KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. R.P. No. 18/2009 ORDER DATED: 05-12-2009 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The Divisional Manager, : REVISION PETITIONER National Insurance Co. Ltd., P.B. No. 89, Divisional Office, Alwaye – 683 101. (By Adv. Sri. Rajan P Kaliyath) Vs Jose Paul Palatty, : RESPONDENTPalatty House, Angamaly (s) Post, Pin – 683 573. O R D E R SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above revision is preferred from the order dated 26th February, 2009 passed by the CDRF, Ernakulam in EP No. 116/2002 in OP No. 1101/01. The Revision Petitioner was the opposite party in OP No. 1101/01. The complaint in the said OP No. 1101/01 was filed by the respondent herein as complainant alleging deficiency in service on the part of the opposite party, National Insurance Company Ltd. in repudiating the insurance claim of Rs. 15,000/-. The aforesaid complaint in OP 1101/01 was disposed of by the order dated 07-08-2002 directing the opposite party to pay Rs. 15,000/- with 12% interest from 19-09-2001 till the date of realization and costs of Rs. 500/- to the complainant within one month from the date of receipt of the order. Admittedly, the Revision Petitioner herein filed first appeal as Appeal No. 737/02 challenging the order dated 07-08-2002 passed by the CDRF, Ernakulam in OP 1101/01. Along with the said appeal a stay petition was also moved by the appellant/opposite party and this State Commission passed an order on the stay petition directing the appellant/opposite party to deposit Rs. 15,000/- with interest at 12% per annum and costs of Rs. 500/-. It is also made further clear that in case of deposit the respondent/complainant will not be allowed to withdraw the amount. In the light of the aforesaid conditional order passed by this State Commission, the appellant/opposite party deposited the aforesaid decree amount with interest and costs before the Forum below. The aforesaid appeal was disposed of by the State Commission vide order dated 11-09-2007 and thereby the aforesaid appeal No. 737/02 was dismissed. The complainant in OP No. 1101/01 moved the Forum below by filing EP 116/02 to get the order executed. The judgment debtor (National Insurance Company Ltd.) entered appearance in the said execution petition and submitted that the Insurance Company had already deposited the entire decree debt with interest and costs and so the judgment debtor has no liability to pay any amount to the decree holder/complainant. It is further submitted that no amount is due to the decree holder from the judgment debtor because of the deposit of decree debt with interest and costs before the Forum below. But the respondent/decree holder insisted for interest till the date of realization. The aforesaid claim for subsequent interest after the deposit of the amount was resisted by the Revision Petitioner/judgment debtor. After hearing both sides the Forum below accepted the case of the respondent/decree holder and thereby passed the impugned order dated 26-02-2009 directing the Revision Petitioner/judgment debtor to deposit the balance amount of Rs. 10,535/- after deducting the deposited amount of Rs. 18,350/-. In other words, the Forum below calculated the total amount due to the decree holder by way of decree amount, interest and costs at Rs. 28,885/-. The case of the Revision Petitioner/judgment debtor is that the respondent/decree holder is only entitled to get the amount of Rs. 18,350/- which was in deposit. Hence the present revision by judgment debtor. 2. When this revision petition was taken up for final hearing, there was no representation for the respondent/decree holder. We heard the learned Counsel for the Revision Petitioner/judgment debtor. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that after effecting deposit of the entire decree amount with interest and costs amounting to Rs. 18,350/- no amount was due to the respondent/decree holder and that the claim for interest even after making the aforesaid deposit of Rs. 18,350/- is unsustainable and untenable. Thus, the Revision Petitioner requested for setting aside the impugned order passed by the execution court (CDRF, Ernakulam) in EP No. 116/02 in OP No. 1101/01. 4. The points that arise for consideration are: 1. Whether the respondent/decree holder can be justified in demanding interest at the rate of 12% per annum on the decree amount of Rs. 15,000/- from 19-09-2001 till the date of realization? 2. Whether the contention of the Revision Petitioner that the liability of the Revision Petitioner/judgment debtor was only to pay the decree amount with interest and costs till the date of deposit can be upheld? 3. Is there any sustainable ground to interfere with the impugned order dated 26-02-2009 passed by CDRF, Ernakulam in EP 116/02 5. Point Nos. 1 to 3: For the sake of convenience, we will refer the parties to this revision according to their rank and status in EP No. 116/02 in OP No. 1101/01. 6. The decree holder is entitled to get the decree amount of Rs. 15,000/- with interest at the rate of 12% per annum from 19-09-2001 till the date of realization and cost of Rs, 500/-. There is no dispute regarding the decree passed by the CDRF, Ernakulam in OP 1101/01. The aforesaid order was passed on 07-08-2002 in OP No. 1101/01. So, the claim of the decree holder to get interest till the date of realization can be justified, in the light of the order passed by the Forum below in OP No. 1101/01. It is further to be noted that the aforesaid order in O.P. No. 1101/01 was confirmed by the State Commission in the First Appeal No. 737/02 which was disposed of vide order dated 11-09-2007. 7. Admittedly, the judgment debtor who preferred the FA No. 737/02 moved the State Commission for an interim stay till the disposal of the appeal and the appellate authority namely; the Sate Commission passed a conditional order granting interim stay provided the decree amount of Rs. 15,000/- with interest and costs is deposited before the Forum below with a further direction that in the event of deposit the same will not be allowed to withdraw by the complainant. So, by the aforesaid deposit of the decree debt the decree holder (complainant) was not benefited. It is also to be noted that the aforesaid deposit was made for getting interim stay. The State Commission being the first appellate authority safeguarded the interest of the decree holder to get the decree amount deposited by the appellant/judgment debtor. But the mere deposit of the decree debt as on the date of deposit cannot be taken as a ground to deny the right of the decree holder to get the decree debt with interest accrued thereon till the date of realization. It has been made crystal clear in the order passed by the Forum below in OP No. 1101/01 that the complainant is entitled to get the insurance amount of Rs. 15,000/- with interest at the rate of 12% per annum from the date of the complaint (19-09-2001) till the date of realization and cost of Rs. 500/-. It is also made more clear that the decree amount is to be paid to the complainant within one month from the date of receipt of the order in OP No. 1101/01. But the judgment debtor has not paid the decree debt as directed in the order passed by the CDRF, Ernakulam in OP No. 1101/01. If that be so, the claim for interest till the date of realization is to be upheld. 8. The order passed by the CDRF, Ernakulam in OP No. 1101/01 was confirmed in appeal No. 737/02 vide order dated 11-09-2007. The State Commission had only directed the appellant therein to deposit the amount of Rs. 18,350/- vide order dated 21-02-2003 passed in IA 947/02 which was filed by the appellant therein to get interim stay. In the light of the aforesaid direction the amount was deposited on 30-04-2003. But it was made more clear that the said deposited amount of Rs. 18,350/- will not be disbursed to the complainant. It is further to be noted that the judgment debtor never insisted the State Commission or the CDRF, Ernakulam to disburse the deposited amount to the complainant/decree holder. On the other hand, the judgment debtor was very much interested in getting that amount in deposit without disbursing the same to the decree holder. In such an event it is not just or proper to hold that the liability of the judgment debtor was only up to the date of deposit of the decree debt. In the case on hand, the deposit was effected only to get the interim stay The Forum below has rightly held that the decree holder is entitled to get interest at the rate of 12% per annum on the decree amount of Rs. 15,000/- even after the deposit of Rs. 18,350 on 30-04-2003. But the Forum below has gone wrong in holding that the aforesaid deposit was made without the knowledge of the decree holder. It is to be noted that the notice in the matter was served on the decree holder and he appeared in person before the appellate authority as well as the lower Forum. So, it can only be presumed that the decree holder was aware of the deposit of Rs. 18,350/- before the Forum below in OP No. 1101/01. But the decree holder never moved the Forum below or the State Commission to get the said amount disbursed in his favour. The decree holder was fully aware of disposal of appeal No. 737/02 on 11-09-2007. Even after the disposal of the said Appeal 737/02, the decree holder was keeping mum. He moved the Forum below to get the order executed by filing EP 116/02, but the same was stayed because of the pendancy of the Appeal No. 737/02 and the interim stay therein. But as and when the said appeal was disposed of vide order dated 11-09-2007 it was incumbent upon the decree holder to move the execution court to get the amount which was in deposit with effect from 30-04-2003. So there was negligence, laches and omission on the part of the decree holder. So, the decree holder cannot be justified in claiming subsequent interest after the disposal of the Appeal No. 737/02 on 11-09-2007. This Commission is of the view that the decree amount of Rs. 15,000/- (insurance amount) will not carry any interest after the date of disposal of Appeal No. 737/02. In other words, the claim for subsequent interest after 11-09-2007 is unsustainable. The Forum below cannot be justified in awarding interest after 11-09-2007. So, the impugned order passed by the Forum below is modified. Thereby the decree holder is allowed interest at the rate of 12% per annum on the decree amount of Rs. 15,000/- from 19-09-2001 till 11-09-2007 with cost of Rs. 500/-. These points are answered accordingly. In the result, the Revision Petition is disposed of as indicated above. The impugned order dated 26-02-2009 passed by CDRF, Ernakulam in EP No. 116/02 in OP No. 1101/01 is modified accordingly. Thereby the decree holder (respondent) is only entitled to get the decree amount of Rs. 15,000/- (insurance amount) with interest at the rate of 12% per annum from 19-09-2001 till 11-09-2007 with cost of Rs. 500/-. As far as the present revision petition is concerned, the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER Sr. | 
