NEW INDIA ASSURANCE CO. Vs. KISHORI LAL SUD

JUDGEMENT

(1.) Kishori Lal Sood, who has been wrongly described as defendant -respondent in the present petition, filed a suit for recovery of Rs. 27,720, alongwith future interest, against M/s. New India Assurance Co. Ltd., (wrongly described as -the plaintiff in the present petition), which suit is pending trial before the Sub -Judge 1st Class, Shimla The suit was filed on the allegations that the plaintiff was the owner of truck No. HPS 1957, which was got insured by the plaintiff with the defendant Insurance Company and, unfortunately, on 29th July, 1989, this truck met with an accident near Medical College, Lakkar Bazar, Shimla, and after the accident, claim was filed by the plaintiff with the Assurance Company of the amount of Rs. 18,000 bifurcation of which was as follows: For retrieving the vehicle from the Khud : Rs. 18,000 For towing the vehicle to Ambala for repairs: Rs. 3,000 The plaintiff further pleaded that he produced before the Surveyor proof of payment of Rs. 15,000 to one retrieving contractor, Kalu Ram of aiolan and also produced before the Surveyor a receipt of Rs. 3,000 on account of towing charges from the site of the accident to Ambala City to which place the vehicle was carried for repairs. According to the plaintiff, the Surveyor of the Company, Engineer Satinder, after verification of the amount, opined that the amount of Rs. 18,000 was due to be paid by the Insurance Company to the plaintiff. As the plaintiff s representations in this behalf to the company to make payment of Rs 18,000 gone unheard, hence the suit was filed for the recovery of Rs. 18,000 alongwith Rs 9,720 as interest, the total amount being Rs. 27,720. It was also pleaded that the Divisional Manager, Mr. Jain, even agreed to make the payment of Rs. 9,000 and wanted the plaintiff to give a receipt thereof but later on the said Divisional Manager came down to an amount of Rs. 7,000, which was not acceptable to the plaintiff.

(2.) During the pendency of the suit, the defendant submitted an application under Order 2, Rule 2, C.P.C. with a prayer to dismiss the suit. The allegations made in the application were that the plaintiff had filed the present suit for recovery of Rs. 27,720 which was pending in the Court It was further averred that the plaintiff had filed another suit for recovery of Rs. 1,04,995.79, which was also pending in that very Court. According to the defendants, both these claims arise out of the same accident, same policy of Insurance and a common cause of action and, therefore, on that ground the present suit was barred under Order 2, Rule 2, C. P. C. It was further pleaded that at the time of the filing of the written statement the aforesaid point escaped notice bonafide but this fact was realised only when the written statement was being prepared in the suit for recovery of Rs. 1,04,995.79 paisa. According to the defendant, the plaintiff has omitted to sue in respect of, or has intentionally relinquished the claim of Rs. 27,720, in the earlier suit and, therefore, on the basis of the same it was the present suit which was hit under Order 2, Rule 2 C P. C. and, as such, it was liable to be dismissed as not maintainable. The application was supported by an affidavit.

(3.) In reply to the application it was admitted by the plaintiff that he had filed a suit for recovery of Rs. 1,04,995.79, which was also pending in the Court. However, it was denied that the cause of action was the same and that the suit was hit by Order 2, Rule 2, C. P. C