State Consumer Disputes Redressal Commission
Sh. Rajnesh Tandon. vs Oriental Insurance Co. Ltd. on 29 April, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Revision Petition No.: 37/2016
Date of Presentation: 26.08.2016
Order Reserved On : 27.03.2017
Date of Order : 29.04.2017
......
Rajnesh Tandon son of Shri Panna Lal Tandon resident of
Thistle Bank Estate The Mall Shimla-H.P.
...... Revisionist/complainant
Versus
The Oriental Insurance Company Ltd. Mythe Estate Kaithu
Shimla through its Divisional Manager.
......Non-revisionist/opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Mrs. Meena Verma Member
Whether approved for reporting?1 Yes.
For Revisionist : Mr. Harish Chauhan vice Mr. Peeysh
Verma Advocate.
For Non-revisionist : Mrs. Seema Sood Advocate
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R:- Present revision petition is filed under section 17 of Consumer Protection Act 1986 against interim order dated 26.07.2016 passed by learned District Forum Shimla in M.A. No.31/2015 titled The Oriental Insurance Company Ltd. Versus Rajnesh Tandon.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016) Brief facts of Case:
2. Oriental Insurance Company Ltd. filed application under section 144 of Code of Civil Procedure 1908 for restitution pleaded therein that non-revisionist Shri Rajnesh Tandon filed complaint No.477/2002 before learned District Forum Shimla title Rajnesh Tandon Versus Oriental Insurance Company Ltd. It is pleaded that complaint was decided by learned District Forum on 03.12.2004 and learned District Forum ordered Oriental Insurance Company to indemnify complainant to the extent of Rs.204788/-(Two lac four thousand seven hundred & eighty eight) alongwith interest at the rate of 12% per annum w.e.f. date of filing of complaint till actual payment is made. It is further pleaded that learned District Forum in addition also ordered insurance company to pay litigation costs to complainant Rajnesh Tandon to the tune of Rs.2500/-(Two thousand five hundred). It is pleaded that thereafter Oriental Insurance Company Ltd. filed appeal No.50/2005 title Oriental Insurance Company Ltd. Versus Rajnesh Tandon before H.P. State Consumer Commission Shimla. It is pleaded that appeal was disposed of on 06.12.2006 by H.P. State Commission and State Commission Shimla partly allowed the appeal and reduced the interest from 12% to 9% per annum and upheld remaining order of learned District Forum. It is 2 Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016) further pleaded that thereafter Oriental Insurance Company filed revision petition No.1569/ 2007 before Hon'ble National Commission and Hon'ble National Commission on dated 25.03.2014 allowed revision petition and set aside the order of H.P. State Consumer Commission and learned District Forum and dismissed complaint filed by Shri Rajnesh Tandon. Thereafter Oriental Insurance Company Ltd. filed restitution application under section 144 of Code of Civil Procedure 1908 before learned District Forum Shimla. Complainant Rajnesh Tandon filed response to application filed for restitution under Code of Civil Procedure 1908 pleaded therein that provision of section 144 of Code of Civil Procedure would not apply to proceedings filed under Consumer Protection Act 1986. It is pleaded that Consumer Protection Act 1986 is a complete code and it is pleaded that execution application under Consumer Protection Act 1986 would lie and prayer for dismissal of application filed under section 144 of Code of Civil Procedure 1908 sought.
3. Learned District Forum vide interim order dated 26.07.2016 dismissed the objection of Rajnesh Tandon and issued arrest warrant against Rajnesh Tandon through Superintendent of Police returnable for 30.08.2016. Feeling aggrieved against interim order passed by learned District Forum present revision petition is filed by Rajnesh Tandon before State Consumer Commission.
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Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016)
4. We have heard learned advocate appearing on behalf of revisionist and we have also heard learned Advocate appearing on behalf of non-revisionist and we have perused entire record carefully.
5. Following points arises for determination in present revision petition.
1. Whether revision petition filed by revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition.
2. Final order.
Findings upon point No.1 with reasons:
6. Submissions of learned Advocate appearing on behalf of revisionist that final order passed by Hon'ble National Commission could be enforced under section 25 or under section 27 of Consumer Protection Act 1986 and could not be enforced under section 144 of Code of Civil Procedure 1908 is decided accordingly. It is proved on record that original consumer complaint No.477/2002 was filed by complainant Ranjesh Tandon against Oriental Insurance Company Ltd. before learned District Forum Shimla. It is proved on record that learned District Forum Shimla decided complaint on 03.12.2004 and ordered Oriental Insurance Company Ltd. to pay Rs.204788/-(Two lac four thousand seven hundred & eighty eight) alongwith interest at the rate of 12% per annum from the date of filing of complaint till actual 4 Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016) payment to complainant namely Rajnesh Tandon. It is also proved on record that in addition learned District Forum also ordered Oriental Insurance Company to pay litigation costs to the tune of Rs.2500/-(Two thousand five hundred) to complainant. It is proved on record that thereafter Oriental Insurance Company filed appeal No.50/2005 title Oriental Insurance Company Ltd. Versus Rajnesh Tandon before State Commission and State Commission disposed of appeal on dated 06.12.2006. It is proved on record that State Commission reduced interest from 12% to 9% per annum and upheld the remaining order of learned District Forum. It is proved on record that thereafter revision petition No.1569/2007 was filed by Oriental Insurance Company Ltd. before Hon'ble National Consumer Commission and same was decided by Hon'ble National Consumer Disputes Redressal Commission on dated 25.03.2014. It is proved on record that Hon'ble National Commission set aside orders of State Commission and learned District Forum and dismissed the complaint filed by Rajnesh Tandon complainant. It is proved on record that during aforesaid period Rajnesh Tandon complainant has withdrawn the amount awarded by learned District Forum and State Commission.
7. It is well settled law that Consumer Protection Act 1986 is a special Act. It is well settled law that order of learned District Forum and State Commission and Hon'ble 5 Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016) National Consumer Commission can be enforced under section 25 or section 27 of Consumer Protection Act 1986 in accordance with Consumer Protection Act 1986. In the present case Oriental Insurance Company Ltd. did not file application under section 25(3) or under section 27 of Consumer Protection Act 1986 for enforcement of order of Hon'ble National Commission but filed application under Section 144 of Code of Civil Procedure for restitution of amount due to Oriental Insurance Company Ltd. from complainant.
8. It is well settled law that concept of restitution is basically founded on the idea that when a order is reversed then law imposes obligation on the party who received unjust benefit of the erroneous order to restitute the other party for loss sustained by other party. See AIR 2012 Apex Court 1146 State of Gujrat & Ors. Versus Essar Oil Limited & Anr.
9. As per regulation No.26 of Consumer Protection Regulation 2005 in all proceedings before consumer Forum endeavor would be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure 1908. As per proviso of rule 26 of Consumer Protection Regulation 2005 provisions of Code of Civil Procedure 1908 would be applied only which have been referred in Consumer Protection Act 1986 or under the rules made thereunder. 6
Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016)
10. Under Consumer Protection Act 1986 and under rules framed therein there is no provision that section 144 of Code of Civil Procedure 1908 would apply to proceeding pending before learned District Forum, State Commission or Hon'ble National Consumer Disputes Redressal Commission.
11. It is held that Oriental Insurance Company Ltd. was under legal obligation to file application under section 25(3) of Consumer Protection Act 1986 or under section 27 of Consumer Protection Act 1986 for enforcement of order of Hon'ble National Consumer Disputes Redressal Commission. Mode for execution of order of learned District Forum, State Commission and Hon'ble National Consumer Commission is provided under section 25 and 27 of Consumer Protection Act 1986.
12. Under section 25(3) of Consumer Protection Act 1986 while enforcing the order of learned District Forum, State Commission and Hon'ble National Commission certificate of amount due would be issued to the Collector of District and Collector of District would proceed to recover the amount as arrears of land revenue. As per section 27 of Consumer Protection Act 1986 order of learned District Forum, State Commission and Hon'ble National Consumer Commission would be enforced as per Code of Criminal Procedure 1973 by way of summary trial.
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Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016)
13. It is held that Oriental Insurance Company Ltd. was under legal obligation to file application for execution of order of Hon'ble National Consumer Disputes Redressal Commission strictly as per section 25(3) or section 27 of Consumer Protection Act 1986. It is well settled law that when there is conflict between special law and general law then special law always prevails over general law. It is held that learned District Forum has committed procedural material irregularity by way of proceeding under section 144 of Code of Civil Procedure 1908. In view of above stated facts point No.1 is answered accordingly.
Point No.2: Final Order
14. In view of findings upon point No.1 revision petition is allowed. Interim order passed by learned District Forum dated 26.07.2016 is set aside. It is ordered that Oriental Insurance Company Ltd. will file execution application under section 25 or 27 of Consumer Protection Act 1986 for enforcement of order dated 25.03.2014 passed by Hon'ble National Consumer Commission in revision petition No.1569/2007 titled Oriental Insurance Company Ltd. Versus Rajnesh Tandon qua recovery of amount and thereafter learned District Forum will enforce order of Hon'ble National Consumer Disputes Redressal Commission qua recovery and will recover amount due to Oriental Insurance 8 Rajnesh Tandon Versus The Oriental Insurance Company Ltd.
(R.P. No.37/2016) Company Ltd. from Rajnesh Tandon strictly as per mode mentioned under section 25(3) of Consumer Protection Act 1986 or strictly as per mode mentioned under section 27 of Consumer Protection Act 1986. Observations will not effect merits of execution proceedings in any manner. Parties are directed to appear before learned executing District Forum on date 09.05.2017. File of learned executing District Forum alongwith certified copy of order be sent back forthwith for compliance. Learned District Forum will dispose of execution application if filed under section 25 or 27 of Consumer Protection Act 1986 within one month in accordance with law. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of cost strictly as per rules. Revision petition is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 29.04.2017.
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