CHANDER SHEIKHER Vs. UNITED INDIA INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) THIS Civil Ist appeal is directed against the judgment and decree dated 28 -2 -1998 passed by the learned Ist Addl. District Judge Jammu whereby the suit of the plaintiff has been dismissed. The facts in brief leading to the filing of this appeal are that the plaintiff appellant filed a suit against the respondent defendant insurance company for recovery of Rs. 1,07,000/ - as compensation on the allegation that he had insured tanker bearing No. JKP -3411 with the defendant'insurance company for cash value of Rs. 90,000/ - under insurance policy No. 111700/24/1195/88 for the period commencing from 30 -12 -1988 to 29 -12 -1989. the said tanker suffered total loss in a fire incident in June 1989 in which the Driver and conductor of the tanker also perished. The plaintiff applied to the defendant, insurance company for claiming the amount insured under the policy but that was not paid, hence the suit.

(2.) THE suit of the plaintiff was contested by the defendant inter alia on different grounds, including one that the plaintiff before filing the suit had lodged a complaint against the insurance company before the Divisional Forum but the same was dismissed for want of necessary evidence, therefore, the suit of the plaintiff is not maintainable. From the pleading of the parties learned trial Court framed the following issues : -

(3.) THE contention of learned counsel for the appellant Mr. Sharma is that there is no such bar. He has argued that the provisions of Order 9 C. P. C. do not apply to such suits in any manner nor there is any such bar contained under the provisions of Consumer Protection Act, and therefore the jurisdiction of the civil Court cannot be deemed to have been excluded in respect of a suit of a person who had earlier approached the Divisional Forum for the same remedy under the provisions of the Act. He has submitted that the plaintiff had approached the Divisional Forum for seeking the same remedy as sought by him in the suit before the trial Court but had not pursued the same, the order of dismissal of his complaint passed by the Divisional Forum has not conclusively adjudicated upon the right of the plaintiff to get compensation from the defendant and therefore the plaintiff is well within his rights to approach the civil Court.