M/S.UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD. V/S SURESH CHAND JAIN

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M/S.UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD. V/S SURESH CHAND JAIN

Citation	2023 INSC 649 : 2023 LiveLaw (SC) 567
Date of Judgement	JULY 26, 2023
Court	Supreme Court of India
Case no	Special Leave Petition(Civil) No. 5263 of 2023
Case Type	Civil Appellate Jurisdiction
Petitioners	M/S Universal Sompo General Insurance Co.Ltd
Respondants	Suresh Chand Jain and Another
Bench	J.B.Pardiwala,Manoj Misra
Referred	Section 21(a),23 of Consumer protection Act,1986Section 58,67 of Consumer protection Act,2019

FACT OF THE CASE

The Respondent(Mr.Suresh Jain) had taken insurance policies covering upto Rs. 50 lakh for the risk of fire and burglary from Allahabad Bank and Universal Sompo General Insurance, the Petitioner in the matter before the Apex Court.
After the Respondent suffered theft and a fire outbreak at his premises, he filed for a claim of Rs. 49 lakh under the insurance policy.

FACTUAL MATRIX

It appears from the materials on record that the respondent Bank, acting as an intermediary issued a Standard Fire and Special Perils Policy dated 05 December ,2011 in favour of the complainant through the petitioner herein.
Similarly, a Burglary Insurance Policy was also issued in favour of the complainant dated 08 December, 2011. Both the policies covered a sum of Rs. 50 lakh for the risk of fire and burglary. The policies were for the period between 25 November, 2011 and 24 November, 2012.
By way of letter dated 28 March, 2012, the complainant informed the respondent Bank that the construction of his new premises at Bawana, Delhi had been completed and he had transferred his stock to the above premises situated in Bawana from the premises situated in Rajgarh Ext., Gandhi Nagar, Delhi and Bhagirath Palace, Chandni Chowk, Delhi. In this letter the complainant had also instructed the Bank to inform the petitioner.
The respondent Bank acknowledged the aforesaid intimation and claims to have informed the petitioner by way of letter dated 31 March ,2012. The Bank claims to have also forwarded the letter dated 28 March ,2012 of the complainant to the petitioner.
On 29 June 2012, a theft took place at the Bawana premises and for that FIR No. 213/2012 was lodged on 30 june, 2012 at the PS Bawana. Both the petitioner and the Bank were also informed about the theft. A surveyor was appointed by the petitioner to inspect the premises and on 01 July, 2012, a formal complaint was lodged by the complainant with the petitioner.
After the theft, the complainant informed that a fire had also broken out in the premises at Bawana on 18 October, 2012, and the status report in that regard was issued by the fire department. Subsequently, the complainant filed claims for both, theft and fire amounting to Rs. 49 lakh. The petitioner repudiated the theft claim vide letter dated 22 August, 2013 and the fire claim was closed on account of nonsubmission of documents by the complainant.
On 03 June, 2013, the complainant aggrieved by the inaction on the part of the petitioner approached the SCDRC, Delhi under Section 17 of the Consumer Protection Act, 1986 (for short, ‘the Act 1986’), by way of Complaint No. 357/2013. He prayed for his claim of Rs. 49 lakh to be processed along with compensation of Rs. 20 lakh and interest at the rate the respondent Bank was charging from the complainant, with costs of the complaint.
By order dated 18 March, 2016, the SCDRC partly allowed the complaint holding that the petitioner and the respondent bank were jointly and severally liable for the deficiencies in providing services to the complainant and the complainant was entitled to be compensated for the theft of goods worth Rs. 41,31,180/- @ 12 % interest per annum from the date of the claim.
The petitioner and the bank were also directed to pay Rs. 2 lakh to the complainant towards compensation for mental agony, harassment and deficiency in providing services. The petitioner was further directed to finalise the fire claim of Rs. 4 lakh of the complainant.
The petitioner herein feeling aggrieved with the order passed by the SCDRC challenged the same before the NCDRC by filing the First Appeal No. 376 of 2016 under Section 19 of the Act 1986. The petitioner prayed before the NCDRC to set aside the SCDRC’s order in exercise of its appellate jurisdiction and grant costs against the complainant in favour of the petitioner.
By order dated 16 January, 2023, the First Appeal filed by the petitioner herein came to be dismissed.
In such circumstances referred to above, the petitioner is here before this Court with the present petition, seeking special leave to appeal under Article 136 of the Constitution.

ISSUES

Whether Court should entertain this petition seeking special leave to appeal under Article 136 of the Constitution directly against the order passed by the NCDRC in exercise of its appellate jurisdiction or relegate the petitioner to avail the remedy of filing a writ petition under Article 226 of the Constitution or a petition invoking supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution?

PROVISIONS:

Section 21(a) of Consumer Protection Act’,1986.

Jurisdiction of the National Commission. –

Subject to the other provisions of this Act, the National Commission shall have jurisdiction —

(a)to entertain —

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and

(ii) appeals against the orders of any State Commission

Section 23 of the Consumer Protection Act 1986 provides for an ‘Appeal’.

Appeal.-

Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.
Section 58 of consumer protection Act,2019

Jurisdiction of National Commission. –

Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;

(ii) complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees;

(iii) appeals against the orders of any State Commission;

(iv) appeals against the orders of the Central Authority

Section 67 of Consumer Protection Act,2019

Appeal against order of National Commission. –

Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by subclause (i) or (ii) of clause (a) of sub-section (1) of section 58, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent. of that amount in the manner as may be prescribed.”

A plain reading of the aforesaid provisions of the Act 1986 and Act 2019, respectively would indicate that the remedy of appeal to this Court is available only with respect to the orders passed by the NCDRC in exercise of its powers conferred by Section 21(a)(i) of the Act 1986 and 58(1)(a)(i) or 58(1)(a)(ii) of the Act 2019.
In other words, both the Acts provide for the remedy of appeal to this Court only with respect to the orders which are passed by the NCDRC in its original jurisdiction or as the court of first instance (original orders) and no further appeal lies against the orders which are passed by the NCDRC in exercise of its appellate or revisional jurisdiction.

HELD

Advertising to the case at hand, the appeal before the NCDRC was against the order passed by the SCDRC under Section 17(1)(a)(i) of the Act 1986.
Such appeal to the NCDRC was maintainable, as provided under Section 21(a)(ii) of the Act 1986.
As per Section 23 of the Act 1986, any person, aggrieved by an order made by the NCDRC in exercise of its powers conferred by Section 21(a)(i), may prefer an appeal against such order to this Court.
Therefore, an appeal against the order passed by the NCDRC to this Court would be maintainable only in case the order is passed by the NCDRC in exercise of its powers conferred under Section 21(a)(i) of the Act 1986.
No further appeal to this Court is provided against the order passed by the NCDRC in exercise of its powers conferred under Section 21(a)(ii) of the Act 1986.
There is no provision for filing any further appeal against the order passed on the appeal filed against the order of the SCDRC.
In such circumstances, the petitioner has come before this Court under Article 136 of the Constitution.

SCOPE AND GRANT OF SPECIAL LEAVE UNDER ARTICLE 136 OF THE CONSTITUTION

This Court has held in Pritam Singh v. State reported in 1950 SCC 189 : 1950 SCR 453 at p. 459

“Generally speaking this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against”.
It was also said in that case that the view that once an appeal has been admitted by special leave the entire case is at large and that the appellant is free to contest all the findings of fact and raise every point which could be raised in the High Court is wrong.
Only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave to appeal is asked for.
This principle was stated, it is true, in a criminal case but it is of as much significance in civil cases as in the trial of criminal appeals.

Thus, what is discernible from the aforesaid decisions of this Court is that the jurisdiction of the Supreme Court to grant special leave to appeal can be invoked in very exceptional circumstances. The question of law of general public importance or a decision which shocks the conscience of the Court are some of the prime requisites for the grant of special leave.
The provisions of Article 136 of the Constitution as such are not circumscribed by any limitation. But when the party aggrieved has alternative remedy to go before the High Court, invoking its writ jurisdiction or supervisory jurisdiction as the case may be, this Court should not entertain a petition seeking special leave thereby short-circuit the legal procedure prescribed.
The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in very exceptional situations.
The power will only be used to advance the cause of justice and its exercise will be governed by well established principles which govern the exercise of overriding constitutional powers.
We shall now look into a very recent pronouncement of this Court in the case of Ibrat Faizan v. Omaxe Buildhome Private Limited reported in 2022 INSC 573.

In the said case, the appellant had booked a flat in the project floated by the respondent.
The appellant paid the entire amount of consideration but the respondent did not hand over the flat within the time stipulated in the agreement.
Therefore, the appellant filed a consumer complaint before the SCDRC on 10 August ,2013, alleging deficiency of service on the part of the respondent. The SCDRC allowed the complaint filed by the appellant vide its order dated 16 October ,2020.
The SCDRC directed the respondent to hand over the flat to the possession of the appellant subject to their meeting the requirements.
The SCDRC further directed the respondent to pay compensation for the deficiency of service of the respondent in the form of nine per cent simple interest till the date of delivery of the flat in possession of the appellant.

The appellant filed an execution and contempt petition against the respondent since he did not comply with the order of the SCDRC. Vide its order dated 12 March ,2021, the SCDRC directed the respondent to produce the details of bank accounts or properties for the purpose of attaching the same and to implement the order passed by the SCDRC.
The respondent filed an appeal before the NCDRC. On 30 March ,2021, the NCDRC stayed the order of SCDRC subject to the deposit of the cost of the entire flat along with nine per cent interest on the amount paid till date in the Registry of the SCDRC. The respondent, being aggrieved against the order of NCDRC filed a writ petition before the High Court, challenging the order passed by the NCDRC.
Before the High Court the respondent contended that the NCDRC ought not to have directed the respondent, the builder, to deposit the entire cost of the apartment along with the compensation awarded by the SCDRC.
The High Court stayed the order of the National Commission, vide its order dated 25 May ,2021. The said stay order was issued subject to the condition that the respondent is to deposit with the State Commission fifty per cent of the amount directed to be 12 deposited by way of interest towards compensation, within four weeks from the date of stay order issued by the High Court.
In the meantime, the NCDRC passed the final order, confirming the order passed by the State Commission, vide its order dated 09 December ,2021. The respondent also filed a writ petition before the High Court, challenging the final order passed by the NCDRC.
The High Court, in this petition, also granted interim stay vide its order dated 22 December ,2021. Against this order the appellant filed an SLP before this Court.
This Court vide its order dated 21 March ,2022 directed the High Court to decide the jurisdictional issue under Article 227 of the Constitution against the order passed by the NCDRC on or before 18 April ,2022 and intimate the outcome to this Court.
The High Court vide its order dated 31 March, 2022 held that the writ petition before the High Court against the order of NCDRC was maintainable. This order was challenged by the appellant before this court.

APPELLANT CONTENTIONS BEFORE THE COURT

a) Against the order of NCDRC, a petition before the High Court under Article 227 of the Constitution is not maintainable.

(b) Only appeal is maintainable before this Court against the order of NCDRC as per the provisions of the Consumer Protection Act.

(c) Without exhausting the appellate remedy, the High Court ought not to have entertained the petition under Article 227 of the Constitution.

(d) The High Court ought not to have stayed the order passed by the NCDRC in the limited jurisdiction available under Article 227 of the Constitution.

RESPONDANTS CONTENTIONS BEFORE THE COURT

(a) The provisions of the Act 2019 do not have appeal provisions against the order of NCDRC passed in exercise of appellate/revisional jurisdiction and therefore writ petition under Article 226 or petition under Article 227, as the case may be, is maintainable before the High Court against the order of NCDRC.

(b) For the aforesaid purpose the respondent relied on the following judgments:

Associated Cement Companies Ltd. v. P. N. Sharma, AIR 1965 SC 1595;
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
This Court considered the question for its decision as to whether against the order passed by the NCDRC in an appeal under Section 58(1)(a)(iii) of the Act 2019, petition before the High Court under the Article 227 of Constitution of India would be maintainable.

The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been consistently followed by this Court.
Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution.
Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the 18 rigour of the powers to be exercised under Article 227 of the Constitution of India.” .
In the aforesaid view of the matter, we have reached the conclusion that we should not adjudicate this petition on merits. We must ask the petitioner here to first go before the jurisdictional High Court either by way of a writ application under Article 226 of the Constitution or by invoking the supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution.
Of course, after the High Court adjudicates and passes a final order, it is always open for either of the parties to thereafter come before this Court by filing a special leave petition, seeking leave to appeal under Article 136 of the Constitution.
We take notice of the order passed by this Court dated 29 March ,2023 which reads thus:

“ In the meantime, there shall be stay of the impugned judgment and order, subject to deposit of 50 per cent of the awarded amount in this Court.”

However, in the aforesaid context, it is also necessary for us to look into the office report dated 03 July ,2023, which states that;
- “It is further submitted that Dr. S.K. Verma, Advocate for respondent no.1 has on 28 Jun, 2023 filed an application for release of deposited amount made by the Petitioner.
- However, the same is defective as original property papers are not filed. Also, the documents relating to valuation of property are not filed as in the lease papers the amount mentioned is Rs. 6,30,000/-.
- Hence, the amount was not disbursed to respondent no.1.”

JUDGEMENT

It appears from the aforesaid that the complainant was not in a position to withdraw the fifty per cent amount deposited by the petitioner herein. It further appears that the amount deposited by the petitioner herein is still with the Registry of this Court. Since we are not entertaining this petition on merits, we direct the Registry to refund the amount to the petitioner after due and proper verification.
In the result, this petition is disposed of with liberty to the petitioner to approach the jurisdictional High Court and challenge the order passed by the NCDRC, in accordance with law.
It is needless to clarify that we have not expressed any opinion on the merits of the case. The merits of the case shall be looked into by the jurisdictional High Court.

CONCLUSION

The Supreme Court has clarified the contours of Article 136 of the Constitution in the context of consumer disputes and orders of the NCDRC.
Importantly, the Supreme Court has held that its findings in this judgment (which was passed in relation to the provisions of the 1986 Act) would equally apply to cases filed under the Consumer Protection Act, 2019.
As a result, the petition is disposed of, granting the petitioner the liberty to approach the jurisdictional High Court and challenge the order passed by the NCDRC, following the appropriate legal procedures. The Court clarifies that it has not expressed any opinion on the merits of the case, which will be examined by the jurisdictional High Court.

REFERENCE

This Article is written by Dharani.M of Vels Institute of Science Technology and Advanced studies, Intern at Legal Vidhiya.

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