National Consumer Disputes Redressal
Birendra Mohan Kumar Sinha, Mr. Shambhu ... vs The New India Assurance Co. Ltd, Mr. ... on 8 November, 2005
National Consumer Disputes Redressal Commission National Consumer Disputes Redressal Commission New Delhi Revision Petition No. 343 of 2005 [(From the order dated 14.12.2004 passed in Miscellaneous Case No.81 of 2004 (arising from C.C. Case No.60 of 1991) passed by the State Commission, Bihar)] .1. Birendra Mohan Kumar Sinha, R/o West Patel Nagar, Sheikhpura, Patna 23. .2. M/s. Laxmi Textiles, West Patel Nagar, Patna 23, through its Proprietor Shri B.M.K.Sinha Petitioners Versus .1. The New India Assurance Co. Ltd. Head Office, 87, Mahatma Gandhi Road, Fort, Mumbai 400 023. .2. The Chairman, New India Assurance Co. Ltd., 87, Mahatma Gandhi Road, Fort, Mumbai 400 023. .3. The Regional Manager, New India Assurance Co. Ltd., Bihar State Financial Corpn. Bldg., 7th Floor, Frazer Road, Patna 800 001. Respondents BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT. MRS. RAJYALAKSHMI RAO, MEMBER. For the Appellants : Mr. Shambhu Pd. Singh and Mr. Ranjeet Sharma, Advocates For the Respondents : Mr. Manish Jain, Advocate For Mr. Ajay Majithia, Advocates Dated : 8th November, 2005 O R D E R M.B.SHAH, J. PRESIDENT. This Revision Petition arises out of an execution petition No.81 of 2004 in Complaint Case No. 60 of 1991 filed by the Petitioner-Complainant, in the State Commission, Bihar. In the execution application, it was contended by the Petitioner that he was entitled to recover balance amount of Rs.8,16,842/- as due and payable on 7.12.2004 and interest thereon at the rate of 18% p.a. from 24.3.1998 i.e. the date when the Insurance Company made the lump sum amount of Rs.12,48, 117/-, till its full payment. Before going to deal with the facts of the case, we will mention below the different orders passed by the State Commission, the Civil Court, in chronology, for better understanding of the case. Sl. No. Case No. Date of Filing Date of Disposal 1. CC Case No.60/91 filed by the Complainant before State Commission After Oct. 1991 Allowed on 15.9.1992 2. Insurance Company filed FA No. 543/1992 before the National Commission against the order of State Commission Appeal was dismissed on 16.1.1995 3. Title Suit No. 9/92 was filed by the Bank in Civil Court 4.2.1992 On 5.5.1995 the Civil Court granted status quo with regard to payment compensation by Insurance Company to the Complainant. 4. Mis. Case No. 2/95 was filed by Bank before State Commission 12.4.1995 Both the Mis. Applications were dismissed by the State Commission for default. 5. Mis. Case No.3/95 was filed by the Complainant before State Commission 25.4.1995 6. Mis. Case No. 4 / 96 was filed by the Complainant 16.8.1996 Disposed of as compromised between the Insurance Company and the Bank, subject to final accounting of which is yet to be done. 7. Mis. Case No.9/98 filed by the Complainant before the State Commission 13.4.1998 This was heard in the year 2000 and dismissed on 8.4.2003. 8. Mis. Case No. 81/04 was filed by the Complainant before the State Commission 7.12.2004 The State Commission dismissed it on 14.12.2004 9. Hence, R.P. No.343/2005 is filed by the Complainant against the order passed in Mis.Case No.81/04 27.1.2005 Brief Facts : Undisputedly, the Petitioner filed Complaint Case No.60 of 1991 before the State Commission, Patna against the New India Assurance Co.Ltd. That complaint was allowed by order dated 15.9.1992 and the Insurance Company was directed to pay Rs.7,03,901/- with interest at the rate of 18% p.a. from 7.1.1991, i.e. from the date of one month after the report of the Surveyor till the payment thereof as compensation for the loss suffered by the Complainant and also directed to pay Rs.1,000/- as costs (Annex.1). Against the order of the State Commission, the Insurance Company preferred First Appeal No. 543 of 1992 before this Commission. In the said appeal Central Bank of India was added as party Respondent, because the insurance policy was taken by the Bank on behalf of the Complainant, and it was contended by the Bank that the amount which was payable by the Insurance Company was to be paid to the Bank. That appeal was dismissed by the National Commission by order dated 16.1.1995. Title Suit No. 9 of 1992: It is also to be stated that during the pendency of C.C. No.60/91 filed by the Complainant in the State Commission, the Bank filed Title Suit No. 9 of 1992 on 4.2.1992 for realisation of the loan amount granted to the Complainant and in that suit the Insurance Company was made party-Defendant. On 5.5.1995 the Bank got an interim order from the civil court for maintaining status quo with regard to the payment of compensation payable by the Insurance Company to the Complainant. Upto this, there is no dispute with regard to facts. The dispute arises thereafter. Miscellaneous Case No.2 of 1995: The Bank filed Miscellaneous Case No.2 of 1995 on 12.4.1995 (i.e. after the appeal filed by the Insurance Co. was dismissed by the State Commission) before the said State Commission for handing over the amount of compensation directly to the Bank and also informed the State Commission about the status quo granted by the Civil Court in T.S. No.9/92 on 4.4.1995. Miscellaneous Case No. 3 of 1995: On 25.4.1995, the Complainant filed Miscellaneous Case No. 3 of 1995 for execution of the order passed by the State Commission as the appeal filed by the Insurance Co. in the National Commission was dismissed, and demanded Rs.14,90,607.90 from the Insurance Company with interest payable thereon as directed by the State Commission. It is submitted by the Complainant in the said Miscellaneous Case that without giving the statement of accounts the Insurance Company gave a photocopy of the cheque dated 19.4.1995 for a sum of Rs.12,48,117/- payable to Laxmi Textiles. No order was passed by the State Commission. However, it is the contention of the Complainant that the State Commission had observed orally to handover the cheque to the Complainant but that was not done. Thereafter both the Miscellaneous Cases No. 2 and 3 of 1995 were dismissed in default on 15.4.1996 as all the parties were absent and the restoration petition filed by the Complainant was also dismissed. The complainant was asked to file a fresh Miscellaneous Case. Hence, the Complainant has filed Miscellaneous Case No.4/1996. Miscellaneous Case No.4 of 1996: Thereafter, the Complainant filed Miscellaneous Case No. 4 of 1996 on 16.8.1996 demanding Rs.18,00,773/- with interest due thereon till the filing of Miscellaneous Case No.4/96. In that case the bank was also joined as a party. Undisputedly, a compromise was arrived at between the bank and the Complainant for the amount payable by the Complainant to the bank. Therefore, they filed a joint compromise petition on 24.3.1998 before the State Commission. For that purpose, the Insurance Company preferred an application before the State Commission stating that in terms of the direction issued by the learned Sub-Judge, Patna, in T.S. No. 9 of 1992, the Insurance Company was permitted to submit an account payee cheque in the name of M/s. Laxmi Textiles. This order was required to be obtained as the Civil Court has granted order of status quo. It was prayed that in compliance with the order passed by the State Commission and the National Commission in First Appeal, the Insurance Company was handing over the cheque dated 23.3.1998 for a sum of Rs.12,48,117/-. On the basis of the said application, the State Commission passed an order dated 24.3.1998 stating that as per the terms of the compromise, the Petitioners would pay to the Bank a sum of Rs.6,50,000/- in full and final satisfaction of their claim in the Suit filed by them before the Sub-Judge, Patna. It was also further stated that the Insurance Company would pay a sum of Rs.7,03,901/- with interest at the rate of 18% w.e.f. 7.1.1991 till the realisation with costs (final accounting of which is yet to be done) and on submission of the cheque by the Insurance Company before the State Commission the same would be received by the Petitioner who would hand over the same to the Bank for depositing in its branch at Rukunpuna. The application was disposed of in terms of compromise between the parties. Miscellaneous Case No. 9 of 1998: Learned Counsel for the Petitioner (Complainant) submitted that the aforesaid amount of Rs.12,48,117/- was accepted on 24.3.98 subject to final accounting which was to be made between the Complainant and the Insurance Company. As that was not done, the Complainant filed Miscellaneous Case No. 9 of 1998 on 13.4.1998 after obtaining a certificate dated 13.4.1998 from the Chartered Accountant to the effect that on the basis of the judgment of the State Commission the Complainant was entitled to recover the remaining amount of Rs.3,69,345/- with further interest thereon from 24.3.1998, i.e. the date when partial payment was made without submitting any final accounts. That Miscellaneous Application was dismissed by order dated 8.4.2003. The State Commission, inter alia, observed that the Consumer forum was not a fit place for going into the matter of calculation of accounts as the matter was disposed of in the presence of both the parties. Miscellaneous Case No.81 of 2004: It is contended that as the order was pronounced after a lapse of 2 years after hearing of the Case and the same was disposed of without proper calculation, the Complainant, therefore, approached the State Commission by filing fresh Miscellaneous Case No. 81 of 2004 on 7.12.2004. That application was dismissed by the State Commission at the admission stage by order dated 14.12.2004 (Annexure 11). While dismissing the Miscellaneous application No. 81 of 2004 the State Commission observed that in view of the compromise between the parties, the Petitioner accepted Rs.12.48 lakhs on 24.3.1998 and on this account earlier Miscellaneous Case was dismissed. Thereafter, another Miscellaneous Case No. 9 of 1998 was also dismissed on 8.4.2003. It was also observed that fresh application was filed virtually after one year. Hence, filing of such repeated Miscellaneous Cases amounted to abuse of process of law. It was also held that as directed by the State Commission in previous order, it was open to the Petitioner to move the civil Court. Against that order this Revision Petition is filed. In the Revision Petition the Complainant states that on 23.3.1998 the Insurance Company had to pay Rs.16,18,194/-; the Insurance Company paid only Rs.12,48,117/- subject to calculation; therefore, on 23.3.1998 he is entitled to a further sum of Rs.3,70,077/-. Hence, he prays that the Insurance Company may be directed to pay Rs.3,70,077/- with interest @ 18% per annum from 23.3.1998 till 20.10.2005, which comes to Rs.8,71,780/-. Submissions: It is contended by the learned Counsel for the Complainant that the Complainant should not suffer because of the interim order passed by the Civil Court directing the Insurance Company to maintain status quo with regard to the payment awarded by the State Commission. In any case the final order passed by the State Commission is to the effect that the Insurance Company shall pay the amount of Rs.7,03,901/- with interest at the rate of 18% p.a. from 7.1.1991 till its payment. Therefore, the Insurance Company is bound to comply with the said order. In support of his contention, he has produced on record a statement given by the Chartered Accountant that the Complainant is entitled to recover 1. Principle Amount Rs. 7,03,901.00 2. Interest @ 18% from 7.1.1991 till the date of payment, i.e. 24.3.1998 Rs. 9.13,293.00 3. Cost of case Rs. 1,000.00 ________________ Rs. 16,18,194.00 ==============
We certify that Rs.3,70,077.00 (Rupees 16.18,194.00 minus Rs.12,48,117.00) along with interest @ 18% is payable. Calculation based on interest after 24.3.1998 is mentioned below:-
1. Principle amount Rs. 3,70,077.00
2.
interest @ 18% from 24.3.1998 till the date of payment, i.e.20.10.2005 Rs. 5,01,703.00 _______________ Rs. 8,71,780.00 ============== As against this, learned Counsel appearing on behalf of the Insurance Company submitted that there was a direction to the Insurance Company to maintain status quo with regard to payment, as the title suit was pending. So, there is no fault with the Insurance Company in not paying the amount as directed by the State Commission. Therefore, the Insurance Company would not be liable to pay interest from the date of the interim order passed by the civil court, i.e. 5.5.1995, as the Insurance Company has shown its willingness to pay the amount prior to the said date. He has also submitted that the Complainant has accepted the amount of Rs.12,48,117/- in full and final settlement of his claim and therefore the application was not maintainable.
Findings:
Considering the aforesaid facts, it cannot not be disputed that the amount payable to the Complainant remained with the Insurance Company due to interim order of status quo passed by the civil court. It cannot also be disputed that the State Commission had passed the order directing the Insurance Company to pay the amount with interest till its payment. In such a case,
(i). Whether the execution petition was rightly dismissed on the ground that repeated execution applications were not maintainable.
(ii). whether the Insurance Company should be directed to pay interest at the reasonable rate?
(iii) Whether the principles of restitution as provided in Section 144 of CPC could be applied?
Issue Nos. 1 and 2 We would decide the first and the second issue jointly by holding that it has been rightly pointed out by the learned Counsel for the Complainant that the Miscellaneous Case No. 9 of 1998 was heard and the order was pronounced after a lapse of 2 years which resulted in miscarriage of justice. In our view, the State Commission was expected to pronounce the judgment within a reasonable time and the delay of 2 years is totally unjustified. Further, execution application (Miscellaneous Case No.9/98) was dismissed by observing that the State Commission was not a place for going into the mater of calculation of accounts as the matter was disposed of in the presence of both the parties. This finding is totally erroneous. In that execution application the amount payable was required to be calculated for finalising the claim. It cannot be said that the State Commission cannot go into the matter of calculation of accounts. It was a simple calculation of interest from the date specified in the order till its payment at the rate specified therein.
However, instead of challenging the said order before the National Commission, the Petitioner was advised to approach the State Commission, may be erroneously or by way of review by filing Miscellaneous Case No.81/2004. That Miscellaneous Case was dismissed on 14.12.2004 by holding that repeated applications were not maintainable. This finding is also erroneous, because in the order dated 24.3.1998 passed in Miscellaneous Case No.4/98, it was specifically mentioned that acceptance of the amount of Rs.12,48,117/- was subject to final accounting of the amount payable by the Insurance Company. That order cannot be said to be final, if there is some mistake or error in calculation of the amount payable by the Insurance Company. Therefore, the Complainant was entitled to approach the State Commission in case of mistake in calculation and that was done by the Complainant.
Further, if we consider the fact that State Commission has directed the Insurance Company to pay the amount of Rs.7,03,901/- for the loss suffered by the Complainant with interest at the rate of 18% p.a. from 7.1.1991, then the exact amount payable on the date of its payment, namely, on 24.3.1998 would not be Rs.12,48,117/- which is paid to the Complainant. The amount will be : principle Rs.7,03,901/- lakhs plus interest Rs.9,14,000/- plus Rs.1,000/- as costs which comes to Rs.16,18,194/-, as certified by the Chartered Accountant. Hence, the Insurance Company is required to pay the balance of Rs.3,70,077/-.
Learned Counsel for the Complainant, next, submitted that the Petitioner is entitled to interest on the remaining balance amount of Rs.3,70,077/- in our view, this submission is unjustified. There is no question of paying interest on interest. Secondly, the Petitioner has accepted the amount of Rs.12,48,117/- without producing proper calculation at the relevant time. Otherwise, the Insurance Company would have paid the same.
Issue No.3 Payment of this amount i.e. Rs.3,70,077/- would be in conformity with the principles of restitution enunciated in Section 144 of the C.P.C. In the case of Kartar Singh alias Naranjan Singh & Ors. Vs. State of Punjab, (1995) 4 SCC 101, while interpreting the doctrine of restitution under Section 144 C.P.C. the Apex Court has observed as under:
The court, therefore, is bound to restore the parties, as far as they can be, to the same position they were at the time when the court by its erroneous action had displaced them from it. .. The reason being that the person who has taken the money improperly from the judgment-debtor has to restitute to him the amount as a corollary with interest during the time that the money has been withheld from him.
In any set of circumstances, because of the interim order passed by the Civil Court the Complainant is not expected to suffer any loss.
In the result, the Revision Petition is allowed. The Insurance Company is directed to pay Rs.3,70,077/- to the Complainant within a period of two months from today. There shall be no order as to costs.
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..J. ( M.B.SHAH) PRESIDENT Sd/-
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(RAJYALAKSHMI RAO) MEMBER