National Insurance Co. Ltd. vs Khunkhun Ji Ornaments

MA/185/2023 & MA/186/2023 have been filed by the Respondent. The Counsel for the Respondent states that these MAs be dismissed as not pressed. Accordingly, these MAs are dismissed.

MA/326/2022 has been filed by the Appellant for directing the Office to release the amount of Rs.3537000/- to the Appellant. This MA was allowed on 18.10.2022. Thereafter, the Office has submitted a report that the Bank guarantee has expired. In continuation of that report the Appellant has filed another M.A. i.e MA/108/2023, pointing out that the earlier Bank guarantee had expired, but, it was subsequently renewed by the concerned bank. Therefore, it has been prayed that the amount of Rs.3537000/- be released along with accrued interest.

This appeal had been filed against the order of State Consumer Disputes Redressal Commission dated 21.10.2013 allowing CC/39/2006 and directing the Appellant to pay the insurance claim of Rs.17 lacs after adjusting the amount of Rs.845260/- with interest @ 12% per annum from the date of filing of the complaint till the date of payment and also pay Rs.10000/- as litigation cost. While admitting the appeal this Commission vide order dated 27.02.2014, directed the Appellant to deposit the decretal amount within four weeks and it was observed that it shall be open to the Respondent to withdraw the said amount on furnishing a Bank guarantee for the said amount to the satisfaction of the Registrar of this Court. It is admitted that in compliance of the order dated 27.02.2014, the Appellant had deposited the decretal amount which had been withdrawn by the Respondent after furnishing bank guarantee which has now been renewed also.

This Commission by the final judgment dated 09.02.2022, allowed the Appeal and dismissed the complaint of the Respondent as filed before the State Commission. After allowing this appeal, since this judgment dated 09.02.2022 has been upheld up to the Supreme Court, then the appellant has filed MA/326/2022. Although, MA/326/2022 was allowed on 18.10.2022, but, the Respondent raised an objection that it was allowed ex-parte without hearing the Respondent. A perusal of the records shows that after filing of the MA, the notice had not been issued. Although, it is alleged that it was served upon the Respondent, but, in view of the fact that no notice was served, we have heard the Counsel for the Respondent on both these MAs. Main objection of the Counsel for the Respondent is that the appeal has been finally decided, therefore, any miscellaneous application which amount to re-opening the matter is not maintainable as held by seven Judge Bench of the Supreme Court in National Resources Allocation, in Re: special reference no. 1 of 2012 reported in (2012) 10 SCC page 1, and State of Uttar Pradesh Vs. Brahm Dutt Sharma (1987) 2 SCC page 179 and Ethiopia Airlines Vs. Ganesh Narain Sahoo (2011) 8 SCC 539. He further submits that the provisions of CPC have not been applied in the proceeding under Consumer Protection Act, 1986 as such the powers as provided under Section 144 CPC can also not be invoked. In any case, in view of explanation given under Section 144 CPC. The application could be filed before the State Commission not before this Commission.

We have considered the arguments of the Counsel for the parties. This Court while granting interim relief vide order dated 27.02.2012, has directed the Appellant to deposit the decretal amount and permitted the Respondent to withdraw the said amount after furnishing bank guarantee. The purpose of taking bank guarantee is only to secure the interest of the Appellant, in case the appeal is allowed. Now the appeal has been allowed and judgment has been set aside. This Court ought to have directed for refund of the decretal amount along with accrued interest on it, while deciding the appeal in its judgment dated 09.02.2022, MA/326/2022 and MA/108/2023 merely amount to correction of the decree which every Court has inherent jurisdiction to correct it. In such circumstances, since the Bank guarantee is still before this Commission, recourse of Section 144 is not required only a direction has to be issued to the Bank concerned to pay in terms of the Bank guarantee. Therefore, the objection raised by the Opposite Party has no merit. Although, in the order dated 18.10.2022, this Commission has directed for refund of the decretal amount along with interest @ 9% per annum, but, since according to the Bank report, certain TDS has been deposited by the Respondent and certain administrative charges have also been paid by the Respondent. We think it appropriate that instead of directing for refund with 9% per annum, the purpose will be served, if direction is issued to refund the amount along with accrued interest on it, after deduction of the TDS and administrative charges.

In view of the above, both the MA/326/2022 & MA/108/2023 are allowed. The Bank of Baroda, who has given the Bank guarantee is directed to refund the amount, as deposited by the Appellant along with interest accrued on it after deducting the TDS, administrative charges and other charges, if any, paid by the Respondent within 2 weeks.