatisfied with the order passed by State Commission, Complainant filed an execution appeal before this Commission on 9.4.2014 as EA No. 3 of 2014. On 29.4.2014, the Complainant moved an application for withdrawal of the said appeal seeking permission to file fresh complaint for compensation and interest which was allowed by this Commission. In 2014, complainant filed another complaint CC/201/2014 for interest and compensation before State Commission, in which State Commission vide order dated 26.10.2016 allowed the complaint in part against opposite party No. 1 and directed opposite party No. 1 to pay interest @ 9% p.a. over Rs. 17,82,831 for the period from 12.1.2006 to 26.6.2013. In 2016, opposite parties filed an application for correction of the impugned order of State Commission with respect to the accrued interest to the tune of Rs. 23,84,584 upon the loss assessed of Rs. 17,82,831 as State Commission directed to pay interest upon the entire amount even for the period during which there was no default in paying part of principal amount based upon the assessment done by the surveyor. State Commission vide order dated 20.12.2016 dismissed the MA on the ground that the State Commission has no power to review its own judgement.
3. Aggrieved with the order of the State Commission, the opposite party No. 1 National Insurance Company preferred an appeal No. 257 of 2017 before this Commission. Similarly the complainant Bhowmik Studio & Colour Lab & Anr., also preferred an appeal bearing No. 736 of 2017 before this Commission.
4. Heard the learned Counsel for both the parties and examined the record. Learned Counsel for the National Insurance Company stated that if the complainant was aggrieved of the order of the State Commission, it should have filed the appeal for getting interest on the compensation amount, however, the complainant withdrew the appeal for the reasons best known to it and asked liberty to file a consumer complaint. Though this Commission has granted liberty to file the consumer complaint for interest and compensation, however, the complaint has to be dealt with under the provisions of the Consumer Protection Act, 1986 and its maintainability can still be seen. Learned Counsel argued that as per Order II Rules 1 and 2, the complainant was required to put in all the claims in the complaint and if it does not put all the claims in the complaint, it will be presumed that it has forgone the claim not mentioned in the complaint. Thus, his claim for interest on the awarded amount stands waived off and the same cannot be claimed by filing another complaint.
5. It was further stated by the learned Counsel for the National Insurance Company that the State Commission has granted a very high rate of interest @9% p.a. on the amount from 12.1.2006 to 26.6.2013.
6. Learned Counsel further argued that out of total liability of Rs. 17,82,831, a sum of Rs. 10,05,030 was paid much earlier on 11.10.2010 by opposite parties. Therefore, opposite parties could not have been made liable to pay interest upon Rs. 10,05,030 for the period from 11.10.2010 to 26.6.2013 as there was no default in paying the said amount on the part of the opposite parties.
7. On the other hand, learned Counsel for the respondent/complainant stated that in the first complaint the Insurance Company did not pay the total amount as assessed by the surveyor and therefore, the second complaint was filed for getting the total amount. Though the total amount has been paid by the Insurance Company, however, no interest has been paid by the Insurance Company for delay in making the payment. The matter was taken up in the Execution Appeal against the order dated 6.3.2014 passed by the State Commission, however, the appeal was withdrawn and this Commission granted liberty to file another complaint in respect of interest and compensation. The State Commission has rightly allowed 9% p.a. interest on the insurance amount paid by the Insurance Company.
8. I have carefully considered the arguments advanced by the learned Counsel for the parties and have examined the record. The complainant is supposed to put all his grievances in the complaint as per Order 1 Rule 2, which is quoted below:
“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.
2. 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.
(2) Relinquishment of part of claim—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”
9. From the above, it is clear that if complainant is entitled to leave the part claim and if that claim is left at the time of filing of the complaint, the same cannot be raised subsequently. In the present case, complainant has earlier filed two complaints being 8 of 2008 and 3 of 2011. It seems that issue of interest was not raised in those complaints and that is why the complainant has filed the present complaint raising the claim of interest and compensation. As per Order 1 Rule 2 it cannot be raised as the same was not raised in the earlier complaints. The old complaints are not filed in the present case file. Even if the claim of interest was made in the earlier complaints also, the fact is that the State Commission has not allowed the interest on the insurance amount to be paid by the Insurance Company. There is no contract in the insurance policy for paying interest. In such cases, it is the discretion of the consumer Forum to allow a particular rate of interest as held by the Hon’ble Supreme Court in New India Assurance Company Ltd. v. Protection Manufacturers Private Limited, III (2010) CPJ 40 (SC)=VI (2010) SLT 152=(2010) 7 SCC 386, as under:
“We also accept the discretion exercised by the National Commission regarding the rate of interest awarded from three months after the date of the Award. The submissions made on behalf of the Respondent Company for enhancement of the same is rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.”
10. Under Section 14(1)(d) of the Consumer Protection Act, 1986 Consumer Forum is authorised to give relief as mentioned in this Section. Section 14(1)(d) of the Consumer Protection Act, 1986 is relevant Section for compensation and Section 14(1)(d) reads as under:
“14(1)(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:
[provided that the District Forum shall have the power to grant punitive damagess in such circumstances as it deems fit.]”
11. From a reading of the above section, it is clear that a compensation under Section 14(1)(d) can only be granted if a Consumer Forum has reached to the conclusion after examining the matter under Section 13 of the Consumer Protection Act, 1986 that there is deficiency and negligence on the part of the opposite party. In the present case, when the State Commission in complaint case No. 03/2011 reached to the conclusion after examination under Section 13 of the Consumer Protection Act, 1986 that there was deficiency and negligence on the part of the opposite party, the use of Section 14(1)(d) should have been made by the State Commission, however the State Commission, in the facts and circumstances of the case, found it expedient and justified only to allow amount of insurance claim as assessed by the surveyor. In the present case, the provision of Section 14 (1)(d) is not met as the State Commission has not given any finding on deficiency or negligence on the part of the opposite party based on examination under Section 13 of the Consumer Protection Act, 1986 in the present complaint case. Clearly, the finding given in earlier complaint case is not to be utilised in the present case as the Section does not permit the same.
12. Moreover, under Consumer Protection Act, 1986, a complaint can be filed on the following reasons as per Section 2(c) of the Consumer Protection Act, 1986:
“(c) “complaint” means any allegation in writing made by a complainant that—
(i) an unfair trade practice or a restrictive trade practice has been adopted by [any trader or service provider];
(ii) [the goods bought by him or agreed to be bought by him] suffer from one or more defects;
(iii) [the services hired or availed of or agreed to be hired or availed of by him] suffer from deficiency in any respect;
(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint, a price in excess of the price—
(a) fixed by or under any law for the time being in force;
(b) displayed on the goods or any package containing such goods;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;]
[(v) goods which will be hazardous to life and safety when used or being offered for sale to the public,—
(a) in contraventio
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n of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force; (b) if the trader could have known with due diligence that the goods so offered are unsafe to the public; [(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety.13. From the above, it is clear that relief of interest or compensation does not figure in the list. Clearly, interest and compensation are to be granted when the main relief is granted. If the main relief has been granted in some other complaint case and the interest and compensation was not granted in that complaint case, the same cannot be considered in fresh complaint case. 14. From the above discussion, in my view, the present complaint No. 201/2014 is not maintainable as the relief sought cannot be granted in the present complaint case. Orders passed in the earlier complaint cases will also operate as res judicata in the present complaint case. Accordingly, the First Appeal No. 257 of 2017 is allowed and complaint is dismissed. Consequent to this decision, the First Appeal No. 736 of 2017 filed by the complainant is also dismissed. Ordered accordingly.