State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs Nikhil Syal on 7 September, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 29 of 2015 Date of Institution : 07.08.2015 Date of Decision : 07.09.2015 ICICI Lombard General Insurance Company Ltd., presently having its Office at Plot No.149, Industrial Area, Phase I, Behind Hotel Hometel, Chandigarh (earlier at ICICI Lombard Motor Insurance, through its Manager, Quite Office No.10, Sector 41, Chandigarh). ICICI Lombard Motor Insurance, through its Manager, Zenith House, Keshav Rao Khare Marg, Mata Laxmi, Mumbai 400004. ....Revision-Petitioners/Judgment Debtors V e r s u s Nikhil Syal S/o Sh.Parmod Syal, r/o H.No.1187, Sector 44-B, Chandigarh. ....Respondent/Decree Holder BEFORE: MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Er.Sandeep Suri, Advocate for the Revision-Petitioners.
Sh.Jagvir Sharma, Advocate for the respondent.
PER PADMA PANDEY, MEMBER This Revision-Petition is directed against the order dated 16.06.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in Execution Application No.13 of 2014, filed by the Decree Holder/complainant, vide which, it accepted the Execution Application, and directed the Judgment Debtors/Opposite Parties, as under:-
"8. For the reasons recorded above, the objections filed by the OPs are dismissed and the application for execution filed by the complainant is allowed to this extent that the OPs shall pay Rs.7,18,411/- to the complainant, being the insured value of the vehicle, without making any deduction in respect of the depreciation value. Furthermore, the complainant is also entitled to the salvage value of the vehicle. Needless to mention that the amounts of Rs.4,00,000/- and Rs.3,05,059/-, already paid by the OPs, shall be deducted from the total amount payable. The OPs are directed to recalculate the amount to be paid by them to the complainant as per the above observations and make the payment of the balance amount to the complainant on or before 8.7.2015 failing which further proceedings in accordance with law shall be taken against the Ops."
Consumer Complaint bearing No.345 of 2010 was filed by the complainant/Decree Holder, on 14.06.2010 before the District Forum, which was dismissed by it, vide order dated 16.06.2011.
Feeling aggrieved against the order dated 16.06.2011 passed by the District Forum, First Appeal No.180 of 2011, was filed by the appellant/ complainant/Decree Holder, on 20.07.2011, which was allowed by this Commission, vide order dated 16.01.2012, and the following directions were given:-
"For the reasons recorded above, the appeal filed by the appellant is accepted and the order of the District Forum is set aside. The complaint is accepted with costs as under:-
i) The respondents/Opposite Parties are directed to pay Rs.7,18,411/- to the appellant, being the insured value of the vehicle, after deducting the depreciation value, as per the terms and conditions of the Insurance Policy.
ii) The respondents/Opposite Parties are also directed to pay Rs.20,000/- to the appellant/ complainant as compensation on account of mental agony and physical harassment.
iii) The respondents/Opposite Parties are also directed to pay Rs.10,000/- to the appellant/ complainant as costs of litigation.
This order be complied with, by the respondents, within one month, from the date of receipt of a certified copy of the same, failing which, the respondents shall be liable to pay the entire amount alongwith penal interest @ 12% p.a. to the appellant, from the date of filing of the complaint i.e. 14.06.2010 till its realization, besides costs of Rs.10,000/."
Feeling aggrieved against the order dated 16.01.2012, passed by this Commission, in First Appeal No.180 of 2011, the Revisionists/Opposite Parties, filed Revision Petition No.1641 of 2012, before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed by it, vide order dated 17.01.2014.
Since the order dated 16.01.2012, passed by this Commission, in First Appeal No.180 of 2011, had attained finality, as the same had been upheld by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 17.01.2014, in Revision Petition No.1641 of 2012, and, on the other hand, the Opposite Parties did not challenge the same by filing Appeal before the Supreme Court of India, as such, the Decree Holder/complainant, filed Execution Application No.13 of 2014, before the District Forum, which was partly allowed by it (District Forum), vide order dated 16.06.2015, in the manner, referred to, in the opening para of the instant order.
Feeling aggrieved, the instant Revision-Petition, has been filed by the Revisionists/Opposite Parties.
. We have heard the Counsel for the parties, and, have gone through the record of the case, carefully.
The Counsel for the Revision-Petitioners submitted that the District Forum fell into a grave error, in directing the Revision-Petitioners to pay the entire amount of the Insured Declared Value (IDV) to the tune of Rs.7,18,411/-, without making any deduction, in respect of depreciation value, to the respondent/complainant. He further submitted that, on the other hand, this Commission, vide order dated 16.01.2012, passed in First Appeal No.180 of 2011, which was upheld by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 17.01.2014, in Revision Petition No.1641 of 2012, in clear-cut terms, directed the Revision-Petitioners/Opposite Parties, to pay the Insured Declared Value of the vehicle, after deducting the depreciation value. He further submitted that, as such, the respondent/complainant was entitled to the amount of Insured Declared Value, after deducting the depreciation value, as assessed by the Surveyor and Loss Assessor, in his report. He further submitted that, not only this, the District Forum also fell into a grave error, in holding that the respondent/Decree Holder/complainant was also entitled to the salvage value of the vehicle, in question, whereas, on the other hand, no such direction was ever given by this Commission, in order dated 16.01.2012, passed in First Appeal No.180 of 2011, which was upheld by the National Consumer Disputes Redressal Commission, New Delhi, and had attained finality. He further submitted that, it was required of the District Forum, to direct the Revision-Petitioners/Opposite Parties, to pay the amount of the IDV, after deducting the depreciation value, as assessed by the Surveyor and Loss Assessor plus (+) compensation to the tune of Rs.20,000/- and cost of litigation to the tune of Rs.10,000/-, awarded by this Commission, vide order dated 16.01.2012 and upheld by the National Consumer Disputes Redressal Commission, New Delhi. He further submitted that the amount of Rs.4 lacs, had already been deposited by the Revision-Petitioners/Opposite Parties, in the District Forum, in compliance of the order dated 23.07.2012 passed by the National Commission and Rs.3,05,059/- had already been paid by the Revision-Petitioners/Opposite Parties, on 25.03.2015, by way of cheque, during the pendency of Execution Application No.13 of 2014. He further submitted that, as such, the entire decreetal amount, has already been paid by the Revision-Petitioners/Opposite Parties, to the respondent/complainant. He further submitted that, as such, the order of the District Forum, being illegal and invalid, deserves to be set aside.
On the other hand, the Counsel for the respondent/complainant, submitted that the order impugned passed by the District Forum in Execution Application No.13 of 2014, being legal and valid, is liable to be upheld.
The two core questions, that fall for determination, for adjudication of this Revision-Petition are:-
Whether in the facts and circumstances, of the case, the District Forum was right, in directing the Revision-Petitioners/Judgment Debtors/ Opposite Parties, to pay the entire amount of Insured Declared Value to the tune of Rs.7,18,411/-, to the Decree Holder/complainant, without any deduction of the depreciation value or not? and;
Whether in the facts and circumstances, of the case, the District Forum was right, in holding that the Decree Holder/complainant was also entitled to the salvage value of the damaged vehicle, in question, when, at the same time, the entire Insured Declared Value, had already been ordered to be paid to him?
First coming to the question, as to whether, the District Forum was right, in directing the Revision-Petitioners/Opposite Parties, to pay the entire amount of IDV to the tune of Rs.7,18,411/-, to the Decree Holder/complainant, without any deduction of the depreciation value. It may be stated here that, no doubt, vide order dated 16.01.2012, passed in First Appeal No.180 of 2011, which had attained finality, in the manner referred to above, the respondents/Opposite Parties were directed to pay Rs.7,18,411/- to the appellant/complainant, being the insured declared value of the vehicle, in question, after deducting the depreciation value, as per the terms and conditions of the Insurance Policy, meaning thereby that the same (terms and conditions) were to be strictly adhered to, while complying the same (order dated 16.01.2012). Perusal of the terms and conditions of the Insurance Policy, at pages 72 to 78 of the District Forum file, relating to original complaint bearing Consumer Complaint No.345 of 2010, clearly reveals that the Insured Declared Value was to be treated as the market value throughout the Policy period, without any further depreciation, for the purpose of total loss/constructive total loss claims. Thus, since in the instant case, the indemnification, in respect of the vehicle, in question, was granted to the complainant, on total loss basis, as is evident from para 9 of the State Commission order dated 16.01.2012. As such, the Insured Declared Value was to be treated, as the market value throughout the Policy period, without any further depreciation for the purpose of the same (total loss). Clearly the intent of the order dated 16.01.2012, passed in First Appeal No.180 of 2011, which has attained finality, in the manner referred to above, was not that they (respondents/Opposite Parties) were to pay the insured value of the vehicle, after deducting the depreciation value, without taking into consideration, the terms and conditions of the Insurance Policy. Not only this, the Opposite Parties had also filed Miscellaneous Application No.81 of 2014, before the National Consumer Disputes Redressal Commission, New Delhi, for modification/clarification of the order dated 17.01.2014 passed by it (National Commission), but, later on, the same was dismissed as withdrawn by them. Thus, in our considered opinion, the District Forum was right, in holding that the Revision-Petitioners/Judgment Debtors/ Opposite Parties, were liable to pay the entire amount of Insured Declared Value, to the tune of Rs.7,18,411/-, to the Decree Holder/complainant, without any deduction of the depreciation value, while placing reliance on the terms and conditions of the Insurance Policy, referred to above, in compliance of the order passed by this Commission, in the First Appeal aforesaid, which had attained finality. The findings of the District Forum, in this regard, being correct, are affirmed.
Now coming to the second question, as to whether, the District Forum was right, in holding that the Decree Holder/complainant was also entitled to the salvage value of the damaged vehicle. It may be stated here that in First Appeal No.180 of 2011, filed by the appellant/complainant, against the order dated 16.06.2011, which was accepted by this Commission, vide order dated 16.01.2012 and had attained finality, in the manner, referred to above, the respondents/Opposite Parties were directed to pay Rs.7,18,411/- to the appellant/complainant, being the Insured Declared Value of the vehicle, in question, after deducting depreciation value, as per the terms and conditions of the Insurance Policy plus (+) compensation to the tune of Rs.20,000/- and cost of litigation, to the tune of Rs.10,000/-. Thus, when the said order dated 16.01.2012, passed by this Commission, had attained finality, the District Forum/Executing Tribunal was legally bound and required to pass directions in the Execution Application No.13 of 2014, keeping in mind the directions contained therein (order 16.01.2012). It is a well settled principle of law that the Executing Tribunal, while executing the final order, could not go beyond the same. Had any direction been given in the order 16.01.2012, passed by this Commission, which had attained finality, that the appellant/complainant was also entitled to the salvage value of the vehicle, in question, apart from its Insured Declared Value also, the matter would have been different. It may be stated here, that the District Forum was required to execute the order dated 16.01.2012, which had attained finality, as it is, and could not go beyond the same, nor could modify it, in the execution proceedings. Even otherwise, when the relief of Rs.7,18,411/- being the Insured Declared Value of the damaged vehicle, had been awarded to the appellant/complainant, the salvage of the same (damaged vehicle), would automatically become the property of the Insurance Company. The respondent/complainant cannot be granted twin benefit. Thus, in our considered opinion, the District Forum, fell into a grave error, in holding that the Decree Holder/complainant was also entitled to the salvage value of the damaged vehicle, in question, especially when no such direction was ever given by this Commission, in the First Appeal No.180 of 2011, or by the National Consumer Disputes Redressal Commission, New Delhi, in First Appeal No.1641 of 2012, filed by the appellants/Revision-Petitioners/Opposite Parties. The findings of the District Forum, in this regard, being perverse, are reversed.
Admittedly, the amount of Rs.4 lacs, had been deposited by the Revision-Petitioners/Opposite Parties, in the District Forum, in compliance of the order dated 23.07.2012 passed by the National Commission and Rs.3,05,059/- had already been paid by them (Revision-Petitioners/Opposite Parties), on 25.03.2015, by way of cheque, to the respondent/complainant during the pendency of Execution Application No.13 of 2014. As such, the Revision-Petitioners are required to be ordered, to comply with the directions contained in the order 16.01.2012, passed by this Commission, which had attained finality, in the manner, referred to above, and pay the amounts mentioned therein, after recalculating/ adjusting the amount already paid by them (Revision-Petitioners), to the respondent/ complainant. Thus, in view of the peculiar facts and circumstances of the case, we are of the considered opinion, that the order impugned dated 16.06.2015, rendered by the District Forum, in Execution Application No.13 of 2014, deserves to be modified, to the extent that salvage value to the tune of Rs.10,000/- as ordered by the District Forum, is not payable to the decree holder/complainant, since it does not form part of the State Commission order dated 16.01.2012, which has been further upheld by the National Commission. .
No other point, was urged, by the Counsel for the parties.
In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
For the reasons recorded above, the Revision-Petition is partly accepted, with no order as to costs. The order of the District Forum, passed in Execution Application No.13 of 2014, out of which the instant Revision-Petition has arisen, is modified, in the following manner:-
The Revision-Petitioners/Opposite Parties are jointly and severally directed to comply with the directions contained in the order 16.01.2012, passed by this Commission, which has attained finality, and pay the amounts mentioned therein, including compensation and cost of litigation, after recalculating/adjusting the amount already paid by them (Revision-Petitioners) to the respondent/complainant, as clarified in paragraph No.11 above.
The direction given by the District Forum, in its impugned order dated 16.06.2015 to the effect that the respondent/complainant was also entitled to the salvage value of the damaged vehicle, in question, is set aside, in view of reasons explained in paragraph No.13 above.
The parties are directed to appear, before District Forum (I) on 15.09.2015 at 10.30 A.M., for further proceedings.
The District Forum record, alongwith a certified copy of this order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 15.09.2015 at 10.30 A.M. Certified copies of this order, be sent to the parties, free of charge.
The Revision-Petition file be consigned to Record Room, after completion.
Pronounced.
07.09.2015 Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.