Payment of the adequate compensation had been delayed, there is no illegality in awarding interest on the said amount: High Court of Jammu and Kashmir

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CJ Court Sr. No.41 FAO(D) No.05 2019 New India Assurance Company & Anr. …Petitioner(s) Appellants. Through: Mr Manzoor A. Dar Advocate with Mr Javaid Ahmad Advocate. Farooq Ahmad Magnoo and Ors. Through: Mr. Ateeb Kanth Advocate. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL JUDGE O R D E R 01. Heard Mr Manzoor Ahmad Dar learned counsel for the appellant Insurance Company and Mr Ateeb Kanth learned counsel for the respondent. The appeal has been preferred against the judgment and order dated 24.09.2018 passed by the Jammu & Kashmir State Consumer Disputes Redressal Commission Srinagar. The claim of the respondents to the tune of Rs.21 30 399 was accepted by the Insurance Company but not satisfied by the same the respondent preferred a complaint before the Commission. The Commission by the impugned order partly allowed the complaint FAO(D) No.5 2019 holding that the deduction of 30% towards cost adjustment estimation error disallowances is on the higher side and that it should only be up to 10%. Accordingly the compensation awarded was enhanced. In filing this appeal the first and foremost argument of learned counsel for the appellant is that one of the arguments raised from the side of the appellant before the Commission was that the claimants respondents had executed a discharge voucher in full and final settlement of the claim and as such their complaint was not maintainable and this aspect was not considered. The State Commission in passing the impugned judgment has categorically stated that the controversy in the present case is confined to the quantum and later on records that the only question to be determined is whether the surveyor has made deductions in consonance with law. Accordingly the matter of deduction alone was decided by the State Commission. 06. A reading of the entire judgment of the Commission would reveal that no such argument as to the execution of the discharge voucher and accepting the claim in full and final settlement was raised or argued before it. Even if it is assumed that such an argument was raised before the Commission and it was not considered the appropriate remedy available to the appellant was to seek review of the judgment of the Commission. The appellant has filed a review but on a different ground which was decided vide order dated 15.03.2019. In that review also the appellant has not taken any ground that claimants respondents FAO(D) No.5 2019 had executed a discharge voucher. In such a situation the contention of the appellant that any point with regard to execution of the discharge voucher was raised before the Commission and had not been considered cannot be accepted. Learned counsel for the appellant next argued that once the matter was contested it was incumbent upon the Commission to have allowed the parties to have adduced evidence in terms of Sections 11 and 16 of the J&K Consumer Protection Act but in the present case parties were not given any opportunity to adduce evidence. The submission is of no use inasmuch as the only question which arose for consideration before the Commission was whether the surveyor has made deductions in consonance with law. The said question was dependent upon the surveyors report which was accepted by both the parties and was a legal nature for which no evidence was necessary. Since no other point which required evidence was raised and argued the Commission committed no error or illegality in passing the impugned judgment and the order. Lastly a feeble attempt has been made to submit that the is not in awarding litigation charges of Rs.20 000 and 7% interest on the amount enhanced by it. The interest has been awarded only on the amount payable in excess of the claim accepted by the Insurance Company. Since the payment of the adequate compensation had been delayed there is no illegality in awarding interest on the said amount. FAO(D) No.5 2019 11. As far as the litigation charges are concerned it is a matter of discretion of the Commission and if it has been found that the claimants respondents are entitled to any litigation expenses no error can be found with the same. It is not the case of the appellant that the litigation expenses are excessive or that the claimant respondents have not borne any litigation expenses to the above extent. In view of the above we do not find any merit in the appeal and the same is dismissed. The appellant Insurance Company is directed to deposit the balance amount as per the award of the Commission after adjusting the amount already paid or deposited before the Registrar Judicial of this Court within one month and on deposit the said amount shall be released in favour of the claimants respondents. This direction has been necessitated as the Commission is not functional in the Union Territory. VINOD CHATTERJI KOUL) JUDGE CHIEF JUSTICE Srinagar Abdul Qayoom PS FAO(D) No.5 2019 

Summary: As no other point which required evidence, was contended, the Commission committed no error or illegality in passing the impugned judgment and the order. The Hon’ble High Court of Jammu and Kashmir, Srinagar Wing before the Hon’ble Chief Justice Pankaj Mithal and Hon’ble  Mr. Justice Vinod Chatterji Koul held such an opinion regarding the case of  New India Assurance Company &amp; Anr. vs. Farooq Ahmad Magnoo and Ors. [FAO(D) No.06/2019 ].  The facts of the case were associated with the case of the appellant- Insurance Company. The learned advocate,  Mr. Manzoor Ahmad Dar, representing the appellant submitted that the petition was preferred against the judgment and order dated 24 September 2018. It was passed by the Jammu &amp; Kashmir State Consumer Disputes Redressal Commission, Srinagar. The Insurance Company accepted but was not satisfied by the claim respondents to the tune of Rs.15,71,613/-. A complaint before the Commission was preferred by the respondent. The Commission partially allowed the complaint by holding a reduction of 30% towards the cost adjustment.  The learned counsel for the appellant in this appeal contended that the claimants/ respondents exercised a discharge voucher in full and final settlement of the claim. The controversy in such a case was confined to the quantum as stated by the State Commission in passing the impugned judgment. Moreover, it seemed that the State Commission solely decided the matter of deduction. It was revealed after reading the judgment passed by the commission that no such argument regarding the exercise of the discharge voucher or the alleged full and final settlement contended before. It was said that the appellant filed for a review of the judgment passed by the Commission but the appellant did not take any ground that claimants/ respondents had executed any discharge voucher.   A submission by the counsel for the appellant was made which was of no use as the question arose for the consideration was if the surveyor had made any kind of deductions in accord to the law. Finally, an attempt was made regarding the unjustified award of litigation charges by the Commission of Rs.20,000/- and 7% interest.  The Hon’ble High Court of Jammu and Kashmir, Srinagar Wing said “As far as the litigation charges are concerned, it is a matter of discretion of the Commission and if it has been found that the claimants/ respondents are entitled to any litigation expenses, no error can be found with the same. It is not the case of the appellant that the litigation expenses are excessive or that the claimant/ respondents have not borne any litigation expenses to the above extent.”  Thus, considering all the stated facts, the Hon’ble High Court did not find any merit in the appeal and dismissed the same. Hereinafter, the Hon’ble High Court held “The appellant/ Insurance Company is directed to deposit the balance amount as per the award of the Commission after adjusting the amount already paid or deposited before the Registrar Judicial of this Court within one month and on deposit the said amount shall be released in favour of the claimants/ respondents. This direction has been necessitated as the Commission is not functional in the Union Territory.”