The principle of res judicata is inapplicable to a suit or complaint if the prior proceeding was rejected under Order 7 Rule 11 CPC, as such rejection does not constitute an adjudication on merits.

PER: HON’BLE MS. BIMLA KUMARI, PRESIDING MEMBER

ORDER

1. By this judgment, I shall dispose of the appeal filed by the Appellant, Ms. Shobha Rani against the impugned order dated 10.12.2009 passed by Ld. Consumer Dispute Redressal Forum (West), Community Center, Janakpuri, Delhi in Complaint Case No. CC/197/2004 titled as “Shobha Rani Vs. National Insurance Co. Ltd.” by which the complaint filed by the Complainant was dismissed by Ld District Forum on the ground that the complaint was barred by the principle of resjudicta.

2. Briefs facts of the case as per the complaint are that Ms. Shobha Rani, the Complainant (Appellant herein) was sole proprietor of M/s Hearing House located at 39-40, 2nd Floor, Vishal Market, Chandni Chowk, Delhi-6. She was carrying on the business of sale and purchase of photographic material. For the stocks lying in the shop, she obtained the burglary and fire insurance policy from Opposite Party (Respondent herein) for a sum of Rs.20,00,000/-. On 17.05.1995, fire broke out in Vishal Market due to which a lot of shops were gutted, including the shop of Complainant and the entire stock lying in her shop along with other valuables and records was destroyed.

3. It was the further case of Complainant that for running the above said business, she had taken a loan from Punjab National Bank, Narayana Branch. She lodged the claim with Opposite Party for an amount of Rs.20,00,000/-, which appointed the Surveyor. Further, the lots of stock was also assessed by Punjab National Bank on the basis of stock statement and the photographic material and films which were rendered useless were not taken into consideration and the Surveyor valued the loss to the tune of Rs.14,10,407/-. But, the Opposite Party did not take into consideration the report of Surveyor and she was offered an amount of Rs.5,46,000/- only by Opposite Party. On 15.09.1985, she was asked to sign the receipt for a sum of Rs.5,46,000/-, but the officials of Opposite Party maliciously inscribed the words “full and final settlement” on the above receipt signed by her.

4. It was the further case of Complainant that she did not sign the receipt for a sum of Rs.5,46,000/- towards full and final settlement of her claim. But, the Opposite Party obtained her signatures thereon by misleading and thereafter, added the words "full and final settlement."

5. Thus, she filed the complaint against the Opposite Party for direction to pay her the balance amount of Rs.8,64,407/- in terms of the Surveyor's report alongwith with compensation and litigation cost.

6. However, the complaint filed by the Complainant was dismissed by Ld District Forum on 10.03.2004 on the ground that the services of OP were availed by her for commercial purposes.

7. Thereafter, the Complainant preferred an appeal before this Commission for setting aside the order dated 10.03.2004 passed by Ld District Forum and the Commission set aside the order dated 10.03.2004 and remanded back the case to Ld District Forum to decide the matter fresh on merits.

8. After remand back of the case by this Commission, notice of complaint was issued to Opposite Party.

9. The Opposite Party filed the written statement before Ld District Forum, wherein it had prayed for dismissal of complaint on the priniciple of res judicata by submitting that the Complainant had also filed a Civil Suit before Sh. P.K. Saxena, Ld ADJ, Tis Hazari Court for recovery of Rs.14,54,000/- on same cause of action between the same parties and