This Case was heard in the Ld. DCDRC, Jalpaiguri (henceforth to be referred as Ld. Lower Court) in connection with EA/05/2020 while the judgement was passed by the then President of the Ld. Lower Court, who is now the Presiding Member of the State Consumer Disputes Redressal Commission, Siliguri Circuit Bench. Hence, for the sake of natural justice, he is not to hear the same Case which came to the State Forum being first Appeal vide AEA/1/2022 on the same issues seeking the execution of the order of Ld. Lower Forum (J.C.D.R.C) dated 12/3/2020 in connection with CC/62/18. Hence, the request was made to the President of the WBSCDRC vide his Office No.51/SCB/1E-15/2023 dated 03/02/2023 for the constitution of single bench and the Hon’ble President, WBSCDRC vide his Office memo no. 2819240/SC/2J – 14/08 (Vol. I) dated 17/02/2023 was kind enough to have given the approval/permission to form the Single Bench. Accordingly, Single Bench was constituted with the undersigned as Presiding Member.
The Case in brief is that Kumar Chhetri the Complainant having the valid driving license no.WB-6152/83B83 (validity period up to 26/6/2017) was driving his registered car bearing no. WB – 74V – 6364 insured with Cholamandalam MS General Insurance Company (henceforth to be referred as said Insurance Company) with the insurance coverage from 12/3/14 to 11/3/15, faced an accident near Swetajhora Bridge near Rambhi bazar PO – Rambhi, PS – Kalimpong, Dist. – Darjeeling (erstwhile) presently Dist. – Kalimpong. The car was capsized in the Teesta River and the Complainant saved his life but the car was not traced out. He went to the Riang Outpost lodged a G.D (vide no.G.D.E 653/14 dated 27/7/2014. Then he submitted necessary documents/papers being no. 3362234612 for the insurance claim of Rs.229631 (Rupees two lakhs twenty-nine thousand six hundred thirty-one) only but the Said Insurance Co. (OP) did not entertain his claim as no FIR was lodged and no FRT was submitted and the said car was not recovered/traced out. The standard procedure is that Police Authority starts specific case when it is a cognizable offence then & there arises the need of submission of FRT/Charge-Sheet etc. In the instant case, since the said vehicle was not recovered or traced out no through investigation was made since the same was non -cognizable offence. Hence no specific case was registered save and except the said G.D.E. However, the insured cannot be deprived of his bona fide claim for any act of commission/omission on the part of the Police Authority. Consequently, the Insurance Co. agreed to pay Rs.12,173/- (Rupees twelve thousand one hundred seventy-three) only towards the insurance claim against the insurance coverage of the said vehicle.
Being aggrieved the Complainant approached to the Siliguri District Consumer Disputes Redressal Commission against the said Insurance Company for realization of his total of Rs. 229621/- (Rupees two lakhs twenty-nine thousand six hundred twenty-one) claim against the said lost car and the said Ld. Lower Forum passed an ex-parte Order dated 28/3/2017. But the jurisdiction of Siliguri, DCDRC was challenged to pass such an Order since the office of the said Insurance Co. is situated at Sona Wheels Building, 3rd Mile, Sevoke Road, Siliguri under PS – Bhakti Nagar, Dist. – Jalpaiguri. Which was not within the jurisdiction of the Ld. Siliguri, D.C.D.R.C.
As a result, the Complainant approached to Jalpaiguri DCDRC being Case No. CC/62/18 against the indifferent attitude of the Insurance Co. (OP) towards his said total insurance claim. The Ld. Lower Forum hearing both the sides passed an Order dated 12/3/2020 which inter alia directed that the OP (Insurance Co.) “shall pay Rs.229621/- (Rupees two lakhs twenty-nine thousand six hundred twenty-one) only to the Complainant within one month from the date hereof, failing which the OP shall go on paying punitive damage amounting to Rs.500/- per day from the date of expiry till the realization of the same.”
But the OP did not feel any urge/necessity to implement the Order dated 12/3/2020 of the Ld. Lower Court/ in connection with Case No.CC/62/2018. Being utterly aggrieved, the Complainant approached to the Ld. Lower Forum for execution of the Order of Case No. CC/62/2018 dated 12/03/2020 (the execution case being no. EA/05/2020). The Ld. Lower court, considering the prevailing pandemic situation, opined that DHR (probably it would be JDR) cannot be penalized for not depositing the decretal amount earlier in compliance of the judgment dated 12/03/2020 due to such overwhelming circumstances and ordered in connection with EA/05/2020 dated 12/7/22 that the instant petition of the DHR stands dismissed and the instant EA case also dismissed on full satisfaction.
Hence, the HDR/Complainant approached to the Appeal Forum (Siliguri Circuit Bench of W.B.S.C.D.R.C.) against the Order of the EA/05/2020 dated 12/07/22 and for implementation of the Order dated 12/03/2020 in connection with Case No. CC/62/18.
Decisions with reasons
It appears on perusal of records and documents that the JDR/OP was delaying the claim of the HDR/Complainant on flimsy grounds for which HDR/Complainant is not at all responsible. Finally, the JDR/OP had deposited the Cheque amounting to Rs.229621/- (Rupees two lakhs twenty-nine thousand six hundred twenty-one) only on 17/06/2020 but due to miscommunication/non-communication etc. The Cheque could not be collected by the HDR/Complainant due to prevailing pandemic situation and the validity of the Cheque was expired. The HDR/OP again deposited the fresh Cheque on 16/10/2020 for the second time which was collected by the JDR/Complainant on 17/10/2020.
Therefore, the HDR approached to this Forum (State Commission) praying for realization of Rs.94,000/- (Rupees ninety-four thousand) only as punitive damage @ Rs.500/- per day for 188 days (period from 12/04/2020 to 15/10/2020) for compliance of the Order of the Ld. Lower Forum dated 12/03/2020 in connection with CC/62/2018.
Thus, the first part of the order dated 12/03/2020 in c/w case no. CC/62/2018 was implemented. The second part relates to the payment of punitive damage @ Rs.500/- par day which remains to implemented.
Now, the question arise: -
- Whether the second part of the said order dated 12.03.2020 is to be implemented or not.
- If it is affirmative, then for how many days, whether it is for 188 days as claimed by the DHR/complainant or for any other period as the Ld. Court thinks fit and proper.
- Whether the impugned order dated 12.07.2022 in connection with EA/05/2020 is maintainable or quashable.
It is doubtful and questionable whether the Ld. Lower Court can dismiss/change/alter/review its earlier Order. In the instant case, the Ld. Lower Court in connection with EA/05/2020 dated 12/07/2022 dismissed its earlier Order dated 12/03/2020 in connection with Case No.CC/62/2018. The Ld. Lower Court while hearing the Execution Appeal Case was acting as an Executing Authority and not as Reviewing Authority. Moreover, it remains to be confirmed whether the Ld. Lower Court can pass a such dismissal order of its earlier one in Execution Appeal Case as the Ld. Lower Court is supposed to execute the order already passed & unless the same is neither challenged nor pending in any other courts of Law. In the instant case, the OP/JDR never challenged the Order dated 12.03.2020 in Case No.CC/62/2018, especially in the Appellate Court (W.B.S.C.D.R.C., Siliguri Circuit Bench). So, the Order dated 12/03/2020 of the Ld. Lower Forum passed in the Case No.CC/62/2020 still remains valid unchangeable and therefore the said order dated 12.03.2020 is still maintainable and implantable. Ld. Lower Court has no authority to dismiss/alter/change its earlier Order specially while hearing the Execution Appeal Case (EA/05/2020 dated 12/07/22). Thus, the Ld. Lower Court transgressed its jurisdiction and erred both in essence and spirit of law by passing such said Order of dismissal dated 12.07.2022 in connection with EA/05/2020. Thus, there is illegality, jurisdictional error and material irregularity on the part of the Ld. Lower Court and hence its Order dated 12/07/2022 in EA/05/2020 is not at all maintainable, rather it is liable to be quashed.
In other words, it can be said that Ld. Lower Court while hearing the execution appeal case can not review/change the verdict/order passed in C.C. case which is the original case, specially when it is not challenged and till it is valid and maintainable. So, it is clear that the Ld. Lower court while hearing the Execution Appeal case cannot change/alter review its original order and thus Ld. Lower court exercises its powers not vested in it by law or mis-exercised its power vested in it.
Now the question comes whether the punitive damage @ Rs.500/- per day as passed by the Ld. Lower Forum in its order dated 12.03.2020 in connection with Case No.CC/62/2018 is proper and justified. In normal condition, it does not seem to be too high but the Ld. Lower Forum probably did not foresee the incoming worldwide pandemic situation and imposition of lock-down, a force majeure beyond the control of human beings arising out of such unprecedented pandemic situation but since the said Order was not challenged, it needs to be upheld and implemented. The Insurance Company is supposed to indemnify the loss or damages of the insured goods/articles (i.e., Motor vehicle etc). But the question arises is that the punitive damage @ Rs500/- per day to be realized from JDR/OP for how many days? In other words, whether the punitive damage @ Rs. 500/- can be charged for 188 days (period from 12/04/2020 to 15/10/2020) since the second Cheque was deposited on 16/10/2020 or whether the punitive damage @Ra.500/- is to be realized for the period from 12/04/2020 to 16/06/2020 since the first Cheque was deposited by the JDR/OP on 17/06/2020.
In my humble opinion, the good will and bona fide mission of the JDR/OP is to be recognized and appreciated in view of total Covid-19 scenario and total lock-down. Since, it had deposited the first Cheque on 17/06/2020 amid the prevailing pandemic situation along with total lockdown, a force majeure though the same could not be collected due to non-communication/miscommunication and prevailing pandemic situation. Here, spirit matters which is to be taken into cognizance. The gesture of the JDR/OP is to be viewed in its actinal true perspective and spirit especially in view of prevailing pandemic situation and total lock-down. So, I am of considered view that to be fair, just and rational, punitive damage @ Rs.500/- per day for the period from 12/04/2020 to 16/06/2020 instead of 12/04/2020 to 15/10/2020 can be realized from the JDR/OP (said Insurance Co.) because that will be more judicious, prudent and reasonable considering the total abnormal situation satanism prevailing at that time.
Hence it is ORDERED
that the Case be and the same is allowed in part on contest with legal cost of Rs.10,000/- (Rupees ten thousand) only.
The JDR/OP (said Insurance Co.) is directed to pay punitive damage @Rs.500/- per day for the period from 12/04/2020 to 16/06/2020 because the first Cheque was deposited by the JDR on 17/06/2020.
Thus, the Order of the Ld. Lower Forum dated 12/03/2020 in connection with CC/62/2018 stands modified to the above extent and the Order of Ld. Lower Court dated 12/07/22 in connection with EA/05/2020 is thus set aside.
Let the Copies of this Order be supplied to all the concerned Parties free of cost by hand delivery/post.
Let the Copy of this Order be supplied to the Ld. Lower Court (Jalpaiguri D.C.D.R.C.) immediately.
Any other case related with same issues, if pending in any other court of law, thus stands disposed of.
The Case is hereby disposed of.
