Filing a fresh consumer complaint arising out of the same claim after withdrawing the earlier complaint upon accepting a partial settlement is not legally maintainable.

ORDER :

1. This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 28.08.2012 passed by the District Forum, Dehradun, thereby dismissing consumer complaint No. 317 of 2011.

2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant got its machinery (Vibratory Compactor L&T – 752 bearing Serial No. J 1458 and Chassis No. J07 G 1458) insured with the opposite party No. 2 – The New India Assurance Company Limited, A-34, Model House, New Tehri for the period from 25.06.2009 to 24.06.2010 for insured sum of Rs. 21,93,000/-. During the currency of the insurance policy, the said machine met with an accident on 06.08.2009 due to landslide and in the said accident, the machine was totally damaged. The complainant submitted the claim with the insurance company and submitted all the required documents. The complainant also submitted an estimate of repairs to the tune of Rs. 34,36,739/- issued by Venus Auto Traders, 1, Tyagi Road, Dehradun. It was alleged that on 21.06.2011, the opposite party No. 2 sent an e-mail to the complainant, whereby the complainant was informed that the opposite party No. 4 – surveyor has assessed the loss to the tune of Rs. 13,86,240/-. However, the claim of the complainant was not settled by the insurance company. Thereafter, the complainant filed a consumer complaint before this Commission on 05.08.2011, which was registered as Consumer Complaint No. 07 of 2011; M/s Bharat Constructions v. The New India Assurance Company Limited and others. In the said consumer complaint, the insurance company submitted a cheque of Rs. 13,41,240/- on 01.11.2011 and the said cheque was given to the complainant by the insurance company after acceptance of the same in full and final settlement and the consumer complaint was decided by this Commission in the said terms. It was also alleged that however the balance claim amount of Rs. 8,51,760/- was not paid by the insurance company and for payment of the balance claim amount, the complainant filed a consumer complaint before the District Forum, Dehradun.

3. The insurance company filed preliminary objections before the District Forum and stated that since the claim of the complainant has already been settled by the insurance company and cheque of Rs. 13,41,240/- has been given to the complainant on 01.11.2011 in Consumer Complaint No. 07 of 2011; M/s Bharat Constructions Vs. The New India Assurance Company Limited and others in full and final satisfaction of the claim and on receipt of which, the complainant has voluntarily withdrawn the consumer complaint filed before this Commission and hence the present consumer complaint arising out of the same claim, is not legally maintainable and is liable to be dismissed.

4. The District Forum, on an appreciation of the material on record, dismissed the consumer complaint vide impugned order dated 28.08.2012. Aggrieved by the said order, the complainant has filed the present appeal.

5. None appeared on behalf of respondent No. 4. We have heard the learned counsel for the appellant and respondent Nos. 1 to 3 and have also perused the record.

6. There is no dispute with regard to the fact that arising out of the same claim, the complainant had earlier filed a consumer complaint before this Commission bearing Consumer Complaint No. 07 of 2011; M/s Bharat Constructions v. The New India Assurance Company Limited and others. The said consumer complaint was decided by this Commission per order dated 01.11.2011, which reads as under:

“Sh. M.K. Kohli, learned counsel for opposite party Nos. 1 to 3 has handed over the cheque amounting to Rs. 13,41,240/- before this Commission to Sh. Yudhvir Handa, learned counsel for the complainant, in full and final satisfaction of the claim. Learned counsel for the complainant has, thus, moved an application that in the light of the aforesaid circumstances, the complainant be permitted to withdraw the consumer complaint.

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