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2018 DIGILAW 383 (JHR)

Oriental Insurance Company Ltd. v. Vijay Kumar

2018-02-15

ANUBHA RAWAT CHOUDHARY

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JUDGMENT : Heard Mr. G.C. Jha, counsel appearing for the petitioner. 2. Heard Mr. Prabhat Kumar, counsel appearing for the respondent no.1. 3. No-one appears on behalf of Respondent No.2. 4. This writ petition has been filed by the petitioner praying for quashing of the order passed in P.L.A. Case No.13 of 2004 as contained in Annexure-7 series passed by Permanent Lok Adalat, Hazaribagh in exercise of its powers under Section 22(C) of Chapter VI-A dealing with pre-litigation Conciliation and Settlement under the provisions of Legal Services Authority Act, 1987. 5. The counsel for the petitioner submits as follows:- a. A case was filed by the respondent no.1 before the Permanent Lok Adalat, Hazaribagh under Section 22(C) of Legal Services Authority Act, 1987 against the petitioner claiming compensation amounting to Rs.2,93,141/- with interest @ 18% per annum for damages of Tata-407 Mini Truck bearing Registration No.BR 13D 4945 registered at Hazaribagh and insured with petitioner/Oriental Insurance Co. Ltd., Jamshedpur Branch which met with an accident near Ghatshila on 20.05.2003. b. The Permanent Lok Adalat issued notice and upon receipt of notice the petitioner filed a detailed written statement and also petition wherein the petitioner made various allegations against the respondent no.1 including production of forged and fabricated bills which as claimed by the petitioner was based on some investigation said to have been conducted by one investigator namely Mr. A.K. Srivastava. c. The petitioner submits that the petitioner deputed spot surveyor who investigated the spot on 21.5.2003 (on the next date of accident) and submitted his report on 28.5.2003 and thereafter Mr. K.K. Sharma was appointed as final surveyor who submitted his report on 15.7.2003 and as per the final survey report the petitioner paid the claim of Rs. 11,270/- vide cheque no. 243418 dated 31.3.2004 in favour of M/s Tata Motors ltd. account Mr. Bijay Kumar (respondent no.1) as the vehicle was hypothecated with Tata Motors ltd. A copy of the spot survey report and final survey reports have been annexed as annexure-4 and 5 to the writ petition. d. It has been recorded at para-13 of the impugned order that talk of conciliation continued for a long time but ultimately when the matter could not be settled by conciliation the Permanent Lok Adalat decided the dispute on merits. d. It has been recorded at para-13 of the impugned order that talk of conciliation continued for a long time but ultimately when the matter could not be settled by conciliation the Permanent Lok Adalat decided the dispute on merits. e. Permanent Lok Adalat vide impugned order dated 24.02.2006 awarded the amount of Rs.44,950/- to the respondent no.1 herein payable by the petitioner- Oriental Insurance Co. Ltd., Hazaribagh by the end of March, 2006, failing which it is mentioned that the interest @ 6% per annum is to be paid by the petitioner. f. It is further submitted by the counsel for the petitioner that the Permanent Lok Adalat has got no jurisdiction to adjudicate any dispute and if the conciliation fails, then the only recourse which the Permanent Lok Adalat has, is to leave the matter for adjudication through the competent court of civil jurisdiction. On this point the counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2008) 2 SCC 660 . g. The other point of argument which has been advanced by the counsel for the petitioner is that the survey report, as contained in Annexure-5 series at page 28 of the writ petition, is an important piece of evidence which could not have been ignored by the Permanent Lok Adalat while adjudicating that dispute. He has relied upon the judgment reported in (2000) 10 SCC 19 . 6. Counsel for the respondent on the other hand submits that so far as the jurisdiction by the Permanent Lok Adalat is concerned, the issue has been settled by the Hon’ble Supreme Court in the judgment reported in (2012) 8 SCC 243 , wherein it has been clearly held that in case conciliation proceeding fails, the Lok Adalat has got jurisdiction to decide the case on merits. He has referred to para-25 onwards of the said judgment. On the aforesaid proposition, he has also referred to the judgment passed by this Hon’ble Court reported in (2014) 4 JLJR 526 which has been passed following the ratio of the judgment passed by Hon’ble Supreme Court in (2012) 8 SCC 243 . He has referred to para-25 onwards of the said judgment. On the aforesaid proposition, he has also referred to the judgment passed by this Hon’ble Court reported in (2014) 4 JLJR 526 which has been passed following the ratio of the judgment passed by Hon’ble Supreme Court in (2012) 8 SCC 243 . The counsel for the respondent has also drawn the attention of this Court to Section 22C(8) of the Legal Services Authorities Act, 1987 it provides that where the parties fail to reach at an agreement under Sub-section 7, the Permanent Lok Adalat shall, if the dispute does not relates to any offence, decide the dispute. He submits that there is no dispute that effort of conciliation was made between the parties. He further submits that after the stage of Section 22C(8) of the aforesaid Act had arrived and the matter having not been resolved through settlement between the parties, the Permanent Lok Adalat exercised the powers under Section 22C(8) of the aforesaid Act and passed the impugned order. Accordingly, he submits that the Permanent Lok Adalat has rightly exercised its jurisdiction. 7. So far as the merit of the case is concerned, the counsel for the respondent no.1 submits that the claim was made for an amount of Rs.2,93,141/- and the Permanent Lok Adalat has awarded a total of Rs.44,950/- only after adjusting the amount already paid. He submits that a detailed order considering all the aspects of the matter including the allegations levelled against the petitioner as well as the survey reports have been taken into consideration while passing the impugned order. He submits that there is no perversity in the impugned order. 8. The breakup of the claim made by the petitioner is mentioned in claim petition which the writ petition and submits that the majority of the claim has been rejected by the impugned order by passing a well-reasoned order. He submits that there is no perversity in the impugned order. 8. The breakup of the claim made by the petitioner is mentioned in claim petition which the writ petition and submits that the majority of the claim has been rejected by the impugned order by passing a well-reasoned order. The relevant portion of the claim petition is quoted herein below for ready reference:- Hkqxrku dh tkus okyh nkos dh jde dk fooj.k [kjhns x;s ikVlZ : 40]441@& u;s iqjkus lekuks dks cny dj etnqjh : 36]000@& Øsu }kjk Vkspu pktZ : 2]500@& {kfr vkdyu esa foyECk ds dkj.k [kM+h xkM+h dk fn;k x;k N% ekg dk fdLr 6 xq.kk 12]700 : 76]200@& Pkyd rFkk mipkyd dks fd;k x;k osru Hkqxrku 6 xq.kk 3000 : 18]000@& XkkM+h [kM+hgksus ds dkj.k vkfFkZd uqdlku 6 xq.kk 20]000 : 1]20]000@& dqy : 2]93]141@& ¼nks yk[k frjkucs gtkj ,d lkS ,drkfyl :i;k+ C;kt½ 9. The counsel for the petitioner also submits that the allegation, which was levelled against the respondents by the Insurance Company in their written statement has been fully dealt with in the impugned order and further he submits that even the surveyor’s report has been duly considered by the Permanent Lok Adalat who has returned a finding that there was a vital defect in the final survey report in as much as it has not considered the internal defect in the vehicle which in natural course might have been caused due to burst of rear tyre and the vehicle capsized. Photographs of the final survey were produced, which in no way indicate that engine portion of the damaged vehicle was examined by the final surveyor. 10. From the facts and circumstances of this case and after hearing the counsel for the parties, this Court does not find any illegality or perversity in the impugned order and is inclined to dismiss the writ petition on account of following facts and reasons:- a. On the point of Jurisdiction It has been held by Hon’ble Supreme Court in the Judgment reported in (2012) 8 SCC 243 at para-34 as follows:- “The alternative institutional mechanism in Chapter VI-A with regard to the disputes concerning public utility service is intended to provide an affordable, speedy and efficient mechanism to secure justice. By not making applicable the Code of Civil Procedure and the statutory provisions of the Evidence Act, there is no compromise on the quality of determination of dispute since the Permanent Lok Adalat has to be objective, decide the dispute with fairness and follow the principles of natural justice. Sense of justice and equity continue to guide the Permanent Lok Adalat while conducting conciliation proceedings or when the conciliation proceedings fail, in deciding a dispute on merit.” This judgment has been passed by the Hon’ble Supreme Court when Bar Council of India challenged the vires of Section 22-A, 22-B, 22-C, 22-D and 22-E of the Legal Services Authorities Act, 1987. The judgment which has been relied upon by the petitioner reported in (2008) 2 SCC 660 deals with the order passed by the Lok Adalat passed on 03.08.2001 which was passed prior to coming into force on the aforesaid amendment made in legal Services Authorities Act, 1987 in the year 2002 and accordingly the Hon’ble Supreme Court in the said judgment reported in (2008) 2 SCC 660 had no occasion to examine the provisions inserted in the said Act in the year 2002. Accordingly the judgment relied upon by the counsel for the petitioner to submit that the Permanent Lok Adalat has no jurisdiction to decide the dispute on merit is hereby rejected in view of the aforesaid direct judgment of the Hon’ble Supreme Court reported in (2012) 8 SCC 243 wherein it has been held that the power conferred on Permanent Lok Adalat under Section 22C(8) to adjudicate the dispute between the parties cannot be said to be unconstitutional and irrational. Chapter VIA has been enacted to provide for institutional mechanism through the establishment of Permanent Lok Adalats for settlement of disputes. In the event of failure to reach any settlement, the Permanent Lok Adalat is empowered to adjudicate the dispute. The aforesaid judgment of Hon’ble the supreme court has been followed by this court in Judgment reported in (2014) 4 JLJR 526 . b. On procedural irregularity This court does not find any procedural irregularity in the manner in which the Permanent Lok Adalat has conducted its proceedings. The aforesaid judgment of Hon’ble the supreme court has been followed by this court in Judgment reported in (2014) 4 JLJR 526 . b. On procedural irregularity This court does not find any procedural irregularity in the manner in which the Permanent Lok Adalat has conducted its proceedings. From perusal of para 13 of the impugned order it appears that He further submits that after the stage of Section 22C(7) of the aforesaid Act , the matter having not been resolved through settlement between the parties, the Permanent Lok Adalat exercised the powers under Section 22C(8) of the aforesaid Act and decided the dispute on merrits. c. On the point of perversity/non consideration of materials including survey report From the perusal of the impugned order, this court finds that all relevant materials including the survey report and the allegations made against the complainant has been considered and examined by the Permanent Lok Adalat and accordingly, the mandate of the judgment passed by the Hon’ble Supreme Court reported in (2000) 10 SCC 19 that the survey report is required to be considered, has been duly followed by the Permanent Lok Adalat. It is nobody’s case that the findings recorded or the compensation assessed in the survey report is full and final and the courts have no jurisdiction to examine the assessment made by the survey report. I find that there is no allegation of forgery etc. in the survey reports which has been heavily relied upon by the petitioner and it appears that the allegation of forgery etc. have been made for the first time only before the Permanent Lok Adalat with a view to defeat the claim of the claimant. The claim was made for an amount of Rs.2,93,141/- and the permanent Lok Adalat has awarded a total of Rs.44,950/- only after adjusting the amount already paid. Permanent Lok Adalat has returned a finding that there was a vital defect in the final survey report in as much as it has not considered the internal defect in the vehicle which in natural course might have been caused due to burst of rear tyre and the vehicle capsized. Photographs of the final survey were produced, which in no way indicate that engine portion of the damaged vehicle was examined by the final surveyor. Accordingly, this court finds that there is no perversity in the impugned order. 11. Photographs of the final survey were produced, which in no way indicate that engine portion of the damaged vehicle was examined by the final surveyor. Accordingly, this court finds that there is no perversity in the impugned order. 11. Considering the facts and circumstances of the case, this court finds no illegality in the impugned order and accordingly, the writ petition is dismissed. 12. The interim order, if any, is hereby vacated.