REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2588  OF 2011

  [Arising out of SLP(C) No.19246 of 2009]

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.

- 2 - 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.

- 3 - 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.

- 4 - 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.

- 5 - 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.

- 6 - 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.

- 7 - 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.

- 8 - 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.

- 9 - 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.

- 10 - 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.

- 11 - 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.

- 12 - 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.

- 13 - 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.

- 14 - 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.

- 15 - 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.

- 16 - 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.

- 17 - 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.