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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION = In conclusion, this appeal has to be allowed and the order of the State Commission set aside. We order accordingly. It appears that the Insurance Company did not appoint any surveyor to assess the insurance claim of the petitioner/complainant and, given the lapse of time, it will not be useful or practicable to ask the Insurance Company to do so now. In such a situation, the only available course is to direct the Insurance Company to pay to the petitioner the insured value for the damaged 120 hoardings, the details of which were furnished by the petitioner (vide pages 85-87 of the paperbook of this appeal). This shall be subject to the “excess clause” and deduction of (i) salvage value of the 120 hoardings, in accordance with the terms of the policy and (ii) the sum of Rs.60,000/- already received by the petitioner/complainant (as token damages in terms of the order of the High Court in contempt petition). The amount so arrived at shall carry interest @ 9 per cent per annum from the date 90 days after the filing of the insurance claim till actual payment and the entire payment shall be made within 6 weeks of the date of this order. In the circumstances of the case, the parties shall bear their own costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

English: Visakhapatnam effected by monsoon in 2010

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NEW DELHI

FIRST APPEAL NO. 308 OF 2001

(From the order dated 08.08.2001 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Complaint Case no. 20 of 1984)

M/s Haabia Advertising (India) Pvt. Ltd.

Haabia House, Sethamapeta

Visakhapatnam, Andhra Pradesh                                            Appellant

Through its Managing Director

M. Venkata Ratnam

 

versus

 

1. United India Insurance Company Ltd

Represented by Divisional Office II

3012-13/1, Ranga Station, Daba Garden

Visakhapatnam, Andhra Pradesh                                       Respondents

 

2. Project Director (R & B)

National Highway No. 5

ADB Circle, Visakhapatnam, Andhra Pradesh

 

 

BEFORE:

HON’BLE MR. JUSTICE R. C. JAIN            PRESIDING MEMBER

HON’BLE MR. ANUPAM DASGUPTA          MEMBER

For the Appellant                         Mr. Neeraj K. Jain, Sr. Advocate with

                                                Mr. P.B. Suresh and Mr. Vipin Nair,

                                                Advocates

For the Respondents                    Mr. Vishnu Mehra, Advocate with

                                                Ms. Sakshi Gupta, Advocate

Pronounced on 9th March, 2012

O R D E R

ANUPAM DASGUPTA

 

            This appeal is directed against the order dated 08.08.2001 of the Andhra Pradesh State Consumer DisputesRedressal Commission, Hyderabad (in short, ‘the State Commission’) in consumer complaint no. 20 of 1994. By this order, the State Commission dismissed the complaint filed by the appellant, which had alleged deficiency in service on the part of respondent no. 1, Insurance Company in repudiating its insurance claim for indemnification of damage to the advertisement hoardings erected by it at various places within the municipal limits of Visakhapatnam by the officers of respondent no. 2.

2.     The case of the appellant/complainant before the State Commission was as summarised below:

(i)     The complainant company was engaged in advertising on behalf of its principals in various cities by erecting sky signs and hoardings. Accordingly, it had erected 531 hoardings with the permission of the Municipal Corporation in Visakhapatnam. These hoardings were insured with respondent no. 1 for Rs.58,56,500/- for the period 07.12.1990 – 06.12.1991. The insurance policy covered indemnification of loss or damage to these hoardings caused by various perils, including fire, burglary and “malicious damage”.

(ii)    In 1986, the complainant approached the High Court of Andhra Pradesh by way of Writ Petition no. 17854 of 1986 against the Visakhapatnam Urban Development Authority and the Department of Roads and Buildings, National Highway Section, Visakhapatnam (represented by Assistant Executive Engineer) and Department of Roads and Buildings (represented by Superintending Engineer) praying for writ of mandamus against the proposed action of the aforesaid respondents to remove the advertisements/hoardings and sky signs of the complainant erected in and around the limits of Municipal Corporation of Visakhapatnam and along National Highway no. 5, passing through Visakhapatnam City.

(iii)    On hearing the parties, the High Court passed the following order on 29.08.1989:

          “It is claimed by the petitioner that after obtaining permission from the Municipal Corporation, Visakhapatnam, on payment of advertisement tax and ground rent, hoardings were erected at various places in the city of Visakhapatnam, respondents 1 to 3 have no authority whatsoever to direct the petitioner to remove the hoardings. What is more, the impugned notice dated 23.11.1986 issued by the Assistant Executive Engineer (R&B), Visakhapatnam is vague and silent in respect of ownership of the roads on the margins of which the petitioner erected hoardings.

          The impugned notice is, therefore, quashed and the writ petition is     allowed. No cost”.

(iv)   Though the said order of the High Court attained finality, the officials of the Project Director of Roads and Buildings Department, National Highway no. 5, ADB Circle removed 120 hoardings with advertisements in spite of being informed about the above-mentioned final order of the High Court. After protesting against this action, the complainant filed contempt petition no. 442 of 1991 before the High Court. The contempt petition was allowed by the High Court under its order dated 24.12.1991. The findings and operative part of the order are reproduced below:

          “The plea of the respondents that the contempt petition is barred by time is devoid of any merit. The affidavit filed in the contempt application emphatically mentions the judgment of the High Court was violated by forcible removal of the hoardings on 4th and 5th May, 1991. That is nowhere controverted in the counter-affidavit. The present contempt application was presented to the Court on 10.06.1991. The Court admitted it on 16.09.1991 after going into the question of limitation. The plea of the Government pleader regarding bar of limitation fails.

          In the writ petition, the Roads and Buildings Department had adequately respondents (sic – represented) by making the person who issued the notice for removal of the hoardings as second respondent and the Department of Roads and Buildings was also represented by the Superintending Engineer, Visakhapatnam who was the then controlling authority and who was in charge of the National Highway of Visakhapatnam. Simply because a new Departmental unit is created with a new name and style of A.D.B. Project, Roads and Buildings Department for widening of the National Highway, it does not mean that it is not bound by the earlier actions of the Department. As successor in interest and a successor in office, the present respondent is certainly bound by the actions taken by his predecessors in office. In the counter-affidavit, a peculiar plea is raised to the effect that Sri M. Haragopal, the deponent of the counter-affidavit, is not liable to be proceeded against for contempt on the ground that earlier to him Sri Padmanabha Swamy was the Superintending Engineer-in-Charge and that the hoardings appeared to have been removed during his period of office. It is claimed that Sri Padmanabha Swamy is now on medical leave. Hence the contempt application is not maintainable.

          To say the least, this contention is ridiculous. The Department was fully represented by R 2 and R 3 in the writ petition. The Government pleader represented R 2 and R 3 at the time of the arguments in the writ petition. Simply because a new Departmental unit is created later to attend to a specific piece of work, it cannot be said that it is a new unit and that it is not part and parcel of the Roads and Buildings Department, National Highway Unit. I hold that the respondent in the contempt application is certainly bound by the order passed in the writ petition.

The fact remains and it is uncontroverted in the counter-affidavit that the hoardings have been removed forcibly without following the proper procedure and in gross violation of this Court’s order. Justice requires that some punishment should be imposed upon the Departmental authorities for their violation of the High Court’s judgment. Considering the manner in which things were done, I do not find that this is a fit case in which any particular official should be sent to jail for violation of the Court’s order. The Assistant Executive Engineer it too small a man and various officers are charged in the meanwhile. Taking all these facts into consideration, I feel that ends of justice would be met if a heavy compensation is awarded for the Department official violating the High Court’s judgment. The claim of Rs.25,000/- for each hoarding appears to be highly exaggerated. It is always open to the petitioner to approach the Civil Court and claim damages for the actual loss suffered by him. In this context, it is made clear that what were returned to the petitioner are the damaged hoardings and some of the material of the removed hoardings. Erecting new hoardings is quite a costly process. The damaged material will not always be fully useful for erecting hoardings. Taking all these into account, I hold that a nominal damage of Rs.500/- per hoarding should be awarded as compensation. The petitioner would be entitled to file a regular civil suit and claim the actual amount of damages which he feels is just and proper.

         In the result, the Contempt Petition is allowed. The respondent, viz., the Project Director/ Superintending Engineer, National Highway No. 5, Circle A.D.B. Project, Roads and Buildings Department, Visakhapatnam is directed to pay a total amount of compensation of Rs.60,000/- for the 120 hoardings of the petitioner removed in violation of the High Court’s order. The Department is granted six months time from today to pay the damages. The petitioner is entitled to costs of Rs.500/- in this contempt petition.”

(iv)   This order of the single Judge of the High Court was challenged by the respondent – Project Director before a Division Bench. By its order dated 13.10.1992, the High Court passed a detailed order, the operative parts of which are also reproduced below:

         “We now proceed to give our reasons for the said conclusions:

         First Contention: So far as this contention is concerned, it is not in dispute between the parties that the hoardings in question which existed on spot were on the marginal land round about that segment of National Highway no. 5 which passes through Visakhapatnam City which was monitored and controlled by the Roads and Buildings Department of the State in charge of National Highway no. 5. That Department was duly represented in the writ petition by respondents 2 and 3 as noted earlier, and the High Court after hearing the concerned parties clearly took the view that the concerned respondents had no authority to remove the hoardings put up by the original writ petitioner. Under these circumstances, it is too late in the day for the appellant herein to contend that a new Circle was created at Visakhapatnam for monitoring this segment of the National Highway and the appellant was the Project Director of that newly created Circle, and, as such, he is not liable for contempt. Even if subsequently a new Circle is created, the parent Roads and Buildings Department which was duly represented before the High Court in the writ petition through competent and concerned officers could not avoid responsibility which would remain fastened on the concerned authorities working in the Department when clear order of the High Court was passed against the Department represented by competent and concerned officers, viz., Respondents 2 and 3. Therefore, we fully concur with the reasoning adopted by the learned single Judge in rejecting this contention and hold that the appellant herein would be bound by the order of the High Court in the writ petition.

Second Contention: So far as this contention is concerned, we have already extracted the exact wordings of the order passed by the learned single Judge in the writ petition. That order has become final. It is true that there is no permanentprohibitory injunction issued against the concerned respondents. But when the entire order is seen it becomes clear that the Court has given a clear declaration that the concerned respondents had no jurisdiction or authority to remove the hoardings. The impugned notice was no doubt quashed as being vague. But that was not the sole reason for quashing the impugned notice. That was an additional reason given by the learned judge for quashing the impugned notice. The main reason remains that the respondents had no authority to remove the hoardings and that finding and declaration got reflected in the final order quashing the impugned notice. Though there is a clear-cut declaration by the High Court after hearing the parties that the respondents had no authority to remove the hoardings, it cannot be said that they gain immunity through their other officers who may be subsequently occupying office and can blissfully ignore this mandate of the High Court which had thus culminated in a Writ of Mandamus, and seek to remove the hoardings by declaring that they have jurisdiction and authority to do so which was denied by the High Court to them. Consequently, it cannot be said that the removal of the hoardings despite the order of the High Court would not amount to any contempt or violation of the High Court direction by the appellant. The second contention, therefore, fails and is rejected.

         Third Contention: So far as this contention is concerned, it is true that, under the four corners of the Contempt of Courts Act, 197, the Court may not be able to award any damages. But it cannot be forgotten that contempt alleged is that of the High Court. Under Article 215 of the Constitution of India, High Court as a Court of record has all powers to punish a contemnor who is guilty of contempt of the order of the High Court and High Court would equally be competent to pass appropriate consequential orders in contempt petition once contempt is established. In the present case, contempt is clearly established as the hoardings have all been removed forcibly as found from the record and for which there cannot be any serious controversy. Under these circumstances and as a consequence, the learned single Judge instead of punishing the appellant, passed a milder order of awarding token damages to the original writ petitioner by way of Rs.500/- per hoarding which according to the original writ petitioner-respondent herein was worth Rs.25,000/- each. It cannot, therefore, be said that the consequential order was beyond the competence of the Court. Even this aspect of the matter is squarely covered by a Division Bench decision of this Court in Veeraiah vs Venkateswarulu (1985 – 2, A.L.T. 200), wherein Justice K JayachandraReddy (as he then was) speaking for the Division Bench laid down as under:

          ‘The High Court as a Court of record has undoubtedly inherent power as enshrined in Article 215 to punish for its contempt and all the powers of such court to pass orders to help the administration of justice; merely because third parties have intervened that by itself cannot come in the way of exercise of inherent jurisdiction of the High Court to pass just and necessary orders while disposing of the contempt application. If the Court finds that interests of justice warrant to give relief and it is possible to give such relief nothing prevents the Court from passing appropriate orders giving such relief.’

         We respectfully concur with the aforesaid decision. Applying the said ratio to the present case it cannot be said that the High Court was not competent to pass appropriate consequential order pursuant to the finding that the appellant was guilty of contempt of the High Court’s order, and the Court directed him to pay token compensation of Rs.500/- for each removed hoarding. It is true that the total amount works out to Rs.60,000/-. This is only because extent of violation was so gross that 120 hoardings were removed. That would not, therefore, have any effect on the power of the Court in awarding token compensation by way of consequential relief. It is obvious that the original writ petitioner-respondent herein can pursue his appropriate remedy in the Civil Court as observed by the learned single Judge. The last contention, therefore, is also found to be without any merits and hence rejected.

         These three are the only contentions canvassed in this appeal, and there is no substance in any one of the same.

         The appeal fails and is dismissed with costs. Interim order vacated.

         As the ultimate order of the learned single Judge was suspended during pendency of this appeal, the appellant will get clear six months from today to comply with the order of the learned single Judge.”

3.     In view of the fact that the High Court had awarded only a token compensation with the liberty to the complainant to establish its actual damage through appropriate proceedings, the complainant filed an insurance claim with the respondent Insurance Company along with copies of orders of the High Court. After further correspondence, the Insurance Company repudiated the claim by its letter dated 10.09.1993 on the following grounds:

a.     the removal of the hoardings by the authorities is after notice;

b.      the authorities had a right to remove the hoardings;

c.      the policy covers only malicious acts and there being no malicious act on the part of R & B Department, the claim cannot be admitted.”

4.     This led the appellant to file a complaint before the State Commission with the pleading that the aforesaid act of removal of its hoardings by the Department concerned amounted to “malicious act” in the eyes of law and hence repudiation of the claim by the Insurance Company was a clear deficiency in service. Claiming loss on various counts, the complainant finally prayed for a sum of Rs.20 lakh with interest thereon at the rate of 24% per annum and cost of the proceedings.

5.     After hearing the parties and considering the documents brought on record by them, the State Commission, however, dismissed the complaint on the following grounds:

         “The relevant clause in the insurance policy reads as follows:

The company will indemnify the insurer in respect of loss of or damage to hoardings described in the schedule caused by fire, burglary, accidental damage, earthquake, storm, tempest and flood and malicious act.

         The main thrust of the complainant is that in violation of the interim order   as well as final order in the writ petition the second opposite party deliberately and wilfully pulled down the hoardings erected by the complainant which amounts to malicious act. In support of its contention reliance is placed on the judgment of the High Court in Contempt Case no. 442 of 1991 marked Ex. A-1 dated 24.12.1991 wherein the learned single Judge observed that the second opposite party is bound by the order passed in the writ petition and as such justice requires that some punishment shall be imposed on the department officials for violation of high court orders. It is further observed in the order as follows:

‘Considering the manner in which things were done, I do not find that this is a fit case in which any particular official should be sent to jail for violation of the Court’s order. The Assistant Executive Engineer is too small a man and various officers are changed in the meanwhile. Taking into consideration all these facts into consideration, I feel that ends of justice would be met if a heavy compensation is awarded for the departmental officials violating the High Court’s judgment’.

         On the basis of this order the complainant seeks to contend that malice is writ large in the acts done by the second opposite party. In order to examine this contention the scope and manning of the word malice has to be examined.

         According to Chambers 21st Century Dictionary ‘Malice’ means (i) desire or intention to harm or hurt another or others (ii) a deliberately vicious and          spiteful or cruel attitude of mind.

         As the clause extracted above refers to malicious act we have to see the meaning of malicious act.

         In P. Ramanatha Aiyar’s, ‘The Law Lexicon’ the word malicious is described as ‘Done with malice or an evil design, wilful indulging in malice, harbouring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility or revenge; done in wilful neglect of a known obligation’.

         ‘Malicious’ means with a fixed hate, or done with evil intention or motive; not the result of sudden passion the term ‘malicious’ imports an evil intent or wish or design to vex, annoy, or injure another person.

         Therefore, malicious act has origin in hatred, evil design or enmity. Unless an evil intention or desire to harm another person is shown it cannot be a    malicious act. Malice always brings out revenge, evil design or a cruel motive.

         In ‘The Law of Torts’ by Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, 21st edition 1987, at page 23 it is stated that ‘malice’ means ‘spite or ill-will’. But in law malice has to distinct meanings: (i) intentional doing of a wrongful act and (ii) improper motive …………… a wrongful act, done intentionally without just cause or excuse.

         In the light of the meaning attributed to malice and malicious act let us see whether the same is present in this case.

         Malice has to be pleaded and proved just like any other fact by the complainant. There are no details as to who bears ‘malice’ against it in the complaint. It is also not shown why the complainant feels that there is malice by the second opposite party against it. Except stating that there is malice on the part of the second opposite party, the same is not elaborated. The solitary fact that influenced the complainant to share the view that there is malice on the part of the second opposite party is the order in the contempt case. Except that there is no other fact or factor pleaded in the complaint. Therefore, we have to see how far the order in the contempt case establishes its apprehension.

         As already seen, in the said order the Hon’ble High Court merely observed that the hoardings have been removed forcibly without following the proper procedure and in gross violation of the Court’s order. Hence, justice requires that some punishment should be imposed upon the departmental authorities for their violation of the High Court’s judgment. It further went on observing that it is not a fit case in which any particular officer should be sent to jail for violation of the court’s order. The Assistant Executive Engineer is too small a man whereas officers are changed in the meanwhile; hence, taking into the totality of the circumstances into consideration the learned single Judge felt that ends of justice would be meet if heavy compensation is awarded for the departmental officials for violating the High Court’s judgment. From this it is clear that there is no specific individual who has maliciously removed the hoardings. In fact, the complainant also does not name any particular individual working with the second opposite party at that time who bears the ill-will or grudge against it. Merely because it is proved that there is violation of the order of the High Court we cannot presume that the said violation is malicious. Every act of violation of the order of the High Court need not be a malicious act. Malicious act is something more than a mere violation of the order of the court. In our view there is neither necessary pleading with details capable of constituting malice nor proved. As already stated mere violation of the order of the court by itself without more is not a malicious act. We are of the view that the officers of the second opposite party with a view to jealously protect the interest of the second opposite party have exceeded their limits and violated the orders of the High Court. But the said action is not motivated out of any ill-will or hatred. For these reasons we are constrained to hold that the complainant failed to establish that there is malice in the acts done by the second opposite party. If there is no material to establish that it is a malicious act attracting the relevant clause in the insurance policy the complainant cannot seek for damages. In view of the above discussion, we are of the view that the complainant failed to establish that there is any deficiency in service on the part of the first opposite party.

         The next question is whether there is any deficiency in service on the part of the second opposite party?

         In the counter filed by the second opposite party it is stated that the Municipal Corporation, Visakhapatnam has issued permission for erection of hoardings to the complainant without reference to it. As the road boundaries belonged to the National Highways, the Visakhapatnam Municipal Corporation has no jurisdiction to grant any permission. In fact, there was no permission obtained from the second opposite party before the complainant erected the hoardings. The list of display boards covered in the writ petition is few in number. Under the cover of the writ petition the complainant had erected good number of hoardings illegally all along National Highway and removal of these hoardings had become necessary after the road widening under ADB project started during April 1991. As the complainant did not respond to the request for removal of these hoardings they were removed with the police aid as they were affecting widening of road under ADB project which is time bound and externally aided project. Stay order only covers the advertising hoardings and sky signs existing within the limits of Municipal Corporation of Visakhapatnam. The Municipal Corporation limits are 384/0 KM to 395/875 KM of Vijayawada – Visakhapatnam section and 0/0 KM to 2.8 KM of Visakhapatnam – Bhuvaneswar section. Therefore, the hoardings in stretches from 384/0 KM, i.e., Airport junction to 395/875 KM of Vijayawada – Visakhapatnam road and 0/0 KM to 2.8 KM of Visakhapatnam – Bhuvaneswar road are only covered by the above stay order. Hence, the advertising hoardings from old Gajuvaka junction to Airport junction, i.e., from 377/0 KM to 384/0 KM do not fall under the purview of the stay order. The complainant did not put forth the list of their affected hoardings before this Commission. The complaint is silent as to which boards were actually involved at that time. In fact, none of the boards erected before the notice was quashed were removed and the list enclosed by the petitioner fully endorses this fact. It is further clear that the complainant has erected 120 numbers new boards after December 1986. Hence, the complainant is not entitled to any compensation.

         There is no material placed by the complainant controverting these allegations disclosed in the counter affidavit filed by the second opposite party. Therefore, we are unable to hold that there is any deficiency in service on the part of the second opposite party beyond a sum of Rs.60,000/- already paid by it in respect of 120 hoardings as awarded by the High Court. There is also no material placed before us to show that the cost of each hoarding is more than Rs.500/-. There is no material placed before us by the complainant to show that it had obtained permission from the second opposite party for raising hoardings beyond the Municipal Corporation limits of Visakhapatnam. There is also no material placed before us that the order of the High Court in the contempt case covers the hoardings beyond the Municipal Corporation Limits of Visakhapatnam. In fact, under Ex. B-1 the Commissioner, Municipal Corporation, Visakhapatnam has clearly stated that the complainant has not taken any permission for erecting the hoardings on either side of the National Highway for the year 1991-92. Under Ex.B-2 the complainant has acknowledged receipt of all advertising hoardings including girders, angle frames, boards, etc., on either side of the National Highway 5 from KM 377/0 to KM 395/875 of V.V. Road and KM 0/0 to 2/8 KM of V.B. Road. This shows that the complainant has collected some material and the allegation that there is a total loss cannot be accepted.

         For all these reasons, the complaint fails and is accordingly dismissed. But in the circumstances, without costs.”

6.     We have heard Mr. Neeraj K. Jain, Senior Advocate with Mr. P. B. Suresh and Mr. Vipin Nair, Advocates on behalf of the appellant/complainant and Mr. Vishnu Mehra and Ms. Sakshi Gupta, Advocates on behalf of the respondents and considered the documents on record. Learned counsel for the appellants has also provided written submissions of his arguments.

7.     Mr. Jain, learned counsel for the appellants has emphasised the following points:

(i)     The repudiation of the insurance claim was without any legal basis, being contrary to the findings of the High Court, of both the Single Judge and the Division Bench, in the contempt proceedings. The High Court had held that removal of 120 hoardings was illegal and the officials concerned had no authority to do so. In view of these explicit findings of the High Court, it was not open to the Insurance Company to contend that removal of these hoardings was in accordance with the law or that the officers concerned of the R & B Department removed them in bona fide exercise of their rights.

(ii)    The Supreme Court has clearly laid down as to what constitutes “malice” or a “malicious act” in law.

(a)    For example, in the case of Smt S. R. Venkataraman v Union of India and Anr [(1979) 2 SCC 491, para. 5] the Court held:

         “…………………………….. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v Shields:

         ‘A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act, within the law. He may, therefore, guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently.’

         Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.”

(b)     Further, in the case of Swaran Singh Chand v Punjab State Electricity Board and Ors [(2009) 13 SCC 758, para. 18], the Supreme Court held:

         “In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said Circular Letter dated 14.08.1981 were necessary to be complied with in a case of this nature. Non-compliance wherewith would amount to malice in law. (See Government Branch Press v D.B. Belliappa, S. R. Venkataraman v Union of India and P. Mohanan Pillai v State of Kerala). Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable.”

(iii)    In the light of the ratio of the above-mentioned judgments of the Apex Court, the State Commission erred gravely in holding, “… … We are of the view that the officers of the second opposite party with a view to jealously protect (sic – protecting) the interest of the second opposite party have exceeded their limits and violated the orders of the High Court. But the said action is not motivated out of any ill-will or hatred. For these reasons, we are constrained to hold that the complainant failed to establish that there is malice in the acts done by the second opposite party. If there is no material to establish that it is a malicious act attracting the relevant clause in the insurance policy, the complainant cannot seek for damages.”

(iv)   The State Commission also held that the 120 hoardings removed by respondent no.2 were not covered by the order of the High Court and observed, “… … … The complainant did not put forth the list of their affected hoardings before this Commission. The complaint is silent as to which boards were actually involved at that time. In fact, none of the boards erected before the notice was quashed were removed and the list enclosed by the petitioner fully endorses this fact. It is further clear that the complainant has erected 120 numbers new boards after December 1986. Hence, the complainant is not entitled to any compensation.” However, on this issue, the order dated 24.12.1991 of the High Court read, inter alia, “… … … In the result, the Contempt petition is allowed. The respondent, viz., the Project Director/Superintending Engineer, National Highway No. 5, Circle A.D.B. Project, Roads and Buildings Department, Visakhapatnam is directed to pay a total amount of compensation of Rs.60,000/- for the 120 hoardings of the petitioner removed in violation of the High Court’s order.” When the Division Bench confirmed this order of the single Judge of the High Court in appeal, it was not open for the State Commission to reappraise the matter and come to a contrary view.

8.     In the course of hearing, Mr. Mehra, learned counsel for the Insurance Company was given an opportunity to cite legal precedents in support of his contentions that the action of the officers of respondent no. 2 in this case would not amount to malicious act in the eyes of law and hence the repudiation of the insurance claim was justified. However, apart from strongly arguing in support of the findings of the State Commission and hence the repudiation of the insurance claim of the petitioner, Mr Mehra did not bring to our notice any decision of the Apex Court to either counter the above-mentioned interpretation of “malice” (and, consequently, “malicious act”) in law or to demonstrate that the State Commission was justified in coming to a different interpretation of the order of the High Court passed in December 1991 regarding the legality of removal of 120 hoardings put up by the petitioner.

9.     We have carefully considered the submissions of the learned counsel from both sides and are inclined to agree with Mr. Jain that when the High Court held that the action of respondent no.2/OP was illegal and without authority, removal of the 120 hoardings of the petitioner would amount to a “malicious act” in the eyes of law, in view of the explicit opinion of the Apex Court on this subject, as brought out in the judgments cited above. As regards the findings of the State Commission concerning the 120 hoardings, it is also clear that the order of 24.12.1991 of the learned Single Judge squarely covered them. If the facts relating to these hoardings were indeed as were pleaded before the State Commission (and reflected in its order), it was open to respondent no. 2 to urge this point forcefully before the Division Bench of the High Court when they went up in appeal against the said order of the learned Single Judge. However, as the order of the Division Bench, extracted above in extenso, would show, respondent no. 2/OP did not even raise this contention.

10.    In conclusion, this appeal has to be allowed and the order of the State Commission set aside. We order accordingly. It appears that the Insurance Company did not appoint any surveyor to assess the insurance claim of the petitioner/complainant and, given the lapse of time, it will not be useful or practicable to ask the Insurance Company to do so now. In such a situation, the only available course is to direct the Insurance Company to pay to the petitioner the insured value for the damaged 120 hoardings, the details of which were furnished by the petitioner (vide pages 85-87 of the paperbook of this appeal). This shall be subject to the “excess clause” and deduction of (i) salvage value of the 120 hoardings, in accordance with the terms of the policy and (ii) the sum of Rs.60,000/- already received by the petitioner/complainant (as token damages in terms of the order of the High Court in contempt petition). The amount so arrived at shall carry interest @ 9 per cent per annum from the date 90 days after the filing of the insurance claim till actual payment and the entire payment shall be made within 6 weeks of the date of this order. In the circumstances of the case, the parties shall bear their own costs.

Sd/-

……….…………………………..

[R. C. Jain, J]

Sd/-

…………………………………….

[Anupam Dasgupta]

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