BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ATHYDERABAD.
C.C.NO.41 OF 2006
Between:
Rajalakshmi Jewellers,
Regd. Partnership concern
bearing No.555 of 1998 being rep. by
its Managing Partner Ramesh Chand
Agarwal S/o late Sagarmal aged about 54 yrs
having their shop and business at Municipal Door
No.4-1-977 to 980, Abids Road, Hyderabad-500001
1. New India Assurance Co. Ltd.,
rep. by its Regional Manager having
its Office at 5th S.P.Road at Secunderabad.
2. th
(This order be read in continuation of the order dated 22.06.2009).
Counsel for the complainant Counsel for the opposite parties
1. `35,12,728/- towards balance of claim with interest @ 14% per annum and`20 lakh towards damages for mental agony and trauma and for future interest from the date of filing of the complaint.
2. `1.40 crores plus 10% of the value. The Police apprehended the accused and recovered 2355gms and 1242 gms of gold ornaments and deposited them before the XII Chief Metropolitan Magistrate,Hyderabad. The opposite parties appointed investigator who after conducting investigation filed report subsequently to which the opposite parties settled the claim on 28-03-2006 at`98,08,168/-.
3. `56 lakh with interest @12%p.a. The sum assured was`1,63,90,000/- which was the cost on the date of the insurance policy. The complainant received the gold deposited before the Court and the value of the gold items is`18,99,338/-together with the 10% of the value is `20,89,272/- and after the amount is adjusted, the opposite parties are liable to pay`35,12,078/- and the interest on`98,08,168/-is`31,48,393/-from 27-03-2004 to 27-03-2006 and the complainant is also entitled to the interest on the amount of Rs.35,12,728/-. The total amount payable by the opposite parties is`66,51,021/- with interest thereon.
4. `2.5 and it has stated in the complaint lodged with the Police the loss to the tune of`2.10 crores. There is `616/- for the pure gold and the loss on the basis of market value is`1, 63,94,983/-.
5. `1,40,38,235/- and on the cost basis at`1,03,50,728/-.The complainant admitted that 344.570 gms of gold ornaments had remained behind at the showroom and the complainant had not recorded the quantity of gold in the inventory register until the final surveyor had detected it. The complainant is aware of the fact that the value of the claim should be on the basis of the cost plus 10% of the value. There was no willful delay in settlement of the claim. The jewellary was insured on cost basis and the premium was collected on the basis of cost plus 10% thereof. The loss was assessed on the cost basis plus !0% thereof. The amount was paid to the complainant for the actual loss incurred by the complainant. The complainant received an amount of`98,08,163/- towards the full and final satisfaction of the claim and executed letter of subrogation and indemnity bond in favour of the opposite party no.2.
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1) Whether there was any coercion exercised by the opposite parties on the complainant?
2) Whether the complainant is entitled to the assessment of loss of jewellery on the basis of cost?
3) To what relief?
10. This Commission after considering the evidence on record and after hearing the parties, passed the following order;
In the result, the complaint is partly allowed directing the opposite parties no.1 and 2 to pay an amount of Rs.20,93,456/- along with interest @ 9% per annum from the date of complaint till payment together with costs of Rs.2,000/-. Time for compliance
11. Against the order of this Commission, both the parties had approached the National Commission by way of filing appeal.
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Having regard to the entirety of the facts and circumstances of the case, the loss assessed by the surveyor and the reasons given by the State Commission in the impugned order, we are of the considered view that the order passed by the State Commission is eminently justified and calls for no interference by this Commission. The Appeal is accordingly dismissed.
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We do not find any reason to interfere with the impugned order in exercise of our discretion under Article 136 of the Constitution. The Special Leave Petition is, accordingly, dismissed on the ground of delay as well as on merits.
14.
In the result, the appeal is partly allowed and the impugned order in so far as the observation and direction of the Commission contained in the penultimate paragraph and the last paragraph are concerned (supra), is hereby set aside and the complaint is remitted back to the State Commission for deciding the limited question as to what amount of compensation is payable by the insurance company to the respondent, after they having paid a sum of Rs.98,08,161.20. No order as to costs in these proceedings. The parties are directed to appear before the State Commission on 27.09.10.
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17. Apex Court
The law declared by the Supreme Court shall be binding on all courts within theterritoryIndia.
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19. The binding nature of the decision is applicable to the order passed laying down principle and its effect does not pervade the spirit of the order passed in application filed as SLP as also in case of non speaking order passed by the Supreme Court..
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“reconsidered the issue and some of the above referred judgments and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for further reconsideration of the case for the reason that this Court might not have been inclined to exercise its discretion under Article 136 of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided on merit by a speaking judgment as in that case doctrine of merger would come into play.” And
"(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties."
21. In “Commissioner of Income Tax, Bangalore Vs Shri Manjunatheswara Packing Products and Camphor Works” (1998) 1 SCC, 598, it was held that summary dismissal of SLP does not mean approval of the view taken by the High Court.
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Mr.Mehra, learned counsel for the insurance company contends that in terms of the policy as also going by the concessions made by the parties before the State Commission, the only basis for awarding of the compensation could be the cost basis and not market price which has been erroneously taken into consideration by the State Commission. Whether the mentioning of the figure of`1,40,38,235/- was an inadvertent mistake on the part of the State Commission or the State Commission wanted to consider this figure as the basis of awarding the compensation in the present case must be better known to the State Commission. We can simply observe that the error is apparent on the face of record, which can only be clarified by the State Commission, more particularly, when the basis of award made by the State Commission is with the consent of the parties.
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Having considered the matter, we are of the view that the complaint should be remitted back to the State Commission only on the limited question to decide as to whether it intended to award the compensation to the complainant on the basis of market value viz.,`1,40,38,235/- or on cost basis i.e.,`1,03,58,728/- and depending upon the same it will decide the question as to what amount payable to the complainant after adjustment of the value of the ornaments which have already been restored to the complainant after the burglary.
26.
The complainant submits that the Insurance Companies Insure the gold, jewellary and bullion at the Cost Price. Accordingly in the present case, the sum insured was at`.1,63,90,000 which was the cost price on the date of the insurance of the insurance policy.
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The basis of valuation of property insured for the purpose of this insurance shall be the insured’s cost plus ten percent thereof.
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29. The surveyor assessed the value of the stolen property on the basis of market value at`1,40,38,235/- and on the cost basis at`1,03,50,728/.This Commission considering the cost basis as the parameter to `1,40,38,235/- instead of`1,03,58,728/-.
30. `1,03,58,728/- of which the complainant had already received an amount of`98,08,161.20. The value of the recovered gold according to the complainant @`618 per gram is`22,22,946/- and if 10% of the amount added to it, the total amount comes to`24,45,240.60. The learned counsel for the opposite parties has filed Memo on 9-03-2011 stating that the value of the recovered gold of 3597 gms is`15,91,272/-. `15,91,272 if adjusted to the amount on cost basis it comes to`87,59,456/-.Taking in to consideration the variation of the amount as assessed by both the parties, we have assessed`21,36,618/-. On adjustment of the amount of`21,36,618, the balance would be`82,22,110/-. According to the opposite parties the amount payable to the complainant is`87,59,456. The opposite parties had already paid the amount of`98,08,161.20 since the complainant had received the amount `24,45,240.60 as assessed by the complainant
31.
KMK*
COMPLAINANTS
DOCUMENTS MARKED FOR Ex.A1
Ex.A2
Ex.A3
Ex.A5Sale Sale
DOCUMENTS MARKED FOR OPPOSITE PARTIES:
Ex.B1
MEMBER
