Jammu & Kashmir High Court - Srinagar Bench
Oriental Insurance Company Limited vs Safa-Ul-Ganai on 2 July, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CIMA No. 71 of 2008 CIMA No. 109 of 2008 CIMA No. 122 of 2008 CIMA No. 71 of 2008 CMP No. 269 of 2008 CIMA No.109 of 2008 CMP No.145 of 2009 CMP No. 515 of 2008 CIMA No.122 of 2008 CMP No. 605 of 2008 CMP No.144 of 2009 Oriental Insurance Company Limited,through its Divisional Manager, Divisional Office Sonwar, Srinagar Bashir Ahmad Wani S/o Ghulam Mohammad Wani R/o Shivpora, Srinagar Petitioners Safa-ul-Ganai Nazir Ahmad Ganai Latief Ahmad Ganai Sons of Ahad Ganai Abdul Rashid Ganai S/o Bagoo Ganai All residents of Kalaroosa, Lolab, Kupwara Divisional Manager, New India Assurance Co. Ltd. Sonawar, Srinagar Abdul Khaliq Dar S/o Abdul Ahad Dar R/o Batwina Tehsil Ganderbal Divisional Manager, New India Assurance Co. Ltd., Sonawar, Srinagar Mrs. Misra Begum D/o Ali Mohammad Tantray R/o Gund-Brath, Sopore, Kashmir Respondents !Mr. Manzoor A. Dar, Advocate appellant in CIMA No.71 of 2008 and for respondent No.1 in CIMA Nos.109 of 2008 and 122 of 2008 ^Mr. A. Haqani, Advocate Mr. S. Haqani, Advocate for appellant in CIMA Nos.109 of 2008 & 122 of 2008 Mr. M. S. Reshi, Advocate for respondent No. 2 in CIMA No.109 of 2008 Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Muzaffar Hussain Attar, Judge Honble Mr. Justice Ali Mohammad Magrey, Judge Date: 02/07/2015 : J U D G M E N T :
N. Paul Vasanthakumar, CJ
1. This larger Bench is constituted pursuant to reference made on 13.03.2014 with reference to the orders made in CIMA no. 93/2011 dated 19.09.2011 by a Division Bench of High Court of J&K at Srinagar and the order made in CIMA no. 136/2013 dated 14.03.2013 rendered by a Division Bench of this Court at Jammu, for answering an issue, as to whether the State Consumer Disputes Redressal Commission can issue directions to the police to register the case and investigate the matter, and the question with regard to jurisdiction of the State Consumer Disputes Redressal Commission to call for the report by appointing a Commission and decide the matter.
2. CIMA no. 93/2011, which was disposed of on 19.09.2011, was filed against the order of the State Commission dated 02.08.2011 wherein the State Consumer Disputes Redressal Commission, while dismissing the complaint of the applicant, having prima facie noticed some fraud played by the complainant, directed the Inspector General of Police Srinagar to register a case and submit the copy of the final investigation report to the State Commission within six months. It was contended that under Section 20 of the J&K Consumer Protection Act, 1987 ( for short the Act), the powers of the State Commission are limited and if the complaint was found to be false or frivolous the Commission can only dismiss the complaint with costs and beyond that there was no scope for the Commission to pass any other order.
3. The Division Bench answered the said issue by holding that the jurisdiction of the State Commission can be traced not only under Section 20 of the Act but also under Section 15 of the Act, as Section 15(b) specifically states that, the Commission can call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any Divisional Forum within the State, where it appears to the State Commission that such Divisional Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
4. In the light of the said statutory provision, the Division Bench held that only photocopy of the original premium receipt was placed before the State Commission and on the directions of the State Commission the complainant later on produced the original insurance policy which was in his possession. The State Commission, after analyzing the materials before it, reached the conclusion that complainant produced a false and fabricated insurance policy and the Insurance Company having produced the photocopy of very same insurance policy issued in favour of one Ghulam Hassan Malik and not in the name of the complainant i.e. Ghulam Hassan Shiekh, came to the conclusion that a false and fictitious insurance policy was sought to be introduced before the State Commission and thereby a false claim was made. The State Commission, after arriving at such conclusion based on materials and evidence, dismissed the claim petition by awarding cost of Rs. 10,000/-. Further a false claim having been preferred, the State Commission decided to call for necessary investigation by the appropriate machinery, namely, the Inspector General of Police, Crime, J&K, by registering a case for carrying out the necessary investigation and to submit the final investigation report before the State Commission. The Division Bench held that the State Commission is vested with ample powers under Section 15 of the Act to pass orders and the fraud played having been noticed, it was empowered to give directions as it cannot remain a mute spectator and allow the complainant to go scot-free and dismissed the CIMA.
5. The conflicting decision was rendered by the later Division Bench in CIMA No. 136/2009 dated 14.03.2013 where the State Commission at Jammu, after noticing the fact that false records have been produced by the complainant, thought fit that investigation by the Inspector General of Police, Crime and Railways, Jammu was warranted and gave directions to register a case. The said direction was objected by the appellant/complainant by stating that even though there is no bar created by any statutory provision to issue any direction for registration of any case, as per Section 195 (1) (b) and (c) of the Code of Criminal Procedure, a bar is created on any court to take cognizance of any offence except on the complaint in writing of that Court or by an officer of such Court as that Court may authorize in writing in that behalf. Relying on the said provision, namely, Section 195(1) (b) of the Criminal Procedure Code, the later Division Bench held that the State Commission could not have issued directions for registration of the case and its investigation by the Inspector General of Crime and Railways by replying on the judgment of Honble the Supreme Court reported in (1998) 2 SCC 493 (Sachida Nand Singh and anr v. State of Bihar and anr).
6. As there are conflicting decisions rendered by two Division Benches, as stated supra, this larger Bench is called upon to answer the said issue.
7. CIMA No. 109/2008 has been filed against the order of the State Commission dated 20.10.2008, wherein the State Commission while dismissing the complaint with cost of Rs. 10,000/- directed the Inspector General of Police, Crime, Srinagar to register the FIR and complete the investigation within four months and to file a copy of the final report before the State Commission, on the ground that fraud was played by falsification of public record. CIMA No. 122/2008 is filed against the order of the State Commission dated 24.09.2008 wherein also similar direction was issued, on noticing that fraud was committed.
8. In CIMA no. 71/2008 the appellant, namely, Insurance Company challenged the order of the State Commission dated 23.10.2007, ordering a sum of Rs. 4,09,433/- along with interest at the rate of 7% per annum from the date of presentation of the complaint in the State Commission i.e. 19.04.1999 till final payment is made with costs of Rs. 5000/-, by contending that the State Commission appointed the Munsiff, Judicial Magistrate Ist Class, Kupwara as a Commission to verify the claim made and to submit his report regarding the fire incident, which occurred during the intervening night of 6th/7th January, 1997 and ordered compensation based on the Commissioners report. The contention of the learned counsel appearing for the Insurance Company is that the State Consumer Disputes Redressal Commission has no jurisdiction to appoint the Commissioner and the State Commission itself has to decide as to whether any claim amount is payable and calling for report is not permissible under the provisions of the Act. In short the learned counsel appearing for the appellant contended that there is lack of jurisdiction on the part of the State Commission and the judgment rendered by the Division Bench in CIMA no. 136/2009 dated 14.03.2013 is governing the field with regard to the power of the State Consumer Disputes Redressal Commission. The learned counsel also submitted that Section 11 (4) of the Act though empowers the State Commission to exercise the same powers as are vested in the civil Court under the Code of Civil Procedure, Samvat 1977 while trying a suit, the said power is restricted only for the following purposes, 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 documents 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.
According to the learned counsel the said provision nowhere empowers the Divisional Forum or the State Commission to appoint a Commission seeking report.
9. The learned counsel appearing for the respondents in these cases supported the orders passed by the State Commission, stating that the State Commission is fully justified in issuing appropriate directions, particularly when it was of the opinion that fraud has been committed which is noticed while considering the claim petitions or to appoint the Commission to get the report to arrive at a just and equitable conclusion i.e. to find out the truth.
10. We have considered the rival submissions made by the respective counsels as well as the decisions cited by them.
Issue No.1:
whether the State Consumer Disputes Redressal Commission can issue directions to the police to register the case and investigate the matter?
11. The Section 15 of the Jammu and Kashmir Consumer Protection Act, 1987 Act is relevant to be seen. The said section is extracted hereunder:-
15. Jurisdiction of the State Commission.
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 fifty thousands but does not exceed rupees ten lakhs, and
(ii) appeal against the orders of Divisional Forum within the State ; and
(b) to call for the records and pass appropriate order in any consumer dispute which is pending before or has been decided by any Divisional Forum within the State, where it appears to the State Commission that such Divisional Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
12. The said provision gives ample powers to the State Commission to entertain complaints where the claim amount exceeds Rs. 50,000/- but does not exceed Rs. 10 lakhs. The State Commission is also a judicial forum discharging judicial duties as per Section 11(5) of the Act. The State Commission being a judicial forum must have power to deal with all situations. The Commission must have ample powers otherwise it will be forced to close its eyes and with folded hands as if it is powerless to give directions even if fraud is played before the State Commission. The same cannot be the intention of the legislature while enacting the J&K Consumer Protection Act, 1987. The Act was enacted for the purpose and object to provide for better protection of the interests of consumers for settlement of consumer disputes and matters connected there with and to provide the consumers speedy and simple Redressal of their grievances. It is treated as a quasi judicial machinery and the proceedings having been treated as judicial proceedings, the powers vested with the civil court is bound to be exercised. The decision relied on in the judgment in CIMA No. 136/2009 dated 14.03.2013, namely, (1998) 2 SCC 493 (Sachida Nand Singh and anr v. State of Bihar and anr), was quoted out of context. The judgment of Honble the Supreme Court is very clear that Section 195 (I)(b)(ii) Cr.P.C is not applicable if forgery of the document was committed before the said document was produced before the Court. In these cases the document produced by the complainant was not forged when the documents are in the custody of the State Commission and the forged document was filed which was noticed by the State Commission during enquiry and after prima facie satisfaction the State Commission directed the Inspector General of Police to register the FIR and investigate the matter. In that case Section 195(I)(b) and (c) of the Cr. P. C has no application to the facts of these cases. Under Section 340 of the Cr. P.C the court is entitled to ascertain as to whether any offence effecting administration of justice has been committed by producing a document in court and if offence is committed during the time when the document was custodia legis. If the forged document was filed before the Court/State Commission, the offence has not taken place when the document was in the custody of the Court or Commission. In paragraph 7 of the judgment in Sachida Nand Singhs case (supra) Honble the Supreme Court has held as follows:-
7. A reading of the clause reveals two main postulates for operation of the bar mentioned there.
First is, there must be allegation that an offence I it should be either an offence described in section 463 or any other offence punishable under Sc. 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a Court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference.
13. The facts of the case decided by Honble the Supreme Court were that a complaint was filed by the respondent in the Court of Chief Judicial Magistrate alleging offences under Sections 468, 469 and 471 of the IPC as the appellants had forged the document and produced in the Court of Executive Magistrate which was dealing with proceedings under Section 145 Cr.P.C. The Chief Judicial Magistrate forwarded the complaint to the police as provided in Section 156(3) of the Code. The police registered the FIR on the basis of the said complaint and after investigation laid the charge sheet against the appellants for those offences. The Chief Judicial Magistrate took cognizance of those offences and issued process to the accused. The said proceedings were sought to be quashed under Section 482 of the Cr.P.C, by contending that the Chief Judicial Magistrate could not have taken cognizance of the said offences in view of the bar contained in Section 195(I)(b)(ii) of the Code. Honble the Supreme Court, after considering various decision and noticing the fact that the forged document was produced before the Chief Judicial Magistrate after committing forgery, held that Section 195(I)(b)(ii) of the Cr.P.C is not applicable and dismissed the appeal.
14. In CIMA No. 136/2009 which was disposed of on 14.03.2013 also the forged document was produced before the State Commission and the alleged offence of forgery was not committed when the document was pending before the State Commission. Therefore, with utmost respect, we are unable to subscribe the view taken by the Division Bench in CIMA No. 136/2009 dated 14.03.2013, holding that the State Commission has no power to give directions to register a complaint even if the forged documents are produced before it.
15. It is an admitted fact that the orders passed by the State Consumer Disputes Redressal Commission are authoritative decisions which are enforceable. The issue as to whether the Industrial Tribunal is a Court within the meaning of Article 136 of the Constitution of India was considered by Honble the Supreme Court in the decision reported in AIR 1950 SC 188 (Bharat Bank Limited v. Employees) and in para 37 it is held thus:-
37. .If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then, but only then, according to the definition quoted, all the attributes of judicial power are plainly present. In paragraph 56 it is held that the investigation of facts on evidence adduced by the parties may be a common feature in both judicial and quasi-judicial tribunals. The quasi-judicial tribunals gives its decisions on the difference between the parties not in accordance with fixed rules but on principles of administrative policy or convenience or what appears to be just and proper in the circumstances of a particular case.
In the decision reported in AIR 1956 SC 66 (Brajnandan Sinha v. Jyoti Narain) Honble the Supreme Court held that pronouncement of a definitive judgment is considered the essential sine qua non of a court and unless and until a binding an authoritative judgment can be pronounced by a person or body of persons it cannot be predicted that he or they constitute a court. In paragraph 18 it is held thus:-
18. in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. The Commission of Enquiry appointed under the Commission of Enquiries Act, 1952, being a fact finding body and its recommendations are not binding on the government, cannot be treated as a court even though the procedure adopted by the Commission is of a legal character and it has the power to administer oath, as held by Honble the Supreme Court in (2014) 12 SCC 344 (Subramanian Swamy v. Arun Shourie).
16. By applying the principle annunciated in the said judgments, the orders of the State Consumer Disputes Redressal Commission being binding on the parties unless reversed or modified by the competent court in appeal. Thus the proceedings conducted by the State Consumer Disputes Redressal Commission are definitely coming within the meaning of judicial proceeding and as such the State Consumer Disputes Redressal Commission is a judicial forum.
17. The judicial forum which resolves dispute between the parties has got the power of doing all such acts or applying such means which are essentially necessary to its execution unless it is prohibited by a statute. Incidental and ancillary powers which are reasonably necessary to make the Forum functional is a pre-requisite even for the Tribunals, as held by Honble the Supreme Court in the decision reported in AIR 1991 SC 696 ( Union of India and anr v. Paras Laminates ( P) Ltd.). In the said case it is held that the Tribunal being a judicial body, to make it fully effective, apart from the expressed powers granted by the statute, certain powers are recognized as incidental and ancillary not because they are inherent in the Tribunal nor because its jurisdiction is plenary but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised.
Issue No.2:
Jurisdiction of the State Consumer Disputes Redressal Commission to call for the report by appointing a Commission and decide the matter?
18. The State Commission is defined under Section 2 (p) of the Act. Section 7 (b) states that a Consumer Disputes Redressal Commission to be known as the State Commission established by the Government. The procedure on receipt of complaint by the State Commission is mentioned in Section 16, which reads as follows:-
16. 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.
19. On perusal of the above Section it is evident that the procedure prescribed in Sections 10, 11 and 12, which is to be followed by the Divisional Forum with such modifications as may be necessary, shall be applicable to the disposal of disputes by the State Commission. Section 11 of the Act deals with the procedure on receipt of complaint to be followed by the Divisional Forum. We are concerned with the relevant sub-sections (4) and ( 5) of Section 11 of the Act, which reads as follows:-
11. Procedure on receipt of complaint.
(1).
(2).
(3) (4) For the purpose 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 documents 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.
(5) Every proceeding before the Divisional Forum shall be deemed to be a judicial proceeding within the meaning of Sections 193 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.
20. On perusal of the above statutory provisions it is evident that the Divisional Forum/ State Commission shall have to exercise the same powers as are vested in the civil Court under the Code of Civil Procedure and every proceeding before the Divisional Forum shall be deemed to be a judicial proceeding within the meaning of Sections 193 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. Once it is treated as civil Court, the State Commission can follow the procedures as prescribed for the Divisional Forums which are treated as judicial forum, within the meaning of Section 193 and 228 of the R.P.C, the powers vested in civil Court can be exercised by the State Commission.
21. It is not in dispute that the civil Court is empowered to appoint Commission to find out the true nature of facts to arrive at a just conclusion. It is well settled proposition of law that Courts/judicial forums are duty bound to find out the truth while deciding disputes between the parties and for finding the truth the court/judicial forum is entitled to appoint a Commission and based on the report to be filed by the Commission appointed and after giving liberty to the parties to dispute to file objections about the report of the Commission, the Court/Judicial forum can arrive at a conclusion. Thus, appointment of a Commission is within the ambit and power of the State Commission and the reference in respect of the power of the State Commission as to whether it can appoint the Commission or it alone should record evidence and decide the dispute, is answered against the appellant in CIMA No. 71/2008.
22. In conclusion the reference is answered as follows:-
(i) The State Consumer Disputes Redressal Commission is empowered to order investigation by the concerned police if forged document is filed before the State Commission.
(ii) The State Consumer Disputes Redressal Commission while discharging judicial duties in terms of Section 11(5) of the J&K Consumer Protection Act, 1987, is empowered to issue Commission and call for the report for arriving at a just decision in the complaint filed before it.
(Ali Mohammad Magrey) (Muzaffar Hussain Attar) (N.Paul Vasanthakumar) Judge Judge Chief Justice Srinagar 02.07.2015 Anil Raina, Secy