Chandigarh

StateCommission

AEA/1/2023

Devendra Kumar Goel - Complainant(s)

Versus

The Chief Manager - Opp.Party(s)

Complainant(in Prsn)

22 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal Execution No.	:	1 of 2023
Date of Institution	:	11.01.2023
Date of Decision	:	22.05.2023

 

 

 

 

 

 

Devendra Kumar Goel, #78 Sky Net Enclave, Loahgarh Patiala Road, Zirakpur (Mohali), Punjab.

….Appellant/Decree Holder/Complainant.

 

Versus

The Chief Manager, Mr. Mohit Burman (Chairman), Aviva Life Insurance Company India Limited,SCO 45,46, 47,Sector 17A, Chandigarh (UT).

...Respondent/Judgment Debtor/Opposite Party.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

               MR. RAJESH K. ARYA, MEMBER

 

ARGUED BY :-   

 

Sh. Devendra Kumar Goel, appellant in person.

Sh. Siddhant Jain, Advocate for the respondent alongwith Sh. Tej Ram Thakur, Manager (Operations), Aviva Life Insurance Co. India Limited.

PER  RAJESH  K. ARYA, MEMBER

1]             This appeal has been filed by the decree holder/complainant Sh. Devendra Kumar Goel (appellant  herein) against order dated 13.12.2022 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short ‘District Commission’), whereby, Execution Application No.151 of 2018 filed by him has been dismissed by the District Commission. The issue before the District Commission for consideration was that whether the decree holder/complainant had been able to prove beyond reasonable doubt that the accused had not complied with order dated 05.06.2017 passed by it (District Commission) in consumer compliant No.229 of 2015, despite having given opportunity to comply with the same and thereby committed an offence punishable under Section 27 of Consumer Protection Act, 1986.

2]             In the instant appeal, the appellant (decree holder/complainant) has assailed order dated 13.12.2022 on the ground that vide decretal order dated 05.06.2017, the accused was directed to issue a fresh statement of accounts to the appellant by reversing all the charges, with cumulative effect, which were not leviable/chargeable and were not piece & parcel of the Policy but the District Commission failed to get its order complied with in toto and also did not consider the objections filed by the appellant before it on 22.11.2022. It has further been stated that such charges under different heads come to minimum Rs.95,000/- (approx.) whereas, the respondent/judgment debtor/opposite party has mentioned the charges as Rs.21,467/- in its reply without considering the cumulative effect as ordered. It has further been stated that the respondent has made charges and recovered on monthly basis, which should be charged and recoverable on yearly basis. It has further been stated that as per the decretal order, details of charges/amount have been mentioned to be reimbursed to the appellant, which were charged extra and till 12.07.2017, the amount with applicable interest as per decretal order comes to Rs.3,59,876/-, which the respondent failed to pay to the appellant and similarly, no revised statements have been given. It has further been stated that the respondent is charging on dead policy and surrendered policy and the respondent also has no intention to pay.

3]             On the other hand, while supporting the impugned order of the District Commission, it has been argued on behalf of the respondent that the District Commission rightly specified the type of charges, which were not part and parcel of the policy, like mortality charges, premium allocation charges and bid offer. It has further been stated that that the impugned order is very clear in that regard and against the charges, which were not awarded, the appellant had filed appeal No.184 of 2017 before this Commission, which was dismissed on 30.01.2018. It has further been stated that the Hon’ble National Consumer Disputes Redressal Commission, New Delhi also dismissed the Revision Petition No.1096 of 2018 filed by the appellant vide order dated 17.09.2018. It has further been stated that when the decretal order dated 05.06.2017 has become final up-to Hon’ble National Commission, now the appellant cannot seek compensation in execution application. It has further been stated that that the respondent has already complied with the decretal order by placing on record the statement as well as copy of cheque, which the appellant refused to accept and accordingly, the respondent submitted the same in the District Commission on 12.12.2022 by way of demand draft in pursuance to order dated 09.12.2022.

4]             After considering the rival contentions of the parties and going through the material available on record, we are of the considered view that the present appeal execution is liable to be dismissed for the reasons to be recorded hereinafter. Bare perusal of the decretal order dated 05.06.2017 clearly transpires that the decretal order was confined to three types of charges i.e. mortality charges, premium allocation charges and bid offer, which were deducted from the account of the Complainant being not piece and parcel of the policy. Besides this, the District Commission also observed the charging of three types of services taxes like bid offer (service tax), service tax (fmc) average and service tax (admn) average from the account of the Complainant as unfair trade practice. Para 10 of the decretal order, being relevant, is extracted hereunder:-

 “10.         It has come on record that various charges have been deducted from the account of the Complainant which were not piece and parcel of the policy like mortality charges, premium allocation charges and bid offer. Moreover, the Opposite Party No.1 have miserably failed to produce any documentary evidence to show that they could recover the aforesaid charges from the account of the Complainant, which to our mind, not only amounts to deficiency in service, but also amount to its indulgence into unfair trade practice. At any rate, the Opposite Party No.1 ought to have reversed the aforesaid charges to the Complainant, in order to meet the ends of justice. We have also found that three types of services taxes like bid offer (service tax), service tax (fmc) average and service tax (admn) average have been accounted against the account of the Complainant. In our opinion, the Opposite Party No.1 should levy only one consolidated service tax. Therefore, charging of different types of service taxes amounts to unfair trade practice.”

5]             The aforesaid decretal order attained finality upto the Hon’ble National Commission as both the appeal filed by the appellant before this Commission and revision petition before the Hon’ble National Commission were dismissed. Moreover, vide the impugned order, the District Commission, while dismissing the execution application of the appellant, after giving detailed reasoning, rightly observed that the respondent has already offered an amount of Rs.38,264/- account of aforesaid three charges i.e. mortality charges, premium allocation charges & bid offer with consolidated service tax including interest calculated upto date, to the appellant, which he refused to accept. It is pertinent to mention here that it is well settled law by a Three Judges Bench of Hon’ble Supreme Court of India in “Topanmal Chhotamal v. Kundomal Gangaram”, AIR 1960 SC 388 that a Court executing a decree cannot go behind the decree and it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit. Further in Meenakshi Saxena v. ECGC Ltd., (2018) 7 SCC 479, the Hon’ble Supreme Court held as under:-

“The whole purpose of execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree.”

 

6]             The District Commission has rightly confined itself to the decretal order only and has not exceeded beyond it. The appellant cannot claim relief beyond the decretal order, which is not there in the decree. Clearly, mortality charges, premium allocation charges and bid offer were those charges which were deducted from the account of the Complainant and which were not piece and parcel of the policy, as mentioned in the decretal order, which has attained finality upto Hon’ble National Commission. It is only after examining the complainant, recording evidence of the parties and recording statement of the accused under Section 313 Cr.P.C. and defence evidence and going through material available on record, the District Commission came to the conclusion that “…it is unsafe to hold that the complainant has been able to prove beyond reasonable doubt that the accused has not complied with the order of this Forum dated 5.6.2017 passed in Consumer Complaint No.229 of 2015, despite having an opportunity to comply with it, and thereby committed an offence punishable under Section 27 of the Act…..” Thus, no ground is made out to interfere with the well reasoned order of the District Commission. 

7]             For the reasons recorded above, this appeal execution is dismissed with no orders as to costs.

8]             Certified copies of this order be sent to the parties free of charge.

9]             File be consigned to Record Room after completion.

Pronounced.

22.05.2023.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

 

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