Dt. 23.11.2015

JAGANNATH BAG, MEMBER

            The present appeal is directed against the Order No. 2, dated  28.11.14, passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit II , in Execution Case No 170/2014  arising out of the order dated 25.06.14 in Compliant Case No. 323/2013.

            The Execution Application No. 170/2014 was filed by the DHr / Appellant herein  on the ground of non-compliance of the order of the Ld. Forum below . Admittedly a sum of Rs. 80,000/- has been  received by the DHr /Appellant. Out of the said sum Rs. 40,000/- was towards refund of principal amount / premium paid to the OP Insurance Company , Rs. 10,000/- as cost , Rs. 10,000/- as compensation and Rs. 20,000/- as punitive damages . It was alleged by the DHr in their Execution Application that up to 06.08.14 another sum of Rs.15,400/- was yet to be paid .

            Ld. Forum below in proceeding with the Execution Application observed that the DHr had received a sum of Rs. 70,000/- from JDr 1 on 05.08.2014 and another sum of Rs. 10,000/- from JDr No. 2 on 16.10.2014. Ld. Forum below observed that though  the DHr was entitled to the total decretal amount of Rs. 60,000/-, he had wrongly received the penal amount of Rs. 20,000/- i.e, punitive damages which should have been deposited to the Ld. Forum’s account. Accordingly, DHr was directed to deposit the said amount of Rs. 20,000/- to the Forum’s account.

            Being aggrieved by and dissatisfied with the order  of the Ld. Forum below , the DHr in Complaint Case No. 323 of 2013 has come up before this Commission for direction to set aside the impugned Order No. 2 dated 28.11.2014 passed by the Ld. Forum below.

            The  memorandum of appeal has been filed together with copies of the impugned order dated 28.11.12014 , the petition of complaint and other documents including W.V filed before the Ld. Forum below by the OP No.1 / Respondent No.1 herein and  the copy of the Execution Application No. 170/2014 .

            Ld. Advocate appearing for the Appellant submitted that the complaint case under No. 323 / 2013 was disposed of with direction upon the OPs to pay an amount of Rs. 80,000/- to the Appellant  and the said amount included the principal amount of insurance premium, compensation, cost and punitive damages. After having received the copy of the order of the Ld. Forum below, the DHr asked the JDrs/OPs to comply the order of the Ld. Forum below, whereupon a cheque of Rs. 70,000/- was received from the Respondent No.1 . Another letter was sent  on 06.08.2014 requesting the Respondents to comply the direction of the Ld. Forum below in regard to full payment up to date. On 16.10.14 the Respondent No.2 paid Rs. 10,000/- by cheque to the Appellant . Ld. Forum’s order to refund the sum of Rs. 20,000/- under the head of punitive damages to the Forum is not at all tenable  as there is no mention in the order of the Ld. Forum dated 25.06.14 for deposit of the punitive damages to the Ld. Forum’s account.  In fact, there is no provision in the Consumer Protection Act, 1986 or Rules made thereunder that the punitive damages as awarded by the Trial Forum has to be paid to its account. The impugned order therefore deserves to be set aside.

            Ld. Advocate for the Respondent No.1 submitted that they have complied with the order of the Ld. Forum below in full and a total sum of Rs. 80,000/- has been paid to the Complainant /Appellant including the punitive damages of Rs. 10,000/- by each on behalf of Respondent No.1 and Respondent No.2. Such payment was made in reference to the letters of the Dhr and there was no direction whatsoever by the Ld. Forum below for depositing the punitive damages to the Ld. Forum’s account. The appeal, therefore ,does not lie against them.

                                                Decision with Reasons :

            It is a fact that the complaint under No. 323 of 2013 was allowed on contest with cost of Rs.10,000/- against the OPs. OP Nos. 1 and 2 were directed to refund and pay a sum of Rs.40,000/- to the Complainant and another sum of Rs.10,000/- for causing harassment and for unfair trade practice . Ld. Forum below further ordered that -

          “For adopting unfair trade practice and for procuring the said policy by adopting deceitful manner , op nos. 1 & 2 are  imposed a punitive damages @ Rs. 10,000/- each for adopting unfair trade practice and for upholding the said business in a deceitful manner and the present punitive damage is only to check such sort of trade practices by the OPs failing which for each day’s delay penal interest @ Rs. 200/- shall be assessed till full satisfaction of the decree and this penal proceeding will be imposed under the provision of C.P. Act and for which further penalty and fine may be imposed”.

            The operative part of the order of the Ld. Forum below , does not specifically mention that the payment of punitive damages  @ Rs. 10,000/- each by the Respondent Nos. 1 and 2 has to be made to the  Forum itself .

            It is pertinent to note that Section 14 (1) (d) of the Consumer Protection Act , 1986, empowers the District Forum to issue direction upon the OP, as the case may be,  “to  pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the OP:

          Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit”.

          In their  order dated 28.11.14 Ld. Forum below observed that the sum of Rs. 20,000/- towards realization of punitive damages should have been deposited to the Forum which gives the impression that the District Forum may exercise the power to ‘grant punitive damages’ to itself and that too, even if no explicit direction is noted in the order.  The expression  ‘the District Forum shall have the power to grant punitive damages’ does not, in any manner,  imply that the District Forum as granter may allow punitive damages to itself as grantee.  In fact the granter and the grantee may not  be the same person or authority as that would be perceptually incorrect. Accordingly, the order of the Ld. Forum below in asking the DHr to deposit the sum of Rs. 20,000/-i.e. punitive damages to the account of the Ld. Forum below is not lawful. The impugned order suffers from legal infirmity. The appeal, in the result , succeeds.  . Hence,

                                                Ordered

 That the appeal be and the same is allowed and the impugned order is set aside. There shall be no order as to costs.

 Copy of this order be sent to the Ld. Forum below.