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Tiara Rose Mary v/s Max New York Life Insurance Co. Ltd. & Another

    Revision Petition No. 50 of 2016

    Decided On, 16 August 2018

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Petitioner: ---------- For the Respondent: R. Narayan, Advocate.

Judgment Text

Revision is directed against the Order dated 30.05.16 passed by District Consumer Disputes Redressal Forum, Thiruvananthapuram, for short the forum, in EA No.42/15 in CC No.472/13. The forum closed the execution proceedings proceeded on the application of the complainant, EA No.42/15, under the impugned Order and hence this revision.

2. Complainant alleging deficiency in service by the opposite parties over the refund of insurance premium paid, filed the above complaint CC No.472/13, and, by Order dated 30.05.16, the forum allowed the complaint directing opposite parties to refund a sum of Rs.70,131/- with interest thereon @ 8% from the date of complaint i.e. from 07.11.13. Opposite parties were also directed to pay to the complainant a sum of Rs.10,000/- as compensation. Complainant thereafter moved the above EA No.42/15 before the forum to proceed against opposite parties for non-compliance of the Order. The forum below issued a notice to opposite parties to show cause why warrant should not be issued against them for non-compliance of its Order. Opposite parties/judgment debtors furnished a reply stating that they have paid an amount of Rs.87,054/- to satisfy the Order under two cheques drawn in favour of Mrs.Shobha K.C. The cheques were sent to her through speed post and payment thereof was collected by her on 17.02.15 was their case to contend that the Order has been satisfied requesting for closing the execution proceedings. The forum below after having an enquiry with reference to the materials on record including the policy found that payment was made by the judgment debtors to the policy holder Mrs.Shobha K.C. and in the policy the complainant is only a beneficiary. Taking note of the policy document stipulating payment of benefits under the policy to the policy holder or his assignees or nominees, the forum found that payment made to the policy holder Mrs.Shobha K.C. in satisfaction of the Order is legally correct. However, taking note of the direction in the Order passed in the complaint that a sum of Rs.10,000/- has to be made as compensation to complainant, which was also paid by opposite parties to the policy holder, forum directed the opposite parties to take steps to realize that amount from Mrs.Shobha K.C. and pay the same to complainant. With direction as above, execution proceedings in EA.No.42/15 was closed. Challenging the above Order, complainant has filed this revision.

3. Revision petitioner/complainant who is stated to be a judicial officer undergoing training, appeared in person in some postings and she was represented on other occasions by her mother Mrs.K.C.Shobha, who is an advocate, and also by a counsel viz. Advocate Vishnu. Taking note of the submissions made and the facts and circumstances revealing that Mrs.K.C.Shobha to whom the insurance company is stated to have paid the amount covered by the Order passed by the forum is none other than the mother of complainant and in the policy document she is shown as the policy holder to whom the benefits under the policy are to be paid, judgment debtors were directed to produce documents relating to the payment. It was reported by the judgment debtors that they have already produced the relevant documents i.e. copies of cheques and the letter sent with the cheques to Mrs.Shobha K.C. and also copies of letters received from the bank stating that the two cheques had been encashed by the above said Mrs.K.C.Shobha.

4. Over and above the relationship of the complainant with above said K.C.Shobha has her mother, perusal of the records would also show that they have the same address indicating that both of them are residing in the same house. Mrs.K.C.Shobha appeared on behalf of the revision petitioner to prosecute the revision also indicates that both of them have no interest adverse to the other. Payment of the above amount covered by the Order to Mrs.K.C.Shobha by opposite parties by two cheques was not disputed by her when she appeared on behalf of the revision petitioner. However, she had advanced a case that the amount so received was appropriated towards claims which were outstanding against her for the services rendered by her to the opposite party insurance company. Revision petitioner has contended before us that whether or not any payment had been made and received by her mother from opposite parties, she being the complainant in whose favour the forum has passed an Order directing opposite parties to pay the sums fixed towards refund and compensation, satisfaction of such Order could only be by way of payment to her as directed. The execution court cannot go beyond the decree passed and it has to execute the decree strictly in accordance with such decree and, therefore, the judgment debtors are bound to pay the sum covered by the Order of the forum to her, according to revision petitioner/complainant.

5. Fora or Commission constituted under Consumer Protection Act are quasi-judicial authorities which are bound to follow the rules, regulations and procedure prescribed by the above Act. The above Act provides for enforcement of the Orders of the Fora, State Commission or National Commission following the procedure covered by Section 25 or 27. Sub sections (1) and (2) of Section 25 of the above Act deals with passing of interim order of attachment and its enforcement during the pendency of a complaint, and sub section (3) of that Section how to enforce an order allowing a party to realize money from another. In the present case, sub section (3) of section 25 alone is relevant, which reads thus: 'Where an amount is due from any person under an order made by a district forum, state commission or national commission, as the case may be, the person entitled to the amount may make an application to the district forum, the state commission or national commission, as the case may be, and such district forum or the state commission or the national commission may issue a certificate for the said amount to the collector of the district (by whatever name called) and the collector shall proceed to recover the amount in the same manner as arrears of land revenue'. The other mode provided for execution of an order is by imposing penalty against the person who had failed or omitted to comply with the order, as provided under section 27 of the Act. Section 27 reads thus: '(1)Where a trader or a person against whom a complaint is made (or the complainant) fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person (or complainant) shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but may extend to ten thousand rupees, or with both;' (sub sections (2) and (3) not relevant and hence omitted). In the present case, when the complainant moved her application for executing the Order passed in the complaint,, imputing non-compliance of the Order by opposite parties, the forum below in its wisdom had initiated proceedings under section 27 of the Act against opposite parties, issuing them notice to show cause why warrant should not be ordered against them for arrest and production before the forum, to impose penalty. So, essentially, revision arises from an order in proceedings u/s 27 of the Act and then the ordinary question is whether the opposite parties have committed the offence punishable under that section. A person who has committed such an offence has to suffer penalty of imprisonment for a term not less than one month which may extend to three years or with fine of not less than Rs.2000/- which may extend upto Rs.10,000/- or with both. A party who is proceeded u/s 27 of the Act for having failed or omitted to comply with an order of the forum/commission, no doubt stands in the shoes of an accused. His guilt of the offence imputed has to be established for imposing penalty. Proceedings u/s 27 of the Act has to follow the procedure for summary trial providing opportunity to the person proceeded against to show cause why he should not be visited with penalty for non-compliance of the order. Fora/Commission being quasi-judicial authorities constituted under the Act, it can adopt its own procedures based on principles of natural justice, of course subject to limitations, if any, prescribed under the Act. There is no merit in the argument of the revision petitioner that execution proceedings over an order passed by the forum or commission are similar or akin to the proceedings of a civil court covered by section 47 under order XXI of the Code of Civil Procedure. In a proceeding u/s 27 of the Act, the fora/commission has to satisfy that there was willful and culpable failure or omission on the part of the person proceeded against to impose penalty against him for the offence. Any explanation or cause shown by such person which would show that he has reasonable justification for failure or omission to comply with the order, has to be examined and appreciated, to decide whether he has committed the offence imputed and, thus, liable for penalty.

6. In the present proceedings we are satisfied on the basis of the material placed on record by the opposite parties, that they have paid the amount covered by the Order by two cheques to Mrs.K.C.Shobha, mother of the revision petitioner/complainant as she is the policy holder and the complainant is only a beneficiary, and the policy stipulated payment of the benefits to the policy holder only. After collecting the sums covered by the Order of the forum by Mrs.K.C.Shobha, it is seen, complainant filed the execution application before the forum imputing non-compliance of the Order by the opposite parties. Copies of bank statements produced by opposite parties would show that cheques issued to the policy holder Mrs.Shobha K.C. were collected by her on 20th February 2015. Revision petitioner filed the execution application on 27th July 2015. We have already pointed out that Mrs.K.C.Shobha, her mother, had appeared before this Commission on behalf of the revision petitioner, and evidently she has no interest adverse

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to the revision petitioner. After the mother who was the policy holder under the policy had received the amount ordered by the forum under the policy by opposite parties, the complainant daughter who is only a beneficiary under the policy initiated the execution proceedings, setting forth a case that there was failure or omission by the opposite parties to pay the sums ordered by the forum below. Totality of the facts and circumstances presented in the case would demonstrate that the mother and daughter had colluded to proceed against the opposite parties after collection of the amount by the mother from the opposite parties. We hold that opposite parties have satisfied the Order of the forum by making payment to the policy holder, mother of the complainant. Order was passed in favour of the complainant, a beneficiary in a policy which stipulated payment of benefits to the policy holder. Such being the case, we hold that the opposite parties have not committed any offence covered u/s 27 of the Act. Order of the forum closing the execution proceedings has only to be upheld and we do so. Revision is dismissed.