M/s ICICI Lombard General Insurance Company Limited through its Manager, Quite Office No.10, First Floor, Sector 40B, Chandigarh.

…Revision Petitioner/Judgment Debtor/Opposite Party

V e r s u s

1.Sh. Bakshish Singh son of Sh. Bant Singh, resident of House No.632, P.S.B. Complex, Sector 49-A,Chandigarh.

2.Jaisveen Singh son of Sh. Bakshish Singh son of Sh. Bant Singh, resident of House No.632, P.S.B. Complex, Sector 49-A, Chandigarh

BEFORE:  

Argued by:

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

“To our mind, as payment has not been made to the Complainant by the OP within 45 days, he is entitled to interest @18% p.a. instead of @9% p.a. in terms of the order of the Forum, even though the amount had been kept deposited in the Forum during the pendency of the appeal. From the above calculation given by the Complainant Rs.1,37,807/- alongwith upto date interest is still due to the complainant.

As part of excess amount deposited by OP is already lying with this Forum, so in the interest of justice, this Execution Application be put up again on 17.07.2013 for further proceedings/ compliance of the remaining order, as well as consideration of the application filed by the OP for release of balance amount lying with this Forum”.

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“In view of the above findings, this complaint is allowed with following directions to OP to:-

i)     Pay an amount of Rs.5,99,000/- being the Insured Declared Value of the vehicle along with interest @9% per annum from the date of repudiation i.e.18.12.2009 till the date of actual payment.

ii)    Pay Rs.7,000/- to the complainants as costs of litigation.

This order be complied with by OP within 45 days from the date of receipt of its certified copy, failing which OP shall be liable to pay Rs.5,99,000/- along with interest @18% per annum from the date of repudiation of the claim i.e.18.12.2009 till the date of actual payment besides the payment of Rs.7,000/- as costs of litigation”.

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6.           (infact Rs.1,02,362/- i.e.Rs.8,34,640/- minus (-)Rs.7,32,278/-), lying deposited with the District Forum, on the ground, that free copy of the impugned order passed, in the Consumer Complaint bearing No.219 of 2010, was received by the Judgment Debtor/Opposite Party, on 23.12.2011. It was stated that the appeal was filed against the said order, and the same was listed for 11.01.2012. It was further stated that period for the compliance of the order dated 18.07.2011, was 45 days, from the date of receipt of its certified copy, free-of-charge, and, as such, the same was to start from 23.12.2011. It was further stated that the said period of compliance within 45 days, had not still expired, when the amount, in the sum of Rs. Rs.8,34,640/-through cheque bearing no.255988 dated 16.01.2012, drawn on the ICICI Bank, was deposited, in the Execution Application, on 06.02.2012. It was further stated that, before the expiry of period of 45 days, from the date of receipt of a certified copy of the order, free-of-charge, passed by the District Forum, interest @9% P.A., was only payable, and the penalty Clause, did not come into operation. Accordingly, a prayer was made that the remaining amount of Rs.1,20,655/- (infact Rs.1,02,362/- i.e. Rs.8,34,640/- minus (-) Rs.7,32,278/-), be refunded to the Revision Petitioner/Judgment Debtor/Opposite Party.

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10.        , decided on 30.05.2013, by the National Consumer Disputes Redressal Commission, (arising out of the order dated 17.7.2012 in Appeal No.3763 of 2011 under Section 27 of the Act, of the Karnataka State Consumer Disputes Redressal Commission, Bangalore), in support of his contention. In that case, the District Forum allowed the Consumer Complaint, vide order dated 22.07.2010, and the State Commission, vide its detailed order dated 04.08.2011, dismissed the appeal under Section 15 of the Act, of the Appellant/Opposite Party, and confirmed the order of the District Forum. The Counsel for the petitioner, in the aforesaid Revision Petition, submitted that, as per the principle of merger, the order of the Lower Court merged, in the order of the Appellate Court, though, appeal was dismissed, yet the order of the Lower Court was confirmed, and compliance was to be made of the order of the Appellate Court. The National Consumer Disputes Redressal Commission, New Delhi, accepted the plea of the Counsel for the Revision Petitioner, in the aforesaid Revision-Petition, by placing reliance on

“10.

Reliance was also placed onwherein, in paragraph 19, the Hon’ble Apex Court, observed as under:

“19. The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate court is that in such cases the decree of the trial court is merged in the decree of the appellate court. In course of time, this concept which was originally restricted to the appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasi-judicial and executive authorities”.

Again reliance was placed on,

“12.

"The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification."

Further reliance was placed on, wherein, in paragraphs number 7 and 8, the Hon’ble Apex Court observed as under:

“7.The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.

8. In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :

There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement”.

Reliance too was placed on wherein, in paragraph number 27, the Hon’ble Apex Court observed as under:

“27. In our view, the principle of merger essentially refers to the merging of the orders passed by the superior courts with that of the orders passed by a subordinate court. This Court in the case of

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Pronounced.

September 16, 2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Rg