United India Insurance Co. vs Mohd. Afzal Lone and Others

Mansoor Ahmad Mir, J.—By the medium of this writ petition, the petitioner has sought issuance of writ of certiorari for quashing the order

dated 7-7-2004 (hereinafter, for short impugned order), passed by respondent No. 2 (J & K State Consumer Protection Commission, Srinagar)

in complaint titled Mohammad Afzal Lone v. United India Insurance Co. on the grounds taken in the writ petition.

Learned Counsel for respondent No. 1 stated at Bar that this petition be disposed of without filing objections. His statement is taken on record.

It appears that respondent No. 1 filed consumer complaint under Jammu & Kashmir Consumer Protection Act, hereinafter for short the ""Act"",

before respondent No. 2. Petitioner applicant in the complaint disputed the claim of respondent No. 1 by filing the written version before J&K

State Consumer Protection Commission, Srinagar. It is profitable to reproduce Paras 3 and 4 of preliminary objections of the written version filed

by petitioner before the State Commission, herein, which read as under:

That the complaint of the complainant is also not maintainable as disputed questions of fact are involved which cannot be adjudicated upon by

this Hon'ble Commission during the course of its summary trial as the voluminous evidence from the parties is to be recorded which cannot be

done during the course of summary trial, as such, the complaint deserves to be returned for its presentation before appropriate forum/Civil Court.

That the complaint of the complainant is also not maintainable in terms of law laid down by the Hon'ble Supreme Court of India as the

complainants in their complaint have tried to take benefit of tampered, fabricated and manipulated document. It is submitted that if this Hon'ble

Commission is not pleased to return the complaint of the complainant at the very threshold, then in the alternative this Hon'ble Commission may

direct the complainants to produce the original copy of the document which has been annexed with the complaint as Annexure-A and in case

original of the same is produced before this Hon'ble Commission, the Hon'ble Commission will definitely come to know about the malicio is

designs and intentions of the complainants.

Respondent No. 2, in terms of order dated 5th May, 2004, posted the complaint for arguments in view of the preliminary objections.

Thereafter, respondent No. 2 passed order dated 7th July, 2004, impugned in this petition. It is profitable to reproduce the impugned order herein,

which reads as under:

L/C for parties present. Heard regarding jurisdiction part. L/C for P. contends that insurance policy is regarding only Rs. 6 lacs not for 40 lacs as

claim is being made by counsel for complainant. According to O.P. it is Civil Court which has jurisdiction. Point of fact is involved. Evidence is to

be produced regarding the jurisdiction point also. So let the parties proceed with the merits of the case and produce full evidence through

affidavits. At the final stage of arguments jurisdictional point also shall be addressed to put up for evidence of complainant on 5-8-2004.

Learned Counsel for petitioner argued that respondent No. 2 cannot determine the dispute because complicated questions of law and fact are

involved. While elaborating the argument, argued that complainant, respondent No. 1, is relying on the documents which are manipulated,

fabricated and tampered. The State Commission cannot determine the said questions. He cited a Judgment of the Apex Court reported in

Supreme Court on Consumer Protection Judgments, Page 147, titled as Saushish Diamonds Ltd. v. National Insurance Co. Ltd.

Learned Counsel for respondent argued that the policy is not In dispute but the dispute is about the insured amount. It is alleged by the petitioner

(respondent In the complaint) that respondent No. 1, herein, (complainant) has tampered, manipulated and fabricated the documents. Thus, the

insurance policy is not in any way in dispute and this question can be adjudicated and determined by respondent No. 2, State Commission.

Heard. Perused. Considered.

Admit. With the consensus of learned Counsel for parties, this petition is taken up for final disposal.

It appears that after hearing the arguments, respondent No. 2 passed the impugned order and came to the conclusion that preliminary objection

raised is a mixed question of fact and law which could not be determined without leading evidence and accordingly directed complainant to lead

evidence.

The aim object and purpose of the Act is to promote and protect the rights and interests of the consumers and provide them speedy and

simple redressal of the grievances on less expenses. Accordingly, the Legislature in its wisdom, in order to achieve the said goal have in terms of

the Act provided various forums wherefrom the consumers can seek redressal of the grievances. All the Forums are quasi judicial forums/ bodies

have to hear and determine the issues summarily while observing principles of natural justice and all the forums can evolve their own procedure.

The remedy provided under the Act is in addition to the remedy available to the complainant and it is not in derogation of any law for the time

being in force.

The moot question for consideration is, whether the forums under the Act are in a position and capable to determine complicated questions of

fact and law?

I am of the considered view that test is not that the complicated questions of fact and law must be involved in the complaint but the test is

whether the questions can be determined summarily by respondent No. 2. If the Commission is of the opinion that the question(s) can be decided

after recording the evidence in terms of the mandate of provisions of the Act, then the Commission cannot ask the complainant to knock the doors

of Civil Court.

If forum(s) are in a position and capable to determine complicated questions of fact and law tinder the Act, then the complaint under the Act Is

maintainable and the forum(s) have jurisdiction to try the matter. If the questions are such which cannot be decided by the Forum(s) summarily,

then the forum(s) under the Act cannot entertain such complaints.

In order to determine the issue, it is necessary to notice sub-clauses 4, 5 and 6 of Section 11 and Section 16 of the Act, herein, which read as

under:

11(4). For the purposes of this section, the Divisional Forum shall have the same powers as are vested in a Civil Court under the Code of Civil

Procedure, Samvat 1977 while trying a suit in respect of the following matters, namely:

(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness; and

(vi) any other matter which may be prescribed.

11(5) Every proceeding before the Divisional Forum shall be deemed to be a judicial proceeding within the meaning of Sections193 and 228 of the

Ranbir Penal Code, and the Divisional Forum shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XVII of the Code

of Criminal Procedure, Samvat 1989.

11(6). Where the complainant is a consumer referred in Sub-clause (iv) of Clause (b) of Section 2, the provisions of Rule 8 of Order 1 of the First

Schedule to the Code of Civil Procedure, Samvat 1977 shall apply subject to the modification that every reference therein to a suit or decree shall

be construed as a reference to a complaint or the order of the Divisional Forum thereon.

Procedure applicable to State Commission. The procedure specified in Sections 10, 11 and 12 and under the rules made thereunder for the

disposal of complaints by the Divisional Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the

State Commission.

While going through these provisions of law, the State/Divisional Forums under the Act can, summon witnesses and enforce the attendance of

any defendant or witness, examine the witnesses on oath also issue summon for production of documents or any other material object producible

as evidence, and also requisition the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.

Clause (v) of Sub-clause 4 of Section 11 of the Act empowers forums under the Act to examine witnesses on commission.

While going through the pleadings it appears that the question is whether the documents relied by the complainant (respondent No. 1) are

fabricated, forged or manipulated? No doubt the question is complicated one but can be determined by the Commission while keeping in view the

discussions made hereinabove and the provisions of Act.

I am of the considered view that it cannot be said and held that if complicated question(s) of fact or law is (are) involved the complainant is to

be asked to go to civil Court. Respondent No. 2 has rightly passed the impugned order. My this view is fortified by the Apex Court judgment

reported in CCI Chambers Co-op. Hsg. Society Ltd. Vs. Development Credit Bank Ltd., . It is profitable to reproduce relevant portion of Para 7

and Para 10 herein, which read as under:

7... The decisive Lest is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a

complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being

determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be

remembered that the fora under the Act at every level are headed by experienced person. The National Commission is headed by a person who is

or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court. Each

District Forum is headed by person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of

facts or of law can be a ground for the denial of hearing by a Forum under the Act. In Synco Industries case : Synco Industries Vs. State Bank of

Bikaner and Jaipur and Others, this Court upheld the order of NCDRC holding the complaint before it not a fit case to be tried under the Act and

allowing liberty to the complainant to approach the Civil Court because this Court agreed with the opinion formed by the Commission that ""very

detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses."" The Court concluded that in

any event it was ""not an appropriate case to be heard and disposed of in a summary fashion.

In our opinion the decision arrived at by the NCDRC is premature. The Commission ought to have issued notice to the respondent and taken

its pleadings on record. Only when the pleadings for both parties were available should the Commission have formed an opinion as to the nature

and scope of enquiry, i.e. whether the questions arising for decision in the light of the pleadings of the parties required a detailed and complicated

investigation into the facts which was incapable of being undertaken in a summary and speedy manner. Then the Commission could have justifiably

formed an opinion on the need of driving away the complainant to the, Civil Court. 1 Mere complicated nature of the facts and law arising for

decision would not be decisive.

In view of the above facts, I am of the considered view that the impugned order is legally tenable and respondent No. 2 has passed the

impugned order in terms of the Jurisdiction vested with it and the impugned order is not in any way abuse of the process of law.

It is pertinent to mention herein, that Judgment relied upon by learned Counsel for petitioner (supra) is not applicable to the case in hand.

In the given circumstances writ petition is dismissed along with all connected CMP(s).