Rubi(Chandra) Dutta vs M/S United India Insurance Co.Ltd

Mrs. Rubi (Chandra) Dutta ....Appellant

Versus

M/s. United India Insurance Co. Ltd. ....Respondent

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.

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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.

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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.

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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.

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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.

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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23. Also, it is to be noted that the revisional

powers of the National Commission are derived

fromSection 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.

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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

C.A. @ SLP(C)No.19246 of 2009 .... Contd.

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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]

March 18, 2011

New Delhi.