ARANYA ELECTRICALS And SOUND SERVICES vs NEW INDIA ASSURANCE CO. LTD.

THESE are two connected appeals against the judgment and order dated 26.12.2000 passed by District Forum, Nainital. Since, in both the appeals common questions of law and facts are involved, therefore, both the appeals are taken together for disposal. A copy of the judgment shall be placed in the record of each appeal.

THE brief facts of the case are that M/s. Aranya Electrical and Sound Services has a shop. It was insured for Rs. 3,40,000/-. THEre was a theft in the shop. THE complainant lodged the claim. THE police investigated the case. Nothing could be recovered and police submitted final report, which was accepted by the Judicial Magistrate, Haldwani. When after repeated requests the Insurance Company did not pay compensation under the policy, the complaint was filed. During the investigation, the Surveyor called for stock register, papers of sales tax, income tax, bill book and all the papers were supplied to the Surveyor. THE Surveyor reported that the complainant is entitled to Rs. 40,297/- only. The Insurance Company contested the claim. After hearing the learned Counsels for the parties, the learned Forum held that the matter should be referred to Arbitration, which is a clause in the policy and ultimately directed the complainant to refer the matter to the Arbitrator and dismissed the petition of the complainant.

Similar facts of the case of M/s. New Television Centre are there as well, where also, the theft took place on the same night and the same was the Written Statement of the opposite party and the same judgment was given by the learned Forum.

BEING aggrieved by the judgment and order passed by the learned Forum the complainant has filed these appeals. According to the judgment of the learned Forum, the factum of theft is admitted and proved. The amount of insurance is also proved. The insurance was in operation, is also proved. FIR was also lodged immediately. When nothing was recovered, and nobody could be arrested, there was no option for the police than a file a final report. In the case of Aranya Electricals and Sound Services, theft of Rs. 40,297/- was assessed by the Surveyor while in the case of M/s. New Television Centre, theft of Rs. 1,06,516/- was assessed. Thus, according to the Insurance Company, there was a loss. The complainants have claimed higher amounts. The learned Forum held that since there was an Arbitration Clause, therefore, it should be referred to Arbitration. The learned Counsel for the respondent also argued that huge evidence is to be examined, therefore, it should be referred to the Arbitrator. The President of the Forum is a retired District Judge having judicial background with the age of 60 years. The Members of the Forum are also appointed who are well-educated having adequate knowledge of economics, law, commerce and accountancy. Even if some accountancy is to be done, the Members are presumed to have adequate knowledge in the matter. The learned Forum did not write anywhere that he or his Members are not competent to decide the case as the matter was complicated one but he directed for the reference of the matter to Arbitrators merely because there was an Arbitration Clause and the dispute was in respect of quantum.

IT is also clear that the relief under the Consumer Protection Act is an additional remedy and if any other remedy is provided under any other Act, may be under the Arbitration Act, a claim under the Consumer Protection Act is not at all barred. The Forum or this Commission cannot avoid its responsibility by merely saying that the consumer should go to the Arbitration Authorities because there is an Arbitration Clause, if there is deficiency in service of the opposite party. The Forum has to decide whether a particular party is a consumer or not. Necessarily the complainant is a consumer. Then, it has to decide whether there is deficiency in service. Such a finding has not been given in this case. The case has not been decided on merit. IT was the duty of the learned Forum to have decided the case on merits. The attorney for the complainant informed that the so-called huge evidence has not been filed by him, but these are the papers which the Surveyor and the Insurance Company summoned from him. He submitted these papers to the Insurance Company and it is the Insurance Company who has produced these papers to show that huge evidence is required in the case. The question is very simple. Neither huge evidence is required nor any complicated question is involved and the only finding is to be given on what was the actual loss of the complainant because of theft, insurance, etc. all are admitted. There is a ruling of the Creported in II (2003) CPJ 444, Sahara India Ltd. v. Mritunjay Nath Tripathi, in which it has been held that : "The learned Counsel for the appellant has argued that in view of the provisions of the agreement entered into between the parties, the dispute should be referred to the arbitration. This contention of the learned Counsel for the appellant is not correct. A provision of Section 3 of the Consumer Protection Act says that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law. This means the complainant has an additional remedy under the Consumer Protection Act. It is the choice of the complainant either to go for the Arbitration or to file a complaint under this Act. It is the choice of the complaint under this Act. The choice lies with the complainant and it cannot be restricted by the action of the opposite party. The opposite party cannot compel the complainant to adopt the procedure of Arbitration as mentioned in the agreement. Thus, in view of the provisions of Section 3 of the Consumer Protection Act, this complaint is maintainable by the District Consumer Forum."

In the ruling reported in CCIII (1996) CPJ 1 (SC), the Hon''ble Supreme Court has held that the District Forum, State Commission and the National Commission have all the trappings of a Civil Court and are judicial authority. Proceedings before them are legal proceedings.

IN view of this ruling, the District Forum has got jurisdiction to decide every case of civil nature, of course, there should be consumer dispute.

IN the ruling reported in Udaypur Cement Works v. Punjab Water Supply and Sewage Board, I (1999) CPJ 67 (NC), the Hon''ble National Commission has held that mere existence of Arbitration Clause should not come in the way of an aggrieved party from seeking the legitimate relief under the Consumer Protection Act which is a special piece of legislation to protect the interest of the consumers notwithstanding other law in force. The learned Counsel for the Insurance Company has referred the ruling reported in III (1994) CPJ 303, M/s. Geeta Plastic Works v. Dev. Manager, New India Assurance Co. Ltd. In this ruling there were express stipulation by the parties that the receipts of the Bank shall be a complete discharge of the Insurance Company. The Insurance Company cannot now wriggle out of the same. There was also Arbitration Clause. It was held that there was dispute of quantum, therefore, the matter should be referred to Arbitrator. In this particular case, the case has not been referred to the Arbitration because the dispute was of quantum only and secondly also it was alleged that the quantum has been fixed after the institution of the complaint in the District Forum, therefore, this ruling shall not apply to the facts of the present case.

In the ruling reported in II (1998) CPJ 15 (NC), Cit is held that a handsome amount was already paid to the complainant under the orders of the State Commission and the rest was directed to be adjudicated by the Arbitrator. The order of the State Commission was upheld. But in this particular case, nothing has been paid to the complainant till date.

IN the ruling reported in III (1996) CPJ 183 (NC), Shri Ganesh Spinners v. United INdia INsurance Company Ltd., the complaint, itself, was held to be not maintainable because the was no deficiency in service and, therefore, necessarily, the matter has to be referred to the Arbitrator because there was also an Arbitration Clause. IN the ruling reported in II (2002) CPJ 128 (NC)=2001 (3) CPR 161 (NC), Niwas Spinning Mills Ltd. v. Canbank Mutual Fund, there was a complex question of law and facts. No such complex question of law and facts is involved in this case. For what has been said above, we are of the view that this is a consumer dispute and should be decided by the Forum. Only the loss is to be assessed on the evidence of the parties, it is only to be seen to what amount of compensation, if any, the complainant is entitled. Since finding is given by the Forum, the case is remanded to the learned Forum for fresh decision in accordance with law. Our finding and observations above, should not, in any way, be taken an expression of opinion on the merits of the case. ORDER

THE appeal is allowed. THE judgment and order dated 26.12.2000 passed by District Forum, Nainital is, hereby, set aside. THE, case is sent back to the learned Forum for fresh decision in accordance with law as discussed above in the body of the judgment. Cost of this appeal shall be easy. Appeal allowed.