Ravi V.Malimath, J. - (1.) THE case of the plaintiff is that he is a Contractor and doing building work. For the said purpose, he uses his truck bearing No. KA 19/7627. It was used for livelihood by self employment. In the course of doing such a work, it met with an accident on 28.5.1999 near Hassan. It was insured with the second defendant/insurer. The truck was damaged. It was taken to the repairer and estimation was prepared for Rs. 1,23,384/ -. Hence, he prepared a claim for the said amount before the second defendant/insurer. The defendant deputed its Surveyor for inspection. He inspected the damaged truck. The plaintiff got the truck repaired through one Sai Kumar. The total cost of repairs including the cost of spare parts was Rs. 96,138/ -. He submitted the original bills of the cost on repairs to the second defendant. The second defendant once again deputed an officer for inspection and thereafter, sanctioned an amount of Rs. 7,300/ -. Thereafter, the plaintiff approached the Consumer Forum seeking for remedy and the same was dismissed on the ground that appropriate remedy is to approach the Civil Court. Thereafter, the instant suit was filed.
(2.) THE defendant entered appearance and denied the suit averments. The Trial Court framed the following issues: "1) Whether the plaintiff proves that he is a contractor of building work and used the truck bearing Regd. No. KA 19/7627 is for earning his livelihood? 2) Whether the defendant proves that the surveyor assessed the loss at Rs. 7857/ -? 3) Whether the defendant proves that suit is bad for non -joinder of necessary parties? 4) Whether the defendant proves that present suit is barred by the principles of res judicata and estoppel? 5) Whether the defendant proves that suit is barred by law of limitation? 6) Whether the plaintiff proves that while in use, the said truck was met with an accident on 28.5.1999 near Hassan - 7) Whether the plaintiff is entitled for the reliefs as prayed for? 8) What order or decree? Addl. Issue: 1) Whether the defendant proves that this Court has no jurisdiction to try this suit - The Trial Court held issue Nos. 2 and 6 in the affirmative. Issues 3, 4, 5 and additional issue No. 1 in the negative and partly decreed the suit directing the defendant to pay a sum of Rs. 7,850/ - along with interest at 6% p.a. Aggrieved by the same, the plaintiff filed an appeal before the District Judge at Mangalore. The appeal was allowed. The judgment and decree of the Trial Court was modified. The suit was decreed for a sum of Rs. 96,138/ - along with interest at 6% p.a. Aggrieved by the same, the first defendant has filed this appeal.
(3.) BY the order dated 2.7.2012, the appeal was admitted to consider the following substantial question of law: "When the respondents (plaintiffs) exhausted their remedy for compensation before the Consumer Forum and their request for compensation was rejected on merits, whether they could maintain a suit for damages -;