No. 4/12.09.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Both sides are present through their Ld. Advocates.  Respondent files list of dates. 

This appeal is by the Insured against the judgement and order dated 29.10.2010 passed in Execution Case No. 5/2010 by the Executing Forum.  The aforesaid execution case has arisen out of HDF Case No. 229/2000.  Initially the complaint of the Insured was not entertained by the Forum below on the ground that the dispute between the parties was of civil nature and, therefore, triable by the Civil Court.  The said order was ultimately reversed by the Hon’ble National Commission by order dated 01.04.2009 with the observation that the consumer fora are competent to deal with such dispute and accordingly directed the Insurer to pay the amount as assessed by the Surveyor without prejudice to their rights and contentions as an interim measure with 10% interest within two months from the date of the surveyor’s report to the Complainant along with further direction upon the State Commission to re-examine the matter on merit according to law after taking into account the report of the surveyor appointed by the Insurance Company and also the surveyor appointed by the Complainant to arrive at a just conclusion.  It is not in dispute that the surveyor by his report dated 29.06.1999 has assessed the loss suffered by the Insurer at Rs.60,897/-.  It is also not in dispute that after the aforesaid order dated 01.04.2009 made by the Hon’ble National Commission the aforesaid amount of Rs.60,897/-  has already been paid to the Insured by a cheque dated 29.10.2010.

It further reveals from the records that in the meantime pursuant to the aforesaid direction of the Hon’ble National Commission, the State Commission had disposed of the complaint case by holding as under :

“As we are holding that there was no deficiency in service on the part of the insurance, there is no question of direction for payment of compensation or interest.  In respect of the amount assessed by the Insurer’s Surveyor and accepted by the Insurer, direction has already been given by the Hon’ble National Commission for payment thereof along with interest as felt reasonable by the Hon’ble National Commission.  We do not think the State Commission can modify the said order any further by increasing the rate of interest.  With above observations the appeal is hereby dismissed”.

The said order of disposal of the complaint case has not been challenged by either of the parties and as such the same has reached finality.  In view of the specific observation as made hereinabove by the State Commission to the effect that the order of the Hon’ble National Commission dated 01.04.2009 could not be modified any further by increasing the rate of interest, we are also of the view that the Insured will be entitled to an interest on the aforesaid amount of Rs.60,897/- @ 10% per annum from the date of Surveyor’s report dated 29.06.1999 till 04.11.2010 when the cheque for the aforesaid amount of Rs.60897/- was received by the Insured in terms of the order of the Hon’ble National Commission and no further amount by way of interest.  The aforesaid amount of interest shall be paid by the Insurer to the Insured within a period of 45 days from the date of making of this order, in default of which the aforesaid interest will further carry an interest @ 9% per annum till payment.  The appeal is thus allowed.