Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 27A of the C.P Act, 1986 has been filed challenging the judgment and order dated 17.08.2018 passed by the Ld. District Forum, Kolkata Unit—II in Execution Application No. EA/32/2013 wherein the Execution Application was directed to be dropped being bereft of merit without any cost.
The brief fact of the case was that the Appeal No. FA/1092/2013 challenging the judgment and order passed by the Ld. District Forum in Complaint Case No. 23/2010 was allowed in part wherein the Respondent/JDr Insurance Company was directed to pay to the Appellant/DHr a sum of Rs. 2,33,383/- instead of Rs. 6,75,000/-, as the Ld. District Forum had ordered to pay with compensation and litigation cost of Rs. 20,000/- and 2,000/- respectively.
The total amount of Rs. 2,55,383/- was directed to be paid within a period of 40 days from the date of the Appellate order, failing which, as ordered, the said amount should earn interest @ 9% from the date of the Appellate order till full realization.
The Respondent/JDr Insurance Company, in compliance of the above order, issued a cheque of Rs. 2,62,788/- inclusive of interest which was sent through postal department. The specific case was that the Respondent/JDr Insurance Company claimed that the wife of the Appellant/DHr received the said cheque on behalf of the Appellant/DHr whereas the Appellant/DHr denied to have received the cheque. The payment, however, was made afterwards. The delay in payment, allegedly, caused accrual of further interest leading to increase in the payable amount to the tune of Rs. 3,18,590/- and not Rs. 2,62,788/- which was paid to him. This way, as alleged, the Respondent/JDr was still liable to pay Rs. 55,802/- (3,18,590-2,62,788) in the form of accrued interest.
Heard Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Appellant/DHr submitted that no cheque was received by him from the Respondent/JDr earlier as claimed. An amount of Rs. 2,62,788/- was, however, received by him on a much later date leading to accrual of further interest and making the Appellant/DHr entitled to get a further amount of Rs. 55,802/-.
As he continued, the Ld. District Forum, failed to apply its judicial mind while passing the impugned order which should be set aside and the claim of the Appellant/DHr should be affirmed.
Ld. Advocate appearing on behalf of the Respondent/JDr, per contra, submitted that the cheque was issued and sent to Respondent/JDr which was received by his wife. Referring to the photocopy of the Cheque No. E889383 dated 06.01.2016 for an amount of Rs. 2,62,788/-, the Ld. Advocate submitted that the very documentary evidence was indicative of the fact with the cheque was actually issued on earlier occasion.
Ld. Advocate drew the notice of the Bench to the letter under No. CPT/Public/RL/03/2016 dated 31.03.2016 issued by the Superintendant of Post Offices responding to the RTI query raised by the Respondent/JDr Insurance Company wherein it was intimated that the Consignment No. RW382665524IN dated 19.01.2016 through which the disputed cheque, allegedly lost, was sent, was actually delivered on 27.01.2016. It was also submitted that the document sent through the consignment was received by the wife of the Complainant/DHr. There was, therefore, no lack of initiative of compliance of the Appellate order passed by this Commission.
As he continued the said amount was ultimately paid to the Appellant/DHr and the delay had happened for processing the proposal of the said payment in the second time de-novo which was absolutely beyond the control of the Respondent/JDr.
There being no deficiency on the part of the Respondent/JDr, as it would be evident from the facts and circumstances narrated above, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record and considered submissions of the Ld. Advocates appearing on behalf of both sides.
It appeared from the photocopy of the cheque that the Cheque No.889363 dated 06.01.2016 was actually issued by the Respondent/JDr in the name of the Appellant/DHr. It further appeared that the cheque was duly dispatched to the address of the Respondent/JDr and as it revealed from the correspondence of the postal authority, the letter under the subject consignment was duly delivered to the address of the Appellant/DHr which was allegedly received by none else other than his wife.
The missing of the subject cheque, in spite of the fact of the letter being duly delivered, might have happened only for the reasons shown below.
- The envelope was not containing the subject cheque—This, prima facie, could be ruled out as not dispatching the issued cheque involving an amount under the direction of the legal Forum actually would not have yielded any benefit for the Respondent/JDr Insurance Company, particularly, in view of the fact that the said amount it had paid to the Appellant/DHr on subsequent occasion.
- It might have been lost due to utter negligence or mis-handling of envelope by the postal authorities—This was an absurd contemplation in view of the fact that the envelope, definitely, unmutilated, was delivered to the addressee’s residence, otherwise, the addressee would have refused to accept the same. Moreover, the postal authority was not made a party to the instant Appeal and last but not the least,-
- Possibility remained that the cheque was misplaced or unintentionally destroyed by the Appellant/DHr or the recipient on his behalf.
The Bench found it difficult to ascertain the actual reason for the loss of the subject cheque. Had it been any deficiency on the part of the Respondent/JDr, as alleged in the complaint, it would have amounted to a graver offence having criminal ingredients, adjudication of which was beyond the jurisdiction of the Consumer Fora. We had no reason to conclude that there was deficiency in carrying out the Appellate order of this Commission by the Respondent/JDr Insurance Company. Further, the Appellant/DHr appeared to have received a part amount and thereafter, filed the Execution Application. We found no documentary evidence confirming the fact that he had to receive the payment under compelling circumstances. Therefore, the Appellant/DHr, consequent upon receiving the part payment, ceased to be a Consumer. In this context, we relied upon the decision of the Hon’ble National Commission in Consumer Case No. 549 of 2018 [Batra Garments Pvt. Ltd.—Vs—New India Assurance Co. Ltd. and Ors] reported in 2019 (1) CPR 120 (NC) wherein the Hon’ble Commission was pleased to hold, “the Discharge Voucher was executed and payment of Rs.3,80,30,879/- was accepted by the Complainant voluntarily and without any fraud, misrepresentation, coercion or undue influence from the insurer. Therefore, a consumer complaint seeking additional payment of the Discharge Voucher executed by the complainant is not maintainable.”
Keeping in view the facts and circumstances narrated above, we are of the considered view that the Ld. District Forum had committed no wrong in passing the impugned judgment and order which, therefore, did not deserve any intervention from this end.
Hence,
Ordered
that the Appeal stands dismissed. Impugned judgment and order stands affirmed. No order as to costs.
