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

REPORTABLE IN THE SUPREME COURT OF INDIA 2023 INSC 649 CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 5263 of 2023 M/S UNIVERSAL SOMPO GENERAL …PETITIONER(S) INSURANCE CO. LTD. VERSUS SURESH CHAND JAIN & ANR. …RESPONDENT(S) J U D G M E N T J. B. PARDIWALA, J.: 1. This petition seeking leave to appeal under Article 136 of the Constitution is at the instance of M/s Universal Sompo General Insurance Company Limited, Original appellant before the National Consumer Disputes Redressal Commission (for short, ‘the NCDRC’) in the First Appeal No. 376 of 2016 by which the NCDRC dismissed the appeal filed by the petitioner herein thereby affirming the order passed by the State Consumer Disputes Redressal Commission (for short, ‘the SCDRC’) of Delhi, holding that the respondent No. 1 /complainant was entitled to receive the claim amount and appropriate compensation from the petitioner and its joint venture partner viz . Allahabad Bank (respondent No. 2) for the goods stolen from the premises in question. 1 FACTUAL MATRIX 2. It appears from the materials on record that the respondent Bank, acting as an intermediary issued a Standard Fire and Special Perils Policy dated 05.12.2011 in favour of the complainant through the petitioner herein. Similarly, a Burglary Insurance Policy was also issued in favour of the complainant dated 08.12.2011. Both the policies covered a sum of Rs. 50 lakh for the risk of fire and burglary. The policies were for the period between 25.11.2011 and 24.11.2012. 3. By way of letter dated 28.03.2012, 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. 4. The respondent Bank acknowledged the aforesaid intimation and claims to have informed the petitioner by way of letter dated 31.03.2012. The Bank claims to have also forwarded the letter dated 28.03.2012 of the complainant to the petitioner. 5. On 29.06.2012, a theft took place at the Bawana premises and for that FIR No. 213/2012 was lodged on 30.06.2012 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 01.07.2012, a formal complaint was lodged by the complainant with the petitioner. 2 6. After the theft, the complainant informed that a fire had also broken out in the premises at Bawana on 18.10.2012, 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 22.08.2013 and the fire claim was closed on account of non- submission of documents by the complainant. 7. On 03.06.2013, 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. 8. By order dated 18.03.2016, 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. 9. 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 3 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. 10. By order dated 16.01.2023, the First Appeal filed by the petitioner herein came to be dismissed. 11. 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. DISCUSSION 12. In the course of the hearing of this matter, manyfold contentions were raised on either side. However, the moot question that falls for our consideration is whether we 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? 13. Before, we proceed to answer the aforesaid question, we must look into the few relevant provisions of the Act 1986. 14. Section 21(a) of the Act 1986 is titled ‘ Jurisdiction of the National Commission ’. The same reads thus: “ 21. Jurisdiction of the National Commission. - Subject to the other provisions of this Act, the National Commission shall have jurisdiction — 4 (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; ….” 15. Section 23 of the Act 1986 provides for an ‘ Appeal ’. The same reads thus: “23. 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. ” (Emphasis Supplied) 16. The Consumer Protection Act, 1986 stood repealed on 20.07.2020 (Section 106, the Act 1986) and the Consumer Protection Act, 2019 (for short, ‘the Act 2019’) came into force. In the instant case, the complaints were instituted under the Act 1986. However, we must highlight the relevant provisions of the Act 2019, which are pari materia to the provisions of the Act 1986. 5 “ 58. Jurisdiction of National Commission. – (1) 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;…….. Xxx xxx xxx 67. Appeal against order of National Commission. - Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub- clause (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. ” 6 17. 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. 18. Adverting 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. 7 SCOPE AND GRANT OF SPECIAL LEAVE UNDER ARTICLE 136 OF THE CONSTITUTION 19. 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. [See: Murtaza and Sons and Another v. Nazir Mohd. Khan and Others reported (1970) 3 SCC 876]. 20. A Constitution Bench of this Court in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal , reported in (1955) 1 SCR 941 : AIR 1955 SC 65 made the following observations:

8

(Emphasis supplied) 21. In Ujagar Singh and Another v. State (Delhi Administration) reported in (1979) 4 SCC 530, Y. V. Chandrachud, C.J., speaking for the Bench observed as under:

(Emphasis supplied)

9

(Emphasis supplied)

(Emphasis supplied)

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 10 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 petition seeking special leave thereby short-circuit the legal procedure prescribed. The limitation, 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.

(Emphasis supplied)

11 appellant filed a consumer complaint before the SCDRC on 10.08.2013, alleging deficiency of service on the part of the respondent. The SCDRC allowed the complaint filed by the appellant vide its order dated 16.10.2020. 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. 27. 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 12.03.2021, 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. 28. The respondent filed an appeal before the NCDRC. On 30.03.2021, the NCDRC stayed the order of SCDRC subject to the deposit of the cost of entire flat along with nine per cent interest on the amount paid till date in the Registry of the SCDRC. 29. 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 National Commission, vide its order dated 25.05.2021. 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

13

14

15

16

17

18

19

20