NEW INDIA ASSURANCE CO. LTD. vs Vinita Bai

AGGRIEVED by the order dated 25.05.2011 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for short the State Commission '') in Appeal No. 1689/2009, the New India Assurance Co. Ltd. which was arrayed as one of the opposite parties, has filed the present petition purportedly under section 21(b) of the Consumer Protection Act, 1986. The appeal before the State Commission was filed by the respondent/complainant against the order dated 11.08.2009 passed by the District Consumer Disputes Redressal Forum, Chindwara in Execution Case No. 50 / 2008, by which order, the District Forum on a consideration of the pleas of the parties has held the execution application to be not maintainable in view of the subsequent developments, in particular, the finding having come in the viscera report about the life assured being under intoxication of alcohol at the time when he met with an accident and on the basis of which insurance company having decided the claim as ''no claim ''.

WE have heard Mr. Pramod Dayal, Advocate, counsel for the petitioner and Mr. R.K. Saxena, Advocate, counsel for the respondent and have considered their submissions. The order sought to be executed by the complainant was passed by the District Forum on 26.06.2007 in complaint no. 91/2006. The operative part of the order reads as under: - "11. In the circumstances mentioned above, the application of the applicants / complainants under section 12of the Consumer Protection Act being tenable is allowed and following order is passed: 11.1 The complainants, as a result of the death of Bhayyalal, shall submit the documents mentioned in the Insurance Certificate viz., Claim Form, Report of Accident, First Information Report and other necessary documents, Death Report, Post-mortem report etc. to the opposite party no. 1 Western Coalfields Limited, Thisgora Underground mines, Pench Area Parasiya. Opposite party no. 1 submit that the said document to the opposite party no.2 New India Assurance Co. Ltd. Within seven days. Upon receipt of the application, the opposite party no. 2 New India Assurance Co. Ltd, within 30 days shall settle the claim and make payment of the insurance amount to the person whosoever is legally entitled to the same within a period of 30 days. On the said insurance amount interest at 9% P.A. be paid from the date of application 04.08.2006. 11.2 Complainant no. 1 Vinitabai has made applications to the Opposite Party No. 1 Western Coalfields Ltd. and Opposite Party No. 2 New India Assurance Co. Ltd. as per the Insurance Certificate Exhibit C-l even though she is not nominee. Complainant Mehatlal has not given any intimation letter. In such circumstances, this forum cannot pass any order for payment of amount to the complainant by way of compensation, but the expenses incurred by the complainants are determined at Rs. 500/- which the opposite parties shall pay to the complainants. "

It appears that pursuant to the said order, the complainant submitted the requisite documents like insurance certificate, claim form, FIR and the report of viscera examination, which showed the traces of alcohol. The insurance company, therefore, repudiated the claim considering it as it was violation of clause iv (b) of the Janta Personal Accident Policy issued by the insurance company. The District Forum upheld the same and dismissed the execution petition. The State Commission allowed the appeal on the ground that the executing court could not go behind the award already passed by the District Forum on 26.06.2007.

MR . Dayal, counsel representing the insurance company would assail the impugned order primarily on the ground that it is not based on correct and proper appreciation of the facts and circumstances of the case, least the evidence and material and the subsequent developments which have taken place after the first order dated 26.6.2007 was passed by the District Forum. The basis of his submission is that there was no final adjudication of the controversy by the District Forum in its order dated 26.06.2007 and the entire matter was left open and the question of deciding the claim was left up to the discretion of the petitioner insurance company on a consideration of the entire documents as were referred to in the said order. On the other hand, counsel for the respondent / complainant would support the impugned order on the same analogy that once the District Forum had allowed the claim, it was duty bound to enforce the same and any finding in the viscera report could have no relevance. He additionally submits that pursuant to the orders passed by the District Forum, the Insurance Company has deposited a sum of Rs.7,41,000/- in the District Forum in the execution proceedings. Mr. Dayal, counsel for the petitioner submits that if such an amount was deposited, it was under protest and without prejudice to the rights of the petitioner and subject to the outcome of the present petition.

HAVING considered the matter in its entirety, we are of the view that the matter has not received the kind of consideration, as was required at the ends of the Fora below. The controversy has not been fully considered and answered in the manner it was required. There is no denial of the legal position that an execution court cannot go behind the decree and will not alter or modify the order in execution proceedings but it can deny to execute the order if the order is found to be a nullity in law or is incapable of enforcement. In our view, the orders passed by the fora below have resulted into miscarriage of justice. To remove the same, the complaint should be remitted back to the District Forum for deciding the matter afresh in accordance with law after considering all the relevant facts and circumstances and the evidence and material so brought on record or which has been made available even after the order dated 26.06.2007 was passed by the District Forum. We order accordingly. The revision petition is decided '' in above '' terms. Parties are directed to appear before the District Forum on 14.08.2012 and the District Forum shall decide the complaint expeditiously in any case within a period of 3 months from the date of appearance of the parties. No order as to costs. Revision Petition disposed of.