Mrs. Rubi (Chandra)
Dutta Vs M/s. United India Insurance Co. Ltd.
J U D G M E N T
Deepak Verma, J.
1.
Leave
granted.
2.
Insured
is before us challenging the correctness, legality and propriety of the order
passed by National Consumer Disputes Redressal Commission, New Delhi (in short `National
Commission') in Revision Petition No. 2899 of 2008 on 18.12.2008 titled M/s.
United India Insurance Company Ltd. Vs. Rubi (Chandra) Dutta.
3.
Facts
lie in narrow compass: Appellant is the owner of bus bearing Registration No. WB-57/6715.
Appellant had taken an Insurance Policy Cover from Respondent Insurance Company
with respect to the bus, for the period between 13.1.2003 to 12.1.2004 and had paid
the insurance premium for the same, acknowledging which, the Respondent had
issued the receipt in her favour. On the intervening night of 4/5.07.2003 on National
Highway No. 34 while the said Bus was proceeding to Hilli from Puri, it dashed against
a Neem tree and turned turtle. The bus was massively damaged on impact and then
slid into a roadside ditch. Thus, not only the body of bus but its internal systems
also suffered extensive damage. The passengers travelling therein were also
injured.
4.
F.I.R.
was lodged with the local Police Station and after investigation, the police
commenced a case bearing No.226/2003 under various sections of Indian Penal Code.
In the meanwhile, the Appellant had promptly informed the Respondent Insurance Company
about the said accident and the consequent damage caused to the bus. Accordingly,
she then requested for assessment of loss sustained including cost of repairs. The
Respondent duly appointed Mr. Sujit Kumar Sarkar as Surveyor, who submitted his
preliminary report on 21.07.2003 assessing the total loss at Rs. 2,90,000/-.
Following the receipt of this report, the Respondent then appointed Mr. Surya
Dutt to prepare a detailed Final Report dated 31.12.2003 and as per his investigation,
the total amount of damages was computed to be Rs. 2,72,517.90/-.
5.
According
to Appellant, the amount assessed by both Surveyors was far less than the
actual amount spent by her in getting the said bus roadworthy. According to her,
she had spent a sum of Rs. 1,95,000/- simply for getting the body of the bus rebuilt
by Hara Gouri Technical and Engineering Works. Thereafter, the mechanical parts
were repaired after spending a further sum of Rs.3,38,782/- by Bhandari Motors Pvt.
Ltd., Sukchar. The Appellant submitted all the bills and receipts showing
payments and requested Respondent to pay the total sum of Rs. 5,33,782/- but
the Respondent failed to pay the said amount despite repeated demands.
Respondent, in fact, repudiated the Appellant's Claim.
6.
Thus,
the Appellant was constrained to file a complaint under Section 12 of the Consumer
Protection Act, 1986 (in short `the Act') before District Consumer Disputes Redressal
Forum, Berhampore, Murshidabad, being Consumer Protection Case No. 202/2005.
7.
On
notice being issued to the Respondent, it filed written statement denying all material
allegations of the Appellant. It submitted that Appellant has claimed exorbitant
amount towards cost of repairing and in fact no such payments were made to
either of the two workshops. The receipts produced by Appellant have been fabricated
only with an intention to claim an unreasonably large amount from the
Respondent.
8.
Apart
from the above, it also took a plea that at the time of accident, the bus was being
driven by a person who was not holding a valid driving licence. It further took
a plea that on enquiry and investigation, it was revealed that driving license bearing
No. CD-676/96 was not, in fact, issued by the Licensing Authority, Murshidabad in
favour of Sirajul Haque, the then Driver of the Bus. Thus, the duplicate licence
presented by Appellant was obviously fake and fabricated. Under the circumstances,
Appellant was not entitled to claim any amount from the Respondent. However, it
was not disputed that at the relevant point of time the vehicle in question was
insured with the Respondent Company.
9.
Thus,
the bone of contention before the District Forum was whether at the relevant point
of time, Sirajul Haque, driver of the bus was holding a valid driving licence or
not. Respondent placed reliance on the deposition made by an employee of R.T.A.,
Murshidabad before the Claims Tribunal in Case No. 115/2004 that the driver of
the said bus was not holding a licence and no driving licence OD- 676/96 was issued
in his favour. To controvert the said averment, Appellant had filed Xerox copy
of the original license issued in favour of Sirajul Haque before that Tribunal.
10.
During
the course of hearing on the suggestion being made by the learned Counsel for the
parties, the District Forum issued a direction that an authorized officer of the
R.T.A., Murshidabad be asked to appear before the Forum with relevant register and
documents to establish whether the said driver of the bus in question was holding
driving licence bearing No. OD-676/96 or not.
11.
Pursuant
to the said request the RTO appeared in this case and his evidence was also recorded.
He deposed that in the original register it was noticed that application of
Sirajul Haque bearing Serial No. 676 was missing and from the register it was
noticed that a duplicate driving licence was issued in favour of Sirajul Haque by
the said Licensing Authority on 31.5.2005. Since the original application of the
Sirajul Haque was not available, he had been asked to submit an affidavit and Xerox
copy of the original driving licence, which he did. Only after going through the
same a duplicate driving licence was issued in his favour. After issuance of duplicate
license in favour of Sirajul Haque, an entry was made in the Miscellaneous Register
maintained in this regard, after charging Rs. 100/- for issuance of duplicate
licence from him on 25.5.2005. All this was categorically admitted by the said witness,
Mr. Lawrence Sitling.
12.
Considering
the matter from all angles the District Forum was pleased to allow the
complaint of the Appellant and directed the Respondent to pay to the Appellant
a total sum of Rs. 4,00,000/- together with an interest at the rate of 9%, if the
payment was not made within two months from the date of the said order.
13.
This
order was subject matter of challenge before the State Consumer Disputes Redressal
Commission, West Bengal in an appeal filed under Section 15 of the Act. The State
Commission also perused the matter in due detail and agreed with the findings that
at the relevant point of time bus was being driven by a person holding a valid driving
licence. However, it came to the conclusion that Appellant would be entitled to
a sum of Rs. 2,72,517/- only, which was assessed as damages by the Surveyor. The
amount was ordered to be paid within six weeks failing which it will carry
interest at the rate of 9% per annum till the amount is paid in full. Thus, the
finding of the District Forum were confirmed by the State Commission except that
the amount was reduced as mentioned above.
14.
Against
the aforesaid orders of District Forum and State Commission, Respondent
preferred a Revision Petition under Section 21(b) of the Act, before the National
Consumer Disputes Redressal Commission (for short, `National Commission'). National
Commission after considering the matter came to the conclusion that the driver of
the bus at the relevant point of time was not holding a valid driving licence. Accordingly,
it allowed the plea of the Respondent and thereby set aside and quashed the orders
passed by District Forum and State Commission. Hence this Appeal.
15.
We
have heard learned Counsel Shri Sanjay Kumar Ghosh for Appellant and Shri P.R. Sikka
for Respondent at length and perused the record.
16.
In
the appeal the sole ground to be examined by us is whether at the relevant point
of time Sirajul Haque was having a valid driving licence or not. We have once
again critically gone through the evidence produced by the parties, and the statements
made by the authorized officer of the RTO and other material documents filed by
the parties. In the light of the admission of the witness, who had appeared with
the relevant records from the office of RTO, we have absolutely no doubt in our
mind that at the relevant point of time Sirajul Haque was having a valid driving
licence. The reasoning behind our opinion is explained hereunder.
17.
No
doubt, it is true that the original application of Sirajul Haque bearing No. 676/96
was missing in the Register of Driving Licences but on the strength of other available
documents, he was issued a duplicate licence by the same RTO, a fact admitted by
the Court witness. After having gone through the copy of the duplicate licence we
are further reassured that the same was duly issued following normal procedure by
the Licensing Authority.
18.
Apart
from the above, we have also seen the preliminary report of Surveyor Mr. Sujit
Kumar Sarkar who has mentioned that Sirajul Haque was having a driving licence bearing
No. 676/96 issued by Licensing Authority, Murshidabad. Similar is the report of
another Surveyor Mr. Surya Dutt who has mentioned in the report that at the time
of driving the bus, driver was having a valid driving licence. On close scrutiny
of the Copy of the Duplicate Licence issued by Licensing Authority, Murshidabad
we also observed a noting which categorically states that the said duplicate
license was issued only after "verification from the original."
19.
The
Government of West Bengal has promulgated the Motor Vehicles Procedure Manual
in which there is a chapter that deals with the procedure to be followed for obtaining
a duplicate driving licence. According to the stated requirements, under this Manual,
a driver is required to submit an affidavit that his driving licence has been lost
and has not been seized in any case and in case he possesses photocopy of the original
licence then the same may also be submitted alongwith the prescribed application
form duly filled in. After verification, thereof, a duplicate driving licence
may be issued in favour of the applicant. Deposition of Mr. Lawrence Sitling states
that the same procedure had been adopted by head office at the time of issuance
of duplicate license.
20.
In
view of the aforesaid admission made by him, there remains no doubt that the
said duplicate licence was issued by the said office in his favour after checking
the previous credentials of the driver. Even if the original application was not
available but since the duplicate licence was issued by the same licensing Authority,
Murshidabad, it cannot be challenged that the original licence was fake, forged,
manufactured or engineered document. This unequivocal admission made by the said
witness of RTO fully establishes this fact.
21.
The
cumulative effect of the aforesaid facts would clearly establish that at the
relevant point of time driver Sirajul Haque was holding a valid driving licence
to drive the bus.
22.
Unfortunately,
all these facts have not been carefully dealt with by the National Commission and
still it went on to upset and quash the concurrent findings of the two lower
fora.
23.
Also,
it is to be noted that the revisional powers of the National Commission are
derived from Section 21(b) of the Act, under which the said power can be exercised
only if there is some prima facie jurisdictional error appearing in the impugned
order, and only then, may the same be set aside. In our considered opinion there
was no jurisdictional error or miscarriage of justice, which could have warranted
the National Commission to have taken a different view than what was taken by
the two Forums. The decision of the National Commission rests not on the basis
of some legal principle that was ignored by the Courts below, but on a different
(and in our opinion, an erroneous) interpretation of the same set of facts.
This is not the manner in which revisional powers should be invoked. In this
view of the matter, we are of the considered opinion that the jurisdiction conferred
on the National Commission under Section 21(b) of the Act has been
transgressed. It was not a case where such a view could have been taken, by setting
aside the concurrent findings of two fora.
24.
Obviously,
it goes without saying that at the time of giving employment to Sirajul Haque,
the owner of the bus must have examined the licence issued to him and after
satisfaction thereof, he must have been given employment. Nothing more was required
to have been done by the Appellant. After all, at the time of giving employment
to a driver, owner is required to be satisfied with regard to correctness and genuineness
of the licence he was holding. After taking the test, if the owner is satisfied
with the driving skills of the driver then, obviously, he may be given an
appointment.
25.
In
the light of the aforesaid discussion, we are of the considered opinion that the
impugned order passed by National Commission cannot be sustained in law. It is necessary
to point out that against the order of State Commission, whereby the amount of
Rs. 2,72,517/- was awarded, no further Revision was preferred by the Appellant.
Thus, in any case the compensation awarded to the Appellant cannot be enhanced beyond
what has been pegged down by the State Commission.
26.
It
is correct that the Act does not contain any provision for grant of interest, but
on account of catena of cases of this Court that interest can still be awarded,
taking recourse to Section 34 of the Code of Civil Procedure, to do complete justice
between the parties. We accordingly do so. This principle is based upon
justice, equity and good conscience, which would certainly authorize us to grant
interest, otherwise, the very purpose of awarding compensation to the Appellant
would be defeated. We accordingly deem it fit to award interest at the rate of 9%
per annum on the aforesaid amount from the date of filing the complaint till it
is actually paid.
27.
The
order of National Commission is set aside and quashed. We accordingly, hold
that Respondent is liable to pay the aforesaid amount of Rs. 2,72,517/- to the Appellant
together with interest at the rate of 9% per annum, from the date of filing of the
application till it is actually paid. Appeal thus, stands allowed to the
aforesaid extent. Respondent to bear the cost of the litigation throughout.
28.
Counsels'
fee Rs. 10,000/-
......................J.
[DALVEER BHANDARI]
.....................J.
[DEEPAK VERMA]
New
Delhi.
March
18, 2011
Back
