TRANSPORT CORPORATION OF INDIA LTD vs KARAN SEHGAL

THE present appeal, filed by the appellant, named above, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated the 19th November, 1999, passed by District Forum-I in Complaint Case No. 5/98 entitled Sh. Karan Sehgal v. M/s. Transport Corporation of India Ltd.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent had filed a complaint under Section 12 of the Act before the District Forum averring that M/s. Cookson Mattney India Ltd. entrusted a consignment consisting of 10 packages, containing Zircosil-5 for carriage from Hosur to Delhi vide consignment note No. H.G. 29897 dated 18.1.1997. THE respondent was the consignee and owner of the above said goods which were entrusted to the appellant in sound condition on 18.1.1997 for carriage and safe delivery at Delhi. It was alleged by the respondent in the complaint filed by him that due to careless and negligent handling, caused by gross negligence on the part of the appellant and/or its employees, the truck bearing number DL-IG-A2693, carrying the aforesaid consignment was involved in an accident near Nazirabad Sadar (Rajasthan), causing extensive damage as well as shortage to the consignment. It was further stated in the complaint that on receipt of the above consignment the damaged goods were surveyed by an independent Surveyor, namely Sh. V.K. Kapur and the estimate of loss was assessed by him. It was stated that the amount, thus due from the appellant worked out to Rs. 43,220/- as per details given in para-6 of the complaint. It was also stated that a notice under Section 10 of the Carriers Act was served on the appellant but despite legal notice the appellant did not care to settle the claim of the appellant. It was prayed by the respondent in the complaint filed by him before the District Forum that a decree for Rs. 43,220/- be passed in favour of the respondent together with interest @ 18% p.a. from the date of the filing of the complaint till realisation. THE respondent also claimed the cost of litigation. The claim of the respondent, in the District Forum, was contested by the appellant. In the reply/written version, filed on behalf of the appellant, the appellant had taken certain preliminary objections to the effect that the matter was sub-judice in the Court of Sh. Tej Singh Kashyap, Civil Judge, Delhi as a suit under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) was pending, that the complaint filed by the respondent was bad for non-joinder of necessary parties; that the complaint filed by the respondent was barred under Order 2, Rule 2, CPC; that the respondent had neither any locus standi nor any cause of action for filing the complaint.

The learned District Forum, vide impugned order, has held that the respondent/complainant suffered a loss because of deficiency in service on the part of the appellant and has directed the appellant to pay to the respondent a sum of Rs. 38,615/- together with interest @ 15% p.a. from 18.1.1997 till payment. District Forum has also awarded cost of litigation, amounting to Rs. 1,000/- to the respondent, to be paid by the appellant.

FEELING aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. During the course of arguments, it is stated by the learned Counsel for the appellant that before filing of the complaint under Section 12 of the Act by the respondent, the appellant had already filed a civil suit (Suit No. 572/97) in the Court of Civil Judge Delhi under Order XXXVII, C.P.C. and the above mentioned suit filed by the appellant has already been decreed vide order dated 20th July, 1999 passed by the learned Civil Judge. It is stated by him that the subsequent complaint filed by the respondent under Section 12 of the Act was not maintainable in terms of the provisions contained in Section 11, C.P.C. It is stated by him that on the above ground alone the order being impugned in the present proceedings is liable to be set aside. Section 11, C.P.C. deals with res judicata. The same runs as under : "No Court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I : The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II : For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III : The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV : Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V : Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI : Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII : The provisions of this section shall apply to a proceeding for the execution of a decree and references, in this section to any suit, issue or former suit shall be construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII : An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."

THEIR Lordships of the Supreme Court in case Syed Mohd. Salie Labbai v. Mohd. Hanifa, AIR 1976 SC 1569, have held that before a plea a res judicata can be given effect, the following conditions must be satisfied : (i) that the litigating parties must be the same; (ii) that the subject matter of the suit also must be identical; (iii) that the matter must be finally decided between the parties; and (iv) that the suit must be decided by a Court of competent jurisdiction. It has been further held by THEIR Lordships in the above said decision that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. In another case Lonankutty v. Thomman, AIR 1976 SC 1645, the Hon''ble Supreme Court has held that it is not enough to constitute a matter res judicata that it was in issue in a former suit but it is further necessary that it must have been in issue directly and substantially and a matter cannot be said to have been "directly and substantially" in issue in a suit unless it was alleged by one party and denied or admitted either expressly or by necessary implication by the other party. In a later decision in case Jaswant Singh & Anr. v. Custodian of Evacuee Property, New Delhi, AIR 1985 SC 1096, Their Lordships of the Supreme Court have held : "...In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings."

(Emphasis supplied)

IF the above criterion, as laid down by the Hon''ble Supreme Court in the above mentioned decisions, is applied to the present case, it is noticed that the suit filed in the Court of Civil Judge, Delhi under Order XXXVII, C.P.C. related only to freight charges amounting to Rs. 15,030/-, alleged non-payment thereof gave a cause of action to the appellant to file the above said suit. Whereas in the complaint, filed by the respondent, before the District Forum under Section 12 of the Act, the cause of action was extensive damage as well as shortage to the consignment entrusted to the appellant on 18.1.1997 in sound condition by the respondent for transportation from Hosur to Delhi. Thus, in the presence of the above facts, it cannot be stated that the subject matter of the suit filed by the appellant in the Court of Civil Judge, Delhi and that of the complaint filed by the respondent under Section 12 of the Act were identical. In view of the position explained above, in our opinion, the plea of res judicata as is advanced by the learned Counsel for the appellant, in support of the case of the appellant, is no longer available to the appellant in the given facts.

THE learned District Forum, vide impugned order, has held that the respondent sustained a loss of Rs. 38,615/- because of deficiency in service on the part of the appellant. In our opinion, in the given facts, no fault can be found with the above said findings of the learned District Forum and the same call for no interference by this Commission in exercise of its appellate powers. In view of the above discussion, the present appeal, filed by the appellant, is devoid of substance. THE same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs. Appeal dismissed.