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2018 DIGILAW 658 (CAL)

Budge Budge Company Ltd. v. National Insurance Company Ltd.

2018-09-06

BISWAJIT BASU

body2018
JUDGMENT : Biswajit Basu, J. 1. The revisional application under Article 227 of the Constitution of India is at the instance of a consumer/ complainant and is directed against the order dated 5th December, 2017 passed by the learned State Consumer Disputes Redressal Commission, West Bengal, in complaint case No. CC/78/2014. 2. The petitioner filed an application under Section 12(a) of the Consumer Protection Act, 1986 (hereinafter referred as ‘the said act in short’), praying for the following reliefs : a. To admit the complaint and issue show cause notice upon the opposite party insurance company; b. Interim order directing the insurance company to pay the admitted amount of Rs. 34,01,274/- to the complainant without prejudice to their rights and contention made out in the instant complaint; c. To Direct the insurance co. to serve a copy of the entire survey report along with all annexures and detailed calculation sheet whatsoever upon the complainant; d. Leave be granted to the complainant to deal with such survey report by filing an supplementary affidavit; e. Ad-interim order in terms of prayer (a), (b), (c) and (d) above; f. To direct the insurance company to pay the balance sum of Rs. 34,29,441/-; g. Interest @ 12% per annum on the balance sum of Rs. 34,29,441/- from the date of lodging of the claim form i.e. 10.01.2013 till the date of payment of the same; h. Compensation assessed at Rs. 5,00,000/- be paid for the harassment, suffered by the insured for period of more than a year when the claim was kept pending; i. Award litigation cost assessed at Rs. 50,000/-; 3. The learned State Commission by the impugned order has held that the value of insurance since is/was Rs. 18,00,00,000/- the commission has no pecuniary jurisdiction to entertain the complaint and dismissed the same on the ground of lack of pecuniary jurisdiction. 4. The Section 17 of the said Act deals with the jurisdiction of the State Commission. Sub-Section 1(a)(i) of Section 17 and is relevant for the purpose of appreciating the limit of the pecuniary jurisdiction of the State Commission and being relevant to the present context is reproduced below : “17. Jurisdiction of the State Commission. 1. 4. The Section 17 of the said Act deals with the jurisdiction of the State Commission. Sub-Section 1(a)(i) of Section 17 and is relevant for the purpose of appreciating the limit of the pecuniary jurisdiction of the State Commission and being relevant to the present context is reproduced below : “17. Jurisdiction of the State Commission. 1. Subject to the other provisions of this Act, the State commission shall have jurisdiction- (a) to entertain- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and (ii).......................................... (b).......................................... (2)..........................................,- (a) ........................................... (b) ........................................... (c)..............................................” 5. It is, therefore, clear that it is the value of claim which determines the pecuniary jurisdiction of the State Commission. In the present case the total claim of the complainant/ petitioner if taken together does not exceed one crore. 6. Mr. Rajesh singh learned advocate appearing on behalf of the opposite parties could not dispute that the claim of the petitioner is less than one crore. 7. In view of aforesaid it is apparent that the learned State Commission has committed patent jurisdictional error in not entertaining the complaint of the petitioner. 8. The question now which has fallen for consideration is that when there is error apparent in the exercise of jurisdiction by the State Commission whether the doctrine of exhaustion of alternative remedies would be a bar in interfering in the order impugned in exercise of the jurisdiction of this Court under Article. 227 of the Constitution of India, when the petitioner has a remedy against the order impugned by way of revision in the National Commission under Section 21(b) of the said Act. 9. Section 21 of the said Act deals with the jurisdiction of the National Commission which also being relevant is reproduced below : “21. 227 of the Constitution of India, when the petitioner has a remedy against the order impugned by way of revision in the National Commission under Section 21(b) of the said Act. 9. Section 21 of the said Act deals with the jurisdiction of the National Commission which also being relevant is reproduced below : “21. 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 order of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.” 10. Mr. Bhattacharya learned advocate appearing for the petitioner relying on a decision of the learned Single Judge of this Court in the case of Gainwell Enterprises Pvt. Ltd and Anr. versus Ashoke Kumar Agarwal and Ors. reported in MANU/WB/0064/2014 submits that the Power of superintendence under Article 227 of the Constitution of India is wide and discretionary in nature to be exercised in advancement of and to secure of ends of justice also to uproot injustice. He submits that in the present case the error committed by the State Commission in appreciating the limit of pecuniary jurisdiction as contemplated under Section 17(1)(a)(i) of the said Act is apparent and it is a fit case where the High Court should exercise its power of superintendence over the State Commission. 11. The rule requiring the exhaustion of the statutory remedies is a rule of policy, convenience and discretion rather than a rule of law. It is true that the power of superintendence should not be exercised by the High Court as an Appellate Court to correct a wrong or erroneous decision but it is equally true that if there is grave dereliction of duty resulting grave injustice to the party such power of superintendence can be exercised. The Power of superintendence no doubt should be exercised in a very exceptional circumstances. The Power of superintendence no doubt should be exercised in a very exceptional circumstances. The rule of exhaustion of alternative remedies is a rule of self-imposed limitation. 12. The Superior Court may put a halt to its such limitation when the lower Court or Tribunal manifestly conducts the proceeding before it in a manner which offends Superior Courts sense of fair play or is acting in violation of the principle of natural justice. The doctrine exhaustion of alternative remedies may come in way of exercise of the Power of superintendence by the Superior Court in the absence of exceptional circumstances which must be more fact specific. 13. In the present case the refusal of the State Commission to exercise its jurisdiction is based on erroneous assessment of the value of the claim of the complainant. The Court on its own motion cannot fore-close its jurisdiction unless the statue puts embargo in exercise of its such jurisdiction. 14. In the decision relied on by Mr. Bhattacharya reported in MANU/WB/0064/2014 (Supra). The learned Single Judge of this Court after considering different judgments of Apex Court at paragraph No.7 has taken justice oriented approach and interfered with the order impugned in spite of the existence of the alternative remedy of revision under Section 21(b) of the said Act to the National Commission. The paragraph Nos. 6 and 7 of the said reported decision being relevant to the context are quoted below : “6. On meaningful reading of the aforesaid provisions, the National Commission is vested with the jurisdiction to entertain the complaints where the value of the goods of services and compensation exceeds Rs. 1 crore and the appeals against the order of any State Commission. The National Commission is further vested with the power to call for the records and passed appropriate orders in a pending or disposed of proceeding before the State Commission if it appears that the State Commission has exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested or have acted illegally or with material irregularity. Even if, it is conceived that the National Commission has jurisdiction and competence to decide and entertain, a proceeding initiated against the order of the State Commission, whether it necessarily implies the exclusion of the power of superintendence of the High Court under Article 227 of the Constitution of India. Even if, it is conceived that the National Commission has jurisdiction and competence to decide and entertain, a proceeding initiated against the order of the State Commission, whether it necessarily implies the exclusion of the power of superintendence of the High Court under Article 227 of the Constitution of India. In Waryam Singh and another vs. Amarnath and another reported in MANU/SC/0121/1954 : AIR 1954 SC 215 , the Supreme Court traced the genesis of the power of superintendence of the High Court under Article 227 of the Constitution and held that it can be exercised both administratively and judicially. In Achutananda Baidya vs. Prafullya Kumar Gayen & others reported in MANU/SC/0498/1997 : (1997) 5 SCC 76 , the Supreme Court held that the High Court can interfere under Article 227 of the Constitution of India in case of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure arriving at a finding which is perverse or based on no material or resulting in manifest injustice. 7. It admits no quarrel that the power of superintendence should not be exercised by the High Court as an Appellate Court to correct a wrong or erroneous decision unless it is referable to a grave dereliction of duty and flagrant abuse of the power by the Subordinate Court or Tribunal resulting in grave injustice to the party [See Ouseph Mathai and others vs. M. Abdul Khadir reported in MANU/SC/0718/2001 : (2002) 1 SCC 319 ]. In a decision rendered by the Supreme Court in case of State of New Delhi vs. Navjot Sadhu & Ors. reported in MANU/SC/0396/2003 : (2003) 6 SCC 641 , it is held : 28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise.” 15. In view of the discussion made above this Court holds that the learned State Consumer Disputes Redressal Commission, West Bengal, has committed apparent error in assessing the claim of the petitioner thereby has wrongly come into a conclusion that the said commission lacks pecuniary jurisdiction in entertaining the complaint of the petitioner. The order impugned, therefore, is set aside. C.O. No. 165 of 2018 is allowed. The learned State Commission is requested to hear out the complaint case CC/78/2014 expeditiously. There will be no order as to costs. Urgent photostat certified copy of this order, if applied for be supplied, to the parties subject to compliance of all requisite formalities.