Judgment:
B.A. Shaikh, Presiding Member: 1. This appeal is preferred against order dtd.06.05.2013 passed by District Forum, Nagpur in Execution Application No. EA/11/34 by which the said application has been partly allowed.
2. The facts in brief giving rise to the present appeal are as under:-œThe respondent herein namely Anju Dasharath Selokar had filed a complaint bearing No.CC/09/801 under section 12 of Consumer Protection Act against the present appellant, ICICI General Insurance Co. Ltd. and one Atul Ashokrao Ugle before District Forum, Nagpur, claiming Rs.2.00 Lacs on account of the death her husband “ Dashrath Marotrao Selokar who died in a accident on 01.01.2008, that took place when he was driving a truck bearing registration No. MH-31-CB-4358. As per said complaint the risk of the life of Dashrath Selokar was covered under the insurance policy of that truck taken by Shri Atul Ashokrao Ugle, the owner of the truck. Another complaint bearing Consumer Complaint No. CC/09/718 was filed by owner of the said truck namely Atul Ashokrao Ugle and Anju Dashrath Seolkar against the same Insurance Company namely ICICI Lombard General Insurance Co. Ltd., claiming compensation of Rs.5,20,801/- on account of the total loss of the aforesaid truck occurred due to the aforesaid accident.?3. Both the said complaints were resisted by the Insurance Company by filing Written Version. It was denied that the claim alongwith documents was submitted for claiming the amount on account of loss sustained by the complainants due to the damage caused to the truck in the accident. It is also submitted by said Insurance Company that the risk of the life of the deceased “ Dashrath was not covered under the insurance policy. The Forum below after hearing both the parties in both the said complaints found that no claim was submitted by the complainant Anju D. Selokar to aforesaid Insurance Company and opportunity be given to her to submit the claim papers to the said Insurance Company. The Forum below therefore, passed common order in both the complaint bearing Nos. CC/09/718 and CC/09/801 on 05.08.2010 and thereby directed the complainants to submit their claims about loss sustained due to the damage caused to the truck in accident and about the death of her husband occurred in that accident. The Forum below also directed the aforesaid Insurance Company to settle the said claim within 45 days of the receipt of the same.
4. The original complainant “ Anju D Selokar then submitted the said claim to the Insurance Company. Her claim was not settled by the Insurance Company within 45 days on receipt of the same, though the complainant Anju D Selokar through her advocate served notice dtd.03.01.2011 to the said Insurance Company. Thereafter she filed an Execution Application bearing No. EA/11/34 before the District Forum, Nagpur on 04.03.2011 vide Sec.27 of Consumer Protection Act, 1986.5. It is alleged by the original complainant “ Anju D Selokar in that Execution Application in brief that she submitted the claim form alongwith necessary documents on 16.09.2010 to the aforesaid Insurance Company (appellant) as per common order passed on 05.08.2010 in consumer complaint Nos.CC/09/718 and CC/09/801 but her claim is not settled within 45 days from 16.09.2010. She also submitted that Shri Atul Ugle has given her authority to file that application and to receive the claim amount on his behalf. She further alleged that as her claim is not settled, direction may be given to the aforesaid Insurance Company to pay her Rs.5,20,801/- towards total loss claim of the truck and Rs.2.00 Lacs towards the claim on account of death of her husband caused in that accident. She also claimed interest @ 24% p.a. over that amount.6. The Forum below issued notice on that application bearing No. EA/11/34 to the original respondent / appellant herein. The perusal of the impugned order dtd.06.05.2013 shows that Shri Sagar P. Gangaware appeared in that proceeding on behalf of appellant. However, on 17.03.2012 the appellant filed a Pursis / Memo in that proceeding stating that Shri Sagar P Gangaware has resigned from service. Thereafter, Shri Rajanish Sinha, the Branch Manager of the appellant appeared before the Forum in that proceeding and gave undertaking on 21.03.2012 that he will pay compensation of Rs.7,20,801/- (Rs.5,20,801/- + Rs.2,00,000/-) within two weeks to the applicant. The appellant in that proceeding then filed a Pursis / Memo on 09.04.2012 stating that it will comply with the order till 13.04.2012. Thereafter on 13.04.2012 Shri Rajanish Sinha filed a Pursis / Memo stating that he gave the undertaking earlier without any knowledge as insisted by the District Forum and he showed his inability to pay the aforesaid amount to the applicant. Thereafter, Shri Rajanish Sinha remained absent and hence the Forum below passed order on 30.06.2012 to issue non-bailable warrant against him. Shri Rajanish Sinha appeared before the Forum and made an application for cancellation of that warrant and issued cheque for Rs.7,20,801/- in the name of the applicant drawn on IDBI Bank, Branch, Nagpur and filed a Pursis / Memo 30.06.2012 in respect of said cheque and thereby assured that the said cheque will not be dishonoured. He also stated in that Pursis that if the Insurance Company sends the other cheque directly in the name of the applicant then the cheque issued by him i.e. Rajanish Sinha be returned to him. Therefore, the warrant was cancelled. However, the said cheque was dishnoured by the Bank due to instruction of stop payment given by Shri Rajanish Sinha (drawer of the cheque) to the said Bank. The said cheque was returned to the applicant and the said cheque with memo was filed by the applicant before the Forum below.7. Thereafter on 03.10.2012 the appellant - Insurance Company filed a Pursis / Memo on record of that proceeding about compliance of order dtd.05.08.2010 passed in earlier two complaints. It also filed copy of the letter dtd.24.09.2012 by which the claim of the applicant was repudiated. Thus, according to the case of the appellant, the claim of the applicant has been repudiated as per the terms and conditions of the policy.8. The Forum below in that Execution Application explained the particulars of offence to the appellant / original respondent, who pleaded not guilty. Thereafter, the applicant filed her affidavit. The original respondent / appellant cross-examined her. Thereafter the statement of the respondent / appellant was recorded by the Forum below as per provision of Sec. 313 of Criminal Procedure Code (Cr.P.C.). Shri Rajanish Sinha, Branch Manager of the appellant stated that he does not wish to examine himself as a defense witness.9. Thereafter, the Forum below heard arguments of advocates of both the parties in that execution application bearing No. EA/11/34 and considered the evidence brought on record.10. The learned advocate of the respondent / appellant in that application argued that the Insurance Company has disposed of the insurance claim by repudiating the same during the pendency of that application and hence, fresh cause of action arose for filing the complaint and hence, it is necessary for the applicant to file fresh complaint on the basis of the said fresh cause of action. The Forum below relied upon the observations made by the Honble National Commission in case of The New India Assurance Co Vs. M/s Sharma Oil and Cotton Ginning Factory and Ors. given in Revision Petition No.2573/2003 on 04.09.2003. The Forum below found that the facts and circumstances of the present case are similar to those of the said case decided by Honble National Commission. Applying the said decision, the Forum below came to the conclusion that as sufficient opportunity was given to original respondent / appellant to put its defense, the claim of the applicant can be considered without directing the applicant to file fresh complaint. Therefore, it considered a question as to whether it is proved that there is deficiency in service provided original respondent / appellant to the applicant. The Forum below gave its finding to the said question in affirmative. In order to come to the said conclusion the Forum below considered the fact that the original respondent / appellant through its officer Shri Rajanish Sinha had given undertaking on 21.03.2012, showing readiness to pay to the applicant Rs.5,20,801 + Rs.2,00,000/- = Rs.7,20,801/- and then also filed a Pursis / Memo on 09.04.2012 for compliance of the order on 13.04.2012 and also filed a Pursis / Memo on 30.06.2012 showing readiness to pay Rs.7,20,801/- and that Shri Rajnish Sinha also gave cheque of that amount to the applicant with undertaking that it will not be dishonoured and that subsequently, the original respondent / appellant gave instruction to the Bank to stop payment as per that cheque. Thus the Forum below observed in the impugned order that the original respondent / appellant from time to time had accepted the claim of Rs.7,20,801/- made by the applicant and it had undertaken to pay the said amount to the applicant. Therefore, as per the principle of the estoppel as enunciated in Sec. 115 of Evidence Act, the original respondent / appellant cannot make any submission contrary to their said undertaking. It also did not accept the submission of the respondent / appellant that the said undertaking was given as per the insistence of the Forum. Therefore, the Forum held that the repudiation of the claim of the applicant cannot be said to be just and proper. It therefore directed the original respondent / appellant vide order dtd.06.05.2013 to pay to the applicant Rs.7,20,801/- with interest @ 12% p.a. from 04.03.2011 till its realization and also to pay Rs.50,000/- towards physical and mental harassment and Rs.5,000/- towards the cost of the complaint within 30 days of receipt of that order. It is also directed under that order that in case of default, the aforesaid amount shall carry interest @ 15% p.a. instead of 12% p.a.11. Feeling aggrieved by that order dtd.06.05.2013 passed in EA/11/34, the original respondent “ Insurance Company has preferred this appeal. The learned advocates of the appellant and the respondent / original applicant filed their respective Written Notes of Arguments. We have also heard them finally with their consent at the stage of admission of appeal and we have also perused the documents produced by them in appeal.12. The learned advocate of the appellant submitted that in the execution proceeding bearing No.EA/11/34 Shri Rajanish Sinha had given undertaking on 21.03.2012 that he will pay Rs.7,20,801/- within two weeks so as to avoid immediate arrest. He further submitted that on 13.04.2012 said Rajnish Sinha had filed a Pursis stating that the earlier Pursis dtd.09.04.2012 was filed as per the insistence of the District Forum. He also submitted that the Forum below had also issued non-bailable warrant against R. Sinha on 30.06.2012 due to his absence in executing proceedings and that he attended the Forum and gave undertaking to pay the said amount and personally issued cheque for Rs.7,20,801/- drawn on IDBI Bank, Branch Nagpur and that he subsequently stopped the payment of that cheque as he was not liable to pay the said amount. He further submitted that as per letter dtd.24.09.2012 the appellant repudiated the claim of the respondent herein. Thus, according to him, the impugned order has been passed without jurisdiction as no such order can be passed in execution proceeding initiated under Sec.27 of CPA. He also submitted that in view of the rejection of the claim of the respondent by the appellant vide letter dtd.24.09.2012, the respondent had independent cause of action for filing fresh complaint, and this fact was not considered by the Forum below and misdirected itself in law by passing the impugned order. He also submitted that the aforesaid decision relied upon by the Forum below is not applicable to the present case as the facts of that case are distinguishable from those of present case. He, thus, urged that the appeal may be allowed and impugned order may be set aside.13. On the other hand, the learned advocate of the respondent herein submitted that the aforesaid decision, referred to in the impugned order is fully applicable to the present case and that the Forum below has rightly considered all facts and circumstances and passed legal and just impugned order. He also submitted that the appellant “ Insurance Company adopted fraudulent practice from time to time during the aforesaid proceeding and delayed the decisions of that application by making frivolous applications. He also submitted that on one occasion the appellant had filed an application seeking time to challenge the order but it was not challenged before this Commission. He further submitted that the undertaking submitted by the appellant that they will deposit Rs.7,20,801/- within two weeks was accepted by the Forum below and the proceedings was adjourned and subsequently, one Amit Uppalwar filed an affidavit stating that he was not authorized to appear before the District Forum. Thus, according to him it was the duty of the appellant to comply with the undertaking given by it from time to time through its officer and subsequently, by playing fraud upon the Forum, they subsequently withdrew the undertaking saying that claim has been rejected. He has drawn our attention to the copies of the Pursis and undertaking filed on record of this appeal. Thus, he submitted that there is no substance in the appeal and hence, it may be dismissed.14. It is, thus, seen that in an execution application bearing No. EA/11/34 filed under section 27 of Consumer Protection Act the respondent herein had claimed Rs.7,20,801/- from the original respondent / appellant as it did not settle the claim within 45 days of receiving the claim papers submitted by the respondent herein as per common order passed by the Forum on 05.08.2010 in CC/09/718 and CC/09/801. It is also not disputed that the appellant did not settle the said claim within a period of 45 days of receiving the claim papers from the respondent herein and that during pendency of aforesaid execution application bearing No.EA/11/34, the appellant repudiated the said claim. In this context, we find that the Forum below has rightly considered the decision of Honble National Commission, given in the case of The New India Assurance Co Vs. M/s Sharma Oil and Cotton Ginning Factory and Ors., in Revision Petition No.2573/2003 on 04.09.2003. In that case also the contention was raised by the Insurance Company that no substantive order could have been passed by the District Forum in proceeding u/S 27 of Consumer Protection Act and the remedy available to the complainant was to file afresh complaint. The Honble National Commission made the following observation in the background of said submission. œWe are really surprised at such a submission. It is not material that the application is labeled under any particular Section. It is the substance of the matter. When the Insurance Company failed to comply with the directions of the District Forum to consider the matter afresh after submission of the record by the complainant, the only remedy in our view was to approach the District Forum by an application and now for the District Forum to decide the complaint on merit. This is what the District Forum has done. A consumer cannot be asked to file a complaint after complaint to fight the might of an Insurance Company. Strict rules of CPC are inapplicable to the proceedings before a Consumer Forum and what is requirement of law is that rules of natural justice should be followed. It cannot be disputed that the order of District Forum as affirmed by the State Commission was passed after notice to Insurance Company and observing the rules of natural justice.?15. Thus, the Honble National Commission did not find that to be a fit case to exercise its jurisdiction under Clause (b) of Sec.21 of Consumer Protection Act, 1986. Thus, it is clear from that order that when the Insurance Company has not settled the claim despite of submission of documents by the claimant in support of the claim though direction was given in earlier complaint to settle the claim within the certain time limit, then in such a case, even in a proceeding initiated under section 27 of Consumer Protection Act, if compensation is granted after observing principles of natural justice, without asking the complainant to file fresh complaint, such an order cannot be challenged by raising a plea of technical nature that fresh complaint ought to have been filed for claiming compensation. The facts and circumstance of the present case are exactly identical to the facts and circumstances of the aforesaid case in which the aforesaid observations are made by Honble National Commission. Therefore, the said decision of Honble National Commission is squarely applicable to the present case. We, thus, hold that the Forum below has rightly applied the said decision to the present case for coming to the conclusion that in such a case fresh complaint is not required to be filed by the applicant and that it can be considered in the said proceeding as to whether there is deficiency in service provided by the original respondent / appellant to the original applicant / respondent herein.16. It is also pertinent to note that the appellant was given proper opportunity to put its defense in the said proceeding as observed in the impugned order. Thus, principle of natural justice has been complied with in the said proceeding by the Forum below. The appellant, thus, cannot raise a plea that it was denied proper opportunity of hearing in that proceeding to put up its case.
17. It is also not disputed that the appellant through its authorized officers had appeared in that execution proceeding and it had submitted undertaking before the Forum below that it would pay Rs.7,20,801/- to the original applicant / respondent herein. Besides the said undertaking, one of the officer of the appellant namely, Rajanish Sinha had also handed over cheque for the said amount to the applicant drawn on IDBI Bank, Branch, Nagpur. However, subsequently, he gave instruction to that bank to stop payment and hence, the said cheque was dishonoured by the Bank.18. The appellant in the appeal raised untenable plea that the said undertaking and cheques were given in order to avoid the arrest of the officer of the appellant and as insisted by the Forum below. However, we find that it was open for the appellant to challenge any such order of arrest warrant passed by the Forum below, by filing revision petition before this Commission. The appellant has not explained as to why the said order was not challenged before this Commission to avoid any such arrest of its officer.19. We, thus, find that once the appellant through its officer admitted its liability for payment of Rs.7,20,801/- to the original applicant it is stopped from raising a plea that it had agreed to pay the said amount to the applicant under the apprehension of arrest of its officer. Therefore, the repudiation of the claim subsequent to the undertaking given by the appellant for payment of the amount of Rs.7.20,801/-, can be said to be unjust and illegal. Therefore, under these facts and circumstances, the Forum below has rightly come to the conclusion that there is deficiency in service provided by the appellant to the respondent herein by repudiating her claim. Therefore, the Forum has rightly directed the appellant to pay Rs.7,20,801/- to the original applicant.20. However, the interest of Rs.12% p.a. awarded over that amount appears to be excessive. In our view the said interest ought to have been awarded @ 9% p.a. only. Moreover, the compensation of Rs.50,000/- awarded on account of mental and physical harassment is also exorbitant. It should have been Rs.5,000/- only under the facts and circumstances of the present case. Hence, the appeal deserves to be partly allowed to modify the aforesaid rate of interest and to reduce compensation as above. Accordingly, following order is passed:-
ORDERi. The appeal is partly allowed.
ii. The direction given by the Forum below under Cl.No.2 and 6 of the impugned order is modified to the following effect.
iii. The original respondent / appellant herein shall pay Rs.7,20,801/- to the original applicant / respondent herein towards her claim with interest @ 9% p.a. from 04.03.2011 till its realization. The direction given under the said clause No.2 and 6 for payment of interest @ 12% p.a. and incase of default @ 15% p.a. is hereby set aside.
iv. Moreover, the direction given under Cl.No.3 of the impugned order is modified to the effect that instead of compensation of Rs.50,000/-, the appellant / original respondent shall pay to the original applicant / respondent herein Rs.5,000/- towards mental harassment.v. The direction given in the Cl.No.5 of the impugned order for payment of Rs.5,000/- to the original applicant / respondent herein is maintained.vi. No order as to cost in this appeal.vii. Copy of this order be supplied to the parties free of cost.