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Judgment
By way of present revision petition filed under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act''), Petitioner/ Complainant has challenged impugned order dated 22.8.2013 passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ''State Commission'').
Petitioner obtained a Unit Link Insurance Policy from Respondent/Opposite Party on 28.12.2008, after paying the premium of 1,00,000/-. As per the terms of policy, 60% of the premium paid for the first year would be deducted towards policy location charges and remaining amount would be for allotment of units and coverage of risk. From the second year till the expiry of insurance policy, 5% of the premium would be deducted towards charges and for balance amount, units would be allocated and risk would be covered. The surrender of insurance policy can be made after completion of three years, subject to payment of premium for three years. However, insurance policy would lapse in case premium is not paid for at least three year Since, petitioner failed to pay the premium till 20.1.2012, the insurance policy lapsed. The respondent had withdrawn the funds from the investment and requested the petitioner to issue discharge voucher to enable it to credit the fund value to his account. After two years of revival period, petitioner submitted application alongwith premium for revival of the insurance policy. The respondent received the amount from the petitioner subject to insurable interest. Thereafter, petitioner submitted application for withdrawal of part unit allocation on 15.2.2012. However, respondent intimated the petitioner, that insurance policy has not been revived.
Accordingly, petitioner filed C.C. No. 64 of 2012 claiming refund of 3,00,000/-, risk component of 6,00,000/- alongwith interest thereon and a sum of 25,000/- towards medical and clinical fee, besides 10,000/- as compensation for inconvenience and 5,000/- towards cost of litigation.
Respondent was duly served by registered post, yet it did not appear before the District Forum and as such was proceeded ex parte.
District Consumer Disputes Redressal Forum, Ranga Reddy (for short, ''District Forum'') vide order dated 27.7.2012, partly allowed the complaint and directed the respondent to pay 3,00,000/- with interest @ 12% per annum from 21.1.2012 till date of payment and also directed to pay 50,000/- as compensation and 3,000/- as cost.
Not satisfied with the award passed by the District Forum, petitioner filed F.A. No.635 of 2012, before the State Commission, which dismissed the same vide order dated 7.2.2013 and affirmed the order of District Forum.
It may be pertinent to point out that respondent did not challenge the above order dated 27.7.2012 of the District Forum. Therefore, same has become final qua it.
Thereafter, petitioner filed Execution Application No.18 of 2013 under Section 27(1) of the Act, seeking execution of order dated 27.7.2012 passed by the District Forum.
The execution application was resisted by the respondent who filed its counter stating therein, that petitioner has been handed over partial withdrawal cheque no.095169 for a sum of 2,12,880/- on 26.3.2013. The balance amount of 1,85,120/- is only liable to be paid to the petitioner.
District Forum vide order dated 13.6.2013 passed in Execution Application held, that respondent is liable to deposit the amount as ordered by it. Being aggrieved, respondent filed F.A. No. 635 of 2013, before the State Commission.
The State Commission after hearing both parties vide impugned order dated 22.8.2013, allowed the appeal of the respondent and set aside the order of District Forum. It directed respondent to pay balance amount of 1,85,120/- as per order dated 27.7.2012 passed by District Forum in C.C. No.64 of 2012.
We have heard the petitioner who has appeared in person as well as counsel of respondent and gone through the entire record, including those of fora below.
The State Commission in its impugned order observed; " 9. The respondent admitted receipt of the amount of 2 ,12,880/- from the appellant-insurance company and he submitted that the amount received was in regard to other transaction whereas the learned counsel for the appellant has contended that there was no other transaction between the respondent and the appellant-insurance company except the transaction in question. Paragraph 15 of the grounds of appeal reads as under:
"It is submitted that the Bank statement of the Appellant Insurance company is filed herewith as Document No.1 wherein the amount is cleared to the respondent /complainant and another document no.2 is filed herewith wherein the respondent /complainant has endorsed in receipt of the same. Though the respondent/complainant has admitted to having received the payment but has stated to be that of some other transactions but he had not filed any document to prove the same. Whereas the Insurance Company has no other transactions with him."
Thus, it is clear that the respondent failed to show the other transaction in respect of which he had received the amount from the appellant-insurance company. It is for the respondent to show the particular transaction which entitled him to receive the amount and in absence of any reasons adduced therefor, adverse inference can be drawn against him to hold that the amount received by him from the appellant-insurance company was part of the amount covered under the order. Such being the position, we do not find the respondent entitled to any amount than the balance amount of 1 ,85,120/-. The order of the District Forum is liable to be set aside.
11 . In the result, the appeal is allowed setting aside the order of the District Forum. The appellant-insurance company directed to pay the balance amount of 1 ,85,120/- towards the balance amount payable as per the or der dated 7.7.2012 passed by the District Forum in C.C. No.64 of 2012. There shall be no order as to costs."
Petitioner has filed the execution application before the District Forum on 1.4.2013. However, petitioner in the execution application has nowhere stated about the receipt of sum of 2,12,880/- by way of cheque no.095169, which was debited to the account of respondent company on 26.3.2013. Thus, on the face of it, it appears that petitioner has concealed certain material facts, with regard to the receipt of part payment of 2,12,880/-, prior to the filing of the execution application. Therefore, present revision petition is liable to be dismissed on this short ground alone.
Even on merits, we are in full agreement with the reasonings given by the State Commission, that petitioner has failed to show that the amount already received by him from the respondent is with regard to some other transaction. Thus, we have no hesitation in holding, that petitioner is entitled only for a sum of 1,85,120/- towards the balance amount.
Thus, we find no merit in this revision. The same stands dismissed with no order as to cost.
Original record of fora below be sent back.