Sri Subhra Sankar Bhatta, Judicial Member
The instant Appeal u/s 27A of the Consumer Protection Act, 1986 (hereinafter referred to as ‘The Act’) has been preferred at the behest of the Appellant/DHr viz. Mr. Narayan Chandra Paul challenging the impugned order dated 13.06.2022 (vide order no. 10) passed in connection with Execution Application No. EA/03/2021 [arising out of Complaint Case no. CC/59/2017] by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I whereby the Ld. DCDRC, Kolkata, Unit-I was pleased to pass the order in the following manner:
“Hence, on conclusion, I hold that the claim of the LICI is justified. Hence, Decree Holder is directed to submit the health condition policy holder, Corona declaration and will have to pay the premium + 50% of the interest assed by the LICI+GST.
Judgment Debtors/LICI authority is directed to revive the policy of the Decree Holder if policy holder comply the above direction of this Commission within 15 days.
Hence, petition filed by the LICI is allowed accordingly.
To 03.08.2022 compliance report of Decree Holder and Judgment Debtors.”
Being aggrieved by and dissatisfied with the above order of the Ld. Commission below Mr. Narayan Chandra Paul, the Decree Holder as Appellant has preferred the present appeal on various grounds as highlighted in the memorandum of appeal. It has been categorically contended that the Executing Court cannot travel beyond the decree; that the Ld. Forum below failed to consider that the revival of the policy should be implemented in the letter and spirit of the said appellate decree; that the Ld. Forum below failed to appreciate that the Respondents cannot lay down their terms and conditions for revival of the policy by overriding the said decree; that the Ld. Forum below wrongly observed and found the justification of the demand of LICI and committed an jurisdictional error while passing the impugned order; that the said order cannot sustain in the eye of law; that the Ld. Forum below failed to consider that there is no fault on the part of the present Appellant for the loss of investment on the part of the Respondents; that the Ld. Forum below ought to have considered that penalty in the contract means a liability compose as a punishment on the party committing breach of the contract; that the Ld. Forum below wrongly held that the interest claimed by the Respondents is not within the purview of the term penalty; that the Ld. Forum below ought to have considered the guidelines of IRDA to assess the risk factor in the matter of revival of any policy; It has been further contended that the new payment schedule for the policy in question is totally contrary to the order passed by the Hon’ble State Commission; that the payment schedule is misconceived, unreasonable, malafide and not in terms of the said order of the Hon’ble Commission; that there was a complete failure to render justice by the Ld. Forum below. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned order of the Ld. Commission below.
Considered the submissions of the respective Ld. Counsels advanced on 22nd June, 2023.
Perused also the brief notes of arguments submitted on behalf of the Appellant.
Seen also the materials available on record.
It is the specific case of the Appellant/DHr that he purchased one endowment assurance policy (being policy no. 458755882 under plan and term of 14/16) with profits plus ACC benefit for himself for the period from 28.09.2013 to 28.09.2029 from the Respondents subject to payment of premium of Rs.20,995/- on quarterly basis. The sum assured for that policy is Rs.9,50,000/-. The Appellant/DHr duly paid nine quarterly installments i.e. upto 09/2015 and the next renewal date for premium was fixed on 28.12.2015. Owing to financial constrains the Appellant/DHr approached the Respondent/Insurance Company on 29.10.2015 for reduction of the terms and sum assured but the Respondents reduced the terms and sum assured of the said policy without following rules and regulations of the LIC. On 22.12.2015 the Appellant/DHr requested the Respondent/Insurance Company not to give any effect of the proposed changes and allow him to deposit the premium under the original terms of the policy. Several representations in that regard were placed but the Respondent/Insurance Company did not permit the Appellant/DHr to deposit the premium under the original policy. Ultimately, the policy was lapsed due to non-payment of premium. Consequently, the Appellant/DHr/Complainant instituted the petition of complaint before the Ld. Commission below praying for redressal and relief.
On 09.04.2018 after hearing both sides the Ld. Commission below was pleased to dismiss the complaint case of the Complainant. Being aggrieved by the said judgment and order of the Ld. Commission below the Complainant as Appellant preferred an appeal being no. A/450/2018 before the Hon`ble State Commission. After hearing the Hon`ble State Commission was pleased to allow the said appeal in part. Hon`ble State Commission was further pleased to hold that as per Clause 14 of the manual the Respondents` action to reduce the sum assured of the policy cannot be a valid action and his prayer on 22.12.2015 was before the due date of next renewal premium which the Respondents should respect. Hon`ble Commission was also pleased to direct the Respondents to revive the policy in its original terms against payment of all the due premium without penalty and the Respondents shall prepare a suitable payment schedule providing at least one year time to the Appellant to clear all the outstanding dues under the said policy. Subject to fulfillment of above condition, the Appellant shall not be deprived of any benefits arising out of the policy under reference. The impugned judgment and order of the Ld. Commission below was set aside.
Appellant sent the said judgment of the Hon`ble State Commission to the Respondents/Insurance Company through registered post with A/D on 15.10.2020 for necessary compliance. On 21.12.2020 the Respondents/JDrs issued one revival letter to the Appellant/DHr and requested to submit certain requirements within 7(seven) days from the date of that letter. One payment schedule was furnished pursuant to the direction of the Hon`ble State Commission. On 22.12.2020 the Appellant/DHr informed the Respondents/JDrs that he has accepted the payment schedule and is ready to pay for the revival of the policy in question according to their payment schedule but in terms of the solemn direction of the Hon`ble State Commission the Appellant/DHr requested to withdraw all such conditions and requirements to honour the solemn direction of the Hon`ble State Commission. On 11.01.2021 the Appellant/DHr sent a legal notice and demanded strict compliance of the decree passed by the Hon`ble State Commission. On 20.01.2021 the Respondents/JDrs again sent two Forms i.e. declaration of good health and novel corona virus questionnaire to ensure the insurability of the life assured.
Under such compelling circumstances, the Complainant/DHr filed execution application before the Ld. Commission below in order to execute the Appellate Decree. The JDrs/LICI appeared in that execution proceeding and also filed a written objection. The DHr filed reply to such objection stating that the Respondents/JDrs cannot interpret the operating portion of the appellate decree at their sweet will.
During the course of hearing Ld. Counsel appearing for the Appellant has vehemently argued that an executing court cannot travel beyond the degree and this is the settled the principles of law. On this issue Ld. Counsel has drawn my attention to the impugned order of the Ld. Commission below and boldly urged that the Ld. Commission below has passed the impugned order ignoring the issue of “Travelling beyond decree”. According to the Ld. Counsel the impugned order passed by the executing court overlapping the Appellate Decree cannot stand or sustain in the eye of Law.
On the other hand, Ld. Counsel appearing for the Respondent/ Insurance Company has argued that there is no irregularity or illegality in the order of the executing court. According to the Ld. Counsel in order to dispose of the execution case on full satisfaction the impugned order is urgently required. He has also argued that Life Insurance Company/JDr has to follow certain guidelines. He has prayed for outright dismissal of the present appeal with costs.
At the very outset of discussion it is important to mention the provisions of Section 27 and 27A of the said Act. Section 27 and Section 27A of the said Act provides as follows:-
“27 penalty for non-compliance of order- (1) where a trader or a person against whom a complaint is made or the Complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be such trader or person or Complainant shall be punishable with imprisonment for a term which shall not be less than one-month, but which may extend to three years, or with fine, which shall not be less than two thousand rupees, but which may extend to ten thousand rupees, or with both.”
Section 27A of the Consumer Protection Act, 1986 envisages as follows:-
“27A Appeal against order passed under Section 27.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), where an order is passed under Sub-Section (1) of Section 72 an Appeal shall lie both on facts and law from-
(i) The order made by the District Commission to the State Commission;
(ii) The order made by the State Commission to the National Commission; and
(iii) The order made by the National Commission to the Supreme Court.
(2) Except as provided in Sub-Section (1), no Appeal shall lie before any court, from any order of a District commission or a State Commission or the National Commission, as the case may be.
(3) Every appeal under this Section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission:
Provided that the State Commission of the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of thirty days.”
From the conjoint reading of Sections 27 and 27A of the said Act it is crystal clear that an Appeal under Section 27A can lie before the State Commission on facts and law if an order of conviction and sentence is passed under Section 27(1) of the Act by the Commission. As against an order of conviction and sentence made by the State Commission, an Appeal can be preferred to the Hon’ble National Commission and order of conviction and sentence passed by the Hon’ble National Commission would be appealable before the Hon’ble Supreme Court.
It appears that the present appeal has been preferred assailing the order wherein the Decree Holder is directed to submit the health condition of policy holder, corona declaration and will have to pay the premium plus 50% of the interest assessed by the LICI plus GST in the execution proceeding being EA no. 03/2021.
It reveals from the judgment and order of the Hon’ble State Commission passed in First Appeal no. A/450/2018 that the appeal preferred by the Appellant/Complainant was allowed, albeit in part, with a direction to the Respondent to do the needful in order to revive the policy no. 458755882 in its original terms against payment of all the due premiums without any penalty. Hon’ble State Commission was also pleased to direct the Respondents to prepare a suitable payment schedule providing at least one year time to the Appellant to clear all the outstanding dues under the said policy. Hon’ble State Commission was further pleased to observe that subject to fulfillment of above condition, the Appellant shall not be deprived of any benefits arising out of the policy under reference. Thus, it is apparent from the face of the record that the Ld. Commission below sitting in execution certainly travelled beyond the decree by recording an order directing the Decree Holder to submit the health condition of policy holder and corona declaration. Ld. Commission below was pleased to further direct the Decree Holder to pay premium plus 50% of the interest assessed by the LICI and GST. Thus, it is palpable that the Ld. District Commission sitting in execution travelled beyond the judgment and order passed by the Hon’ble State Commission on 15th October, 2020 in First Appeal no. A/450/2018. A bare reading of the above orders clearly shows that the directions given by the State Commission in the operative portion of the judgment are not in conformity with the order passed by the District Commission in the execution proceeding. Practically, there is no scope for the District Commission to change the nature and spirit of the order passed by the Hon’ble State Commission in any way and in any manner.
It is the well settled legal position that an executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order XXI of the Civil Procedure Code. In our considered view the executing Court has exceeded its jurisdiction by travelling beyond the judgment and order passed by the Hon’ble State Commission. The impugned order of the Ld. Executing Court is one without jurisdiction. Thus, we are compelled to hold that there are irregularity and illegality in the impugned order passed by the Executing Court in Execution Case no. 03/2021. The impugned order deserves interference of this Appellate Commission. In this context the judgment of the Hon`ble High Court passed in C.O. 242 of 2023 Mantulal Acharya alias Mangtoo Lal Acharya vs. Prasun Adhikari & Ors is very much relevant and applicable in the facts and circumstances of the present case.
Resultantly, the present appeal succeeds.
It is, therefore,
O R D E R E D
That the present appeal being AEA no. 29/2022 be and the same is allowed on contest against the Respondents but considering the circumstances without any order as to costs.
That the impugned order dated 13.06.2022 vide order no. (10) passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit—I in connection with Execution Case no. EA/03/2021 is hereby set aside.
That the Ld. District Commission is directed to execute the judgment of the Hon’ble State Commission passed in connection with A/450/2018 on 15.10.2020 in letter and spirit observing the procedure laid down under Order XXI of the Civil Procedure Code and dispose of the Execution Proceeding as expeditiously as possible.
Let a copy of this judgment be transmitted to the Ld. Executing Court Kolkata, Unit—I (North) forthwith for information and taking necessary action.
Let a copy of this judgment be handed over to the contesting parties free of costs.
Interim order, if any, stands vacated.
Thus, the present Appeal stands disposed of.
Note accordingly.
