KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSIONVAZHUTHACAD, THIRUVANANTHAPURAM
REVISION PETITION.23/09
ORDER DATED: 29.3.2010
PRESENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.S.CHANDRAMOHAN NAIR : MEMBER
1. The Senior Divisional Manager, : APPELLANTS
New India Assurance Company Ltd.,
Calicut.
2. Rudran Nair,
Administrative Officer,
New India Assurance Company Ltd.,
Kollam.
By Adv.Sreevaraham G.Satheesh)
Vs.
1. Madhavi Amma, : RESPONDENTS
Tackkuvila Veedu Pandithitta,
Telavoor.P.O.,
PAthanapuram,
Kollam.
(By Adv.V.S.Bhasurendran Nair)
2. The Marketing Manager,
Mathrubhoomi Printing and
Publishing Co.Ltd.,
Mathrubhoomi building, Kozhikode.
(By Adv.K.Kesavan Nair, for R2 and R4)
3. Marketing Manager,
Mathrubhoomi building,
Kollam.
4. The Managing Director,
Mathrubhoomi Printing and
Publishing Co.Ltd., Kozhikode.
ORDER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
Revision petitioners are the judgment debtors 1 and 3 in EP.27/08 and opposite parties 1 and 3 in OP No.90/03 on the file of CDRF, Kollam. The present revision petition is filed against the order dated 6th April 09 passed by CDRF, Kollam(Execution Court) in EP.No.27/08 in OP.No.90/03. The decree holder/complainant claimed interest on the insurance policy amount at the rate of 12% per annum from the death of the insured, the husband of the complainant. On the other hand, the judgment debtors (revision petitioners) contended that the decree holder is entitled to get interest only from the date of the complaint in OP.90/03. By the impugned order dated 6.4.09 in EP.27/08, the Execution Court upheld the claim of the decree holder for interest and thereby the decree holder has been granted interest from the date of death of the insured ie from 30.5.99. It is against the said order passed by the execution court in EP.27/08, the present revision petition is filed.
2. We heard the learned counsel for the revision petitioners and the 1st respondent/decree holder(complainant). The learned counsel for the revision petitioners (judgment debtors 1 and 3) submitted the arguments based on the grounds urged in the memorandum of the present revision petition. It is further submitted by the counsel for the revision petitioners that the order passed in OP.90/03 is silent about the payment of interest from the date of death of the insured and in the absence of such specific direction the interest can be granted only from the date of the complaint in OP.90/03. It is also pointed out that the Forum below has passed an order in OP.90/03 directing payment of the policy amount with interest and also compensation of Rs.10000/- and so the present claim for interest from the date of death of the insured cannot be entertained. Thus, the revision petitioners requested to set aside the impugned order dated 6.4.09 passed the Execution court(CDRF, Kollam) in EP.27/08. On the other hand, the learned counsel for the 1st respondent/decree holder(complainant in OP.90/03) supported the impugned order passed by the Forum below in EP.27/08. The learned counsel for the respondent/decree holder pointed out the relief sought for by the complainant in OP.90/03 and argued for the position that the Forum below has granted interest from the date of death of the insured being due date of the policy amount. He also relied on the counter affidavit filed by the 1st respondent/decree holder/complainant on the IA filed by the 3rd opposite party dated 2.1.07 regarding the interest on the policy amount. In the said counter affidavit also the complainant claimed interest at the rate of 18% per annum from the date of death of the insured. The counsel for the 1st respondent/complainant also relied on the affidavit filed by the 3rd opposite party, the Sr. Divisional Manager, New India Assurance Co, Ltd., Kollam expressing the readiness of the insurance Company to pay simple interest on the policy amount from 13.12.06, the date on which the forensic report was produced before the Forum below. Thus, the 1st respondent/decree holder/complainant prayed for dismissal of the present revision petition.
3. The points that arise for consideration are:-
1) What is the order passed by the CDRF, Kollam, in OP.90/03 with respect to the claim for interest on the policy amount?
2) Whether the impugned order dated 6.4.09 passed by the execution Court(CDRF,Kollam) in EP.27/08 can be considered as the order passed by CDRF, Kollam in OP.90/03?
3) Whether the impugned order in EP.No.27/08 awarding interest from the date of death of the insured(30.5.99) can be upheld?
4. Points 1 to 3:-
There is no dispute that the 1st respondent/decree holder/complainant filed a complaint in OP.90/03 claiming the policy amount under the group insurance scheme with interest at the rate of 18% on the policy amount from the due date(30.5.99, date of death) till realization and also for the compensation of Rs.50,000/-. The Forum below passed the order dated 31.3.08 in OP.90/03 directing the opposite parties 1 and 3 (revision petitioners) to pay the complainant the policy amount with interest at 12% per annum. The complainant is also allowed Rs.10000/- towards compensation and costs. The decreetal portion of the order dated 31.3.08 in OP.No.90/03 reads as follows: “In the result the complaint is allowed, directing the opposite parties 1 and 3 to pay the complainant the policy amount with interest at 12% per annum. The complainant is also allowed Rs.10000/- towards compensation and cost. The order is to be complied with within one month from the date of order”. Thus, it can be seen that the order passed in OP.90/03 is silent about the date from which the interest is to be paid. In other words, the Forum below which passed order in OP.90/03 failed to mention date from which interest is granted on the policy amount. If that be the position, how could the execution court grant the relief awarding interest from the date of death of the insured ie, 30.5.99. It is not specified in the impugned order passed in OP.90/03 that interest is awarded from the date of death of the insured. A close reading of the order dated 31.3.08 passed by CDRF, Kollam in OP.90/03 would not show granting of interest from the date of death of the insured. But in fact, in the said order in OP.90/03 it is only specified that the complainant being the nominee is entitled to get insurance amount with interest. It is true that in the penultimate paragraph of the said order in OP.90/03 there is reference to the admission made by DW2 regarding the readiness of the insurance company to pay interest on the claim amount subsequent to the receipt of the chemical analysis report. It is also stated that the complainant was not amenable for that option. Thereafter, it is stated that the complainant is entitled to get the claim amount and she is also entitled to get interest. But it is not specified the date from which the interest is granted. It is also stated in the said order in OP.90/03 that imposing unnecessary conditions for payment of interest is deficiency in service. It is further held that the complainant is entitled to get policy amount with interest. But there is no whisper in the order passed in OP.90-/03, as to the date from which or the event on which the complainant has been granted interest on the policy amount. In the absence of any such specific direction regarding payment of interest from a particular date, it is not just or fair on the part of the execution court, granting interest from the date of death of the insured ie from 30.5.99. No reason is stated in the impugned order passed in EP 27/08 for granting interest from the date of death of the insured. It is a well settled position that execution court cannot go behind the decree passed by the court on the original side. The mere fact that the order in OP.90/03 and the impugned order in EP.27/08 are passed by one and the same court (CDRF, Kollam) cannot be taken as a ground to hold that the execution court can go beyond the decree or behind the decree. There can be no doubt that the execution court can only execute the decree passed by court which considered the pleadings of either parties. When the decree is silent about the date from which the interest is granted, the execution court cannot go against the order passed in OP.90/03. Thus, the impugned order passed by the execution court in EP.27/08 is legally unsustainable and the same is liable to be quashed.
5. The proper course and method available to the complainant was to prefer appeal from the order dated 31.3.08 passed by CDRF, Kollam in OP.90/03. The method adopted by the complainant/decree holder to get interest from the date of death of the insured by filing EP.27/08 cannot be accepted as the proper course. Even if the complainant had any grievance against the order passed by the CDRF, Kollam in OP.90/03, the best and the suitable course available to the complainant was to prefer an appeal. But unfortunately, the complainant/decree holder failed to move the appellate Forum to get interest from the date of death of the insured.
6. Sub section 2 of Section 34 of the Civil Procedure Code is as follows’-
Sec.34(2) “When such a decree is silent with respect to the payment of further interest(on such principle sum) from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have refused such interest, and a separate suit therefore shall not lie”. The aforesaid provision under Section 34(2) of the Civil Procedure Code would make it abundantly clear that in the absence of any such specific direction to pay interest from the date of death of the insured, it can only be presumed, that the court which passed the order in OP.90/03 refused the prayer for interest from the date of death of the insured. Thus, it can be concluded that the order passed in OP.90/03 is totally silent about payment of interest from the date of death of the insured and so it can be inferred that the court refused the prayer of the complainant to get interest from the date of death of the insured. In such a situation, the Forum below could not be justified in passing the impugned order dated 6.4.09 in EP 27/08 granting interest from the date of death of the insured(ie 30.5.99).
7. It has been held by the Hon’ble Supreme Court of India in Thazhathe Purayil Sarabi and others V. Union of India and another reported in ILR(Kerala) 2009 (4) -1(at para 15 to 18) that when there is no provision, in an enactment, for grant of interest on any amount due, the Courts or Tribunals are entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Code of Civil Procedure. It is further held that normally interest would be payable from the date of institution of the suit or proceeding. But in the present case on hand the Court(CDRF, Kollam) which passed the order in OP.90/03 failed to specify the date from which interest is granted or awarded. There can be no doubt about the fact that interest at the rate of 12% has been awarded by the Court on the policy amount. But it is not specified the date from which interest is awarded. In the light of the aforesaid decision rendered by the apex court(supra) it can only be deemed that interest was awarded from the date of institution of the complaint in OP.90/03.
8. There can be no doubt about the fact that interest is awarded on the policy amount in order to compensate the complainant for the delayed payment of the policy amount. It is also held by the Apex Court in the aforesaid decision (supra) that interest is essentially a compensation payable on account of denial of the right to utilize the money due, which has been, in fact, utilized by the person withholding the sum. Accordingly, payment of interest follows as a matter of course when a money decree is passed. But in the present case on hand, CDRF, Kollam which passed the order on 31.3.2008 in OP.90/03 has also awarded compensation to the tune of Rs.10,000/-. It is true that Rs.10,000/- would take in compensation and cost. It is pertinent to note that the aforesaid compensation and cost of Rs.10,000/- is awarded over and above the policy amount with interest at the rate 12% per annum. In such a situation, it can also be presumed that the interest awarded at the rate 12% per annum is from the date of complaint in OP.90/03. Thus, in all respects the impugned order passed by the execution in EP.27/08 awarding interest from the date of death of the insured is unsustainable. These points answered accordingly.
In the result the revision petition is allowed. The impugned order dated 6.4.4.09 passed by Execution court (CDRF, Kollam) in EP 27/08 in OP.90/03 is set aside. The parties to this revision are directed to suffer their respective costs.
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.S.CHANDRAMOHAN NAIR : MEMBER
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