Tamil Nadu

StateCommission

A/65/2021

Standard Charted Bank Limited, - Complainant(s)

Versus

1.B. Ananthanarayanan Maniam, And 2 Others - Opp.Party(s)

M/s. B. Dhanasekaran

15 Jul 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.R.VENKATESAPERUMAL     … MEMBER

 

F.A. No.65 of 2021

(Against the Orders, dated 02.05.2018 & 30.09.2019, passed in E.A. No.14 of 2017 in C.C. No.158 of 2003,

on the file of  the DCDRF, Coimbatore)

                                                    

                               Orders pronounced on:   23.06.2022

 

Standard Chartered Bank Ltd.,

Gundlays Centre,

509, D.B. Road,

R.S. Puram,

Coimbatore 641 002.                            … Appellant/1st OP

 

vs.

 

1.B.Ananth Narayanan,

Maniam, 10/19, GG Avenue,

Off. Marudhamalai Road,

Coimbatore.                                          ... R1/Complainant

 

2. Medicare Service Club,

6, Bishop Lefroy Road,

Kolkata-700 020.                                  ... R2/2nd OP

 

3.National Insurance Co Ltd.,

3, Middleton Street,

P.B. NO.9229, Kolkata.                         … R3/3rd OP.

 

             For Appellant           :  M/s.B.Dhanasekaran

             For R-1                    :  M/s.C.S.S.Pillai

             For R-3                    :  M/s.N.Premalatha

             Amicus Curiae -Mr.M.B.Raghavan.

            

 

This First Appeal came up for final hearing on 09.06.2022 and, after hearing the arguments of the counsels appearing for the parties  and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             The appellant herein-Standard Chartered Bank Ltd./1st OP in the Complaint, aggrieved by the ex parte order of arrest, dated 30.09.2019, passed by the DCDRF, Coimbatore, in E.A. No.14 of 2017 in C.C. No.158 of 2003, against its Branch Head, has come up with the present Appeal, inter alia, seeking to set aside the same and to discharge them from further appearance in the above Execution Application.

 

             2.  It is seen that the 1st respondent herein had filed C.C. No.158 of 2003 on the file of the DCDRF, Coimbatore, seeking the said Forum to direct the appellant herein/1st OP and the other OPs to pay the medical expenses incurred by him and to renew the Medicare Insurance Policy automatically every year after deducting the premium amount from the Bank Account of the complainant.  The said Complaint was allowed by the District Forum vide orders, dated 20.02.2008, with the following direction:-

             " In the result, we direct the opposite parties 1 to 3 jointly to pay a sum of Rs.3,59,166/- as expenses incurred by the complainant for himself and for his son and a sum of Rs.47,725/- as expenses incurred for him and Rs.56,596/- as expenses incurred by his wife totaling Rs.4,63,484/- with interest at the rate of 9% from the date of rejection ie. from 6.5.2002 and further direct the opposite parties to pay a sum of Rs.10,000/- towards mental agony and Rs.2000 towards costs within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.  We further direct the opposite parties 1 to 3 to renew the Medicare insurance as promised by them every year till his consent for such insurance continues as per the scheme.  We further direct the complainant to submit a separate claim to the opposite parties for the medical expenses incurred after this complaint."

Aggrieved by the above order, the Bank/1st OP had filed F.A. No.709 of 2010 and, by orders dated 30.12.2011, this Commission had allowed the Appeal in part, in the following terms:-

             " In the result, appeal is allowed in part, modifying the order of the District Forum, in CC.No.158/2003 dt.20.2.2008, directing the opposite parties to pay the medical expenses incurred for the complainant's son, instead of Rs.3,59,166/-, only Rs.3,00,000/-, reducing the total amount also from Rs.4,63,484/- to Rs.4,04,318/-, less the premium payable at Rs.9840/-, as well as upsetting the compensation, confirming the rest of the order, as observed above regarding renewal, making no order as to cost in this appeal."

Thereafter, the 1st respondent herein/complainant had filed an execution petition in  E.A. No.22 of 2013 seeking to implement the above direction, failing which, to order arrest of the Bank Official.  In the said execution petition, it seems, the complainant did not press for renewal of the Medicare Insurance.   While so, during the pendency of the execution petition, the Bank-1st OP/appellant herein had paid a sum of Rs.2,66,627/- on 08.08.2013 and another sum of Rs.5,55,887/- on 25.11.2014 in satisfaction of the execution petition and the payment was acknowledged by the complainant, who filed a Full Satisfaction Memo, dated 03.12.2014 and, by recording the said Memo and by noting further that the execution petition is fully satisfied, on the same date, the District Forum terminated the E.A.  Subsequent thereto, on 20.02.2017,  the complainant filed a second execution petition in E.A. No.14 of 2017 against the OPs for renewal of the Medicare Insurance Policy about 5 years after the final orders, dated 30.12.2011, passed in F.A. No.709 of 2010. It seems, the complainant wrote to the Bank for renewal of the policy under the Medicare Insurance Scheme and the Bank, in turn, appeared to have addressed the other OP/Insurance Company.  Although all the OPs were shown therein as parties, a direction for arrest of the 1st OP's Official alone was sought for.  By Orders, dated 30.09.2019, the District Forum has passed the ex parte arrest order against the 1st OP, who has appealed now.

 

             3. Learned counsel for the appellant submits that the 2nd execution petition is barred by the principles of res judicata.   By pointing out that R1 herein had filed the 1st execution petition in E.A. No.22 of 2013, which was ordered to be terminated on the basis of the Full Satisfaction Memo, dated 03.12.2014, submitted by R1 after receiving full payment from the appellant in full satisfaction of the E.A., learned counsel states that now, after a long lapse of time, filing the second execution petition in E.A. No.14/2017 to once again contest the same cause of action is clearly barred under the doctrine of constructive res judicata.   According to him, if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same opponent in a subsequent proceeding with reference to the same subject matter.  In that regard, by referring to Section 11 of the CPC that deals with 'res judicata' and to the decisions rendered by the Madras High Court in Gummadi Appayya & Ors v. Gavini Venkataratnam (AIR 1954 Mad. 1) & Subramania Ayyar & six others vs. Raja Rajeswara Dorai ((1917) ILR 40 Mad. 1016) for the proposition that the principles of res judicata as enacted in Section 11 CPC are applicable to execution proceedings and that parties should not be allowed to agitate the same question after it has been once decided, learned counsel submits that, in the instant case, the 1st respondent herein, during the 1st round of execution proceedings, had ample opportunity to project any remaining grievance, however, after receiving the entire award amount from the Bank, without pressing the claim for policy renewal or reserving any right over the same, he chose to file a full satisfaction memo for terminating the execution petition in its entirety; therefore, now, he hardly has any legal scope to re-canvass the grievance by launching a second execution petition which is clearly hit by the principles of res judicata. Learned counsel added that no party can be compelled to provide a relief that is not within their domain; while so, when issuance/renewal of the insurance policy falls within the purview of the National Insurance Company, there is no point in seeking the appellant/Bank for renewal of the policy; that being so, the District Forum completely overlooked these vital aspects and rushed to pass the ex parte order of arrest against the Bank Official.  The said order clearly seems to be cryptic without any logic or reasoning and hence, the same is liable to be set aside by allowing the Appeal, he pleaded.

 

             4. Per contra, learned counsel for the 1st respondent states that the principles of res judicata cannot be, in a strict sense, applied to the execution proceedings and that the 1st respondent herein/complainant can file any number of execution petitions till the decree/direction of the State Commission issued in F.A. No.709 of 2010 is satisfied.  According to him, the second part of the order with reference to renewal of the policy was not complied with and hence, the execution petition is well maintainable.  It is stated that since the OPs failed to renew the policy and to pay the Mediclaim amount from and after 20.02.2022, on the basis of the Order passed in F.A. No.709 of 2010, the complainant has filed one more execution petition in E.A. No.18 of 2020 for a total compensation of Rs.35,61,763/- with interest, failing which, to order arrest of the OPs and the said Application is pending as on date.  So stating, learned counsel sought for dismissal of this appeal.

 

             5. Learned counsel appearing for the Insurance Company states that the Insurance Policy in question comes under a Scheme that was uniquely devised and introduced for the appellant/Bank's Customers and the Scheme itself ceased to exist from 2003 onwards.   The complainant cannot seek for renewal of a policy under a scheme that is not in vogue.  By ultimately stating that grant of the policy in question with continuity from 2002 till date without collecting any premium would amount to violating the provisions of the Insurance Act, 1938, learned counsel sought to set aside the impugned order passed by the District Commission.

 

             6. Learned amicus curiae states that, in fact, it does not seem that the impugned order was passed on merits after discussing various vital aspects involved.   He points out that the 2nd execution petition in E.A. No.14 of 2017 for renewal of Medicare Insurance Policy was about 5 years after the final orders passed in F.A. No.709/2010 and that the 1st execution petition in E.A. No.22 of 2013 came to be terminated only after recording the full satisfaction memo filed by the complainant, whose main grievance was with regard to payment which was complied with and he apparently did not seek therein to renew the policy by mentioning the coverage period.  According to him, when the particular scheme is not available at all, it is not known as to whether  it would be proper to direct the Insurance Company for issuance of the policy under a scheme that is extinct after its withdrawal way back in 2003.  It is stated that, if the complainant seeks any other alternative policies, questions would arise as to the limits of the cover, the premium for such insurance etc., however, that cannot be a subject matter of the execution petition which arises from a particular direction issued by the Commission.  While so, in the 3rd execution petition in E.A. No.18 of 2020 filed for recovery of Rs.35,61,763/-, it does not seem, any claim has ever been adjudicated or award passed by the District Forum.  Inasmuch as many such issues require clarification & thorough adjudication, suitable orders may have to be issued by this Commission.   

 

             7.  After hearing the learned counsels appearing for the parties and the learned amicus curiae and perusing the materials made available, we intend to highlight at the outset that there was no proper adjudication of the issues including the maintainability of the 2nd execution petition before issuing the impugned direction to arrest the appellant/Bank's Official.  It is admitted fact that the complainant received the payment from the Bank in full satisfaction of the E.A. and that the Application came to be terminated based on the Full Satisfaction Memo filed by the complainant.  If he was not satisfied fully then over the issue of renewal of policy, while receiving payment, he could have left the said issue open and sought for necessary orders for renewal of the policy in due course.  Probably, due to the reason that the Scheme itself was not available then since it was closed way back in 2003, he would not have pressed that claim. Under such circumstances, the District Forum, before issuing the ex parte direction of arrest, should have first appreciated and satisfied itself on various crucial points - whether the complainant, who only pressed the monetary relief while pursuing the 1st execution petition and neither insisted for renewal of the Policy nor demanded its renewal from 2011 to 2017 nor ever volunteered to pay any premium for the policy, is entitled to seek the other relief/renewal that was consciously foregone by him in the first round; whether the second execution petition filed after about 5 years is maintainable; lack of clarity about the period for which the renewal is to be granted; if the impugned direction was to be construed as a mandatory injunction to perform the act of renewal of insurance policy, whether or not the said petition is hit by Article 135 of the Limitation Act; whether the OPs could be directed to renew a policy under a Scheme which is said to have been closed way back in 2003, etc.  It does not appear that the impugned ex parte direction was issued after considering or taking note of the above issues.  Similarly, when the observation in the orders passed by the District Forum was that the complainant may submit claims for the medical expenses incurred after the complaint, it goes without saying that no adjudication has taken place on the said subsequent claims for settlement of bills, quantification of the amount, etc.  We are told that that no claim has been submitted yet and that the complainant only offers to submit the bills.   If that is so, any claim for recovery of the amount as mentioned in the third E.P. appears to be beyond the scope of the orders from which the execution proceedings arise.  Since none of the above points has been touched and discussed, it is just and necessary that the same require adjudication in a broad manner by the District Forum.  Since it is glaringly apparent that the impugned direction has been passed in a hurried manner without properly appreciating the main points and issues, we are of the considered opinion that the same is liable to be interfered with.

             In the result, the appeal is allowed by setting aside the impugned direction, dated 30.09.2019, issued by the DCDRF, Coimbatore, in E.A.No.14/2017 in C.C. No.158/2003, and consequently, directing the said Forum to take up E.A. No.14 of 2017 along with the third application in E.A. No.18 of 2020 and, after giving due opportunity to the OPs to file their counter statements, to dispose of the Applications afresh on merits and in accordance with law, preferably within a period of three months from the date of receipt of a copy of this Order. Needless to mention that the parties shall co-operate with the District Forum for disposal of the matters within the time-limit fixed by us.

 

Sd/-                                                                Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT