NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2335 OF 2011
(From the order dated 11.4.2011 in First Appeal No.1986/2006
of the State Commission, Maharashtra, Circuit Bench Aurangabad)
Dr. Pannaben Padamsi Asar,
R/o Nital Pathological Laboratory
Desipura, Nandurbar
Tq. & Distt. Nandurbar (Maharashtra)
…Petitioner
Vs.
Mr. Vilas Ramdas Borane,
R/o 27-B, Vrundavan Colony
Nandurbar,
Tq. & Distt. Nandurbar
(Maharashtra)
...Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
In person
For the Respondent
:
Mr. Rajesh, Advocate
Pronounced on: 3rd December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed against order dated 11.4.2011, passed by
Maharashtra State Consumer Disputes Redressal Commission, Aurngabad (for short
‘State Commission’) vide which appeal of the petitioner/complainant against order dated
9.8.2006, passed by District Consumer Disputes Redressal Forum, Nandurbar (for short
‘District Forum’) was dismissed.
2.
Brief facts of the case are that petitioner/complainant, who is a Doctor by
profession, purchased a plot in Vardhaman Nagar Hosing Society. After getting
sanctioned the plan for construction by Municipal Council, she approached
respondent/opposite party, a contractor for construction of house. Petitioner entered
into an agreement with the respondent on 8.11.1997. It is agreed that petitioner is to
pay Rs.3,40,000/- in total for the said construction. It is alleged by the petitioner that
respondent recovered amount of Rs.3,88,354/- when it was decided that amount of
Rs.3,40,000/- is only to be paid. Though the amount as agreed was recovered by the
respondent, but the construction was not completed. Therefore, petitioner filed
(complaint case No.7/2000) which was decided in her favour by District Forum on
6.11.2003. During pendency of said complaint it was found by the petitioner that though
construction was said to be completed it was not as per quality expected and agreed by
her. Therefore, civil engineer Shri Ansari was appointed to inspect the said house.
Accordingly, report of Shri Ansari was produced before the Forum. But as the complaint
was for the excess amount and non completion of construction within stipulated period,
the District Forum did not find anything about defective construction in report
of Shri.Ansari.. After taking possession of house, it was found that construction is of
very inferior quality. Many defects had been committed by the respondent such as, the
flooring was not in good, levelling was not done properly, walls were separated by slab
etc. Petitioner approached Civil Engineer Shri.Prasad Kulkarni at Dhule for inspecting
the construction of her house. Shri Kulkarni, accordingly inspected the house and gave
report in respect of same. It is alleged by the petitioner that according to said report the
defects in construction were beyond repair. Therefore entire house is to be demolished
or rebuilt. It is alleged that petitioner was to run pathology laboratory in the said house
and was to use as residential house also. But due to the defective construction she
could not shift in her house. Therefore, she suffered professional loss also. On
11.1.2005, petitioner issued legal notice to respondent. Said notice was not replied by
the respondent. Therefore, petitioner approached the District Forum and demanded
Rs.3 lakhs for reconstruction of house and Rs.2 lakhs for mental agony and financial
loss with 18% interest.
3.
Respondent
appeared before
the Forum and
resisted
the
claim.
On
3.5.2005, respondent made an application and objected to the complaint on the ground
of Res Judicata. The said application was dismissed by the District Forum on
12.8.2005. Thereafter, respondent filed his written version on 23.9.2005 and denied all
the allegations made by petitioner. It is submitted by the respondent that
petitioner had filed (complaint
case
No.7/2000) with
the
same
allegations.
Therefore, petitioner is not entitled to file another complaint on the same cause of
action. It is further stated that after decision of the (complaint No.7/2000) respondent
paid decretal amount to the petitioner. It is further stated that after getting completion
certificate from the Municipal Council, petitioner started residing in the newly built
house.
4.
District Forum, in its order held that in the absence of expert report about
defective construction, complaint is not maintainable and it dismissed the complaint.
5.
Aggrieved by the order of District Forum, petitioner filed an appeal before the
State Commission which was also dismissed, vide impugned order.
6.
Hence, this revision petition.
7.
Petitioner
has
argued
the
case on
her
own.
Whereas, Shri Rajiv,
Advocate, has argued on behalf of respondent. I have gone through the record.
8.
It is contended by the petitioner that complaint is maintainable without the expert
opinion for defective construction, since it is visible even to the naked eye that the
construction is of very inferior quality. Thus it amounts to deficiency in service on the
part of the respondent. Petitioner has also placed on record photographs of the
defective construction, which apparently shows the situation and it is self-sufficient to
establish the case of the petitioner. Thus, the order passed by the Fora below are liable
to be set aside.
9.
On the other hand, it has been argued by learned counsel for the respondent that,
there is no infirmity and ambiguity in the order passed by the State Commission as well
as of the District Forum. Present revision petition has been filed just to harass the
respondent. The issues raised in the present complaint, have already been decided in
the earlier compliant filed by the petitioner.
10.
State Commission in its order has observed;
“8. We perused the record and gave our anxious thoughts to the
arguments advanced by both the counsels. It is an admitted fact
that complainant entered into an agreement with respondent for
construction of house. The allegations of complainant that
respondent is not qualified engineer cannot be accepted as she
after enquiry about the same had entered into an agreement.
Construction was completed in the year 1999. Accordingly,
completion certificate was obtained from Municipal Council.
Thereafter in the year 2000 complaint was filed for recovery of
excessive
amount
accepted
by
the
respondent
and
duringpendancy of said complaint it was found by complainant that
construction was not of proper quality. Therefore she submitted the
report of one Shri Ansari. Complaint No.7/2000 was decided in
favour of complainant and she received decretal amount from the
opponent. Grievance about defective construction was considered
in the said complaint. Therefore she filed complaint No.21/05. In
the
said
complaint
she
filed
inspection
report
of
one Shri.Prasad Kulkarni who is Consulting Engineer and builder &
developer. According to said report construction made by opponent
is of inferior quality and it must be reconstructed after demolishing.
The said Kulkarni did not file his affidavit neither he offered himself
for cross examination by opponent. Therefore there is no authentic
evidence about defective construction. It is contended by
Adv. Kulkarni that Order 2 Rule 2 of C.P.C. is not applicable, to
proceedings
under
Consumer
Protection
Act.
But
in
‘Dr.Poonam Verma`s case the Delhi State Commission relied
on Hon`ble Supreme Court`s decision in which it is held by Apex
court that complaint on same fact and cause of action is not
maintainable. It has come on record that Shri.Prasad Kulkarni is
not ready to file his affidavit as he is not willing to depose against
his professional brother i.e. opponent. Complainant is aware about
said fact so she should have filed report of any expert with affidavit
to show that construction made by opponent is of inferior quality.
Only allegations made by complainant are not sufficient to prove
that construction is of inferior quality. Photographer who took
photograph has also not filed affidavit in respect of same.
Construction work was completed in the year 1999 and possession
was taken by complainant in the year 1999. Completion certificate
obtained in the year 2001 and complaint about defective
construction was filed in the year 2005.
9.
In our view when there is no expert evidence to show that
construction work is of defective in nature. The report in question
cannot go on record in the absence of affidavit. We are not inclined
to allow the appeal. Distt. Forum rightly considered all the facts on
record and dismissed the complaint.”
11.
It is apparent from the record that the construction work was completed in the
year 1999. The possession was taken by the petitioner also in that very year. The
completion certificate obtained in the year 2001, whereas the complaint about the
defective construction was filed only in the year 2005. There was no material before
the fora below
to
reach
at
the
conclusion
that
the
construction
work
is
defective. Admittedly, there is no report of any expert engineer or other expert, to
show that the construction work is defective in nature.
12.
The question as to whether the construction made by the respondent was
defective is a question of fact. Both the Fora below have given finding of facts that there
is no evidence on record to show that the construction was defective.
13.
In view of the concurrent findings of facts given by fora below, no jurisdiction or
legal error has been shown to call for interference in the exercise of power under
section 21 (b) of the Consumer Protection Act, 1986. Both the fora have given cogent
reasons in their orders which do not call for any interference nor do they suffer from any
infirmity or revisionalexercise of jurisdiction.
14.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some prima
facie jurisdictional error appearing in the impugned order, and
only then, may the same be set aside. In our considered opinion
there was no jurisdictional error or miscarriage of justice, which
could have warranted the National Commission to have taken a
different view than what was taken by the two Forums. The
decision of the National Commission rests not on the basis of
some legal principle that was ignored by the Courts below, but on
a different (and in our opinion, an erroneous) interpretation of the
same
set
of
facts. This
is
not
the
manner
in
which revisional powers should be invoked. In this view of the
matter, we are of the considered opinion that the jurisdiction
conferred on the National Commission under Section 21 (b) of the
Act has been transgressed. It was not a case where such a view
could have been taken by setting aside the concurrent findings of
two fora.”
15.
Recently, Supreme Court in Gurgaon Gramin Bank Vs. Smt. Khazani & Anr.,
Civil Appeal No.6261 of 2012 decided on 4.9.2012, has observed ;
“12. We are of the view that issues raised before us are purely
questions of facts examined by the three forums including the
National Disputes RedressalCommission and we fail to see what
is the important question of law to be decided by the Supreme
Court. In our view, these types of litigation should
be
discouraged and message should also go, otherwise for all trivial
and silly matters people will rush to this Court.”
16.
Since, two Fora below have given detailed and reasoned orders, which does not
call for any interference nor they suffer from any infirmity or erroneous exercise of
jurisdiction, the present petition is hereby dismissed with costs of Rs.5,000/- (Rupees
Five Thousand only).
17.
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’ of this Commission, within eight weeks, failing which,
petitioner shall be liable to pay interest @ 9% p.a. till realization.
18.
List for compliance on 1.2.2013.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2468 OF 2011
WITH
(I.A. NO.1 & 2 OF 2012, FOR STAY & C/DELAY)
(From the order dated 27.01.2011 in Appeal No. 874/2010
of the State Commission, Haryana, Panchkula)
SUB DIVISIONAL OFFICER (OP)
UHBVNL,
INDRI
.… Petitioner
Versus
GIAN BHARTI SIKSHA SAMITI
NEAR MATAK MAJRI
INDER GARH (INDRI)
DISTRICT KARNAL
THROUGH ITS CHAIRMAN
ASHWANI KUMAR
SON OF SHRI NET
RAM
.… Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
For the Respondent(s) :
Mr. Alok Sangwan, Advocate
Mr. Bhupendra Singh Chauhan, Advocate
Pronounced on : 3rd December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Petitioner/opposite party aggrieved by order dated 27.1.2011, passed by
Haryana
State
Consumer
Disputes Redressal Forum, Panchkula (short,
“State
Commission”) has filed the present revision petition. Along with present revision
petition, an application seeking condonation of delay of 82 days has also been filed.
2.
Brief facts are that respondent/complainant is a consumer of the petitioner having
non-domestic connection with sanctioned load of 10 K.W, which is installed in the
school premises of the respondent. It is stated that respondent had deposited a sum of
Rs.77,815/- with petitioner as development charges on 31.12.2008, but electric supply
to the school of the respondent was being supplied through rural feeder. Petitioner
despite repeated request of therespondent, is not shifting the high voltage line which is
passing over the school. Thus, alleging it is a case of deficiency of service and unfair
trade
practice,
respondent filed complaint before
District
Consumer
Disputes Redressal Forum, Karnal (short, ‘District Forum’).
3.
In the written statement, petitioner took the plea that if respondent is ready and
willing to deposit the amount with respect to line shifting charges, then they have no
objection in shifting the aforesaid high voltage line. It is further stated that location of
respondent’s school fall within the rural area and due to this reason the supply is being
provided from the rural feeder. Thus, denying any kind of deficiency in service on its
part, petitioner has prayed for dismissal of the complaint.
4.
District Forum vide its order dated 26.4.2010, accepted the complaint by granting
the following relief ;
“In view of the above observation and admission of both the
parties since the complainant is ready to deposit Rs.7,553/shifting charges, so the Ops are directed to shift the high voltage
line passing over the school building within one month from the
date of deposit of the amount by the complainant. The Ops are
further directed to shift electricity supply of the complainant from
agriculture feeder to rural feeder within one month from the date
of receipt of the copy of this order failing which the Ops shall be
liable to pay Rs.100/- per day penalty till the shifting of the line
and connection as stated above. The Ops are further directed to
ensure the regular supply to the complainant’s school by doing
needful to increase the capacity of the transformer from where
supply is to be released to the school if required. The
order be complied with accordingly.”
5.
Aggrieved by the order of District Forum, petitioner filed an appeal which was
dismissed by the State Commission.
6.
I have heard the learned counsel for the parties and have gone through the
record.
7.
Taking up the application for condonation of delay, it is argued by learned counsel
for the petitioner that petitioner being a Government department, the file is required to
be examined at different level, as such the delay has occurred only due to procedural
system. There is no unintentional delay. Thus, there are sufficient grounds for
condoning the delay.
8.
On the other hand, it is contended by learned counsel for the respondent that, no
ground whatsoever has been shown for condoning the delay.
9.
Grounds on which condonation of delay has been sought read as under ;
“3. That the petitioner respectfully submits that delay has
occurred in filing the present revision petition within limitation,
which has occasioned in process of taking the steps at various
levels and in getting the matter approved for filing before
this Hon’ble Commission. The delay in filing the appeal was
unintentional on the part of petitioner since UHBVNL being a
Govt. Department, the file to challenge order of any court
needs comprehensive examination and the file moves from
one place to another. In this process, the delay has occurred
and the same may kindly be condoned.
4. That moreover the petitioners are having their main legal
office at Chandigarh. Whenever a court case is decided
throughout Haryana, the same is sent to the head office for
taking appropriate action. The head office needs some time to
examine the merits of the case and then the matter is dealt by
the Office of Legal Remembrance who nominates Standing
counsel in Delhi for filing the revision petition, if required. The
concerned District Officer is then directed to contact the
appointed counsel in Delhi for sending him the necessary
papers with regard to filing of revision petition. Thereafter, the
file is examined by the counsel for the petitioner in Delhi and
he drafts revision petition. The drafted petition is
then sent to the District Office for signing affidavits and
sometimes the officers are called by the counsel at Delhi for
further discussion and then the petition is filed before
this Hon’ble Commission. In this process, enough time expires
and delay occurs in filing the revision petition.
5. That the petitioners submits that the delay is neither
deliberate nor intentional but has occurred in the
circumstances stated hereinabove.”
10.
It is well settled that “sufficient cause” for non-appearance in each case, is a
question of fact.
11.
Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT
558, has held;
“No doubt the words “sufficient cause” should receive liberal
construction so as to advance substantial justice. However,
when it is found that the applicants were most negligent in
defending
the
case
and
their
non-action
and
want
of bonafide are clearly imputable, the Court would not help such
a party. After all “sufficient cause” is an elastic expression for
which no hard and fast guide-lines can be given and Court has
to decide on the facts of each case as to whether the defendant
who has suffered ex-parte decree has been able to satisfactorily
show sufficient cause for non-appearance and in examining this
aspect cumulative effect of all the relevant factors is to be seen.”
12.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause
has
been
shown
a
party
is
not
entitled
to
the condonation of delay in question as a matter of right. The
proof of a sufficient cause is a discretionary jurisdiction vested in
the Court by S.5. If sufficient cause is not proved nothing further
has to be done; the application for condonation has to be
dismissed on that ground alone. If sufficient cause is shown then
the Court has to enquire whether in its discretion it should
condone the delay. This aspect of the matter naturally introduces
the consideration of all relevant facts and it is at this stage that
diligence of the party or its bona fides may fall for consideration;
but the scope of the enquiry while exercising the discretionary
power after sufficient cause is shown would naturally be limited
only to such facts as the Court may regard as relevant.”
13.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court
has observed ;
“We hold that in each and every case the Court has to
examine whether delay in filing the special appeal leave petitions
stands properly explained. This is the basic test which needs to
be applied. The true guide is whether the petitioner has acted
with
reasonable
appeal/petition.”
diligence
in
the
prosecution
of
his
14. Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the
Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act, 1986
for filing appeals and revisions in consumer matters and the
object of expeditious adjudication of the consumer disputes will
get defeated if this Court was to entertain highly belated
petitions filed against the orders of the consumer Foras.”
15. Recently, Hon’ble Supreme Court in Post Master General and others vs. Living
Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“24. After referring various earlier decisions, taking very lenient view in
condoning the delay, particularly, on the part of the Government and
Government Undertaking, this Court observed as under;
“29. It needs no restatement at our hands that the
object for fixing time-limit for litigation is based on public
policy fixing a lifespan for legal remedy for the purpose of
general welfare. They are meant to see that the parties
do not resort to dilatory tactics but avail their legal
remedies promptly.Salmond in his Jurisprudence states
that the laws come to the assistance of the vigilant and
not of the sleepy.
30. Public interest undoubtedly is a paramount
consideration in exercising the courts' discretion wherever
conferred upon it by the relevant statutes. Pursuing stale
claims and multiplicity of proceedings in no
manner subserves public interest. Prompt and timely
payment of compensation to the landlosers facilitating
their rehabilitation /resettlement is equally an integral part
of public policy. Public interest demands that the State or
the beneficiary of acquisition, as the case may be, should
not be allowed to indulge in any act to unsettle the settled
legal rights accrued in law by resorting to avoidable
litigation unless the claimants are guilty of deriving benefit
to which they are otherwise not entitled, in any fraudulent
manner. One should not forget the basic fact that what is
acquired is not the land but the livelihood of
the landlosers. These public interest parameters ought to
be kept in mind by the courts while exercising the
discretion dealing with the application filed under Section
5 of the Limitation Act. Dragging thelandlosers to courts
of law years after the termination of legal proceedings
would not serve any public interest. Settled rights cannot
be lightly interfered with by condoning inordinate delay
without there being any proper explanation of such delay
on the ground of involvement of public revenue. It serves
no public interest.”
The Court further observed ;
“27. It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the
prescribed period of limitation for taking up the matter by way of
filing a special leave petition in this Court. They cannot claim that
they have a separate period of limitation when the Department was
possessed with competent persons familiar with court proceedings.
In the absence of plausible and acceptable explanation, we are
posing a question why the delay is to be condoned mechanically
merely because the Government or a wing of the Government is a
party before us.
28. Though we are conscious of the fact that in a matter
of condonation of delay when there was no gross negligence or
deliberate inaction or lack of bonafide, a liberal concession has to
be adopted to advance substantial justice, we are of the view that
in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology of
making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bonafide effort, there is no need to accept the usual
explanation that the file was kept pending for several months/years
due to considerable degree of procedural red-tape in the process.
The government departments are under a special obligation to
ensure that they perform their duties with diligence and
commitment. Condonation of delay is an exception and should not
be used as an anticipated benefit for government departments.
The law shelters everyone under the same light and should not be
swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation
offered by the Department for the delay except mentioning of
various dates, according to us, the Department has miserably
failed to give any acceptable and cogent reasons sufficient to
condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go
into the merits of Issues (b) and (c). The question of law raised is
left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are
dismissed on the ground of delay. No order as to costs.”
16.
In the entire application, petitioner has nowhere mentioned any date as to when the
copy of impugned order was received by it ; what was the time taken for getting the matter
approved for filing the appeal before the State Commission ; who were the officials
who dealt with the matter and at what stage of the decision making the delay has taken
place. Application is absolutely silent on these material facts. Petitioner is a Government
body and is having large number of employees working under it. Inspite of having legal
resources at its command, if petitioner being a Government body takes about three months
after the expiry of limitation, to file the appeal, then it can only be observed as to how
inefficient, careless and negligent are its employees. Despite having all the facilities and
infrastructures under it, petitioner’s officials have acted in a very casual and negligent
manner for the purpose of filing appeal before the State Commission.
17.
Observations made by Apex Court in the authoritative pronouncements discussed
above, are fully attracted to the facts and circumstances of the case.
18.
Thus gross negligence, deliberate inaction and lack of bonafides is imputable to the
petitioner. State Commission rightly dismissed the appeal on the ground of limitation, as no
sufficient cause is made out for condoning the delay of about three months.
19.
Even on merits, petitioner has no case in view of admission made by it as apparent
from the observations made by the State Commission in its impugned order which read
as under ;
“It is an admitted case of the parties that the complainant is
ready and willing to deposit the amount of Rs.7,553/- as
demanded by the opposite parties for shifting of the high
voltage line which is passing over the school of the
complainant in response to the letter dated 5.3.2010 issued
by the opposite parties. Since, the complainant is ready and
willing to deposit the line shifting charges, then the appellant
– opposite parties are under a legal obligation to shift the
same. Thus, District Consumer Forum has rightly issued the
direction to the appellant-opposite parties for shifting the
electricity supply of the complainant’s school from
agriculture feeder to rural feeder as the location of the
complainant’s school fall under the jurisdiction of the rural
feeder and initially the connection was released to the
complainant from the rural feeder.
Having considered the facts and circumstances of the case
and the finding recorded by the District Forum, we do not
find any infirmity in the impugned order and as such no
interference in the impugned order is called for.”
20.
Under Section 21 of the Consumer Protection Act, 1986, this Commission can
interfere with the order of the State Commission where such State Commission has
exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally or with material
irregularity. There is no illegality or material irregularity on the part of the State
Commission in this case.
21.
Thus, ex-facie, application for condonation of delay is without any factual and legal
basis and has no legs to stand. The same has been filed just to waste the precious
time of this Commission. Hence, application stand dismissed. Accordingly, present
revision petition being hopelessly barred by limitation is hereby dismissed with cost of
Rs.10,000/- (Rupees ten thousand only).
22.
Petitioner is directed to deposit the cost by way of a demand draft in the name
of “Consumer Legal Aid Account” within eight weeks from today.
23.
In case, petitioner fails to deposit the said cost, within the prescribed period,
then it shall also be liable to pay interest @ 9% p.a., till realization.
24.
List the matter for compliance on 8.2.2013.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2344
WITH
OF 2012
(I.A. NO.1 OF 2012, FOR STAY)
(From the order dated 16.05.2012 in Appeal No. 854/2007
of the State Commission, Punjab, Chandigarh)
A.G.P.L. COLD STORE
VILLAGE GHALUMAJRA,
POST OFFICE – DAPAR,
DISTRICT PATIALA (PUNJAB)
THROUGH ITS MANAGING DIRECTOR
SHRI S.S. VIRDHI
.… Petitioner
Versus
JAGTAR SINGH
SON OF BALWANT SINGH JATT
RESIDENT OF DHANONI,
TEHSIL DERA BASSI,
DISTRICT
PATIALA
.… Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Ramal Luthra, Advocate
Pronounced on : 3rd December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
In this revision petition, there is challenge to order dated 16.5.2012, passed by
Punjab
State
Commission”).
Consumer
Disputes Redressal Forum,
Chandigarh
(short,
“State
2.
Brief facts are that, respondent/complainant filed a consumer complaint under
Consumer Protection Act, 1986 (short ‘Act’) alleging that on 9.3.2005, hestored 49
bags
each
containing
55 kgs. of potato
seed,
in
the
cold
storage
of
the
petitioner. Respondent had received back 21 bags. On 20.9.2005, respondent went to
petitioner to take delivery of remaining bags but he was not given the same. The
petitioner had sold the potato seeds to some other person. Respondent did not get the
potato seeds nor any amount of compensation. The value of the potatoes seed was
Rs.7/- per kg. Hence, the complaint.
3.
Notice of the complaint was given to the petitioner who appeared and filed its
written reply contesting the claim. But on 11.8.2006, when the case was fixed for the
evidence of the respondent, none turned up to contest on behalf of the petitioner.
Accordingly, petitioner was proceeded ex parte on 11.8.2006.
4.
District Consumer Disputes Redressal Forum, Patiala (short, “District Forum”) vide
its order dated 19.09.2006, allowed the complaint and passed the following order ;
“We award compensation of Rs.10,780/- amount of potatoes and
Rs.500/- as costs of the complaint. The opposite party shall pay
this amount to the complainant within a period of one month from
receipt of the copy of the order after deducting the rent for the
storage of the potatoes as mentioned in the receipt, Ex. C-3.”
5.
Order of District Forum was challenged by the petitioner before the State
Commission, which dismissed petitioner’s appeal, vide the impugned order.
6.
Hence, this revision petition.
7.
It has been contended by learned counsel for the petitioner that though the
petitioner was proceeded ex parte before the District Forum, yet it has filed its written
statement but the same was not considered by the District Forum. Moreover, there is
no evidence to corroborate the averments made by the respondent in its complaint nor
the petitioner has issued any receipt. There is also no evidence to support the case of
the respondent, that he visited petitioner’s cold storage on 25.9.2005, to take back his
consignment of the potatoes.
8.
Petitioner had filed its written statement but later on it was proceeded ex
parte. Thus, the evidence produced by the respondent has not been rebutted. Hence,
there is no reason to dis-believe the version of the respondent.
9.
Be that as it may, as per written reply to the complaint filed by the petitioner (copy
at page No. 31-32 of the paper book) it does not pertain to the present litigation. This
reply has been filed in Re :- Jagtar Singh Vs. Anesthetic Bases Pvt. Ltd. So, the
reply filed by the petitioner before the District Forum, does not pertain to the present
litigation.
10.
Lastly, as per receipt Ex.C-3 duly proved by the respondent, as on 20.9.2005, 28
bags of potatoes seeds were still lying with the petitioner. There is no reason to
disbelieve the receipt Ex.C-3 nor it has been rebutted by the petitioner.
11.
District Forum, in its order has held ;
“The perusal of the receipt, Ex.C-3 dated 9.3.2005 shows that
the complainant had stored 49 bags of potatoes in the cold
storage of the opposite party at the rent of Rs.40/-. The receipt
Ex.C-3 further shows that the seed was to be taken back by
31st October. The complainant has received back only 21 bags
vide receipt Ex.C4. As per allegations of the complainant when
he went to the opposite party on 20.9.2005, he could not get
back the remaining bags of potato seeds (28 bags) which he
had stored on 9.3.2005. Thus, we hold the opposite party to be
deficient in rendering the service by not giving back the
remaining 28 bags of potato seeds to the complainant which he
had stored in its cold storage.”
12.
The State Commission while affirming the above findings, vide impugned order
observed ;
“It is also a fact that the delivery of the potato seed has not
been given to the complainant. The contention of the appellant
is that they gave message to the complainant to take delivery
but no evidence has been led as to how and when those
messages were given, to whom the same were delivered and
what mode was adopted to send the message. No written
notice was sent to the complainant. On the other hand, the
contention of the complainant is that he had gone on 25.9.2005
to take delivery and even thereafter, went 2-3 times but he was
not given the delivery of the potato/potato seeds. He has filed
an affidavit in support of his contentions. The argument of the
learned counsel for the appellant that till 31.10.2005, the
complainant did not come to take delivery is, therefore, a false
assertion.
In view of the above discussion, the learned District
Forum rightly allowed the complaint because the complainant
is entitled to the value of the potato/potato seeds by way of
compensation. The impugned order passed by the learned
District Forum is perfectly legal and valid and does not call for
any interference. There is no merit in these appeals and both
the appeals are accordingly, dismissed. The appellants shall
pay Rs.10,000/- as costs of litigation to each of the
complainants in each appeal.”
13.
It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986
(short, ‘Act’), scope of revisional jurisdiction is very limited.
14.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some prima
facie jurisdictional error appearing in the impugned order, and only
then, may the same be set aside. In our considered opinion there
was no jurisdictional error or miscarriage of justice, which could
have warranted the National Commission to have taken a different
view than what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal principle
that was ignored by the Courts below, but on a different (and in our
opinion, an erroneous) interpretation of the same set of facts. This
is not the manner in which revisional powers should be invoked. In
this view of the matter, we are of the considered opinion that the
jurisdiction conferred on the National Commission under Section 21
(b) of the Act has been transgressed. It was not a case where such
a view could have been taken by setting aside the concurrent
findings of two fora.”
15.
Thus, no jurisdictional or legal error has been shown to call for interference in the
exercise of powers under Section 21 (b) of the Act. Since, two Forabelow have
given detailed and reasoned orders which does not call for any interference nor they
suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is
hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
16.
Petitioner is directed to deposit the cost of Rs.10,000/-, by way of demand draft in
the name of “Consumer Legal Aid Account” of this Commission, within eight weeks from
today. In case, petitioner fails to deposit the said cost within the prescribed period, then
it shall also be liable to pay interest @ 9% p.a., till realization.
17.
List on 8.2.2013 for compliance.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1012 OF 2011
WITH
(IA NO.1 & 2 OF 2011, FOR STAY & C/DELAY)
(From the order dated 01.12.2010 in Appeal No.1991/2010
of the State Commission,
Rajasthan)
URBAN IMPROVEMENT TRUST
BIKANER, RAJASTHAN
.… Petitioner
THROUGHT ITS SECRETARY
Versus
1.
BABU LAL
S/O GULAB CHAND
R/O GA 4 HANS NIWAS
SOUGHT PAWAN PURI
BIKANER, RAJASTHAN
2.
DISTT. COLLECTOR
(EX-OFFICIO CHARIMAN)
TOWN IMPROVEMENT TRUST)
BIKANER (RAJATHAN)
.… Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Aruneshwar Gupta, Advocate
Pronounced on :3rd December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
In this revision petition, there is challenge to order dated 1.12.2010, passed by
State
Consumer
Disputes Redressal Forum,
Jaipur,
Rajasthan
(short
“State
Commission).
2.
Brief facts are that the respondent no.1/complainant had applied for a housing plot
having size of 34 X 50 with the petitioner in Jodbeed Housing Scheme, floated by the
petitioner. Accordingly, respondent no.1 deposited a sum of Rs.21,000/- with the
application
as
security
amount
on
27.5.2008. Petitioner
provided
a printed allotment conditions with the application form wherein, availability of all
the basic faculties was mentioned. Respondent no.1 was allotted plot no.B-II/989, size
34 X 60 for which allotment letter dated 12.7.2008 was issued. In the said allotment
letter, petitioner added a new condition contrary to the conditions published with the
application about forfeiting the security amount. According to respondent no.1,
petitioner has stated that after deposit of the amount within the period of 30 days from
the
allotment
letter, raising of
construction
in
three
years is
mandatory. But
when respondent no.1 inspected the plots located around the allotted plot, he found
that commencing construction work on the allotted plot was not at all probable, because
no basic facilities were available there. Due to his reason vide letter dated 7.8.2008,
respondent no.1 sought information from the petitioner as to by which time the facilities
would
be
made
available. In
case,
they
are
unable
to
make
available
facilities, then request was made to the petitioner to refund the security amount. But
petitioner did not send any reply to it. Respondent no.1 also sent notice through his
counsel, but he did not get any reply nor the amount was refunded. On 11.5.2009,
respondent no.1 sought information about the same under the Right to Information Act,
but no reply was received and was told by the office of the petitioner that he may do
whatever he likes to. Therefore, respondent no.1 has prayed that his security amount
of Rs.21,000/- be refunded along with interest and also damages and expenses as
mentioned in the complaint be awarded.
3.
Notice of complaint was issued to the petitioner by the District Consumer
Disputes Redressal Forum, Bikaner (short, “District Forum”). Even after effecting
service of notice, no reply was filed on behalf of the petitioner. Neither petitioner
appeared before the District Forum at any stage of the case.
4.
District Forum, vide order dated 11.8.2010, allowed the complaint and passed the
following directions ;
“1. Opposite parties to refund the security amount of Rs.21,000/- to
the complainant and also pay a sum of Rs.500/- additionally as the
cost of the present complaint.
2. Opposite parties to comply with the above said order within the
period of one month from the date of receipt of certified copy of this
order, otherwise complainant would become entitled to get interest
at the rate of 9 percent per annum on the said security amount from
the date of judgment. Certified copy of this order be forwarded to
the opposite parties.”
5.
Aggrieved by the order of District Forum, petitioner filed an appeal before the
State Commission, which dismissed the same vide impugned order.
6.
Along with present petition, an application seeking condonation of delay has also
been filed. Since, there is a nominal delay of 20 days, for the reasons mentioned in the
application, delay is condoned and application is allowed.
7.
It has been contended by learned counsel for the petitioner that respondent as per
his own admission had not acted upon the demand notice sent by the
petitioner. Hence, respondent no.1 cannot take advantage of his own wrong. It has
also been contended that no service charge or remuneration was charged. Thus, no
service was rendered. As such, respondent does not fall within the scope of the
“Consumer”. The proper remedy for the respondent was to file a Civil Suit. In support,
learned
counsel
has
relied
upon HUDA
Vs. Kewal Krishan Goel & Ors., (1996) 4 SCC 249.
8.
District Forum in its order has held ;
“The main grievance of complainant in the case is that because
there had been absolute absence of basic facilities in the said
scheme proposed by opposite parties and in the absence of the
above said, raising construction on it was also not probable,
therefore, he requested to the opposite parties to refund his
security amount. Earlier to this he sought the information from
opposite parties as to by which time proposed facilities and basic
facilities would be made available in the area of the said plot, but
opposite parties did not deem it just to provide any information to
and Anr.
complainant and did not send any reply to his letter and notice
also. In our opinion, when opposite parties failed to tell to
complainant as to by which time the said basic facilities would be
made available in the Housing scheme, the in such situation,
raising demand by complainant for refunding his security amount of
his plot was not unjust or illegal, reason being when opposite
parties are mentioning in their allotment letter about re-allotment of
the said plot and opposite parties cannot suffer any loss in reallotment of the plot. In addition to this, in the conditions of
allotment published by the opposite parties about the said scheme,
copy of which has been placed on record on behalf of complainant,
no any such condition of forfeiting of security amount has been
mentioned and nor any such condition which would have been
established according to law or rules, has been produced before
us. Therefore, under all these circumstance, in our opinion, not
refunding his security amount amounts to deficiency in services on
the part of the opposite parties and we deem it just to order the
opposite parties that they refund the security amount of
Rs.21,000/- to the complainant and also pay a sum of Rs.500/additionally as the cost of the present complaint.”
9.
State Commission, affirmed the above findings of the facts.
10.
As apparent from the record, no reply was filed by the petitioner in the District
Forum. Under these circumstances, averments made by respondent no.1 in its
complaint, have gone un-rebutted and shall be deemed to be admitted. Even
otherwise, petitioner has nowhere mentioned in this revision petition, as to from which
date basic facilities have been made available in the area, where the plot allotted to
respondent no.1 is situated. Thus, deficiency on the part of the petitioner is writ large in
this case. Decision of Kewal Krishan Goel (supra) is not applicable to the facts of the
present case.
11.
Under Section 21 of the Consumer Protection Act, 1986, this Commission can
interfere with the order of the State Commission where such State Commission has
exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally or with material
irregularity. There is no illegality or material irregularity on the part of the State
Commission in this case.
12. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some prima
facie jurisdictional error appearing in the impugned order, and only
then, may the same be set aside. In our considered opinion there
was no jurisdictional error or miscarriage of justice, which could
have warranted the National Commission to have taken a different
view than what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal principle
that was ignored by the Courts below, but on a different (and in our
opinion, an erroneous) interpretation of the same set of facts. This
is not the manner in which revisional powers should be invoked. In
this view of the matter, we are of the considered opinion that the
jurisdiction conferred on the National Commission under Section 21
(b) of the Act has been transgressed. It was not a case where such
a view could have been taken by setting aside the concurrent
findings of two fora.”
13.
Thus, no jurisdictional or legal error has been shown to call for interference in the
exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. Thus,
present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand
only).
14.
Petitioner is directed to deposit the cost of Rs.10,000/-, by way of demand draft in
the name of “Consumer Legal Aid Account” of this Commission, within eight weeks from
today.
15.
In case, petitioner fails to deposit the said cost within the prescribed period, then it
shall also be liable to pay interest @ 9% p.a., till realization.
16.
Pending applications also stand disposed of.
17.
List on 8.2.2013 for compliance.
….………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 504 OF 2012.
along with
(I. A. No. 03 of 2012)
(Against the order dated 02.11.2011 in Appeal No. 205 of 2011 U.T. State
Consumer Disputes Redressal Commission, Chandigarh)
Chanidigarh Housing Board (CHB), Sector-9, Chandigarh.
……Petitioner.
Versus
Ms. Poonam Singh through her Attorney Bhartendu Sood s/o Late Sh.
Bhupinder Nath, House No. 231, Sector-45-A, Chandigarh –160047.
…….Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner (s): Mrs. Rachna Joshi Issar, Advocate
Pronounced on: 3rd September, 2012
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
ORDER
In this revision petition there is challenge to order dated 2.11.2011, passed by
U. T. State Consumer Disputes Redressal Commission, Chandigarh (for short
as, ‘State Commission’) vide which appeal of the petitioner against order dated
27.6.2011, passed by the District Consumer Disputes Redressal Forum-I, U.
T., Chandigarh(for short as, ‘District Forum’) was dismissed.
2.
Brief facts are that respondent/complainant was allotted Flat No. 231,
Sector 45-A, Chandigarh on hire-purchase basis, vide allotment letter dated
07.02.1989. She paid all the installments, well before the expiry period i.e.
April, 2001 but to her surprise when she applied to petitioner/OP for “No Dues
Certificate”, she was told that a sum of Rs.52,172/- was recoverable from her,
which included 5 annual and 7 ground rent installments. On her protest,
petitioner reduced the aforesaid amount to Rs.41,131/- vide letter dated
15.9.2009, which was further reduced to Rs.36,819/- vide letter dated
18.5.2010, on protest of the respondent. Still discontented, respondent again
protested vide letter dated 25.8.2010, upon which petitioner, vide letter dated
13.9.2010 drastically reduced the outstanding amount to Rs.21,019/- and
conceded that all monthly and ground rent installments stood cleared and the
outstanding amount towards the penal interest. On receipt of the calculation
sheet in respect of the aforesaid amount of Rs. 21,019/-, respondent came to
know that petitioner had charged Rs.42,395/- as penalty on 83 installments
which were delayed by more than 3 months @25% of the installment amount
by invoking condition no.7 of the allotment letter. Whereas, the maximum
penalty on each delayed installment could be Rs. 140/-.Therefore, respondent
vide letter dated 7.10.2010, requested the petitioner to calculate the penalty on
83 installments @ Rs.140/- per installment and to refund Rs. 9,756/-, after
taking into account all payments made by her. When grievance of the
respondent was not redressed, she filed a complaint under Section 12 of the
Consumer Protection Act, 1986 (for short as ‘Act’).
3.
Petitioner in its written statement took the plea that the dwelling unit
was allotted to the respondent, who had accepted the terms and conditions of
the allotment letter. As per conditions of allotment, allottee was required to
make the payment in time, so as to evade penal consequences. Since,
petitioner did not make the payment in time, therefore she was burdened with
interest strictly in accordance with rules and notification dated 30.8.1996,
which provide for imposition of 25% penalty in case of default in making
payment by the allottee. Thus, there was no deficiency in service on their part.
4.
District Forum vide order dated 27.06.2011, held that since no notice
was given, therefore imposition of penalty @ 25% on the installments amount is
illegal and unjustified. It directed the respondent to calculate liquidated
damages as mentioned in its order.
5.
Aggrieved by the above directions of the District Forum, petitioner filed
an appeal before the State Commission, which dismissed the same with cost of
Rs.5,000/-.
6.
We have heard the learned counsel for the petitioner and have perused
the written submissions as well as the record.
7.
It has been contended by the learned counsel that there is no deficiency of
service on the part of the petitioner in demanding the unpaid arrears payable
as per agreed terms between the parties. It is the respondent who had
breached the terms and conditions of the allotment letter. Thus, present
complaint is not maintainable. In support, petitioner’s counsel relied upon the
following judgments;
(i)
Ravneet Singh Bagga Vs. KLM Royal Dutch
Airlines and Another,
(2000) 1 Supreme Court Cases 66 ;
(ii)
Interglobe Aviation Limited Vs. N. Satchidanand,
(2011) 7 Supreme Court Cases 463 and
(iii)
Bihar State Housing Board and Others Vs. Prio Ranjan Roy,
(1997) 6 Supreme Court Cases 487.
8.
Respondent in her complaint had sought the following reliefs ;
(a) refund back the excess amount of Rs.9,756/- paid by her to
the Board against various Notices.
(b) to pay interest on the excess amount @ 24%
(c) to pay to the applicant a suitable amount for the mental agony
she suffered in last two years as the Hon’ble forum may deem
fit. She had to make five representations and every time her
stand was vindicated. In the process she lost valuable time and
money both.
(d) cost of litigation”.
9.
District Forum in its order has held;
“8.
Now, it is clear that the liquidated damages for the delayed payment
shall not exceed 10% of the amount due. It is also clear that in case
of default for more than three consecutive months in respect of any
installments, the tenancy shall be liable to be terminated. However,
the chairman may review the allotment and tenancy before referring
the case to the Competent Authority under Chapter VI of the Act, on
payment of penalty @ 25% of the amount of installments due.
9.
Admittedly, in this case, neither the tenancy has been terminated nor
the complainant has been evicted from the dwelling unit, therefore,
OP had right to claim the liquidated damages which does not exceed
10% of the amount due. Learned counsel for the OP made a
reference to the notification dated 30.08.1996 whereby vide section
6(13) (a), it has been stated that in the sub regulation (4) for the
figure 10 the figure 25 shall be substituted. Admittedly, the said
notification did not have retrospective effect and will apply
prospectively from 30.08.1996 onwards. It is not in dispute that the
allotment of the unit was made to the complainant on 06.02.1989
vide allotment letter (Annexure C-6). Therefore, the notification
referred to above dated 30.08.1996 will not apply to it and the OP
has no right to charge the liquidated damages @ 25%.
10.
Moreover, the condition No. 7 of the allotment letter referred to above
could be invoked after issuing a notice to the allottee to provide him
an opportunity of being heard. No such notice was issued, therefore,
the imposition of penalty @ 25% on the installment amount is illegal
and unjustified.
11.
Confronted with this type of the situation, OP is directed to
calculate the liquidated damages as per the observations made
hereinabove and to give the refund of the amount, if received, in
excess from the complainant within 30 days from the date of receipt
of certified copy of this order. OP is also directed to pay to the
complainant a sum of Rs. 10,000/- as compensation for mental
agony and harassment besides Rs. 2,500/- as costs of litigation,
failing which the OP is liable to pay the entire amount to the
complainant with interest @ 9% p.a. from the date of the filing of the
complaint i.e. 03.02.2011 till its realization”.
10. Petitioner instead of calculating the liquidated damages and to refund the
amount, if received in excess from the respondent as directed by the District
Forum, filed an appeal before the State Commission. The State Commission
rightly dismissed the appeal observing as under ;
“The record would show that all is not well in their Accounts Wing
where either incompetent persons are posted who are unable to
workout the arrears due from the allottee or they intentionally do not
workout proper arrears and give inflated figures to injure the
financial interest of the allottees. The higher officers appear to have
left the matter to these unscrupulous officials instead of getting the
audit done from some independent agencies with respect of each
allotte to ascertain as to what amount has been paid and is due
from them.
The OP/appellant furnished the statement in respect of the
ground rent showing that the complainant has deposited a sum of
Rs.13478.32 in excess of the ground rent due from him as
workedout upto 10.2.2010. If ground rent had been deposited in
excess there was no question of issuing a notice to the complainant
by the OP/appellant alleging that ground rent was due from him but
even in spite of that such notices have been issued by the
OP/appellant. The complainant has produced a notice Annexure OP5 dated 18.5.2010 in para 3 of which it is specifically mentioned
that the complainant had not deposited the ground rent for a period
from 10.2.2006 and was liable to pay amount of ground rent
alongwith applicable rate of penal interest. There is another letter
Annexure-2 dated 12.1.2009 in which also the complainant was told
that he had not deposited the ground rent./lease money annually
and it was due from him for the period from 10.2.2004 to 9.2.2010
which he was liable to pay alongwith penal interest. On the other
hand they have themselves produced two account statements
showing that he had continuously been depositing the said amount,
which was apportioned to a previous date. The learned Counsel for
the OP/appellant is at a loss to explain as to how the complainant
was in arrears of ground rent when he had already deposited
Rs.13,478.32 in excess as per their own record. If the officials of the
OP/appellant had applied their mind such a notice regarding the
arrears in deposit of ground rent would not have been issued to the
complainant.
The manner in which the account of complainant and may be
of many other allottees and tenants are maintained also leaves
much to be desired. The complainant was informed vide a notice
Annexure-2 dated 12.1.2009 that a sum of Rs.52,172/- was due
from him. When he questioned the accuracy of the amount, another
letter Annexure -3 dated 15.9.2009 was issued reducing the said
amount of Rs.41,131/-. This is certain that during that period of 8
months complainant had not deposited any such amount. Further
the complainant was not satisfied with the calculations and he
again sent another letter upon which the amount was brought down
to 36819/- as per Annexure -4 dated 18.5.2010. Dissatisfied the
complainant again represented and the officials of the OP/appellant
were obliged to further bring down the amount to Rs. 21,019/-vide
Annexure-5 dated 13.9.2010. Needless to mention that during this
period of about one year and 8 months no such amount of 30,000/had been deposited by the complainant which could reduce the
figure from 52,172/- (as on 12.1.2009) to Rs.21,019/- (as on
13.9.2010). It appears that the allottees are at the mercy of such
employees of the OP/appellant who inflate figures according to their
whims and can reduce the same if challenged. Even after the
present complaint was filed against the OP plunging it into litigation,
it appears no action would have been taken against the said
employees who are playing with the figures and are apparently
deficient in rendering service, where they cannot even calculate the
amount due from the allottees and can give inflated figures to scare
the allottees and force them to deposit extra amount with the
OP/appellant. The inefficiency of the OP/appellant in calculating the
amount due from the allottee is in itself a deficiency in service
It is not only that, such things happen before the
complainant come to Consumer Fora but even after the present case
was decided a similar trick has been played by the OP/appellant.
As per the accounts statement provided by the OP, referred to above,
the complainant had already deposited a sum of Rs.13,478.32 in
excess of amount due from him as ground rent. As regards the EMIs’
the other statement shows that a sum of Rs.34,496.65 was due
from complainant towards installments, however, during the
pendency of appeal the OP/appellant submitted an application
dated 30.9.2011 in which the ground rent paid in excess was
mentioned to be 6,533/- When questioned as to how this amount
came down from Rs.13,478/- to Rs.6,533/- the learned Counsel for
the appellant was at a loss to explain. His contention was that the
additional amount was adjusted towards the payment of
installments. If that be so then why this amount of Rs.6,533/- was
also not adjusted towards the arrears due from the complainant
could not be answered by the learned Counsel. It is therefore, clear
that the OP is not maintaining the accounts of the allottees properly
and this by itself constitutes deficiency in service.
The learned Counsel for the appellant has not been able to
point out any draw back in the order passed by the learned District
Forum which in our opinion is perfectly legal and valid. There is no
merit in this appeal and the same is accordingly dismissed with
litigation costs of Rs.5,000/-.
In order to safeguard the interest of the OP/appellant from its
own employees, it is made clear that the OP/appellant would be free
to recover amount of compensation and litigation costs etc. from its
employees due to whose fault proper accounts were not maintained
and notices depicting the correct amount due from the complainant
was not issued. It would however, be done after giving show cause
notice to such employee(s) of being heard in accordance with
Punishment and Appeal Rules applicable to such employees”.
11. In nutshell respondent’s case is that when she applied for “No Dues
Certificate’’, she was told that certain amount was recoverable from her which
includes certain annual as well as ground rent installments. On making protest
by her, petitioner’s Board went on reducing the same. Ultimately, she was
asked to pay a sum of Rs. 21,019/-.
12. The defence of petitioner as per its written statement is that, respondent
has breached the terms and conditions of the allotment letter. Moreover,
respondent is not entitled to any refund, rather Rs. 21,019/- are due towards
her.
13. Averments made by respondent in paras 4 to10 of her complaint have been
admitted by the petitioner in its written statement.
14.
In para 12 of the complaint, respondent has averred that;
“No such Notice was issued to her for imposing penalty of 25% on
the installments and the same is unlawful and not inconformity of
the conditions of the allotment letter”.
15.
Petitioner in response to para 12 of the complaint has simply stated that;
“the penalty has been imposed strictly as per rules and notification
dated 30.08.1996 which provides imposition of 25% penalty in case
of default in making payment by the allottee”.
16.
Thus, there is no specific denial to the averment that;
“ No such notice was issued to the respondent before
imposing penalty of 25% ”.
17. Hence, the averments made by respondent in this regard shall be deemed
to be admitted as correct. Moreover, Fora below have held that no such notice
was issued, therefore the imposition of penalty of 25% on the instalment
amount is illegal and unjustified. We find no reason to disagree with these
findings of the Fora below.
18. None of the judgments as relied upon by learned counsel for petitioner
are applicable to the facts of the present case.
19. Present revision petition has been filed under Section 21(b) of the Act. It is
well settled that the powers of this Commission as a Revisional Court are very
limited and have to be exercised only, if there is some prima facie jurisdictional
error in the impugned order.
20.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United
India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under which the
said power can be exercised only if there is some prima facie
jurisdictional error appearing in the impugned order, and only then, may
the same be set aside. In our considered opinion there was no
jurisdictional error or miscarriage of justice, which could have warranted
the National Commission to have taken a different view than what was
taken by the two Forums. The decision of the National Commission
rests not on the basis of some legal principle that was ignored by the
Courts below, but on a different (and in our opinion, an erroneous)
interpretation of the same set of facts. This is not the manner in which
revisional powers should be invoked. In this view of the matter, we are of
the considered opinion that the jurisdiction conferred on the National
Commission under Section 21 (b) of the Act has been transgressed. It
was not a case where such a view could have been taken by setting aside
the concurrent findings of two Fora”.
21.
Thus, no jurisdiction or legal error has been shown to us to call for
interference in the exercise of power under section 21 (b) of the Act, since two
Fora below have given cogent reasons in their orders, which does not call for
any interference nor they suffer from any infirmity or revisional exercise of
jurisdiction.
22.
It is not that every order passed by the Fora below is to be challenged by
a litigant even when the same is based on sound reasoning.
23. Under these circumstances, the present petition is without any legal
basis and the same is hereby dismissed with cost of Rs. 10,000/-.
24.
Petitioner is directed to deposit cost of Rs.10,000/- (Rupees Ten
Thousand Only) by way of demand draft, in the name of “Consumer Legal Aid
Account” of this Commission, within four weeks from today. In case, petitioner
fails to deposit the said cost within the prescribed period, then it shall also be
liable to pay interest @ 9% p.a., till realization.
25. List on 12.10.2012 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
……………………………...
(VINAY KUMAR)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
(1)
REVISION PETITION NO.2111 OF 2012
(Against the order dated 9.2.2012 in Appeal No. 743/2007
of the State Commission, Haryana, Panchkula)
SOM PRAKASH
S/o Shri Bhagwan Dass
R/o Village Budhabhana,
Distt. Sirsa,
SIRSA (Haryana)
........ Petitioner (s)
Vs.
1.
HARYANA URBAN DEVELOPMENT AUTHORITY
Through its Chief Administrator
HUDA Building, Sector-6,
PANCHKULA
2.
ESTATE OFFICER
HUDA
SIRSA
3.
EXECUTIVE ENGINEER
Public Works Department (Public Health)
Division No.1, Malgodam Road,
SIRSA
4.
STATE OF HARYANA
Through Collector,
SIRSA
(2)
…….Respondent (s)
REVISION PETITION NO.2112 OF 2012
(Against the order dated 9.2.2012 in Appeal No. 744/2007
of the State Commission, Haryana, Panchkula)
BHARAT BHUSHAN
S/o Sh. Om Parkash
R/o Village Panjuana,
Tehsil & Distt. Sirsa
SIRSA (Haryana)
........ Petitioner (s)
Vs.
1.
HARYANA URBAN DEVELOPMENT AUTHORITY
Through its Chief Administrator
HUDA Building, Sector-6,
PANCHKULA
2.
ESTATE OFFICER
HUDA
SIRSA
3.
EXECUTIVE ENGINEER
Public Works Department (Public Health)
Division No.1, Malgodam Road,
SIRSA
4.
STATE OF HARYANA
Through Collector,
…….Respondent (s)
SIRSA
(3)
REVISION PETITION NO.2113 OF 2012
(Against the order dated 9.2.2012 in Appeal No. 745/2007
of the State Commission, Haryana, Panchkula)
KAPIL ARORA
S/o Sh. Anand Sawroop
R/o Shop No.11, New Anaj Mandi
SIRSA (Haryana)
........ Petitioner (s)
Vs.
1.
HARYANA URBAN DEVELOPMENT AUTHORITY
Through its Chief Administrator
HUDA Building, Sector-6,
PANCHKULA
2.
ESTATE OFFICER
HUDA
SIRSA
3.
EXECUTIVE ENGINEER
Public Works Department (Public Health)
Division No.1, Malgodam Road,
SIRSA
4.
STATE OF HARYANA
Through Collector,
SIRSA
(4)
…….Respondent (s)
REVISION PETITION NO.2338 OF 2012
with
I.A. NO.02 of 2012 (Condonation of Delay)
(Against the order dated 30.1.2012 in Appeal No. 1099/2008
of the State Commission, Haryana, Panchkula)
HARISH ARORA
S/o Sh. Ganpat,
R/o H. No.228, C-Block,
Sirsa Distt.
SIRSA (Haryana)
........ Petitioner (s)
Vs.
1.
HARYANA URBAN DEVELOPMENT AUTHORITY
Through its Chief Administrator
HUDA Building, Sector-6,
PANCHKULA
2.
ESTATE OFFICER
HUDA
SIRSA
3.
EXECUTIVE ENGINEER
Public Works Department (Public Health)
Division No.1, Malgodam Road,
SIRSA
4.
STATE OF HARYANA
Through Collector,
…….Respondent (s)
SIRSA
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For Petitioner in RP
No. 2111-2113 of 2012
:
For Petitioner in RP
No. 2338/2012
:
Mr. Kamal Chowdhry, Advocate
Mr. Gaurav Gupta, Advocate
Prononced on: 4th December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Since facts are common and similar question of law is involved in the above
noted petitions hence, the same are being disposed of by this common order.
2.
There is an application seeking condonation of delay of 21 days in R.P. No. 2338
of 2012. In view of the reasons stated in the application, the delay is condoned and
application stand disposed of.
3.
Petitioners/complainants in present case are the re-allottees of the plots in
question, having got the respective plots transferred in their names from the original
owners, vide re-allotment letters issued by the respondent.
4.
Controversy in these cases is with regard to the non development of the area
where plots in question are situated and for which, can respondent charge interest on
the instalments from the petitioners and whether petitioners have any right to seek any
compensation from the respondents for not developing the plots in question.
5.
Similar issue came up for consideration before the Hon’ble Apex Court
in Haryana Urban Development Authority vs. Raje Ram reported in 1 (2009) CPJ,
56, in which the court laid down that;
“7.
Respondents
in
the three appeals are not the
original
allottees. They are re-allottees to whom re-allotment was made by
the appellant in the years 1994, 1997 and 1996 respectively. They
were aware, when the plots were re-allotted to them, that there was
delay (either in forming the layout itself or delay in delivering the
allotted plot on account of encroachment etc). In spite of it, they took
re-allotment. Their cases cannot be compared to cases of original
allotteeswho were made to wait for a decade or more for delivery
and thus put to mental agony and harassment. They were aware
that time for performance was not stipulated as the essence of the
contract and the original allottees had accepted the delay. The
appellant offered possession to respondents (re-allottees) and they
took possession of the respective plots on 27.6.2002, 21.3.2000,
and 13.9.1999 respectively. They approached the District Forum in
1997, within a short period from the dates of re-allotment in their
favour. They had not paid the full price when they approached the
District Forum. In the circumstances, having regard to the principles
laid down by this Court in Ghaziabad Development Authority v.
Balbir Singh - 2004 (5) SCC 65, Darsh Kumar (supra) and
Bangalore Development Authority v. Syndicate Bank - 2007 (6) SCC
711, we are of the view that the award of interest was neither
warranted nor unjustified”.
6.
It is an admitted fact that, petitioners are re-allottees and not the original
allottees. Thus, relying upon the decision of the Hon’ble Apex Court in Raje Ram
(supra) and Revision Petition No.1063 of 2012 decided by this Commission on
22.11.2012 in ‘Kishan Lal Kalra vs. Haryana Urban Development Authority, the
above revision petitions are not maintainable. Accordingly, the same are hereby
dismissed with costs of Rs.5,000/-, each.
7.
Petitioners are directed to deposit the respective cost by way of demand draft in
the name of Consumer Legal Aid Account of this Commission, within eight
weeks, failing which, they shall be liable to pay interest @ 9% p.a. till realization.
8.
List for compliance on 15.2.2013.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2466 OF 2012
with
I.A. No.01 of 2012 (Application for Stay)
(From the order dated 27.4.2012 First Appeal No.708/2010
of the State Commission, Haryana, Panchkula)
ICICI Prudential Life Insurance Company Ltd.
ICICI Pru Life Tower,
1089, Appa Saheb Maratha Marg,
Prabha Devi,
Mumbai – 400 025
Also at:
Branch Office:
Ashok Plaza, Delhi Road
Rohtak, Haryana
…Petitioner
Vs.
Smt. Bimal Kanta Kharab
W/o Sh. Dayal Singh Kharab
R/o H. No.411/22, Dev Colony,
Near Telephone Exchange, Rohtak,
Haryana
...Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
Mr. Sanjay K. Chadha, Advocate with
Mr. Avanish Kumar, Advocate
Pronounced on: 5th December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 27.4.2012, passed by State Consumer
Disputes Redressal Commission,
Haryana
(for
short
‘State
Commission’) petitioner/opposite party has filed the present revision petition.
2.
Brief
facts
are
that respondent’s/complainant’s
husband
Sh. Daya Singh Kharab had taken policy no. 04133929 from the petitioner/O.P. for a
sum of Rs.1,85,348/- while availing housing loan from ICICI Bank for 5 years. The
premium of Rs.10,348/- was paid vide cheque bearing no.075325 dated 13.12.2006
drawn on ICICI Bank at Rohtak. Respondent was declared as nominee. Husband of the
respondent has expired on 30.01.2007. After his death, respondent applied for
disbursement of the claim amount with the petitioner, but it repudiated her claim, vide
letter dated 13.10.2007, alleging therein that “The death benefit shall not apply in the
event of death of a member due to a cause other than accident within a period of 45
days from the date of commencement of life cover” and the respondent had paid
premium of Rs.9,219/- only which was credited in the home loan account of deceased,
vide cheque dated 17.5.2007. The alleged condition was never conveyed to the
respondent’s husband nor any consent in this regard was ever accorded by the
deceased. The act of petitioner is illegal and amounts to deficiency in service. Hence,
respondent filed a complaint praying to direct the petitioner to pay the sum
assured alongwith bonus and interest and other benefits under the policy and a sum of
Rs.2,00,000/- as compensation on account of mental agony, harassment and litigation
expenses.
3.
Petitioner in its written statement took preliminary objection stating that as per
clause 3(i) (b) of the condition of the policy;
“the death Benefit shall not apply in the event of death of a member
due to cause other than accident within a period of 45 days from the
date of commencement of the life cover and in whose respect the
Company had not required further evidence of health at the time of
commencement of Life Cover. However, the company shall return
the premium paid after deducting the expenses towards the
issuance of the life cover.”
4.
On merits, it is stated that the life assured had submitted proposal dated
December 26, 2006 on his life under the ICICI Home Assured plan and policy bearing
no.04133929 was issued on the life of the Life Assured on January 02, 2007. Death of
the life Assured occurred on January 30, 2007 due to illness i.e. within 28 days from the
Policy Issuance. Therefore, no Death benefit shall apply in the event of the death, due
to the cause other than accident, within 45 days from the commencement of life cover.
The benefits under the policy are already paid to the Master Proposer at the time of the
claim.
Hence,
no
other
amount
is
payable
under
the
said
case. The
complaint be dismissed with costs.
5.
District Forum, vide order dated 23.3.2010, allowed the complaint and passed the
following directions;
“Accordingly, we hereby allow the complaint with direction to
the opposite parties to pay the sum assured of Rs.1,85,348/(Rupees one lac eight five thousand three hundred forty eight
only) alongwith bonus
&
other
benefits
under
the
policy alongwith interest @ 9% p.a. from the date of filing the
present complaint till its realization and Rs.2,000/- (Rupees two
thousand only) as litigation expenses to the complainant maximum
within one month from the date of filing the present complaint failing
which the amount of award shall carry interest @ 12% p.a. from
dated 23.4.2010 onwards till its realization to the complainant.”
6.
Being aggrieved, petitioner filed an appeal before the State Commission which
dismissed the same.
7.
Hence, the present revision.
8.
It is contended by learned counsel that as per clause 3 (i) (b) of the terms and
conditions of the policy in question, as policy holder has died within the period of 45
days from the date of commencement of life cover due to cause other than accident
thus, no death benefit is payable. In the present case, policy was issued on 2.1.2007 to
the life assured with 30.12.2006 as risk commencement date. The life assured had died
on 30.1.2007 which was within 45 days of the date of commencement of policy. So, his
claim was rightly rejected. Both the fora below have committed error on this
issue.
9.
District Forum in its order has held;
“After going through the file and hearing the parties we are of the
considered view that no doubt as per policy document Ex.R5 the death
Benefit shall not apply in the event of death of a member due to cause
other than accident within a period of 45 days from the date of
commencement of the life cover” but in the present case premium was
credited into the account of opposite party on 13.12.2006 and the date
of death of life assured is 30.01.2007 i.e. after 47 days from the date of
depositing the amount of premium in the account of opposite party.
Moreover, it is not proved on file that the alleged terms & conditions
have been issued to the complainant. In this regard as per 2009(3)CLT
184
titled ICICI
Vs. Gurmeet and
Lombard
General
Insurance
another, Hon’ble Punjab
Company
State
Ltd.
Commission,
Chandigarh has held that: “Exclusionary clause-No evidence to prove if
the document was either signed by the complainant-insured or if it was
an enclosure of the Insurance policy or if it was duly communicated to
the respondent no.1-The Insurance Company cannot avail the benefits
of these terms and conditions contained in the document”, as per
2008(1)137CCC
titled Yellamma Vs. Bhy Sukhadev Singh, Hon’ble Karnataka
High
Court has held that: “Liability commences from the date of issuance
of cheque and not from the date of its encashment-Insurer liable to pay
compensation when accident occurs within 15 days from the date of
issuance of cover note”, as per 2005(2)CLT 231 titled Express Resorts
and
Hotels
Ltd.
Vs.
Oriental
Insurance
Co.
Ltd.
and
others, Hon’bleNational Commission has held that: “Insurance contractCover note-Insurance policy-Held that till the time the policy is issued,
the cover note itself covers the peril” and as per 2008(1)CLT 70
titled Rita Devi Vs. NIC& Ors., Hon’ble National Commission New Delhi
has held that: “Insurance policy-Interpretation of-When two reasonable
interpretations of the terms of the policy are possible, the interpretation
which favours the insured is to be accepted and not the interpretation
whichfavours the insurer”.
10.
The State Commission while dismissing the appeal in its impugned order has
observed;
“From the record it is established that the premium was
credited in the account of opposite party on 13.12.2006 and the date of
death of the life assured is 30.1.2007 i.e. after 47 days from the date of
depositing the amount of premium to the account of the opposite
party. Thus, the Clause 3(i) (b) stated above by the opposite parties, is
not attracted to complainant’s claim. Opposite parties committed error
in repudiating complainant’s claim, hence, no case for interference in
the impugned order while issuing direction to the opposite parties to
pay the insurable benefits to the complainant, is made out.
In view of the above, we do not find any merit it in this appeal, it
is dismissed.”
11.
Clause 3(i)(b) of the Policy on which much stress has been laid down by learned
counsel for the petitioner states;
“3.
Benefits subject to the Life Cover being in force
(i)
Benefit on death of the Member
(a)
(b)
xxxxxxxxxxxx
Death after the full disbursement of the Loan
The Company shall pay the reduced Life Cover as on the
date of death.
The Death benefit shall not apply in the event of death of a Member
due to a cause other than accident within a period of 45 days from
the date of commencement of the Life Cover and in
whose respect, the Company had not required further evidence of
health at the time of commencement
of Life Cover. However,
the Company shall return the Premium paid after deducting the
expenses towards the issuance of the Life Cover. For the purpose
of the above clause, the accident must be caused by violent,
external and visible means.”
12.
Thus, short question which arise for consideration is, as to whether life assured
has died within the period of 45 days after issuing of the policy or not.
13.
As per averments made in paras no. 1 & 2 of the complaint, it has been stated
that deceased Daya Singh, husband of respondent had taken a policy while availing
housing loan. A sum of Rs.10,334/- was paid, vide cheque
no.075325 dated
13.12.2006. The husband of respondent expired on 30.1.2007.
14.
In the written statement, petitioner in response to the above averments has stated;
“That the contents of Para no.1 & 2 are formal and matter of record
and hence do not call for any reply.”
15.
Thus, there is no denial on behalf of the petitioner to the averments made by the
respondent in her complaint. Hence, the averments made in paras no.1&2 of the
complaint, stand admitted.
16.
As per record, the cheque for the insurance premium was issued by the
deceased on 13.12.2006, while he died on 30.1.2007. Thus, the death has occurred
only after 47 days from the date of deposit of the amount of premium with the petitioner.
Under these circumstances, the life cover had already commenced from 13.12.2006
and not from 2.1.2007, when the policy was issued.
17.
In view of the concurrent findings of facts given by fora below, no jurisdiction or
legal error has been shown to call for interference in the exercise of power under
section 21 (b) of the Consumer Protection Act, 1986. Both the fora have given cogent
reasons in their order which do not call for any interference nor do they suffer from any
infirmity or revisionalexercise of jurisdiction.
18.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some prima
facie jurisdictional error appearing in the impugned order, and
only then, may the same be set aside. In our considered opinion
there was no jurisdictional error or miscarriage of justice, which
could have warranted the National Commission to have taken a
different view than what was taken by the two Forums. The
decision of the National Commission rests not on the basis of
some legal principle that was ignored by the Courts below, but on
a different (and in our opinion, an erroneous) interpretation of the
same
set
of
facts. This
is
not
the
manner
in
which revisional powers should be invoked. In this view of the
matter, we are of the considered opinion that the jurisdiction
conferred on the National Commission under Section 21 (b) of the
Act has been transgressed. It was not a case where such a view
could have been taken by setting aside the concurrent findings of
two fora.”
19.
Since, two Fora below have given detailed and reasoned orders, which does not
call for any interference nor they suffer from any infirmity or erroneous exercise of
jurisdiction, the present petition is hereby dismissed with costs of Rs.10,000/- (Rupees
Ten Thousand only).
20.
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’ of this Commission, within eight weeks, failing which,
petitioner shall be liable to pay interest @ 9% p.a. till realization.
21.
Pending application also stands disposed of.
22.
List for compliance on 8.2.2013.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 531 of OF 2012
alongwith
(I.A. No. 1 of 2012)
( Stay )
(From order dated 10.10.2011 in Appeal No. CMP No. 157/2011 in FASR No. 1723 of
2010 of State Consumer Disputes Redressal Commission, Chennai)
…Petitioner
Dr. T. Jayaraman
S/o Thangaraj,
Kurinji Hospital,
Teejay Hospital Road,
Five Roads, Salem Town,
Salem
Versus
K. Lakshmi
W/o Cauvery,
Perumampatty,
Sivadhapuram,
….Respondent
Salem.
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
Mr. Raghunath & Mr. Abid Ali Beeran P.,
Advocates
Pronounced on:
5th December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed by petitioner challenging order dated
10.10.2011, passed by State Consumer Disputes Redressal Commission, Chennai (for
short, ‘State Commission’), vide which application seeking condonation of delay of
2001 days in filing the appeal before the State Commission, was dismissed.
2.
Respondent
No.1/complainant
had
filed
consumer
complaint
against
Petitioner/OP No.2 and Bharath Hospital (who was o.p. no.1) before the District
Consumer Disputes Redressal Forum, Salem (for short, ‘District Forum’) on the ground
of medical negligence. Before District Forum, petitioner remained ex parte, whereas,
Bharath Hospital did not put in its appearance. District Forum, vide its order dated
23.2.2005, allowed the complaint and passed the following directions;
“ The opposite parties are directed to pay a sum of Rs. 1,00,000/-(Rupees
one lakh only) for the medical treatment of the complainant and to pay a sum
of Rs.20,000/-(Rupees twenty thousand only) towards compensation for pain
and suffering and mental agony and to pay a sum of Rs.2,000/-(Rupees two
thousand only) towards cost of this complaint to the complainant within 60
days from the date of this order”.
3.
Aggrieved by the order of District Forum, petitioner filed an appeal before the
State Commission. In that appeal, petitioner did not implead Bharath Hospital as a
party. Alongwith appeal, petitioner filed an application seeking condonation of delay of
2001 days in filing the appeal.
4.
State Commission vide its impugned order, dismissed the application for
condontion of delay and in consequence thereof dismissed the appeal.
5.
Hence, this revision.
6.
It has been contended by learned counsel that Apex Court in Catena of
judgments has held that substantial justice has to be done by disposing the matters on
merits. Dismissing any petition for delay will only lead to failure of justice. The rules of
limitation are not meant to destroy the rights of the parties. Keeping in view of the facts
and circumstances of the present case, delay ought to have been condoned by the
State Commission
7.
There is no dispute about the principle of law laid down by the Apex Court in the
various judgments that, courts should adopt liberal approach in dealing with the
application for condonation of delay. Where sufficient cause has been shown, the delay
is invariably condoned.
8.
State Commission, in its impugned order has observed ;
“ 1. This petition aims to condone the delay of 2001 days in preferring
the appeal, against the order in CC. No. 33/2004 dated 23.2.2005, on the
file of District Forum, Salem. The respondent, in this petition, as
complainant, alleging medical negligence, as well as deficiency, filed a
case against two opposite parties, one is a hospital another is a doctor,
claiming a sum of Rs. 5 lakhs, for which notices were taken, as seen from
the lower court records, served on 29.4.2004, failed to appeal, resulting an
exparte order followed, dated 23.2.2005, which is sought to be challenged.
2. The District Forum, though the complainant had claimed a sum of
Rs. 5,lakhs, applying its mind, based upon as many as 18 documents,
concluding there was deficiency, and for the deficiency, the complainant is
entitled to a sum of Rs.1 lakh as compensation thereby slashing
substantially, not ordering as prayed for, alongwith another nominal
compensation of Rs. 20,000/- with cost, not even ordering interest.
3.
The learned counsel for the petitioner would contend that the
petitioner/opposite party had no knowledge, and therefore, he was unable
to contest the case, which is proved to be false, from the notes paper,
since there was an actual service. By going through the affidavit also, we
are unable to find any reason, acceptable in nature, satisfying us, which
can be further seen from the futile attempt, made by the opposite parties.
Even, as admitted in the affidavit, after execution application, they have
made an attempt to set aside the order, which was dismissed correctly,
not challenged. Those things alone are pleaded in the affidavit, and for the
delay, no explanation is given, how the opposite parties were prevented
from filing an appeal within the time, or how they failed to contest the
case, under what circumstances, they were prevented from contesting the
case etc. This being the position, when the law mandates, each day’s
delay should be explained, which is not explained by way of affidavit, as
rightly resisted by the complainant, by filing a counter, we are unable to
concede the claim of the petitioner, which aims to drag on the
proceedings, for which we can not be a party. Hence the petition to
condone delay is liable to be dismissed as not meritorious.
4. In the result, the petition is dismissed”.
9.
It is well settled that ‘sufficient cause’ with regard to condonation of delay
in each case, is a question of fact.
10.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone.
If sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall
for consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally be
limited only to such facts as the Court may regard as relevant ”.
11.
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994
Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause
should normally be construed liberally so as to advance substantial
justice but that would be in a case where no negligence or inaction or
want of bona fide is imputable to the applicant. The discretion to
condone the delay is to be exercised judicially i.e. one of is not to be
swayed by sympathy or benevolence”.
12.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, it has
been observed ;
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be applied.
The true guide is whether the petitioner has acted with reasonable
diligence in the prosecution of his appeal/petition”.
13. Further, Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application filed
in such cases for condonation of delay, the Court has to keep in mind that
the special period of limitation has been prescribed under the Consumer
Protection Act, 1986 for filing appeals and revisions in consumer matters
and the object of expeditious adjudication of the consumer disputes will
get defeated if this Court was to entertain highly belated petitions filed
against the orders of the consumer Foras.”
14.
It is apparent from the record that petitioner did not appear before the District
Forum. Hence, he was proceeded ex parte. Thus, petitioner has no defence on merits.
It is also an admitted fact that in the appeal filed before the State Commission, there
was delay of 2001 days. This speaks volumes about the conduct of the petitioner, that
he is so careless and negligent in pursuing the present petition.
15 Further, no sufficient cause whatsoever, has been shown by the petitioner in the
grounds on which he is seeking condonation of delay.
16.
Award in this case was passed as earlier as in the year 2004. Now we are in 2012.
Thus, valuable right has accrued in favour of the respondent. Only purpose of filing the
present petition by the petitioner, is to delay the proceedings and deprive the respondent
fruits of the award passed in his favour. As apparent from record, petitioner from day one is
pursuing this litigation in a very casual, careless and negligent manner. Thus, the State
Commission in its wisdom rightly declined to condone the delay of 2001 days in filing the
appeal. There is no infirmity and illegality in the impugned order passed by the State
Commission.
17.
The present revision petition being most bogus, frivolous one and without any legal
basis is liable to be dismissed with punitive cost. Therefore, I dismiss the present petition
with punitive cost of Rs.30,000/- which shall be paid to the respondent/complainant.
18. Petitioner is directed to deposit the aforesaid cost by way of demand draft in the name of
respondent, within eight weeks, failing which petitioner shall also be liable to pay interest @
9% p.a., till realization.
19.
List on 08.02.2013 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3246 of OF 2011
alongwith
(I. A. No. 1 of 2011)
( For delay)
(From order dated 26.7.2010 in Appeal No. 2863 of 2009
of Karnataka State Consumer Disputes Redressal Commission, Bangalore)
M/s M. I. Plywood Industries,
Near APMC Yard, Bangarpet,
Kolar District
…Petitioner
Versus
The Senior Branch Manager,
Canara Bank,
….Respondent
Bangarpet Town
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
For the Respondent :
Ms. Manjula Gandhi, Advocate
Mr. Rakesh Pathak, Advocate
Pronounced on: 5th December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed by the petitioner challenging order dated
26.7.2010, passed by State Consumer Disputes Redressal Commission, Karnataka,
Bangalore (for short, ‘State Commission’). Alongwith this petition, an application seeking
condonation of delay has been filed. However, no period of delay has been mentioned.
2.
Petitioner/complainant filed a complaint under Section 12 of the Consumer
Protection Act, 1986 (for short, ‘Act’) before District Consumer Disputes Redressal
Forum, Kolar (for short, ‘District Forum’), with regard to the repayment of loan amount
due to respondent/OP. It has been alleged in the complaint that despite entire payment
of the loan amount being paid to the respondent under One Time Settlement Scheme,
respondent has failed to hand over the original documents of the title in relation to the
properties which were mortgaged in faovur of the respondent. Moreover, respondent
has failed to issue ‘No Objection Certificate’ to the petitioner after having received the
amount and has failed to act further in the process of settlement. Alleging deficiency in
service on the part of the respondent, petitioner made the following prayers in its
complaint ;
“ (i) Hold that there is deficiency in service on the part of the
Opposite Party towards the Complainant.
(ii) Direct the Opposite Party to close the loan account of the
complainant with the Opposite Party.
(iii) Direct the Opposite Party to release/return the documents of
title relating to properties mortgaged in favour of the Opposite
party.
(iv) Direct the Opposite Party to issue no due certificate to the
Complainant.
(v)
Direct the Opposite Party a sum of Rs.2,00,000/- as
compensation for the hardship caused to the Complainant on
account of the trade practice and deficiency in service on the
part of the Opposite party.
(vi)
Direct the Opposite party to return Rs.25,000/- which is
deposited in Non-Lien account in the Opposite Party Bank by
them since; the Opposite Party has not complied with the
Legal Notice dated 30/04/2008”.
3.
Case of respondent as per its written statement is that, petitioner has availed loan
facility upto the limit of Rupees Thirty Lakh from it. Petitioner had also mortgaged the
properties and also hypothecated the raw materials and goods. Since beginning,
petitioner is irregular in making the payment of the loan amounts and installments to the
respondent.Accordingly, petitioner filed a case before the Debt Recovery Tribunal (for
short, ‘DRT’) O. A. Case No. 139/2000 for recovery of the balance loan amount. On
16.1.2004 after contest, the DRT has passed an award for Rs.,42,70,000/, plus interest in favour of the respondent and against the petitioner. Inspite of award,
petitioner did not make any attempt to repay the decreetal amount, for which
respondent has also filed Execution Petition in the DRT. Under these circumstances,
present complaint is not maintainable.
4.
District Forum, vide order dated 11.8.2009, allowed the complaint and passed
the following directions ;
“ The OP shall close Open Cash Credit Account No. 226 relating to the
complainant as fully settled, after crediting Rs. 25,000/- deposited on
09.06.2008 by complainant and further OP shall return the documents of
title deeds and as such other securities that may be now available with it to
complainant and shall issue No Due Certificate to complainant if required to
redeem any mortgage or other encumbrances”.
5.
Aggrieved by the order of District Forum, respondent filed an appeal before the
State Commission, which allowed the same.
6.
Hence, this revision petition.
7.
I have heard the learned counsel for the parties and gone through the record.
8.
As far as for condonation of delay is concerned, no period of delay has been
mentioned at all. However, the grounds on which condonaton has been sought are
reproduced as under ;
“2. The petitioner had earlier challenged the impugned order and filed a
writ petition being W. P. No. 29255 of 2010 before the Hon’ble
Kanataka High Court upon the legal advice so rendered by its
counsel. The Hon’ble High Court vide order dated 10.2.2011, was
pleased to dispose off the Writ Petition, holding therein, that the
Petitioner has an efficacious, alternative remedy under the provisions
of Consumer Protection Act, 1986. The relevant portion of the said
order
“ as against the aforesaid order dated 26.7.2010, the
petitioner herein has an efficacious, alternative remedy
under the provisions of the Consumer Protection Act,
1986. We therefore, hereby relegate the petitioner to his
aforesaid remedy”.
3. That the Petitioner bonafidely trusted the legal advice given to it by its
counsel and pursued the Writ Petition before the Hon’ble High Court.
4. That the time spent by the Petitioner in pursuing the said Writ Petition
before the Hon’ble High Court was neither intentional nor deliberate,
but was upon the legal advice so rendered by its counsel.
5. That the Petitioner herein craves the leave of this Hon’ble Commission
herein submits and states that the time spent by it in bonafidely
pursuing a remedy before the wrong Forum may kindly be condoned.
6. The petitioner in this case is a senior citizen aged about 68 years and is
suffering from various ailments, diabetes and had a massive heart
attack after the disposal of the Writ Petition and has also undergone
angioplasty.
7. Even otherwise, the old age and other ailments of the petitioner together
with the heart problem have restricted the movement of the petitioner
substantially. The medical records in this regard are annexed
herewith.
8. The petitioner respectfully states that due to the aforesaid facts and
circumstances his accompanying Revision Petition has got delayed
considerably, as he could not contact any lawyer in Delhi. After
having recovered from such ailments the petitioner contacted the
present lawyer and briefed them about the facts of the case for filing
the accompanying revision petition. The delay has been caused, is
not deliberate but only valid, bonafide, unintentional and due to facts
and circumstances mentioned above, which was beyond the control
of the petitioner”.
9.
Above pleas taken by petitioner are not sustainable in view of decision of Hon’ble
Supreme Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal
Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos.
17068-17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under;
“ ……. We are further of the view that the petitioners’ venture of filing
petition under Article 227 of the Constitution was clearly an abuse of
the process of the Court and the High Court ought not to have
entertained the petition even for a single day because an effective
alternative remedy was available to the petitioner under Section 23
of the Act and the orders passed by the State Commission did not
suffer from lack of jurisdiction”.
10.
Assuming for the sake of arguments that petitioner was pursuing the remedy
by way of Writ Petition before the High Court, even then present petition which has
been filed on 28.09.2011 against order dated 26.7.2010, is hopelessly barred by
limitation. The plea taken by the petitioner is that he is an old man, ill and not able to
move, but there is no documentary evidence to prove that during the period in question,
petitioner was confined to bed and was unable to move.
11.
It is well settled that ‘sufficient cause’ with regard to condonation of delay in each
case, is a question of fact.
12.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone.
If sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall
for consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally be
limited only to such facts as the Court may regard as relevant ”.
13.
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994
Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause should
normally be construed liberally so as to advance substantial justice
but that would be in a case where no negligence or inaction or want
of bona fide is imputable to the applicant. The discretion to condone
the delay is to be exercised judicially i.e. one of is not to be swayed
by sympathy or benevolence”.
14.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, it has
been observed ;
“We hold that in each and every case the Court has to examine whether
delay in filing the special appeal leave petitions stands properly
explained. This is the basic test which needs to be applied. The true
guide is whether the petitioner has acted with reasonable diligence in
the prosecution of his appeal/petition”.
15. Further, Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to keep in
mind that the special period of limitation has been prescribed under
the Consumer Protection Act, 1986 for filing appeals and revisions in
consumer matters and the object of expeditious adjudication of the
consumer disputes will get defeated if this Court was to entertain
highly belated petitions filed against the orders of the consumer
Foras.”
16.
Under these circumstances, no sufficient cause is made out for condoning the
delay of 140 days in filing the present revision petition. Thus, present petition is
hopelessly barred by limitation.
17.
Even on merits, petitioner has got no case at all. Main limb of the petitioner’s
argument is that respondent had obtained recovery certificate from the ‘DRT’ by playing
fraud as ‘DRT’ was never apprised of the fact that during the pendency of the Original
Application proceedings, respondent had compromised the matter with the petitioner
and in lieu thereof, petitioner had already paid a sum of Rs.35 lacs approximately upto
2003. Thus, the said recovery certificate was void and non-est in the eyes of law. Under
these circumstances, impugned order is liable to be set aside.
18.
In support, learned counsel for the petitioner has relied upon a decision of the
Apex court, Sardar Associates and others Vs. Punjab & Sind Bank & others, (2009)
8 Supreme Court Cases 257.
19.
On the other hand, it is contended by learned counsel for the respondent that
execution proceedings before the ‘DRT’ are still pending. The Consumer Fora, under
these circumstances has no jurisdiction to entertain the complaint. In support, learned
counsel for the respondent has relied upon a decision of this Commission in Bank of
Baroda Vs. Ranjeet Singh, RP No. 2119 of 2012 decided on 13.09.2012.
20.
It is an admitted case that execution proceedings against petitioner were filed
before the ‘DRT’. As per findings of the State Commission, proceedings before the
‘DRT’ are still pending as apparent from the following observations made by it ;
“ Admittedly the amount paid by the Respondent has been credited to his
loan account. Since the DCP No. 3123 is still pending before DRT for
recovery of dues, the complainant/Respondent cannot maintain this
complaint before the DF, the DF is not right in directing the OP/Appellant
bank to close the loan account and to return the documents to the
Respondent along with “ No Due Certificate’.
In the light of the above facts, we are of the view that the complaint filed by
the complainant is liable to be dismissed”.
21.
Even otherwise, as per decision of this Commission in Bank of Baroda
(supra) Consumer Fora has no jurisdiction to entertain the complaint in view of the
pendency of Original Application Proceedings before the ‘DRT’. This Commission
in Bank of Baroda(supra) has observed;
“8. Learned counsel for the petitioner then submitted that consumer fora had no
jurisdiction to entertain the complaint in view of the pendency of the original
application before the Debt Recovery Tribunal. Counsel for the petitioner – bank
has invited our attention to the provisions of Section 18 and 34 of the Recovery
of Debts Due to Banks and Financial Institutions Act, 1993 which is to the
following effect;
18. Bar of Jurisdiction : On and from the appointed day, no Court or
other authority shall have, or be entitled to exercise, any jurisdiction,
powers or authority (except the Supreme Court and a High Court
exercising jurisdiction under articles 226 and 227 of the Constitution) in
relation to the matters specified in Section 17.
34. Act to have over-riding effect - (1) Save as provided under subsection (2), the provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the time
being in force or in any instrument having effect by virtue of any law
other than this Act.
(2) The provisions of this Act or the rules made thereunder shall be in
addition to, and not in derogation of, the Industrial Finance Corporation
Act, 1948 (15 of 1948 ), the State Financial Corporations Act, 1951 (63
of 1951 ), the Unit Trust of India Act, 1963 (52 of 1963 ), the Industrial
Reconstruction Bank of India Act, 1984 (62 of 1984 ), and the Sick
Industrial Companies (Special Provisions) Act, 1985 (1 of 1986 ) and the
Small Industries Development Bank of India Act, 1989 ( 39 of 1989)”.
9.
On the strength of the above provisions and the fact that original
application seeking recovery of the debt in respect of the Deoli Branch
outstanding dues was filed prior to the filing of the present complaint, learned
counsel submits that the consumer fora had no jurisdiction to entertain the
complaint raising the same controversy. He submits that original application is
being defended by the respondent on the same plea on which the complaint was
filed before the District Consumer Forum and if the complainant – respondent
thought that the withholding of the title deeds by the petitioner – bank was illegal /
unauthorised on the premise that bank had no lien over the same, the
respondent – complainant could have sought release of the said documents from
the said Tribunal. We find force in this contention because the provisions of the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 leave no
manner of doubt that the Legislature has clearly forbidden any other Court or
Authority to exercise any jurisdictional power or authority except the Supreme
Court and High Court exercising their jurisdiction under Article 226 and 227 of the
Constitution in relation to matters specified in Section 17. The provision is
enacted with the clear object that such matters should not be considered and
decided by any other Court or authority except the Tribunal constituted under the
above Act”.
22.
Since, Consumer Fora had no jurisdiction to entertain the said complaint, State
Commission has rightly dismissed the complaint of the Petitioner. Decision of Sardar
Associates (supra) is not applicable to the facts of present case. There is no ambiguity
or infirmity in the impugned order passed by the State Commission.
23.
Consequently, present revision petition stand dismissed firstly, on the point of
limitation and secondly, on merits also with cost of Rs.5,000/- (Rupees Five Thousand
only) for wasting the precious time of this Commission.
24.
Petitioner is directed to deposit the aforesaid cost by way of demand draft, in the
name of “Consumer Legal Aid Account” of this Commission, within eight weeks from
today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall
also be liable to pay interest @ 9% p.a., till realization.
25.
List on 08.02.2013 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2183 OF 2012
Along with
(I. A. No. 1 of 2012)
(From order dated 08.02.2011 in First Appeal No. 1438 of 2007 of Karnataka State
Consumer Disputes Redresdsal Commission, Haryana, Panchkula)
Krishan Lal Batra son of Late Sh. Devi Ditta Ram Resident of No. 548, Sector-7 Urban
Estate Amabla City.
…..Petitioner
Versus
Haryana Urban Development Authority through its Estate Officer, HUDA, Sector-7,
Ambala City.
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
NEMO
Pronounced on: 5th December, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
In this revision petition there is challenge to order dated 8.2.2011, passed by
State Consumer Disputes Redressal Commission, Panchkula (for short, ‘State
Commission’).
2.
Brief
facts
are
that
plot
no.
548,
Sec-7A/City
was
allotted
to
the
petitioner/complainant, vide memo dated 4.10.1974 for consideration on terms and
conditions of the allotment letter issued by respondent/o.p. with the direction to deposit
the 15% of tentative price within 30 days of the allotment letter. Petitioner duly paid the
same within time. Balance was to be paid in 6 installments which petitioner had duly
paid. Since, petitioner wanted to raise loan from the bank so he made request to the
respondent to intimate him outstanding dues against the plot in question. Respondent
vide letter no.6864 dated 4.7.2005, intimated that an amount of Rs.2,30,470/- is due
upto 31.7.2005. It was also revealed that compound rate of interest has been charged
as the contractual rate on the outstanding amount for the period of default. Petitioner
pointed out that respondent is not entitled to charge compound interest. Respondent
did not give any reply. Thus, it caused great harassment to the petitioner. It also
amounts to deficiency in service on the part of the respondent. Having no other option,
petitioner issued a legal notice upon respondent, but to no avail. Hence the present
complaint.
3.
In its written statement, respondent admitted that plot in question was allotted to
the petitioner at a tentative price of Rs.8,250/- as per terms and conditions mentioned in
the allotment letter. However, petitioner is liable to pay the enhanced price of the plot
which he failed to deposit. Without depositing of due amount, Conveyance Deed of the
plot in question cannot be executed. Further, complaint of the petitioner is bared by
principle of resjudicata because earlier he had also filed a complaint on the same
subject matter.
4.
District Forum, vide its order dated 24.7.2007, allowed the complaint and
directed the respondent;
“i) To withdraw the illegal demand of Rs.2,31,865/- and recalculate the
same on basis of simple interest instead of compound interest at the
prescribed rate of notices and refund excess amount with interest @
9% P.A. If the compliance not made within 30 days of this order,
w.e.f. date of deposit till its payment, alongwith statement of account.
5.
ii)
To pay Rs.500/- as compensation for harassment.
iii)
To pay Rs.500/- as costs of proceedings”.
Aggrieved by the order of District Forum, petitioner filed an appeal before the
State Commission, which was dismissed vide impugned order.
6.
Present revision petition came up for hearing for the first time before this
Commission on 20.7.2012. For that date, petitioner sent an application seeking
adjournment on the ground that he is not a position to engage a counsel on account of
financial constraints and prayed that matter may be decided on the basis of record
produced by him. Since, petitioner did not state in the application as to what are his
financial constraints, copy of order dated 20.7.2012 was sent to him. Thereafter,
petitioner sent an application on 12.09.2012 stating therein that he is retired employee
of Haryana Government and is getting about Rs.22,000/- per month. As such it is
difficult for him to engage a counsel and again prayed that revision petition may be
decided on the record produced by him.
7.
As per petitioner’s own case, he is a retired Govt. employee and is getting
Rs.22,000/- per month as pension. Since, petitioner is getting handsome amount by
way of pension, there is no question of providing any legal aid to him.
8.
I have gone through the revision petition as well as record of this case.
9.
State Commission, in its impugned order has observed;
“ From the perusal of record it is established on the record that the
price of the plot no. 548 in Sector-7 was enhanced and therefore, the opposite
party has demanded the amount of Rs.2,30,470/- from the complainant vide
letter dated 4.7.2005 on account of enhanced amount of the price. As per
version of the complainant the opposite parties have charged compound
interest on the said enhanced amount whereas the plea of the opposite party is
that the complainant has failed to deposit the installments of the enhanced
amount well within time for which the complainant is bound to pay the penal
interest on the outstanding amount. The amount demanded by the opposite
party is in accordance with the terms and conditions of the letter of allotment as
well as the HUDA policy. The complainant cannot take the plea beyond the
terms and conditions of the letter of allotment. The District Forum has failed to
appreciate the actual controversy involved in this case and committed grave
error while accepting the complaint and as such the impugned order under
challenge is not sustainable in the eyes of law”.
10.
It is not in dispute that price of the plot in question was increased. Therefore,
enhanced price of the plot was demanded by the respondent from the petitioner as per
clause 4 of the letter of allotment, which read as under ;
“4. The above prices of the plot is subject to variation with reference to the
actual measurement of the plot as well as in case of enhancement of
compensation of actualization cost of land of this court or otherwise and
you shall have to pay this additional price of the plot, if any, as
determined by the Department within 30 days from the date of demand”.
11.
It is apparent from the record that, vide letter dated 24.8.1994, petitioner was duly
intimated to pay the enhanced amount. Relevant para of allotment letter read as under ;
“ 2.
According to condition No. 4/9 of the allotment Letter, the price of the
said plot subject to variation with reference to enhancement of
compensation of acquisition cost of this sector by the Court or
otherwise.
The compensation enhanced by the Court of this sector has since
been deposited in the Court for payment to the concerned parties and
the same along with the expenditure incurred in connection with the
litigation is recoverable from you. It has been worked out that amount
is to be recovered @ Rs.150.30 per Sq. Yard and as such an amount
of Rs. 75,495-00 recoverable from you in respect of the above
mentioned plot in accordance with the aforementioned condition of
the allotment letter”.
12.
In view of the conditions of the allotment letter, petitioner was liable to pay
enhanced price due to enhancement by way of compensation . Thus, there appears
to be no ambiguity or infirmity in the impugned order passed by the State Commission.
13. Present revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 (for short, ‘Act’). It is well settled that the powers of this Commission
as a Revisional Court are very limited and have to be exercised only, if there is some prima
facie jurisdictional error in the impugned order.
14.
In the present case, there is no jurisdiction or legal error has been shown to call for
interference in the exercise of power under section 21 (b) of the Act.
15.
Under these circumstances, present petition is without any legal basis and the same
is hereby dismissed with cost of Rs.5,000/-. (Rupees Five Thousand only)
16.
Petitioner is directed to deposit cost of Rs.5,000/- (Rupees Five Thousand Only) by
way of demand draft, in the name of “Consumer Legal Aid Account” of this Commission,
within eight weeks from today. In case, petitioner fails to deposit the said cost within the
prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
17.
Pending application stands disposed of.
18.
List on 08.02.2013 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2733 OF 2011
WITH
(I.A. NO. 1, 2 & 3 OF 2012, for Stay, Exemption
from filing official translation and C/Delay)
(From the order dated 10.08.2010 in Appeal No. 810/2009 of the State
Commission, Maharashtra)
Smt. Smita Madhav Patki Aged 49 years, Occupation : Temporary Service
R/o Shriram Bunglow, Near Shreyas Hospital Pandharpur Railway Station
Pandharpur, District : Solapur Maharashtra
.… Petitioner
Versus
1.
National Insurance Company Ltd. 586, Sadashiv Peth Laxmi Road, Pune,
Pune, Maharashtra
2. Sr. Divisional Manager National Insurance Company Ltd. 586, Sadashiv Peth
Laxmi Road, Pune, Pune, Maharashtra
3.
Executive Engineer Akluj Division Maharashtra State Electricity Board
(Maharashtra State Electricity Distribution Co.) Vidyut Bhawan, Akluj
District : Solapur, Maharashtra
4.
Secretary (Now Managing Director) Maharashtra State Electricity Board
(Maharashtra State Electricity Distribution Co.) Prakashgad, Bandra (E),
Mumbai, Maharashtra
.… Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Ranjan Kumar, Advocate with
Ms. Rohini Kumar, Advocate
Pronounced on : 6th December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Petitioner/complainant aggrieved by order dated 10.8.2010, passed by
Maharashtra
State Consumer Disputes Redressal Forum, Mumbai (short,
“State
Commission”) has filed the present revision petition. Along with it, an application
seeking condonation of delay of 165 days has also been filed.
2.
Brief facts are that Late Madhav husband of petitioner was a Junior Engineer with
erstwhile Maharashtra State Electricity Board. He was beneficiary of Group
Insurance Janata Personal Accident policy issued by respondent/opposite party, which
was taken in the name of Maharashtra State Electricity Board Stall Welfare
Fund. When the said policy was in force, he met with an accident on 9.11.1999 and
died. Through the employer, insurance claim was made under the above referred
policy. However, said employer did not forward the claim application to the
Insurance company. Therefore, petitioner herself lodged the claim, which stood
repudiated in the month of October, 2007. Thereafter, consumer complaint was filed.
3.
Respondent no.1/op-1 repudiated the claim stating that it was a stale
action. Since, the claim was not preferred within the stipulated time, as per the policy
terms and conditions, the same stood abandoned and not recoverable.
4.
District Forum, vide its order dated 6.5.2009, dismissed the complaint of the
petitioner.
5.
Aggrieved by the order of District Forum, petitioner filed appeal before the State
Commission, which dismissed the same.
6.
Hence, this revision petition.
7.
I have heard the learned counsel for the petitioner and have gone through the
records.
8.
As per application for condonation of delay, certified copy of the impugned order
was received by the petitioner on 4.12.2010. However, present revision has been filed
on 16.8.2011. Grounds on which condonation of delay has been sought are reproduced
as under ;
“4.
That the petitioner could not instantly understand the
impact of the impugned judgment and also she being a
layman and not knowing anybody inDelhi she contacted
her brother in Mumbai to know the next steps to be
adopted in the present case. The petitioner’s brother then
contacted the present counsel and sent the documents for
preferring
the
revision
petition
before
this
Commission. The counsel received the documents and
then found that most of the documents were in Marathi and
therefore,
he
immediately
asked
petitioner’s
brother Shri T.P. Katekar to send him the translated copy
of the documents in English. The counsel also asked him
to send the entire documents as many of the documents
were also missing from the bunch of documents sent by
him to the present counsel.
5.
The petitioner’s brother Shri T.P.Katekar then asked
the petitioner to contact the local counsel in Solopur for
sending the entire documents and simultaneously he also
given the Marathi documents for the translation. The entire
documents and the translation took about two months to
get arranged and translated in English. The petitioner then
sent the documents to her brother Shri Katekar in Mumbai
and he in turn sent the same to the counsel in Delhi. The
affidavits and the Vakalatnama duly signed and notarized
are sent to the counsel in Delhi but when the counsel seen
the affidavits he found that the same did not contain the
date and therefore the counsel in Delhi asked petitioner’s
brother to again ask the petitioner to send the affidavits
properly singed and notarized.
6.
The
petitioner
then
sent
the
affidavits
and vakalatnama duly and properly executed and
notarized to the counsel in Delhi in the last week of July,
2011. That the counsel for the petitioner then drafted the
petition and the same was sent to the petitioner and her
brother for their approval. That the petitioner with the help
of her local counsel and her brother verified the facts and
figure of the petition and then they instructed the present
counsel to file the same.
7.
That the counsel for the petitioner thereafter drafted
the final copy of the petition. That the petition,
affidavit, Vakalatnama and other documents were made
ready by the office of the Advocate and were filed in
this Hon’ble Court on 16.8.2011.
8.
That in the above facts and circumstances there
happened/occurred a delay of 165 days in filing the
present petition and the same was not due to any willful
omission or negligence on the part of the petitioner but it
was occasioned because of the reasons explained herein
above. That the delay caused, is bonafide and there is
sufficient cause for the condonation of delay in filing the
present petition. The delay caused, is neither intentional
nor deliberate and it would be expedient in the interest of
justice that this Hon’ble Court condones the delay of 165
days in filing the present appeal.”
9.
Petitioner
has
not
placed
on
record
the
affidavit
of
her
brother Shri T.P. Katekar who had been dealing on behalf of the petitioner nor the name
of local counsel has been mentioned. There is also no sufficient and plausible
explanation when petitioner had received the copy of the order on 4.12.2010, then why
revision petition was filed after about nine months.
10.
After going through the application for condonation of delay, it is apparent that
petitioner has made absolutely vague averments. The reasons mentioned in the
application, can by no stretch of imagination be said to be the “sufficient cause”.
11.
It is well settled that “sufficient cause” for non-appearance in each case, is a
question of fact.
12.
Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT
558, has held;
“No doubt the words “sufficient cause” should receive liberal
construction so as to advance substantial justice. However, when it
is found that the applicants were most negligent in defending the
case and their non-action and want of bonafide are clearly
imputable, the Court would not help such a party. After all “sufficient
cause” is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each
case as to whether the defendant who has suffered ex-parte decree
has been able to satisfactorily show sufficient cause for non
appearance and in examining this aspect cumulative effect of all
the relevant factors is to be seen.”
13.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally
be limited only to such facts as the Court may regard as relevant.”
14.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court
has observed ;
“We hold that in each and every case the Court has to
examine whether delay in filing the special appeal leave
petitions stands properly explained. This is the basic test
which needs to be applied. The true guide is whether the
petitioner has acted with reasonable diligence in the
prosecution of his appeal/petition.”
15 Recently,
Supreme
Court
in
“Anshul Aggarwal vs.
New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to
keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get
defeated if this Court was to entertain highly belated petitions
filed against the orders of the consumer Foras.”
16.
Now coming to the merits, it is contended by learned counsel for the petitioner that
complaint filed by the petitioner was well within time, as the repudiation letter was
received by the petitioner in the month of Jan., 2007, whereas, complaint had been filed
in December, 2008.
17.
State Commission in its order has observed ;
“5.
Cause of action for the insurance claim in question but
arose on the death of late Madhav Patki and not on the date of
repudiation of the insurance claim as alleged by the complainant. A
useful reference can be made to the decision of the Apex Court in the
matter of Kandimalla Raghavaiah & Co. V/s National Insurance Co.
Ltd. and other 2009 CTJ 951 (SC) (CP). Insurance claim, thus, is
preferred beyond the period of two years from the date of cause of
action, supra and as such barred by limitation. There is no
application for condonation of delay, admittedly, made.
6. Janata Personal Group Accident policy is on record. Amongst
other terms it also submitted as under :“It is also hereby further expressly agreed and
declared that if the Company shall disclaim liability to
the insured for any claim here under and such claim
shall not within 12 calendar months from the date of
such …have been made the subject of a suit in a
Court of Law then the claim shall for all purpose be
deemed …been abandoned and shall not thereafter
be recoverable hereunder.”
7.
As held by the Apex Court in the matter of Himachal Pradesh
State Forest Co. Ltd. V/s United India Insurance Co. Ltd. (2009) 2
SCC 252, though above referred clause in view of Section 28 of the
Contract Act will not be acted upon for the curtailment of the period of
limitation still the later part of it which refers to extension of the right
itself
unless
exercised
within
specified
time
can
be
enforced. Therefore, since the claim was not made within 12
calendar months from the date of happening, the claim shall for all
purposes be deemed to have been abandoned and is not recoverable
after the expiry of the said period.
8.
For the above said reasons, we find that no fault can be found
with the impugned order resulting into dismissal of consumer
complaint. Holding accordingly, we pass the following order.”
18.
Under Section 21 of the Consumer Protection Act, 1986, (for short, ‘Act’) this
Commission can interfere with the order of the State Commission where such State
Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise
a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with
material irregularity. There is no illegality or material irregularity on the part of the State
Commission in this case.
19.
It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986,
scope of revisional jurisdiction is very limited.
20.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some prima
facie jurisdictional error appearing in the impugned order, and only
then, may the same be set aside. In our considered opinion there
was no jurisdictional error or miscarriage of justice, which could
have warranted the National Commission to have taken a different
view than what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal principle
that was ignored by the Courts below, but on a different (and in our
opinion, an erroneous) interpretation of the same set of facts. This
is not the manner in which revisional powers should be invoked. In
this view of the matter, we are of the considered opinion that the
jurisdiction conferred on the National Commission under Section 21
(b) of the Act has been transgressed. It was not a case where such
a view could have been taken by setting aside the concurrent
findings of two fora.”
21.
Thus, no jurisdictional or legal error has been shown to call for interference in the
exercise of powers under Section 21 (b) of the Act. Since, two Forabelow have
given detailed and reasoned order which does not call for any interference nor they
suffer from any infirmity or erroneous exercise of jurisdiction.
22.
Accordingly, present revision petition being hopelessly barred by limitation and
also having no merit, is hereby dismissed.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO.396 OF 2000
Shri Mehernosh Kersi Khambatta,
S/o Kersi Minocher Khambatta,
By faith Parsi, by occupation
Ex-Employee of M/s. Tata Iron & Steel
Co. Ltd., Jamshedpur,
R/o No.6 Parsi Colony,
Pipe Line Road,
P.O. & P.S. Bistupur,
Town Jamshedpur,
Dist.
East Singhbhum (Bihar)
……….Complainant
Versus
1. Venkatrama Nursing Home,
D. No. 47-7-43,
Nehru Market Road,
Dwarkanagar,
Vishakapatnam
2. Dr. A. Dayasagar
Proprietor,
Venkatrama Nursing Home,
D. No. 47-7-43,
Nehru Market Road,
Dwarkanagar,
Vishakapatnam
3. Dr. C. Dharma Rao (since deceased)
Through LRs:i)
ii)
iii)
iv)
Smt. C. Vimala Devi (Urmila Devi) wife,
Dr. C. Srinivas, son
Sri C. Srinivas, son
Dr. C. Sridevi, daughter, (married)
All residents of D No. 30-1-3 Vivekananda Marg,
Vishakhapatnam
posite party
.........Op
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: In person
For the Opposite parties NO.1 & 2: Mr. G Ramakrishna Prasad,
Advocate
For the Opposite Party No.3
: NEMO
PRONOUNCED ON: 06.12.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
Shri M.K.Khambatta filed this original complaint in November 2000. The
complaint is against Venkatrama Nursing Home, Vishakapatnam (OP-1), its proprietor
Dr. A. Dayasagar (OP-2) and Dr. C. Dharma Rao, the Orthopedic Surgeon of the
Nursing Home (OP-3).
2.
Proceedings before this Commission show that OP-3, having failed to respond to
the notices from the Commission, was set ex-parte on 12.5.2003. In 2009 the
Commission was informed that OP-3 had passed away and therefore, the Complainant
was directed to bring LRs of OP-3 on record. Notices were subsequently issued to
them but elicited no response. In between, the Commission considered the request of
both parties to cross-examine each other. Accordingly, on 26.8.2004, Mr. Ravi Kumar
Addl. District Judge (Retd.) was appointed as the Local Commissioner to record
evidence. The Local Commissioner has recorded the two cross-examinations on
15th and 16th December, 2004, which are available in Part II of the record of this case.
3.
The case, as seen from the complaint petition and the affidavit evidence of the
complainant, is that the Complainant, an employee of M/s. Tata Iron and Steel
Company
Limited.
through Vishakapatnam on
(TISCO) Jamshedpur, was
24.1.1998. While
travelling
walking
on
by
the
train
platform
at Vishakapatnamstation, Complainant’s left leg suddenly snapped from the tibia. He
could not even stand and fell down. He was taken to the Railway Hospital, who advised
him to consult some nursing home, as the Railway Hospital did not have the required
infrastructure. The Complainant was admitted to OP-1 Nursing Home and was assured
best possible treatment by OP-2. He was attended to by OP-3 /Dr. C. Dharma Rao,
who advised him to undergo a corrective surgery for proper reunion of the bone. The
operation was performed by OP-3 on 25.1.1998 in OP-1 Nursing Home. He was
discharged on 9.2.1998 and was advised by OP-3 to take the post-operative care and
treatment at Tata Memorial Hospital in Jamshedpur. The Complainant became
medically fit and resumed his duties on 21.4.1998.
4.
Allegedly, the problem returned in July, 1999, with severe pain and swelling at the
same spot in the leg where the surgery had been performed at OP-1. Fresh X-ray of the
leg showed that the implant was broken and tibia was cracked. The Complainant was
admitted to Apollo Hospital, Chennai for treatment on 14.8.1999. Another surgery was
performed on 17.8.1999 to remove the broken implant and to put Illizarov Ring Fixator
on the leg.
5.
The allegations levelled in the complaint petition against the OPs, are that—
a. Opposite Party Nos. 2 & 3 failed and neglected to diagnose properly,
which aggravated the problems of the Complainant. (Para 30).
b. Sub-standard quality of implant material was used in the surgery for fixing the
fracture. (para 13).
c. The OPs claimed to have high qualification but indulged in professional and
intentional negligence. Otherwise, failed or improper implant could not have occurred
(para 14).
d. In the discharge-slip no weight bearing was advised and there was no mention
of position of the fracture, whether open or compound, displaced orundisplaced. This
shows medical negligence on the part of the OPs.
e. The report of Dr. Rajgopal Krishnan of Apollo Chennai Hospital reveals nonunion of the left tibia with failed implant. This shows that Dr. C. DharmaRao was not
competent to perform this kind of operation.
6.
According to the affidavit evidence of the Complainant, he was physically fit
and normal when the rail journey was commenced on 23.1.1998. The next morning
when the train reached Vishakapatnam, he got down to buy some snacks at the
platform. It is stated that while proceeding towards the vendor his left leg suddenly
snapped from the tibia and he could not walk even a single step and fell down. He was
admitted to VenkatramanNursing Home on the advice of the Railway Hospital.
7.
It is alleged that OP-3, who examined him on the same day i.e. 24.1.1998, advised
him to undergo a surgery for proper reunion of the bone. This advice was given without
proper examination and allegedly only to make money from the Complainant. However,
trusting the advice of the doctor, he gave consent for surgery, which was performed by
OP-3 on 25.1.1998. He was discharged on 9.2.1998, returned to Jamshedpur on
10.2.1998 and got admitted in Tata Memorial Hospital (TMH) on 11.2.1998. TMH had
discharged
him
on
23.2.1998,
advising
bed
rest
for
two
months. On
his
recovery, para 17 of the affidavitsays:“I say that I was under regular check-up by doctors of
Tata MAIN Hospital and on 21.04.1998 I was found medically fit
to resume my duties Original of the fitness certificate is
exhibited as Exhibit C/4.”
8.
The affidavit of the Complainant also mentions the problem which occurred in July,
1999 i.e. about 15 months later. But, it does not mention what exactly had happened to
cause this sudden problem. It merely states that a fresh X-ray was taken in Tata Main
Hospital (TMH), which showed broken implant and fracture of the tibia. Apparently, he
was discharged from TMH on 19.7.1999 and got admitted to Apollo Hospital Chennai on
14.8.1999.
9.
Both, in his affidavit and the complaint petition, the Complainant has relied upon
the Discharge Summary issued by Apollo Hospital, Chennai, under the signature of
Chief Orthopaedic Surgeon, Dr. R. Gopalakrishnan, for his allegation that the operation
conducted by OP-3 was not proper and that the latter was not competent to conduct
such an operation.
10.
A perusal of this Discharge Summary shows that it is a very brief document where
the operative portion reads as follows:“DATE OF ADMISSION
DATE OF SURGERY
: 14.08.99
: 17.08.99
DATE OF DISCHARGE : 04.09.99
DIAGNOSIS
: NON UNION LEFT TIBIA WITH FAILED
IMPLANT
OPERATIVE PROCEDURE : REMOVAL OF IMPLANT
ILIZAROV RING FIXATOR
FIXATION
INVESTIGATIONS
: ENCLOSED
COURSE IN THE HOSPITAL : He had an uneventful surgical recovery. Wound
routinely inspected and dressings done. Wound found healthy. Pin tracts were
routinely
dressed. Patient
was
mobilized
with
crutches
from
5 th post
operative day. Bone transport was initiated from 10th post operativeday.
DISCHARGE ADVICE:
-Pin tract dressings to be done twice a week with betadine and surgical spirit”
11.
Per contra, the case of Dr A Dayasagar for OP-1/OP-2 is that he cannot comment
on what had transpired between the Complainant and OP-3. However, the allegation of
medical negligence is denied. Significantly, a reference is made to the discharge
report of TISCO (TMH) Hospital, Jamshedpur, showing that the Complainant had
suffered fracture of the left leg (shaft of the left femur and trochanter) in 1989
itself. Because of this old history of fracture, the Complainant was advised by OP-2 (in
the discharge slip) to wash the wound with normal saline and apply ensamycin cream till
the wound healed and also advised to consult specialist in TISCO Hospital.
12.
The written response also denies the allegations that the sub-standard material
was used for implant. It is claimed that the implants used were from INOR Company,
which is based at Mumbai, which supplied instruments to International market and is
one of the oldest and leading companies in India for Orthopaedic implants. The
allegation of the Complainant that the diagnosis at Apollo Hospital Chennai proves that
OP-2 and 3 were negligent and had aggravated the problem due to improper diagnosis,
is also denied on behalf of the opposite parties.
13.
The affidavit evidence of the Dr. Dayasagar on behalf of OP-1 makes a specific
reference to the discharge report of TISCO Hospital (TMH), filed by the complainant and
states:“THIS shows that THE COMPLAINANT HAS SUSTAINED BOTH
BONES FRACTURE OF LEFT LEG, CLOSED FRACTURE OF SHAFT
OF LEFT FEMUR AND TROCHANTICE FRACTURE OF LEFT FEMUR
DURING 1989. AGAIN, COMPLAINANT HAS SUSTAINED BOTH
BONES FRACTURE OF LEFT LEG MIDDLE 1/3rd AND WAS ADMITTED
IN MY HOSPITAL IN JANUARY’ 1998.”
14.
The affidavit of Dr Dayasagar for OP-1/OP-2 refers to their own Discharge Slip
and says that “I have advised the complainant under the discharge slip to wash the
wound with normal saline and apply Ensamycin crème till the wound heals and
suggested certain precautions to be taken by the complainant and also specifically
advised the complainant to consult a specialist.........Therefore, I have taken all the
required steps and advised the complainant suitably as a post –operative care.”
15.
We have heard the Complainant Shri M.K. Khambatta at length and carefully
perused the voluminous records and case law filed in evidence by him. ShriG.
Ramakrishna Prasad, Advocate has been heard on behalf of the Opposite parties 1 and
2. OP-3 as already noted, did not respond and was treated ex-parte. Consequent upon
his death notices have been served on his legal heirs but they have chosen to remain
unrepresented. The case of the OPs is found to be based primarily on their affidavit
evidence, arguments, medical literature and on the records of treatment filed by the
complainant. However, full record of treatment at OP-1/Venkatrama Nursing Home for
the duration 14.1.1998 to 9.2.1998, has not been filed by either party.
16.
During the course of oral submissions, the Complainant pointed out that discharge
summary of 9.2.1998, given by OP-1, is in the name of OP-3/Dr. C. Dharma Rao. But it
has not been signed by OP-3 and has been signed by someone else on his behalf.
Learned counsel for OPs 1 and 2 clarified that the discharge summary as well as the
discharge slip have both been signed by the proprietor of the Nursing Home/OP-2,
himself. The Complainant emphatically argued that his case is that he has lost 18 years
of service due to deficiency in the treatment of his leg by the OPs. He therefore,
submitted that his claim should be considered for the amount mentioned in the
complaint petition and not as subsequently reduced in the proceedings of 8.2.2002.
17.
Learned counsel for OPs 1 and 2 challenged the claim of the Complainant that the
fracture had occurred on 24.1.1998 when the Complainant was merely walking at the
platform at Vishakapatnam. He referred to two documents submitted before this
Commission by the Complainant himself. The first is the record of treatment at TISCO
Hospital (TMH) at Jamshedpur, relating to the period 11th to 23rd February, 1998. This
document
clearly
shows
that
the
patient
had
fallen
down
at Vishakapatnam Railway Station on 24.1.1999. It also refers to the previous
history of fracture and operation of 1989. The second document is the case
summery at TMH, when the patient reported again there on 13.7.1999 with sudden
pain and swelling in the left leg. This document also refers to a fracture of left
femur and grade three open fracture of tibia left leg, which had occurred in
1989. The counsel arguedthat this fact of previous fracture, at the same spot in
the same leg, was concealed by the Complainant and not reveal to the OPs on
24.1.1998. In
this
behalf,
counsel
also
referred
to
the
affidavit
of
Dr.
A. Dayasagar/proprietor of OP-1 in which the history of previous fracture of 1989
mentioned above, has been referred to.
18.
We have earlier referred to the cross examination of OP-2 and the Complainant,
by each other. Here, the complainant admits for the first time that—
“My same leg was also fractured in a road accident in 1989. After operation
at that time, there was a bit of shortening of leg about 1.75 centimeters. Because
of that I had a little limping while walking. The limp was cured in 1991 when the
implant was removed.” This material fact was not revealed either in the complaint
petition or in the affidavit evidence of the complainant. Similarly, Dr Dayasagar/OP2, has made a sudden change in his position after OP-3 was set ex parte by this
Commission on 12.5.2003. In his cross-examination conducted on 16.12.2004, he has
said that Dr Dharma Raohimself brought the implant. OP-1 added the price of the
implant in the consolidated bill as the complainant was in hurry to go to Jamshedpur.
This being in direct contradiction of their specific evidence, is rejected at the threshold
itself.
19.
We now need to consider the evidence from the treatment records of TMH,
Jamshedpur and Apollo Hospital, Chennai where the complainant was subsequently
treated. The Case Summary of Tata Main Hospital (TMH) also states that the
X Ray report showed broken Tibia implant and crack fracture of Tibia. But, we do
not find anything in this report which can relate this fracture and failure of the
implant to the quality of treatment provided at OP-1, including the quality of
implant and other materials used by them. On the contrary, it was argued on behalf
of the OPs that it was caused due to the condition of osteoporosis, which the
complainant suffered from and which is disclosed in the Case Summary of TMH.
20.
The complainant has stated in his cross examination that he was not
suffering from osteoporosis. This claim is found to be in conflict with the
documentary evidence produced by the complainant himself. In the CASE
SUMMARY of hospitalisation at Tata Main Hospital from 19.7.1999 to 27.7.1999,
signed by Dr A Sengupta, Orthopaedic Surgeon, it is clearly noted that Skeletal
survey shows evidence of osteoporosis”. There is no explanation why he chose to
deny it in the cross examination conducted on 15.12.2004. However, proceedings of
30.10.2006 before this Commission,show that the complainant later tried to bring on
record a certificate to show that he is not suffering from osteoporosis now. He was not
permitted, on the ground that the cause of action arose much before and therefore, the
report of 5.4.2006 has no relevance to it.
21.
It was argued on behalf of the OPs that the problem of the complainant was due to
his condition of osteoporosis which had rendered his bones porous and therefore, weak.
It was not due to any deficiency in his treatment by OPs. In the affidavit of Dr.
A. Dayasagar filed on 25.10.2006, reference is made to repeat fracture of the left leg at
the same spot in 1998 where the earlier fracture had occurred in 1989, in support of the
argument that the subsequent fracture was on account of osteoporosis. Medical
literature filed in this behalf (Harrison’s Principles of Internal Medicine 14th Edition)
shows that osteoporosis is a disease that causes reduction in bone density. It defines
the degree of skeletal fragility sufficient to increase the risk of fracture. “Although
osteoporosis is a generalized disorder of the skeleton, the major sequelae result from
fractures of the vertebrae, wrist, hip humerus, and tibia......... Hip fractures are the most
severe complication. They may be the consequence of trauma, most resulting from a
fall from standing height. The likelihood of fracture in a particular location is
related in part to the site where the bond density is most reduced, such as the
femoral neck or inter-trochanteric region.”
22.
The word ‘osteoporosis’ literally means ‘porous bone’. It is a condition where the
person gradually looses bone material which makes his bones more fragile. As a result,
they are more likely to break even after a simple fall. On this point, the Complainant, in
his written argument claims:“The explanation as to why the implant broke has to come from a
person having special knowledge- the treating surgeon who performed
the surgery at OP No 1 having ocular evidence. This wasn’t done by Dr.
C. Dharma Rao or any one from the operating team and he chose to
become exparte vide order dated 12/5/2003. Breaking of an implant
assuming it did break- was at best a neutral;-circumstance.”
This argument amounts to asking the OPs to give evidence against themselves. The
onus to prove medical negligence lies on the person who alleges it i.e. the
complainant. One of the allegations is that requisite preoperative investigations were
not carried out. But on the contrary, material placed on record by the complainant itself
shows that preoperative tests, including X Ray of the leg, were done on 24.1.1998.
23.
The fact remains that the Complainant has not produced any evidence of an
independent medical expert. In fact, the proceedings of 9.4.2002 show that a question
did arise in this behalf, but the position taken by the then counsel for the Complainant
was that no report of any expert was to be filed in evidence at that stage. The
complainant’s argument is that no doctor agreed to give evidence against a colleague.
We do not accept it. Without placing reliance on any expert opinion, the Complainant
appears to have made his own surmises, as is evident from the following in the
rejoinder of 17.12.2003 to the proof affidavit of OP-2 :a)
Referring to the statement that the Complainant was an employee of TISCO
as mentioned in the discharge summary, the Complainant says “it further
makes evident that Opposite Party is in a habit of committing negligence”.
b)
“It is submitted that a doctor who did not attend the operation according to
his own statement, how he can he said to be a competent person to say
whether the improper implantation was due to rashness or negligence or
not.” This is strange logic. By this, no independent medical expert can give
an assessment, as he would not have been a part of the medical team that
treated or operated upon the patient.
c)
“The act of negligence of the Opposite Party came to the notice of the
Complainant only after the Complainant had been asked to undergo a fresh
surgery by Apollo Hospital Chennai, which proved that the operation as
conducted by Opposite Party was handled in a very casual and negligent
manner.”
CONCLUSIONS
24.
The genesis of the complaint lies in the recurrence of the problem in July, 1999,
one and half years after surgery at Venkatrama Nursing Home, in 1998. Detailed
consideration of the evidence on record in the forgoing paras, shows that1. The X-ray at Tata Main Hospital, Jamshedpur shows broken tibia
implant and crack fracture of tibia. Similar is the finding of Apollo
Hospital Chennai, which calls it “non-union of left tibia with failed
implant”. But no evidence has been led by the Complainant to
show that it was due to any negligence on the part of the OPs in
his treatment.
2. Evidence produced by the Complainant itself shows that after the
treatment at OP-1 in January-February, 1998, followed by bed rest
of two months, he was medically fit to perform his official duties for
the next 15 months, till July, 1999.
3. The problem occurred in the same place of the Complainant’s left
leg in 1989 due to an accident and 1998 due to a fall at the railway
station. But, the Complainant has not disclosed the cause for its
recurrence in 1999. In this background, the finding of osteoporosis
at TMH in 1999 acquires a special significance.
4. His medical condition of osteoporosis was not revealed in the
complaint and the supporting affidavits by the complainant. In fact,
in his cross examination, it was specifically denied.
5. The complainant has not disproved the medical finding that he was
suffering from osteoporosis in 1999. His subsequent attempt was
only to show that in 2006 he was not suffering from it. This was
not permitted by the Commission, as it was not relevant to the
cause of action.
6. Medical literature brought on record shows a definite possibility of
osteoporosis being the cause of recurrent fractures of the tibia.
7. There is no evidence to show that the problem in 1999 was caused
due to poor quality of the implant material.
8. There is no evidence on record to show that OP-3, Dr. C.
Dharma Rao, did not have the requisite professional qualification to
perform the surgery on the Complainant.
25.
The above findings of fact have to be seen with reference to the law on the
subject. The Complainant himself refers to the Bolam test for determination of medical
negligence. It came in a decision by McNair J. in Bolam Vs. Friern Hospital
Management Committee [1957] 1 WLR 258, in the following words“Where you get a situation which involves the use of some special
skill or competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of
a Clapham omnibus, because he has not got this special skill. The test is
the standard of the ordinary skilled man exercising and professing to
have that special skill... A man need not possess the highest expert skill;
it is well established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art.”
26.
It is fully endorsed by Hon’ble Supreme Court of India in the following landmark
decisions which have laid down the law on the subject of medical negligence. In Jacob
Mathew Vs. State of Punjab, (2005) 6 SCC 1, the Apex Court has summed it up in
eight conclusions. Of them, the following conclusions will directly apply to the matter
now before us :“1. Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do.
2. Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or negligence
on the part of a professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure
which the accused followed. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were
taken which the ordinary experience of men has found to be sufficient; a
failure to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for judging
the alleged negligence. So also, the standard of care, while assessing
the practice as adopted, is judged in the light of knowledge available at
the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess. The
standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person
exercising ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional proceeded
against on indictment of negligence.
4. The test for determining medical negligence as laid down
in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in
India.”
In Martin F D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for
determination of negligence by a medical practitioner were reaffirmed byHon’ble Apex
Court. It was observed that:“From the principles mentioned herein and decisions
relating to medical negligence it is evident that doctors and
nursing homes/hospitals need not be unduly worried about
the performance of their functions. The law is a watchdog,
and not a bloodhound, and as long as doctors do their duty
with reasonable care they will not be held liable even if their
treatment was unsuccessful.
27.
Considering the requirements of the law as laid down by Hon’ble Supreme Court
of India, together with the conclusions on facts reached earlier in this order, we come to
an inescapable conclusion that the Complainant has completely failed to establish his
allegations of medical negligence against the Opposite Parties. The complaint is
therefore, held to be devoid of any merit and is dismissed as such. No order as to
costs.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3388 OF 2010
Along with
(M. A. No. 1 of 2010)
(From order dated 20.07.2010 in Appeal No. 297 of 2010 of Karnataka State
Consumer Disputes Redresdsal Commission, Bangalore)
1.
The Registrar of Manipal
University, Madhav Nagar,
Manipal-576 104
Reptd. by Sri. G. K. Prabhu
2,
The Dean,
Kasturba Medical College,
Mangalore,
Reptd. By Sri Rajgopal.
…… Revisionists
Versus
Dr. Sushith,
S/o S. Rajiv Puttur,
Aged 32 years,
“Anugraha”
P.O. Panjimogaru,
Kuloor, Mangalore.
….. Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioners
:
Mr. Vivek Singh, Advocate
For the Respondents
: Mr. B. Subramanya Prasad, Advocate with
Mr. H. Chandra Sekhar, Advocate
Pronounced on:
6th December, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Aggrieved by order dated 20.7.2010, passed by Karnataka State Consumer
Disputes
Redressal
Commission,
Bangalore (for
short,
‘State
Commission”)
petitioners/o.ps no.1 and 2 have filed present petition .
2.
Brief facts are that respondent/complainant got admission to Post Graduate
Degree Course in MD in Biochemistry in petitioners’ institution for Academic year 200506. Respondent completed and passed the said course in the year 2008. Petitioners are
required to issue him a degree certificate confirmed by Manipal Academy of Higher
Education. In spite of repeated requests and demand made by respondent to
petitioners, it refused to issue the said certificate and withheld the same without any
substantial reason or cause. Respondent issued the legal notice but there was no
proper response. Hence, respondent felt deficiency in service on the part of the
petitioners.
3.
On appearance petitioners in their written statement denied all the allegations
made by the respondent in toto. According to the petitioners, respondent was selected
for the said MD Course for the year 2005. As he had no fund to pay the tuition fee,
petitioners gave concession by waiving the payment of the fee. In addition, petitioners
paid stipend to him during the course of his studies. There was an understanding
between the respondent and petitioners that, respondent should undertake to serve the
petitioners for a period of 5 years after completion of the course, failing which he should
repay the entire tuition fee. Respondent agreed for the same and executed an
agreement on 23.05.2005 alongwith two sureties. Thereafter, respondent failed to abide
the said conditions incorporated in the agreement and absented from the duty.
Repeated demand made by the petitioners to report to the duty by respondent, went in
vain. Petitioners did address a letter to the respondent for compliance but there was no
proper response. There is no deficiency in service on the part of the petitioners and they
have no objection to hand over the original certificate provided respondent pays
Rs.9,30,000/- or furnish a bank guarantee or any other surety for the satisfaction of the
Court concerned. Further, it is stated that petitioners have retained the original degree
certificate as a lien till the respondent performs the terms of the aforesaid agreement.
4.
Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore
(for short, ‘District Forum’) vide order dated 31.12.2009, allowed the complaint and
passed the following directions ;
“Opposite Party is hereby directed to handover the original Medical
Degree Certificate issued by the Manipal Academy of Higher
Education to the complainant. And further to pay Rs. 1,000/-(Rupees
one thousand only) as cost of the proceedings. Compliance shall be
made within 30 days from the date of this order.
On failure to comply the above said order, the Opposite Party is
hereby directed to pay Rs.25,000/- (Rupees twenty five thousand
only) as compensation.”.
5.
Order of District forum was challenged before the State Commission by the
petitioners. The State Commission, dismissed their appeal.
6.
Hence, this revision.
7.
I have heard the learned counsel for the parties and gone through the record.
8.
It has been argued by learned counsel for the petitioners that deficiency of
service would arise only in case of breach of agreement by a party providing the
service. In this case, there is no breach of contract by the petitioners but it is by the
respondent. Further, petitioner was under no liability to perform its part of contract
when it has not received the consideration for the same. It is also contended that
petitioners could not be forced to provide the certificate for which it has not received any
consideration and the same would be in contravention of the provisions of Section 51 of
the Indian Contract Act, 1872. Learned counsel has relied upon a decision of Supreme
Court in Bihar School of Examination Board Vs. Suresh Prasad Sinha, JT 2009
(11) SC 541.
9.
On the other hand, it is contended by learned counsel for the respondent that,
petitioners’ university cannot retain the certificate of respondent as per guidelines of the
University Grants Commission. Lastly, it has been contended that under no law,
petitioners can retain the certificate of the respondent.
10.
District Forum in its order held ;
“However, we have gone through the agreement i.e., Ex C5 and R8. On
careful scrutiny of the terms and conditions of the said agreement the
Opposite Parties waived the tuition fees as well as paid the stipend
fee. The Complainant has to serve 5 years in their institution and if
the Complainant failed to serve in their institution or violated any of
the conditions mentioned in clause No.3 of the said agreement then
Complainant is liable to pay Rs.9,30,000/-. According to clause No.4
the Opposite Party has to proceed to recover the said amount only
by initiating the proceeding. The entire agreement do not disclose
that the Opposite Parties have right to withhold the MD certificate if
the Complainant violates the condition of clause No.3 of the
agreement. The main contention of the Opposite Party is that as per
the terms of the agreement the Complainant has to serve 5 years in
their institution and appointment order dated 1.12.2008 was issued
and the Complainant was absented from 9.12.2008 and filed leave
application and not fulfilled the terms and conditions of the
agreement and stated that the MD certificate has retained as general
lien. The Section 171 of the Indian contract is not at all applicable to
the Opposite Party in which it clearly mentioned to whom the said
provision is applicable and under what circumstances. It is not the
case of the Opposite Party that the Complainant has handed over
the MD certificate to the Opposite Party as security. Hence the
question of lien does not arise in this case. In the entire service
agreement nowhere mentioned that if the Complainant violates any
of the conditions mentioned in clause No.3 the Opposite Parties
have got right to retain the MD certificate till the recovery of amount
of Rs.9,30,000/-. It is also not proved that the Opposite Party has
terminated the Complainant or the Complainant rejected their
appointment order. In this case, it is further proved that the
Complainant has paid Rs.65,000/- in each year towards the college
fees but according to the Opposite Party the above said amount is
not covered as tuition fees. Since there is no conditions to retain the
Degree certificate of the Complainant in the alleged agreement the
question of withholding the certificate does not arise. At the same
time the retaining of the degree certificate is compelling the
Complainant to serve under the Opposite Party hospital/institution
will not meet the ends of justice.
In view of the above stated reasons the MD certificate
pertaining to the Complainant retained by the Opposite Party
amounts to deficiency in service. Therefore the Opposite Party shall
handover the original Medical Degree Certificate issued by the
Manipal Academy of Higher Education to the Complainant. And
further to pay Rs.1,000/- (Rupees one thousand only) as cost of the
proceedings. Compliance shall be made within 30 days from the
date of this order”.
11.
State Commission while concurring with the reasoning given by the District
Forum, in its impugned order observed ;
“ On going through the pleadings of the parties, one thing is clearly
established that the complainant completed his course and the
Manipal Academy has confirmed him the MD degree in Biochemistry.
OPs got the said degree but they failed to give the same to the
complainant. Even if it is held for a while that there is breach of the
said agreement complainant is liable to refund the tuition fee the
remedy is still open to the OP to recover the same be approaching an
appropriate Civil Court for the recover of the same. When such an
equally efficacious remedy is readily available to the OPs they cannot
illegally retain the said degree certificate.
On going through the entire agreement it does not disclose that the
OPs have a right to withheld the MD certificate if complainant violates
any terms and conditions of the agreement namely either Clause –3 or
Clause –4. It is not the case of the OP that complainant has pledged
the said MD certificate as a security. Under such circumstances, OP
cannot exercise lien over the said certificate. There is no proof that OP
terminated the complainant from his service or that he rejected their
appointment. On the other hand there is a proof that complainant paid
nearly about Rs. 65,000/- each year, towards the college fee.
The DF has properly considered both oral and documentary evidence
and rightly come to the conclusion. Retaining of the degree certificate
is otherwise compelling the complainant to serve under them. Such
kind of practice is not fair. Under such circumstances, we find the
appellant has failed to show before this Commission that the
impugned order under appeal is erroneous, unjust and improper and
that it suffers from legal infirmity, unsustainable in the law and there is
error apparent apparent on the face of record requiring our
interference. Appeal appears to be devoid of merit”
12. Petitioners have placed on record copy of “Service Agreement” dated 23.05.2005,
executed between the parties. This Agreement does not contain any condition or
clause by virtue of which petitioners’ University is entitled to retain the degree/certificate
of the respondent as a lien till respondent performs the terms of the aforesaid
agreement. Under these circumstances, provisions of Section 51 of the Indian Contract
Act, 1872 and decision of Bihar School Examination (supra) are not applicable to the
facts of the present case.
13. Present revision petition has been filed under Section 21(b) of the Consumer
Protection Act 1986 (for short, ‘Act’). It is well settled that the powers of this
Commission as a Revisional Court are very limited and have to be exercised only, if
there is some prima facie jurisdictional error in the impugned order.
14.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under which
the said power can be exercised only if there is some prima facie
jurisdictional error appearing in the impugned order, and only then,
may the same be set aside. In our considered opinion there was no
jurisdictional error or miscarriage of justice, which could have
warranted the National Commission to have taken a different
view than what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal principle
that was ignored by the Courts below, but on a different (and in our
opinion, an erroneous) interpretation of the same set of facts. This is
not the manner in which revisional powers should be invoked. In this
view of the matter, we are of the considered opinion that the
jurisdiction conferred on the National Commission under Section 21 (b)
of the Act has been transgressed. It was not a case where such a
view could have been taken by setting aside the concurrent findings of
two Fora”.
15.
Thus, no jurisdiction or legal error has been shown to call for interference in the
exercise of power under section 21 (b) of the Act, since two Fora below have given cogent
reasons in their order, which does not call for any interference nor they suffer from any
infirmity or revisional exercise of jurisdiction.
16.
It is not that every order passed by the Fora below is to be challenged by a litigant
even when the same is based on sound reasoning.
17.
Under these circumstances, present petition is without any legal basis and same is
hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only), to be paid to the
respondent.
18.
Petitioners are directed to deposit demand draft for a sum of Rs. 10,000/- in the
name of respondent, within eight weeks from today. Same shall be paid to the respondent
after expiry of period of appeal/revision preferred, if any.
19.
In case, petitioners fail to deposit the above said demand draft within the prescribed
period, then they shall also be liable to pay the interest @ 9% p.a. till realization.
19.
List on 15.02.2013 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1871 OF 2012
WITH
(I.A. NO.1 & 2 OF 2012, FOR STAY & C/DELAY)
(From the order dated 06.12.2011 in Appeal No. 1631/2011
of the State Commission, Haryana, Panchkula)
1.
EXECUTIVE ENGINEER,
UHBVNL, YAMUNA NAGAR,
DISTRICT YAMUNA NAGAR,
HARYANA
2.
ASSTT. EXECUTIVE ENGINEER/
SUB DIVISIONAL OFFICER (OP),
SUB – DIVISION,
UHBVNL, SADHAURA,
DISTRICT YAMUNA NAGAR,
HARYANA
3.
CHAIRMAN,
UHBVNL, SHAKTI BHAWAN,
SECTOR – 6, PANCHKULA,
HARYANA
.… Petitioners
Versus
SALAMUDEEN
S/O SHRI CHURA
R/O VILLAGE KALAYANPUR ANTARI,
TEHSIL BILASPUR,
YAMUNA NAGAR,
HARYANA
.… Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Alok Sangwan, Advocate
Pronounced on : 7th December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
In this revision petition, there is challenge to order dated 6.12.2011, passed by
Haryana
State
Consumer
Disputes Redressal Forum, Panchkula (short,
“State
Commission”). Along with it, an application seeking condonation of delay of 43 days
has also been filed.
2.
Brief facts are that respondent/complainant got installed a transformer at his own
expenses at the tubewell connection 23.5.2009. The said transformer got burnt on
25.7.2011. Despite several requests made to the petitioners/opposite parties same was
not repaired. Rather respondent was informed that transformer in question was
purchased by him at his own expenses with warranty of six years, therefore petitioners
have no concern with it. On being approached, contractor/OP No.1 (before the District
Forum) informed the respondent that the warranty of the transformer was for two
years. After
lapse
of
the
warranty,
petitioners
are
liable
to
maintain
the
same. Thus, respondent filed a complaint for directing the petitioners to install a new
transformer at his tubewelland to pay Rs.80,000/- on account of loss of crops, mental
agony and harassment as well as Rs.5,500/- as cost of proceedings.
3.
Contractor in its written statement has alleged that he has installed the
transformer more than two years ago. However, as per circular U-27/2008 of the
petitioners, upkeep and maintenance of the system beyond the warranty period, e.g.
replacement of damaged DT after two years shall be carried out by the
petitioners. Thus, contractor has no concern with the damages etc.
4.
Petitioners in their written statement admitted this fact that respondent had applied
for tube well connection under self-execution scheme. As per the terms and conditions
of that scheme issued under circular no.U-19/2010, respondent and contractor shall be
responsible for the upkeep and maintenance of the transformer for six years from the
date of installation.
5.
It would be pertinent to point out that, contractor who was opposite party no.1
before the District Forum, has not been impleaded as a party in this revision petition.
6.
District Forum, vide order dated 18.10.2011, allowed the complaint and directed
the petitioners to replace the transformer of the respondent, within one month from the
date of the order, failing which penal action under section 27 of the Consumer
Protection Act, 1986 (for short as ‘Act’) shall be initiated against them.
7.
Aggrieved by the order of District Forum, petitioners filed an appeal before the
State Commission, which was dismissed in limini.
8.
This is how the matter has reached before this Commission.
9.
Taking up application for condonation of delay, the averments made in
the application does not lead us anywhere as apparent from the grounds on
whichcondonation of delay has been sought. The same read as under ;
“3. That the petitioner respectfully submits that delay has
occurred in filing the present revision petition within limitation,
which has occasioned in process of taking the steps at various
levels and in getting the matter approved for filing before
this Hon’ble Commission. The delay in filing the appeal was
unintentional on the part of petitioner since UHBVNL being a
Govt. Department, the file to challenge order of any court
needs comprehensive examination and the file moves from
one place to another. In this process, the delay has occurred
and the same may kindly be condoned.
4.
That moreover the petitioner is having its main legal
office at Chandigarh. Whenever a court case is decided
throughout Haryana the same is sent to the head office for
taking appropriate action. The head office needs some time to
examine the merits of the case and then the matter is dealt by
the Office of Legal Remembrance who nominates Standing
counsel in Delhi for filing the revision petition, if required. The
concerned District Officer is than directed to contact the
appointed counsel in Delhi for sending him the necessary
papers with regard to filing of revision petition. Thereafter, the
file is examined by the counsel for the petitioner in Delhi and
he drafts revision petition. The drafted petition is then sent to
the District office for signing affidavits and sometimes the
officers are called by the counsel at Delhi for further discussion
and then the petition is filed before this Hon’ble Commission. In
this process enough time expires and delay occurs in filing the
revision petition.
5.
That the petitioner submits that the delay is neither
deliberate nor intentional but has occurred in the
circumstances stated hereinabove.”
10.
It is well settled that “sufficient cause” for non-appearance in each case, is a
question of fact.
11.
Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT
558, has held;
“No doubt the words “sufficient cause” should receive liberal
construction so as to advance substantial justice. However, when it
is found that the applicants were most negligent in defending the
case and their non-action and want of bonafide are clearly
imputable, the Court would not help such a party. After all “sufficient
cause” is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each
case as to whether the defendant who has suffered ex-parte decree
has been able to satisfactorily show sufficient cause for non
appearance and in examining this aspect cumulative effect of all
the relevant factors is to be seen.”
12.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally
be limited only to such facts as the Court may regard as relevant.”
13.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court
has observed ;
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
14. Apex Court, in “Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to keep
in mind that the special period of limitation has been prescribed
under the Consumer Protection Act, 1986 for filing appeals and
revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if this Court
was to entertain highly belated petitions filed against the orders of
the consumer Foras.”
15.
Recently, Hon’ble Supreme Court in Post Master General and others vs. Living
Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“24. After referring various earlier decisions, taking very lenient view in
condoning the delay, particularly, on the part of the Government and
Government Undertaking, this Court observed as under;
“29. It needs no restatement at our hands that the
object for fixing time-limit for litigation is based on public
policy fixing a lifespan for legal remedy for the purpose of
general welfare. They are meant to see that the parties
do not resort to dilatory tactics but avail their legal
remedies promptly.Salmond in his Jurisprudence states
that the laws come to the assistance of the vigilant and
not of the sleepy.
30. Public interest undoubtedly is a paramount
consideration in exercising the courts' discretion wherever
conferred upon it by the relevant statutes. Pursuing stale
claims and multiplicity of proceedings in no
manner subserves public interest. Prompt and timely
payment of compensation to the landlosers facilitating
their rehabilitation /resettlement is equally an integral part
of public policy. Public interest demands that the State or
the beneficiary of acquisition, as the case may be, should
not be allowed to indulge in any act to unsettle the settled
legal rights accrued in law by resorting to avoidable
litigation unless the claimants are guilty of deriving benefit
to which they are otherwise not entitled, in any fraudulent
manner. One should not forget the basic fact that what is
acquired is not the land but the livelihood of
the landlosers. These public interest parameters ought to
be kept in mind by the courts while exercising the
discretion dealing with the application filed under Section
5 of the Limitation Act. Dragging thelandlosers to courts
of law years after the termination of legal proceedings
would not serve any public interest. Settled rights cannot
be lightly interfered with by condoning inordinate delay
without there being any proper explanation of such delay
on the ground of involvement of public revenue. It serves
no public interest.”
The Court further observed ;
“27. It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the
prescribed period of limitation for taking up the matter by way of
filing a special leave petition in this Court. They cannot claim that
they have a separate period of limitation when the Department was
possessed with competent persons familiar with court proceedings.
In the absence of plausible and acceptable explanation, we are
posing a question why the delay is to be condoned mechanically
merely because the Government or a wing of the Government is a
party before us.
28. Though we are conscious of the fact that in a matter
of condonation of delay when there was no gross negligence or
deliberate inaction or lack of bonafide, a liberal concession has to
be adopted to advance substantial justice, we are of the view that
in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology of
making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bonafide effort, there is no need to accept the usual
explanation that the file was kept pending for several months/years
due to considerable degree of procedural red-tape in the process.
The government departments are under a special obligation to
ensure that they perform their duties with diligence and
commitment. Condonation of delay is an exception and should not
be used as an anticipated benefit for government departments.
The law shelters everyone under the same light and should not be
swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation
offered by the Department for the delay except mentioning of
various dates, according to us, the Department has miserably
failed to give any acceptable and cogent reasons sufficient to
condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go
into the merits of Issues (b) and (c). The question of law raised is
left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are
dismissed on the ground of delay. No order as to costs.”
16.
In the application, petitioners have simply mentioned about their office procedure
for the purpose of filing of appeal/revision. In entire application, it is nowhere mentioned
as to what was the sufficient cause for not filing the revision in time. Moreover,
petitioners in the application have not mentioned as to before whom the matter seeking
approval for filing revision was pending and what was the time taken at each level for
getting approval. The application is absolutely vague and same has been filed without
any justification. Thus, ex-facie, application for condonation of delay does not contain
any sufficient cause and has no legal basis. Gross negligence, deliberate inaction and
lack of bonafides are imputable to the petitioners. Same has been filed just to waste the
time of this Commission.
17.
Observations made by Apex Court in the authoritative pronouncements discussed
above are fully attracted to the facts and circumstances of the case. Hence, no
‘sufficient cause’ is made out for condoning the delay.
18.
Now coming to the merit of the case, it has been contended by learned counsel for
the petitioners, that respondent had purchased a transformer from the contractor with
warranty and it was the duty of the contractor to replace the transformer. Both
the fora below had wrongly directed the petitioners to replace the same.
19.
District Forum, in its order has categorically held that, as per circular, petitioner is
liable to replace the transformer of the respondent. Relevant findings of it read as under
;
“From the perusal of the case file, the only point controversy
between the parties is whether the complainant is entitled for the
relief or not, whether therespondents no.1 is liable to replace the
transformer. From the perusal of the case file this fact is
admitted that the connection of the complainant has been
released on 23.5.2009 and we have to see that when the
connection of the complainant has been released then what
circular was in existence. In the present case in hand when the
connection of the complainant was released on 23.5.2009, the
circular no.U-27/2008 was in existence in which it has clearly
been mentioned that, “upkeep and maintenance of the system
beyond warranty period e.g. replacement of damaged DT after
years shall be carried out by the Nigam” but the Nigam in their
reply alleged that the consumer or the contractor is liable for the
period of 78 months from the date of supply and 72 months from
the date of installation. In the present case in hand the circular
of two years is applicable and as per that circular the Nigam is
liable to replace the transformer of the complainant, hence, the
respondents no.1 and 2 are liable to replace the transformer of
the complainant, which is not done so, it amounts to deficiency
in service on their part and the complainant is entitled for the
relief.”
20.
The State Commission while upholding the findings of District Forum, dismissed
the appeal in limini and observed ;
“It is not disputed by learned counsel for the appellant that
transformer in question was purchased by the complainant from
the approved contractor of the Nigam, therefore, by not
replacing the transformer in question by the appellants amounts
to deficiency in service. In case, the transformer was well within
the warranty period, even then it is integral matter of the Nigam
and its approved contractor. In this view of the matter, we feel
that there was no illegality or ambiguity in the impugned order
passed by the District Forum.
No merit. Dismissed in limini.”
21.
Under Section 21 of the Act, this Commission can interfere with the order of the
State Commission where such State Commission has exercised a jurisdiction not
vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material irregularity. After going through the
orders passed by the fora below, it is manifestly clear that there is no illegality or
material irregularity on the part of the Forabelow in this case.
22.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some prima
facie jurisdictional error appearing in the impugned order, and only
then, may the same be set aside. In our considered opinion there
was no jurisdictional error or miscarriage of justice, which could
have warranted the National Commission to have taken a different
view than what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal principle
that was ignored by the Courts below, but on a different (and in our
opinion, an erroneous) interpretation of the same set of facts. This
is not the manner in which revisional powers should be invoked. In
this view of the matter, we are of the considered opinion that the
jurisdiction conferred on the National Commission under Section 21
(b) of the Act has been transgressed. It was not a case where such
a view could have been taken by setting aside the concurrent
findings of two fora.”
23. Even, after getting two adverse findings, petitioners have chosen not to settle the
claim of the respondent but have dragged him to the highest fora under the Act.
24. It is not that every order passed by fora below is to be challenged by a litigant
even when the same are based on sound reasoning.
25. It is a well-known fact that Courts across the country are saddled with large
number of cases. Public Sector Undertakings indulgences further burden them. Time
and again, Courts have been expressing their displeasure at the Government/Public
Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a
distant dream. The judiciary is now imposing costs upon Government/Public Sector
Undertaking not only when it pursue cases which can be avoided but also when it forces
the public to do so.
26. Public Sector Undertakings spent more money on contesting cases than the
amount they might have to pay to the claimant. In addition thereto, precious time, effort
and other resources go down the drain in vain. Public Sector Undertakings are possibly
an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also
due to the fact that Public Sector Undertakings though having large number of legal
personnel under their employment, do not examine the cases properly and force poor
litigants to approach the Court.
27. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ
121 (Supreme Court) (CP) has made significant observations which have material
bearing, namely,
“4. It is a matter of concern that such frivolous and unjust litigation by
Governments and statutory authorities are on the increase. Statutory
Authorities exist to discharge statutory functions in public interest. They
should be responsible litigants. They cannot raise frivolous and unjust
objections, nor act in a callous and highhanded manner. They cannot
behave like some private litigants with profiteering motives. Nor can
they resort to unjust enrichment. They are expected to show remorse or
regret when their officers act negligently or in an overbearing
manner. When glaring wrong acts by their officers is brought to their
notice, for which there is no explanation or excuse, the least that is
expected is restitution/restoration to the extent possible with appropriate
compensation. Their harsh attitude in regard to genuine grievances of
the public and their indulgence in unwarranted litigation requires to the
corrected.
5.
This Court has repeatedly expressed the view that the
Governments and statutory authorities should be model or ideal litigants
and should not put forth false, frivolous, vexatious, technical (but unjust)
contentions to obstruct the path of justice. We may refer to some of the
decisions in this behalf.
5.1
In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554,
where this Court extracted with approval, the following statement (from
an earlier decision of the Kerala High Court.):
“The State, under our Constitution, undertakes
economic activities in a vast and widening public
sector and inevitably gets involved in disputes with
private individuals. But it must be remembered that
the State is no ordinary party trying to win a case
against one of its own citizens by hook or by crook; for
the State’s interest is to meet honest claims, vindicate
a substantial defence and never to score a technical
point or overreach a weaker party to avoid a just
liability or secure an unfair advantage, simply because
legal devices provide such an opportunity. The State
is a virtuous litigant and looks with unconcern on
immoral forensic successes so that if on the merits
the case is weak. Government shows a willingness to
settle the dispute regardless of prestige and other
lesser motivations, which move private parties to fight
in Court. The lay-out on litigation costs and execution
time by the State and its agencies is so staggering
these days because of the large amount of litigation in
which it is involved that a positive and wholesome
policy of cutting back on the volume of law suits by
the twin methods of not being tempted into forensic
showdowns where a reasonable adjustment is
feasible and ever offering to extinguish a pending
proceeding on just terms, giving the legal mentors of
Government some initiative and authority in this
behalf. I am not indulging in any judicial homily but
only echoing the dynamic national policy on State
litigation evolved at a Conference of Law Ministers of
India way back in 1957.”
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor
V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
“2.
It is high time that Governments and public
authorities adopt the practice of not relying upon
technical pleas for the purpose of defeating legitimate
claims of citizens and do what is fair and just to the
citizens. Of course, if a Government or a public
authority takes up a technical plea, the Court has to
decide it and if the plea is well founded, it has to be
upheld by the Court, but what we feel is that such a
plea should not ordinarily be taken up by a
Government or a public authority, unless of course
the claim is not well founded and by reason of delay
in filing it, the evidence for the purpose of resisting
such a claim has become unavailable.”
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory
of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.
“3. The State Government must do what is fair and
just to the citizen and should not, as far as possible,
except in cases where tax or revenue is received or
recovered without protest or where the State
Government would otherwise be irretrievably be
prejudiced, take up a technical plea to defeat the
legitimate and just claim of the citizen.”
6. Unwarranted
litigation
by
Governments
and
statutory
authorities basically stem from the two general baseless assumptions by
their officers. They are:
(i)
All claims against the Government/statutory authorities
should be viewed as illegal and should be resisted and
fought up to the highest Court of the land.
(ii)
If taking a decision on an issued could be avoided, then it
is prudent not to decide the issue and let the aggrieved
party approach the Court andsecure a decision.
The reluctance to take decisions, or tendency to
challenge all orders against them, is not the policy of the
Governments or statutory authorities, but is attributable
to some officers who are responsible for taking decisions
and/or officers-in-charge of litigation. Their reluctance
arises from an instinctive tendency to protect themselves
against any future accusations of wrong decision making,
or worse, of improper motives for any decisionmaking. Unless their insecurity and fear is addressed,
officers will continue to pass on the responsibility of
decision making to Courts and Tribunals. The Central
Government is now attempting to deal with this issue by
formulating realistic and practical norms for defending
cases filed against the Government and for filing appeals
and revisions against adverse decisions, thereby,
eliminating unnecessary litigation. But, it is not sufficient
if the Central Government alone undertakes such an
exercise. The State Governments and the statutory
authorities, who have more litigations than the Central
Government, should also make genuine efforts to
eliminate
unnecessary
litigation. Vexatious
and
unnecessary litigation have been clogging the wheels of
justice, for too long making it difficult for courts and
Tribunals to provide easy and speedy access to justice
tobonafide and needy litigants.
7.
In this case, what is granted by the State Commission is the
minimum relief in the facts and circumstances, that is to direct
allotment of an alternative plot with a nominal compensation of
Rs.5,000/- . But instead of remedying the wrong, by complying with
the decision of the Consumer Fora, the Improvement Trust is trying
to brazen out its illegal act by contending that the allottee should
have protested when it illegally laid the road in his plot. It has
persisted with its unreasonable and unjust stand by indulging in
unnecessary litigation by approaching the National Commission and
then this Court. The Trust should sensitize its officers to serve the
public rather than justify their dictatorial acts. It should avoid such an
unnecessary litigation.”
28. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court
observed:
“ Courts of law should be careful enough to see through
such diabolical plans of the judgment debtor to deny the
decree holders the fruits of the decree obtained by
them. These type of errors on the part of the judicial
forum only encourage frivolous and cantankerous
litigations causing law’s delay and bringing bad name to
the judicial system.”
29. Accordingly, present revision petition being barred by limitation, is hereby
dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
30.
Petitioners are directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’, within eight weeks from today. In case, petitioner fails to
deposit the said cost within the prescribed period, then it shall also be liable to pay
interest @ 9% p.a., till realization.
31.
Meanwhile, petitioners shall recover the cost amount from the salaries of the
delinquent officers who have been pursuing this merit less and frivolous litigation, with
the sole aim of wasting the public exchequer. The affidavit giving the details of the
officers/officials from whose salaries the cost has beenrecovered, be also filed within
eight weeks.
32.
Pending applications also stand dismissed.
33.
List the matter for compliance on 22.2.2013.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1582 OF 2012
WITH
(I.A. NO.1 & 2 OF 2012, FOR STAY & C/DELAY)
(From the order dated 28.11.2011 in Appeal No. 1575/2011
of the State Commission, Haryana, Panchkula)
SUB DIVISIONAL OFFICER (OP)
SUB – DIVISION,
UHBVNL,
SADHAURA
.… Petitioner
Versus
1.
RAM SARAN
S/O SHRI CHAMELA RAM
R/O VILLAGE KHANPURA,
TEHSIL JAGADHRI,
DISTRICT YAMUNA
2.
JAI BHAGWAN,
CONTRACTOR OF UHBVNL,
SADHAURA,
JAI BHAGWAN ELECTRICALS,
WARD NO. 20, SADHAURA,
YAMUNA
NAGAR
.… Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Alok Sangwan, Advocate
Pronounced on : 7th December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
In this revision petition, there is challenge to order dated 28.11.2011, passed by
Haryana
State
Consumer
Disputes Redressal Forum, Panchkula (short,
“State
Commission”). Along with it, an application seeking condonation of delay of 30 days
has also been filed.
2.
Brief facts are that respondent no.1/complainant got installed a transformer at his
own expenses at the tubewell connection. The said transformer got burnt on
16.3.2011. Despite several requests made to the petitioner/opposite party same was
not repaired. Rather respondent no.1 was informed that transformer in question was
purchased by him at his own expenses with the warranty of six years, therefore,
petitioner has no concern with it. On being approached, respondent no.2, (contractor)/
OP No.3 informed respondent no.1that warranty of the transformer was for two years.
After lapse of the warranty, petitioner is liable to maintain the same. Thus, respondent
no.1 filed a complaint for directing the petitioner to install new transformer at his tube
well and to pay Rs.50,000/- as compensation for mental agony and harassment as well
as Rs.5,000/- as cost of proceedings.
3.
Petitioner/OP Nos.1 and 2, in their written statement admitted the fact that
respondent had applied for tubewell connection under self-execution scheme and all the
material which is necessary for releasing the electricity supply to the tubewell has to be
purchased by the respondent as well as contractor. The department only has to release
the electric supply to the tubewell. Hence, there is no liability of the petitioner.
4.
Respondent No.2 in its written statement has alleged that it had installed the
transformer on the tubewell more than two years ago. As per sale circular U-27/2008 of
the petitioner, ‘upkeep and maintenance of the system beyond the warranty period e.g.
replacement of damaged DT after two years, shall be carried out by the
petitioner. Thus, answering respondent has no concern with the damages etc.
5.
District Consumer Disputes Redressal Forum, Yamuna Nagar (short, ‘District
Forum’) vide order dated 18.10.2011, allowed the complaint and directed the petitioner
to replace the transformer of the respondent no.1 within one month from the date of the
order, failing which penal action under section 27 of the Consumer Protection Act, 1986,
(for short, ‘Act’) shall be initiated against it.
6.
Aggrieved by the order of District Forum, petitioner filed an appeal before the
State Commission, which was dismissed in limini.
7.
This is how the matter has reached before this Commission.
8.
Taking up application for condonation of delay, averments made in this application
does not lead us anywhere as apparent from the grounds on whichcondonation of delay
has been sought and which read as under ;
“3. That the petitioner respectfully submits that delay has
occurred in filing the present revision petition within limitation,
which has occasioned in process of taking the steps at various
levels and in getting the matter approved for filing before
this Hon’ble Commission. The delay in filing the appeal
unintentional on the part of petitioner since UHBVNL being a
Govt. Department, the file to challenge order of any court
needs comprehensive examination and the file moves from
one place to another. In this process, the delay has occurred
and the same may kindly be condoned.
4. That moreover the petitioner is having its main legal office
at Chandigarh. Whenever a court case is decided throughout
Haryana the same is sent to the head office for taking
appropriate action. The head office needs some time to
examine the merits of the case and then the matter is dealt by
the Office of Legal Remembrance who nominates Standing
counsel in Delhi for filing the revision petition, if required. The
concerned District Officer is than directed to contact the
appointed counsel in Delhi for sending him the necessary
papers with regard to filing of revision petition. Thereafter, the
file is examined by the counsel for the petitioner in Delhi and
he drafts revision petition. The drafted petition is than sent to
the District office for signing affidavits and sometimes the
officers are called by the counsel at Delhi for further discussion
and
then
the
petition
is
filed
before
this Hon’ble Commission. In this process enough time expires
and delay occurs in filing the revision petition.
5. That the petitioner submits that the delay is neither
deliberate nor intentional but has occurred in the
circumstances stated hereinabove.”
9.
Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT
558, has held;
“No doubt the words “sufficient cause” should receive liberal
construction so as to advance substantial justice. However, when it
is found that the applicants were most negligent in defending the
case and their non-action and want of bonafide are clearly
imputable, the Court would not help such a party. After all “sufficient
cause” is an elastic expression for which no hard and fast guide-
lines can be given and Court has to decide on the facts of each
case as to whether the defendant who has suffered ex-parte decree
has been able to satisfactorily show sufficient cause for nonappearance and in examining this aspect cumulative effect of all
the relevant factors is to be seen.”
10.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally
be limited only to such facts as the Court may regard as relevant.”
11.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court
has observed ;
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
12. Apex Court in “Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to keep
in mind that the special period of limitation has been prescribed
under the Consumer Protection Act, 1986 for filing appeals and
revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if this Court
was to entertain highly belated petitions filed against the orders of
the consumer Foras.”
13.
Recently, Hon’ble Supreme Court in Post Master General and others vs. Living
Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“24. After referring various earlier decisions, taking very lenient view in
condoning the delay, particularly, on the part of the Government and
Government Undertaking, this Court observed as under;
“29. It needs no restatement at our hands that the
object for fixing time-limit for litigation is based on public
policy fixing a lifespan for legal remedy for the purpose of
general welfare. They are meant to see that the parties
do not resort to dilatory tactics but avail their legal
remedies promptly.Salmond in his Jurisprudence states
that the laws come to the assistance of the vigilant and
not of the sleepy.
30. Public interest undoubtedly is a paramount
consideration in exercising the courts' discretion wherever
conferred upon it by the relevant statutes. Pursuing stale
claims and multiplicity of proceedings in no
manner subserves public interest. Prompt and timely
payment of compensation to the landlosers facilitating
their rehabilitation /resettlement is equally an integral part
of public policy. Public interest demands that the State or
the beneficiary of acquisition, as the case may be, should
not be allowed to indulge in any act to unsettle the settled
legal rights accrued in law by resorting to avoidable
litigation unless the claimants are guilty of deriving benefit
to which they are otherwise not entitled, in any fraudulent
manner. One should not forget the basic fact that what is
acquired is not the land but the livelihood of
the landlosers. These public interest parameters ought to
be kept in mind by the courts while exercising the
discretion dealing with the application filed under Section
5 of the Limitation Act. Dragging thelandlosers to courts
of law years after the termination of legal proceedings
would not serve any public interest. Settled rights cannot
be lightly interfered with by condoning inordinate delay
without there being any proper explanation of such delay
on the ground of involvement of public revenue. It serves
no public interest.”
The Court further observed ;
“27. It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the
prescribed period of limitation for taking up the matter by way of
filing a special leave petition in this Court. They cannot claim that
they have a separate period of limitation when the Department was
possessed with competent persons familiar with court proceedings.
In the absence of plausible and acceptable explanation, we are
posing a question why the delay is to be condoned mechanically
merely because the Government or a wing of the Government is a
party before us.
28. Though we are conscious of the fact that in a matter
of condonation of delay when there was no gross negligence or
deliberate inaction or lack of bonafide, a liberal concession has to
be adopted to advance substantial justice, we are of the view that
in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology of
making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bonafide effort, there is no need to accept the usual
explanation that the file was kept pending for several months/years
due to considerable degree of procedural red-tape in the process.
The government departments are under a special obligation to
ensure that they perform their duties with diligence and
commitment. Condonation of delay is an exception and should not
be used as an anticipated benefit for government departments.
The law shelters everyone under the same light and should not be
swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation
offered by the Department for the delay except mentioning of
various dates, according to us, the Department has miserably
failed to give any acceptable and cogent reasons sufficient to
condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go
into the merits of Issues (b) and (c). The question of law raised is
left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are
dismissed on the ground of delay. No order as to costs.”
14.
In the application, petitioner has simply mentioned about its office procedure for
the purpose of filing of appeal/revision. In entire application, it is nowhere mentioned as
to what was the sufficient cause for not filing the revision in time. Moreover, petitioner in
its application have not mentioned as to before whom the matter seeking approval for
filing revision was pending and what was the time taken at each level for getting
approval. Application is absolutely vague and same has been filed without any
justification. Thus, ex-facie, application for condonation of delay does not contain any
sufficient cause and has no legal basis. Gross negligence, deliberate inaction and lack
of bonafides are imputable to the petitioners.
15.
Observations made by Apex Court in the authoritative pronouncements discussed
above are fully attracted to the facts and circumstances of the case. Hence, no
‘sufficient cause’ is made out for condoning the delay.
16.
Now coming to the merits of the case, it has been contended by learned counsel
for the petitioner, that respondent had purchased a transformer from the contractor with
warranty. Thus, it was the duty of the contractor to replace the transformer. Both
the fora below had wrongly directed the petitioner to replace the same.
17.
District Forum, in its order has categorically held that as per circular, petitioner is
liable to replace the transformer of the respondent. Relevant findings of District Forum
reads as under ;
“From the perusal of the case file, the only point controversy
between the parties is whether the complainant is entitled for the
relief or not, whether therespondents no.1 and 2 are liable to
replace the transformer or the respondent no.3 is liable to
replace the transformer. From the perusal of the case file this
fact is admitted that the connection of the complainant has been
released then what circular was in existence. In the present
case in hand when the connection of the complainant was
released on 8.7.2009 the circular no.U-27/2008 was in existence
in which it has clearly been mentioned that, “upkeep and
maintenance of the system beyond warranty period e.g.
replacement of damaged DT after years shall be carried out by
the Nigam” but the Nigam in their reply alleged that the
consumer or the contractor is liable for the period of 78 months
from the date of supply and 72 months from the date of
installation. In the present case in hand the respondents no.1
and 2 produced the documents signed by the complainant in
which the warranty period has been describedfro six years,
whereas at the time of releasing the connection the circular of
two years was in existence it shows that the respondents have
obtained the sign of the complainant later on and mere signing
by the complainant on the printed documents is having no value,
and as per that circular the Nigam is liable to replace the
transformer of the complainant, hence, the respondents no.1
and 2 are liable to replace the transformer of the complainant,
which is not done so, it amounts efficiency in service on their
part and the complainant is entitled for the relief.”
18.
State Commission while upholding the findings of District Forum has dismissed
the appeal of the petitioner in limini observing as under ;
“It is not disputed by learned counsel for the appellant that
transformer in question was purchased by the complainant from
the approved contractor of the Nigam, therefore, by not
replacing the transformer in question by the appellants amounts
to deficiency in service. In case, the transformer was well within
the warranty period, even then it is integral matter of the Nigam
and its approved contractor. In this view of the matter, we feel
that there was no illegality or ambiguity in the impugned order
passed by the District Forum.
No merit. Dismissed in limini.”
19.
Under Section 21 of the Act, this Commission can interfere with the order of the
State Commission where such State Commission has exercised a jurisdiction not
vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material irregularity. After going through the
orders passed by the fora below, it is manifestly clear that there is no illegality or
material irregularity on the part of the Forabelow in the present case.
20.
It is also well settled that under Section 21 (b) of the Act, scope
of revisional jurisdiction is very limited.
21.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd., 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the
National Commission are derived from Section 21 (b) of the
Act, under which the said power can be exercised only if
there is some prima facie jurisdictional error appearing in the
impugned order, and only then, may the same be set aside.
In our considered opinion there was no jurisdictional error or
miscarriage of justice, which could have warranted the
National Commission to have taken a different view than
what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal
principle that was ignored by the Courts below, but on a
different (and in our opinion, an erroneous) interpretation of
the same set of facts. This is not the manner in
whichrevisional powers should be invoked. In this view of
the matter, we are of the considered opinion that the
jurisdiction conferred on the National Commission under
Section 21 (b) of the Act has been transgressed. It was not
a case where such a view could have been taken by setting
aside the concurrent findings of two fora.”
22. Even, after getting two adverse findings, petitioner has chosen not to settle the
claim of respondent no.1 but has dragged him to the highest Fora under the Act.
23. It is not that every order passed by fora below is to be challenged by a litigant
even when the same are based on sound reasoning.
24. It is a well-known fact that Courts across the country are saddled with large
number of cases. Public Sector Undertakings indulgences further burden them. Time
and again, Courts have been expressing their displeasure at the Government/Public
Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a
distant dream. The judiciary is now imposing costs upon Government/Public Sector
Undertaking not only when it pursue cases which can be avoided but also when it forces
the public to do so.
25. Public Sector Undertakings spent more money on contesting cases than the
amount they might have to pay to the claimant. In addition thereto, precious time, effort
and other resources go down the drain in vain. Public Sector Undertakings are possibly
an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also
due to the fact that Public Sector Undertakings though having large number of legal
personnel under their employment, do not examine the cases properly and force poor
litigants to approach the Court.
26. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ
121 (Supreme Court) (CP) has made significant observations which have material
bearing, namely,
“4. It is a matter of concern that such frivolous and unjust litigation by
Governments and statutory authorities are on the increase. Statutory
Authorities exist to discharge statutory functions in public interest. They
should be responsible litigants. They cannot raise frivolous and unjust
objections, nor act in a callous and highhanded manner. They cannot
behave like some private litigants with profiteering motives. Nor can
they resort to unjust enrichment. They are expected to show remorse or
regret when their officers act negligently or in an overbearing
manner. When glaring wrong acts by their officers is brought to their
notice, for which there is no explanation or excuse, the least that is
expected is restitution/restoration to the extent possible with appropriate
compensation. Their harsh attitude in regard to genuine grievances of
the public and their indulgence in unwarranted litigation requires to the
corrected.
5.
This Court has repeatedly expressed the view that the
Governments and statutory authorities should be model or ideal litigants
and should not put forth false, frivolous, vexatious, technical (but unjust)
contentions to obstruct the path of justice. We may refer to some of the
decisions in this behalf.
5.1
In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554,
where this Court extracted with approval, the following statement (from
an earlier decision of the Kerala High Court.):
“The State, under our Constitution, undertakes
economic activities in a vast and widening public
sector and inevitably gets involved in disputes with
private individuals. But it must be remembered that
the State is no ordinary party trying to win a case
against one of its own citizens by hook or by crook; for
the State’s interest is to meet honest claims, vindicate
a substantial defence and never to score a technical
point or overreach a weaker party to avoid a just
liability or secure an unfair advantage, simply because
legal devices provide such an opportunity. The State
is a virtuous litigant and looks with unconcern on
immoral forensic successes so that if on the merits
the case is weak. Government shows a willingness to
settle the dispute regardless of prestige and other
lesser motivations, which move private parties to fight
in Court. The lay-out on litigation costs and execution
time by the State and its agencies is so staggering
these days because of the large amount of litigation in
which it is involved that a positive and wholesome
policy of cutting back on the volume of law suits by
the twin methods of not being tempted into forensic
showdowns where a reasonable adjustment is
feasible and ever offering to extinguish a pending
proceeding on just terms, giving the legal mentors of
Government some initiative and authority in this
behalf. I am not indulging in any judicial homily but
only echoing the dynamic national policy on State
litigation evolved at a Conference of Law Ministers of
India way back in 1957.”
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor
V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
“2.
It is high time that Governments and public
authorities adopt the practice of not relying upon
technical pleas for the purpose of defeating legitimate
claims of citizens and do what is fair and just to the
citizens. Of course, if a Government or a public
authority takes up a technical plea, the Court has to
decide it and if the plea is well founded, it has to be
upheld by the Court, but what we feel is that such a
plea should not ordinarily be taken up by a
Government or a public authority, unless of course
the claim is not well founded and by reason of delay
in filing it, the evidence for the purpose of resisting
such a claim has become unavailable.”
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory
of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.
“3. The State Government must do what is fair and
just to the citizen and should not, as far as possible,
except in cases where tax or revenue is received or
recovered without protest or where the State
Government would otherwise be irretrievably be
prejudiced, take up a technical plea to defeat the
legitimate and just claim of the citizen.”
6. Unwarranted
litigation
by
Governments
and
statutory
authorities basically stem from the two general baseless assumptions by
their officers. They are:
(i)
All claims against the Government/statutory authorities
should be viewed as illegal and should be resisted and
fought up to the highest Court of the land.
(ii)
If taking a decision on an issued could be avoided, then it
is prudent not to decide the issue and let the aggrieved
party approach the Court andsecure a decision.
The reluctance to take decisions, or tendency to
challenge all orders against them, is not the policy of the
Governments or statutory authorities, but is attributable
to some officers who are responsible for taking decisions
and/or officers-in-charge of litigation. Their reluctance
arises from an instinctive tendency to protect themselves
against any future accusations of wrong decision making,
or worse, of improper motives for any decisionmaking. Unless their insecurity and fear is addressed,
officers will continue to pass on the responsibility of
decision making to Courts and Tribunals. The Central
Government is now attempting to deal with this issue by
formulating realistic and practical norms for defending
cases filed against the Government and for filing appeals
and revisions against adverse decisions, thereby,
eliminating unnecessary litigation. But, it is not sufficient
if the Central Government alone undertakes such an
exercise. The State Governments and the statutory
authorities, who have more litigations than the Central
Government, should also make genuine efforts to
eliminate
unnecessary
litigation. Vexatious
and
unnecessary litigation have been clogging the wheels of
justice, for too long making it difficult for courts and
Tribunals to provide easy and speedy access to justice
tobonafide and needy litigants.
7.
In this case, what is granted by the State Commission is the
minimum relief in the facts and circumstances, that is to direct
allotment of an alternative plot with a nominal compensation of
Rs.5,000/- . But instead of remedying the wrong, by complying with
the decision of the Consumer Fora, the Improvement Trust is trying
to brazen out its illegal act by contending that the allottee should
have protested when it illegally laid the road in his plot. It has
persisted with its unreasonable and unjust stand by indulging in
unnecessary litigation by approaching the National Commission and
then this Court. The Trust should sensitize its officers to serve the
public rather than justify their dictatorial acts. It should avoid such an
unnecessary litigation.”
27. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court
observed:
“ Courts of law should be careful enough to see through
such diabolical plans of the judgment debtor to deny the
decree holders the fruits of the decree obtained by
them. These type of errors on the part of the judicial
forum only encourage frivolous and cantankerous
litigations causing law’s delay and bringing bad name to
the judicial system.”
28. Accordingly, present revision petition being barred by limitation, is hereby
dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
29.
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’, within eight weeks from today. In case, petitioner fails to
deposit the said cost within the prescribed period, then it shall also be liable to pay
interest @ 9% p.a., till realization.
30.
Meanwhile, petitioner shall recover the cost amount from the salaries of the
delinquent officers who have been pursuing this merit less and frivolous litigation, with
the sole aim of wasting the public exchequer. The affidavit giving the details of the
officers/officials from whose salaries the cost has been recovered be also filed within
eight weeks.
31.
Pending applications also stand dismissed.
32.
List the matter for compliance on 22.2.2013.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 257 OF 2009
(From the order dated 4.11.2008 in RBT No.430 of 2008 in Appeal No.3208 of
2001
of the State Commission, Chandigarh UT)
Sh. Dina Nath
Aged 80 years
(Senior Citizen)
S/o Sh. Dhannu Ram,
R/o 102-A, DDA Flats,
Gulabi Bagh,
Delhi – 110 007.
…Petitioner
Vs.
1.
Yamunanagar Improvement Trust
Through its Chairman,
Yamuna Nagar, Haryana
2.
Municipal Committee
Through its President
Yamuna Nagar, Haryana
...Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
In person
For the Respondent
:
Mr. Sanjay Singh, Advocate with
Mr. Jagnarayan Kaushik, SDM, Jagadhri &
Chairman of Respondent no.1 Trust
Pronounced on: 7th December, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
By way of the present revision petition filed by the petitioner (who is more than 80
years old) has challenged order dated 4.11.2008 passed by State Consumer Disputes
Redressal Commission, Chandigarh UT (for short ‘State Commission’).
2.
Brief facts are that petitioner/complainant was allotted Plot No.103 measuring 160
sq. yards by respondent no.1/O.P. No.1, vide allotment letter No.1470 dated 6.9.73
in Sarojni Nagar Scheme at Yamuna Nagar. The plot was allotted @ Rs.35/- per sq.
yard and the tentative price of the plot was Rs.5,600/-. The final price was subject to
actual allotment at site. Subsequently, the allotment of said plot was changed and plot
No.59 measuring 200 sq. yard was allotted to the petitioner vide allotment letter
No.2184 dated 16.11.73 at the same rate i.e. Rs.35/- per sq. yard, thus, the total cost
being Rs.8,750/-. Petitioner paid the earnest money of Rs.500/- on 27.4.73 and the
security amount of Rs.450/- was also paid. The first instalment of Rs.1,688/- was paid
on 27.11.73 and subsequently, 2nd and 3rd instalments were paid on 11.12.74 and
9.1.76. Respondents were to further take the final balance price from the petitioner
after handing over possession and calculating the cost of actual measurement of the
plot. In this manner, petitioner had already paid respondent no.1, a sum of Rs.7,877/against the total price of R.8,750/-. The agreement between the petitioner and
respondent no.1 was got singed on 4.2.74 and petitioner paid all the charges. The
possession of the plot was to be handed over to the petitioner within 30 days of the
payment
of
first instalment but
possession
of
the
pot
was
not
handed
over. Petitioner served a legal notice upon respondent no.1 and petitioner was asked
to get the possession of the plot, vide memo No.263 dated 18.4.74 and get the building
plans approved. However, in spite of repeated efforts, no possession of the plot was
delivered to the petitioner. Subsequently, respondent no.1 wrote a letter to the
petitioner stating that the layout plan of the colony is under approval and the possession
will be delivered after the approval is accorded. In March/April, 1995, petitioner came to
know that towards end of 1994, the acquisition of the land was set aside by
the Hon’ble Apex Court. Consequently, representation was given to allot an alternative
plot at the same price but the same was not done. The petitioner who had paid a sum
of Rs.7,877/- out of the total price of the plot amounting to Rs.8,750/- had not received
the possession of the plot despite his best efforts. Therefore, petitioner filed a complaint
praying that respondents be directed to deliver the possession of the plot measuring
250 sq. yards and they be also directed to compensate him regarding increase in the
cost of construction, which occurred due to non delivery of the possession and also
compensate him for the loss of rent for that period. It further prayed for directions to be
given to the respondents to compensate him for mental agony and physical harassment
caused.
3.
The version of respondents is that the complaint is hopelessly time barred. On
merits, it has been stated that the plot could not be delivered to the petitioner since
there was no proper development of the area at that time. Thereafter, a dispute arose
and stay was granted by the Hon’ble High Court. As per respondents, neither the
possession could be delivered nor the amount was refunded to the petitioner because
respondent no.1 was not in a position to refund the same. Subsequently, petitioner was
informed that the case has been lost by respondent no.1 and furthermore there was no
alternative plot and therefore, petitioner was asked to get the refund of money. Thus,
there is no deficiency on the part of respondents.
4.
District Consumer Disputes Redressal Forum, Yamuna Nagar (for short, ‘District
Forum’) vide order dated 25.7.2001, allowed the complaint and passed the following
direction;
“We therefore, direct the respondents to allot an
alternative plot at Yamuna Nagar to the complainant and also to pay
a compensation of Rs.50,000/- due to the escalation in construction
charges, cost of materials and also Rs.2,000/- on account of
litigation charges within one month from the date of this order,
otherwise, penal action under section 27 of the Act will be initiated
against the respondents.”
5.
Aggrieved by the order of District Forum, both parties filed separate appeal before
the State Commission. Appeal No.3766 of 2001 filed by petitioner was for
enhancement, whereas Appeal No.3208 of 2001, filed by respondents was for dismissal
of the complaint.
6.
Vide
impugned
order,
State
Commission
partly
allowed
the
appeal of respondents and dismissed the appeal of petitioner for enhancement
observing as under;
“In view of the foregoing discussion, Appeal No.3208 of
2001 (R.B.T. No.430 of 2008) is partly allowed, the impugned
order is set aside and OPs are directed to refund the amount paid
by the complainant alongwith interest @ 12% per annum from the
date of deposit till actual payment. OPs are also directed to pay
the
complainant
a
sum
of
Rs.5,000/-
as
costs
of
litigation. They are further directed to comply with the directions
within a period of 30 days from the date of receipt of certified copy
of the order. Appeal No.3766 of 2001 (R.B.T. No.986 of 2008) as
well as the complaint are disposed of in the aforesaid terms.”
7.
This is how the matter has reached before this Commission.
8.
Petitioner himself has argued it case and has also filed written arguments,
whereas Shri Sanjay Singh, Advocate on behalf of the respondents has argued the
matter.
9.
It is an admitted fact that, vide allotment letter dated 16.1.1973, petitioner was
allotted Plot No.59 measuring 250 sq. yard, instead of Plot no.103 at the tentative cost
at Rs.35/- per sq. yard and on given terms and interest. Further, Agreement for Sale
dated 4.2.1974, was also executed between the parties with regard to the above noted
plot. Respondent, vide its letter dated 18.4.1974 had asked the petitioner to take
possession
and
present
the
building
plan
so
that
construction
can
be
started. Thereafter, vide its letter dated 31.3.1975, respondent informed the petitioner
that plot in Phase-1 of Sarojini Colony had been demarcated and same can be
inspected
and
petitioner
was
asked
to
take
physical
possession
on
13.4.1975. Thereafter, respondent informed petitioner, vide letter dated 1.5.1979 that
the lay out plan of Sarojini Colony has been sent for permission for important changes
and acceptance of District Town Planner and possession will be handed over after
receiving the same. It appears that thereafter till date, possession of the pot in question
has not been handed over to the petitioner.
10
Since, possession of the plot was not handed over to the petitioner, he filed a
complaint before the District Forum which was allowed in his favour. However, State
Commission modified the order of the District Forum on the ground that since
possession of the plot in question could not be handed over to the petitioner due to the
litigation pending in the High Court, the order passed by District Forum with regard to
allotment of plot was set aside by the State Commission.
11.
As per record of the present revision petition, respondent has not filed the copy
of the petition as well as order passed by the High court.
12.
Be that as it may, at the time of admission of the present petition,
this Commission passed the following order;
“Dated the 20th day of February, 2009
ORDER
Learned counsel for petitioner seeks time to file affidavit within a period of
four weeks stating that subsequent to the reversion of the land to the owner in
compliance with the verdict of the High Court, Yamunanagar Improvement Trust
has allotted plots to a large number of applicants disregarding the claim of the
petitioner. Prayer granted.
Stand
over
to
23.3.2009.
Sd/
…..…………………………J
PRESIDING MEMBER
Sd/
…..…………………………
MEMBER”
13.
Accordingly, petitioner filed his affidavit dated 19.3.2009, stating as under;
“1. That the allottees of the disputed plot were given the alternative plots
in lieu of the original allotted plots and thereafter physical possession
was also givenalongwith the allotment letter. Some of allotment
letters are dt. 8.10.01 and 9.3.02 whose true photocopies are
annexed as Annexure A-26 and A-27 and their true English
translation are annexed as A-26A and A-27A and the possession
letter as A-28.
2.
That
the
opp.
parties
have
wrongly
stated
that
there
was no alternative plot available with them.”
14.
As per Annexures A-26A and 27A, these are copies of the letter of allotment
dated
8.10.2001/9.3.2002, allotted
to Shri Ved Prakash Ahuja and Shri Mulakh Raj Malla, respectively, allotting alternative
plot to them in Sarojini Colony.
15.
Thereafter, on 9.7.2009 this Commission inter alia ordered;
“Though some affidavits were put on record by the
Ld. counsel for the petitioner to impress us that similarly situated
persons whose lands were reverted back to the original owners in
the light of the directions contained in the order of Hon’ble High
Court. We are not satisfied with the affidavit put on record for which
learned counsel seeks short adjournment to file another affidavit.
Fresh affidavit be filed well in advance before the scheduled date
with a copy to the learned counsel for the respondent to enable him
to go through the affidavit and to do the needful in the matter.”
16. On 4.8.2009, petitioner appeared in person before this Commission and stated
that he is not in a position to file the proper affidavit. So, following order was passed on
4.8.2009;
“Petitioner in person and also Ld. Counsel for respondent
present. Petitioner states that he is not in a position to file proper
affidavit as directed by the Commission as Ld. Counsel has
withdrawn from the proceedings and all necessary papers are
with him. On our asking as to whether he requires assistance of
any other counsel to be appointed by this Commission, he shows
reluctance. We on consideration of the affidavit put on record
direct Ld. Counsel for respondent to verify from record about
allotment of plot these persons under the said Schemes and also
to file affidavit alongwith their reply.”
17. Thereafter, respondent filed affidavit dated 25.10.2010 of Shri Devender Kaushik,
SDO (Civil), Chairman, Improvement Trust, Yamuna Nagar, Haryana, stating interalia;
“5. That it is most respectfully submitted that in reply to the
affidavit dt. 19.03.2009 filed by the petitioner regarding alternate
allotment of the plot it is submitted that the respondentImprovement Trust has allotted the alternative plot to the
concerned allottee subject to the terms and conditions of reallotment letter and enhancement costs.”
18. As per above affidavit of the respondent, when other allottees have been allotted
alternative plots then why respondent did not allot an alternative plot to the petitioner,
who as per respondent’s own case initially had been allotted a specified plot in the year
1973. Respondent cannot discriminate petitioner’s case with other allottees. Hence,
the order passed by the State Commission cannot be sustained under the law and
same is hereby set aside. Order passed by the District Forum stands restored.
19. Respondents are directed to allot an alternative plot to the petitioner in terms of
order dated 25.7.2001 passed by the District Forum , on the same terms and conditions
on which the initial plot was allotted , vide allotment letter dated 16.11.1973 and as per
agreement dated 4.2.1974 executed between the parties. The alternative plot should be
allotted to the petitioner within three months from today, failing which District Forum
shall initiate proceedings under Section 25/27 of the Consumer Protection Act, 1986,
against the respondent.
20. Now the question which arise for consideration is as to how much costs should be
imposed upon the respondent for causing harassment to the petitioner for over three
decades.
21. It is a well-known fact that Courts across the country are saddled with large
number of cases. Public Sector Undertakings indulgences further burden them. Time
and again, Courts have been expressing their displeasure at the Government/Public
Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a
distant dream. The judiciary is now imposing costs upon Government/Public Sector
Undertaking not only when it pursue cases which can be avoided but also when it forces
the public to do so.
22. Public Sector Undertakings spent more money on contesting cases than the
amount they might have to pay to the claimant. In addition thereto, precious time, effort
and other resources go down the drain in vain. Public Sector Undertakings are possibly
an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also
due to the fact that Public Sector Undertakings though having large number of legal
personnel under their employment, do not examine the cases properly and force poor
litigants to approach the Court.
23. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ
121 (Supreme Court) (CP) has made significant observations which have material
bearing, namely,
“4. It is a matter of concern that such frivolous and unjust litigation by
Governments and statutory authorities are on the increase. Statutory
Authorities exist to discharge statutory functions in public interest. They
should be responsible litigants. They cannot raise frivolous and unjust
objections, nor act in a callous and highhanded manner. They cannot
behave like some private litigants with profiteering motives. Nor can
they resort to unjust enrichment. They are expected to show remorse or
regret when their officers act negligently or in an overbearing
manner. When glaring wrong acts by their officers is brought to their
notice, for which there is no explanation or excuse, the least that is
expected is restitution/restoration to the extent possible with appropriate
compensation. Their harsh attitude in regard to genuine grievances of
the public and their indulgence in unwarranted litigation requires to the
corrected.
5.
This Court has repeatedly expressed the view that the
Governments and statutory authorities should be model or ideal litigants
and should not put forth false, frivolous, vexatious, technical (but unjust)
contentions to obstruct the path of justice. We may refer to some of the
decisions in this behalf.
5.1
In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554,
where this Court extracted with approval, the following statement (from
an earlier decision of the Kerala High Court.):
“The State, under our Constitution, undertakes
economic activities in a vast and widening public sector
and inevitably gets involved in disputes with private
individuals. But it must be remembered that the State is
no ordinary party trying to win a case against one of its
own citizens by hook or by crook; for the State’s interest
is
to
meet
honest
claims,
vindicate
a
substantial defence and never to score a technical point
or overreach a weaker party to avoid a just liability or
secure an unfair advantage, simply because legal
devices provide such an opportunity. The State is a
virtuous litigant and looks with unconcern on immoral
forensic successes so that if on the merits the case is
weak. Government shows a willingness to settle the
dispute regardless of prestige and other lesser
motivations, which move private parties to fight in
Court. The lay-out on litigation costs and execution time
by the State and its agencies is so staggering these days
because of the large amount of litigation in which it is
involved that a positive and wholesome policy of cutting
back on the volume of law suits by the twin methods of
not being tempted into forensic showdowns where a
reasonable adjustment is feasible and ever offering to
extinguish a pending proceeding on just terms, giving the
legal mentors of Government some initiative and authority
in this behalf. I am not indulging in any judicial homily but
only echoing the dynamic national policy on State
litigation evolved at a Conference of Law Ministers of
India way back in 1957.”
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor
V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
“2.
It is high time that Governments and public
authorities adopt the practice of not relying upon technical
pleas for the purpose of defeating legitimate claims of
citizens and do what is fair and just to the citizens. Of
course, if a Government or a public authority takes up a
technical plea, the Court has to decide it and if the plea is
well founded, it has to be upheld by the Court, but what
we feel is that such a plea should not ordinarily be taken
up by a Government or a public authority, unless of
course the claim is not well founded and by reason of
delay in filing it, the evidence for the purpose of resisting
such a claim has become unavailable.”
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory
of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.
“3. The State Government must do what is fair and
just to the citizen and should not, as far as possible,
except in cases where tax or revenue is received or
recovered without protest or where the State
Government would otherwise be irretrievably be
prejudiced, take up a technical plea to defeat the
legitimate and just claim of the citizen.”
6. Unwarranted
litigation
by
Governments
and
statutory
authorities basically stem from the two general baseless assumptions by
their officers. They are:
(i)
All claims against the Government/statutory authorities
should be viewed as illegal and should be resisted and
fought up to the highest Court of the land.
(ii)
If taking a decision on an issued could be avoided, then it
is prudent not to decide the issue and let the aggrieved
party approach the Court andsecure a decision.
The reluctance to take decisions, or tendency to
challenge all orders against them, is not the policy of the
Governments or statutory authorities, but is attributable
to some officers who are responsible for taking decisions
and/or officers-in-charge of litigation. Their reluctance
arises from an instinctive tendency to protect themselves
against any future accusations of wrong decision making,
or worse, of improper motives for any decisionmaking. Unless their insecurity and fear is addressed,
officers will continue to pass on the responsibility of
decision making to Courts and Tribunals. The Central
Government is now attempting to deal with this issue by
formulating realistic and practical norms for defending
cases filed against the Government and for filing appeals
and revisions against adverse decisions, thereby,
eliminating unnecessary litigation. But, it is not sufficient
if the Central Government alone undertakes such an
exercise. The State Governments and the statutory
authorities, who have more litigations than the Central
Government, should also make genuine efforts to
eliminate
unnecessary
litigation. Vexatious
and
unnecessary litigation have been clogging the wheels of
justice, for too long making it difficult for courts and
Tribunals to provide easy and speedy access to justice
tobonafide and needy litigants.
7.
In this case, what is granted by the State Commission is the
minimum relief in the facts and circumstances, that is to direct
allotment of an alternative plot with a nominal compensation of
Rs.5,000/- . But instead of remedying the wrong, by complying with
the decision of the Consumer Fora, the Improvement Trust is trying
to brazen out its illegal act by contending that the allottee should
have protested when it illegally laid the road in his plot. It has
persisted with its unreasonable and unjust stand by indulging in
unnecessary litigation by approaching the National Commission and
then this Court. The Trust should sensitize its officers to serve the
public rather than justify their dictatorial acts. It should avoid such an
unnecessary litigation.”
24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court
observed:
“ Courts of law should be careful enough to see through
such diabolical plans of the judgment debtor to deny the
decree holders the fruits of the decree obtained by
them. These type of errors on the part of the judicial
forum only encourage frivolous and cantankerous
litigations causing law’s delay and bringing bad name to
the judicial system.”
25. Thus, keeping in view the facts and circumstances of the case, present revision
petition is allowed with cost of Rs.25,000/- (Rupees Twenty Five Thousand
only). Respondent is directed to deposit the cost by way of demand in the name of
petitioner with this Commission, within eight weeks from today. The cost shall be paid to
the petitioner only after expiry of period of appeal/revision preferred if any.
26. Meanwhile, respondent shall recover the cost amount from the salaries of the
delinquent officers who had been pursuing this meritless and frivolous litigation with the
sole aim of wasting the public exchequer. Affidavit giving details of the officials from
whose salary the said costs has been recovered, be also filed within eight weeks.
27.
List for compliance on 22.2.2013.
…..…………………………J
(V.B.
GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 530 OF 2011
along with
( I.A. No. 1 of 2011)
( For Stay )
(From the order dated 11.11.2011 in Consumer Complaint No. 113 of 2010 of
the State Commission, Andhra Pradesh )
M/s Sai Arvind Property Developers (Builders)
A Partnership firm having its office
At Ground floor, Jewel Residency,
Teacher’s Colony, East Marredpally
Secunderabad-500026,
Represented by its Managing Partner
Sri Gudimetla Kota Naasimha Rao,
S/o Late Kotilingam,
R/o Flat No. 2-B2, Jagruthi Residency,
Road No. 10, East Marredpally,
Secunderabad-500026.
…… APPELLANT
Versus.
1.
Sri Koduru Subba Reddy
S/o Late Sri K. Venku Reddy,
R/o House No. TI,
Plot No. 85, Varasiddhi, Nivas,
Road No. 11, Film Nagar,
Jubilee Hills, Hyderabad, A.P.
2.
Sri Mamidi Janardhan Reddy( Land Owner-1)
S/o Sri Yadi Reddy,
R/o Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
3,
Smt. Mamidi Parasanna, ( Land Owner-2)
R/o Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
Represented by her Irrecoverable General
Power of Attorney Holder,
Sri Mamidi Janardhan Reddy,
S/o Yadi Reddy,
R/o Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015,
Vide G.P.A. Document No. 57/2006
Dated 03.06.2006 Registered At S. R. O.,
Shamshabad,
Ranga Reddy Distt.
……RESPONDENTS
FIRST APPEAL NO. 531 OF 2011
(From the order dated 11.11.2011 in Consumer Complaint No. 114 of 2010 of
the State Commission, Andhra Pradesh )
M/s Sai Arvind Property Developers (Builders)
A Partnership firm having its office
at Ground floor, Jewel Residency,
Teacher’s Colony, East Marredpally
Secunderabad-500026,
Represented by its Managing Partner
Sri Gudimetla Kota Naasimha Rao,
S/o Late Kotilingam,
R/o Flat No. 2-B2, Jagruthi Residency,
Road No. 10, East Marredpally,
Secunderabad-500026.
Versus.
1.
Sri Burla Ravindra Reddy
S/o Late Sri Balakrishna Reddy,
R/o House at Directors’ Quarters,
…… APPELLANT
Near Kalyan Nagar Junction,
Kalyan Nagar, Hyderbad-500045, A.P.
2.
Sri Mamidi Janardhan Reddy( Land Owner-1)
S/o Sri Yadi Reddy,
R/o Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
3.
Smt. Mamidi Parasanna, ( Land Owner-2)
R/o Plot No. 21, Jupiter Colony,
Tirumalgherry,
Secunderabad-500015.
Represented by her Irrecoverable General
Power of Attorney Holder,
Sri Mamidi Janardhan Reddy,
S/o Yadi Reddy,
R/o Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015,
Vide G.P.A. Document No. 57/2006
Dated 03.06.2006
Registered at S. R. O.,
Shamshabad,
Ranga Reddy Distt.
……RESPONDENTS
FIRST APPEAL NO. 23 OF 2012
along with
(I/A No. 1 of 2012)
(Condonation of Delay)
(From the order dated 11.11.2011 in Consumer Complaint No. 113 of 2010 of
the State Commission, Andhra Pradesh )
Sri Koduru Subba Reddy,
S/o Late Sri K. Venku Reddy,
Aged: 63 years,
R/o House No. TI, Plot No. 85,
Varasiddhi Nivas,
Road No. 11, Film Nagar,
Jubilee Hills, Hyderabad, A.P.
1.
….. Appellant.
Sri Mamidi Janardhan Reddy, ( “ Land Owner-1”)
S/o Sri Yadi Reddy, Aged 44 Years,
Resident of Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
2.
Smt. Mamidi Parasanna, ( Land Owner 2” )
W/o. Sri MamidiJanardhan Reddy,
Aged: 38 years, resident of
Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
Rep. by her Irrecoverable General Power
of Attorney Holder, Sri Mamidi Janardhan Reddy,
S/o Yadi Reddy, Aged: 44 Years,
Resident of Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
Vide G.P.A. Document No. 57/2006 dated 03.06.2006
Registered at S. R. O.,
Shamshabad, Ranga Reddy District.
3.
M/s Sai Arvind Property Developers, (“Builders”)
A Partnership firm having its office at
Ground floor, Jewel Residency, Teacher’ Colony,
East Marredpally,Secunderabad-500026,
Rep. by its Managing Partner
Sri Gudimetla Kota Naasimha Rao,
S/o Late Kotilingam, Aged: 63 years,
Resident of Flat No. 2-B2,
Jagruthi Residency, Road No. 10,
East Marredpally, Secunderabad-500026. …Respondents
FIRST APPEAL NO. 24 OF 2012
along with
(I/A No. 1 of 2012)
(Condonation of Delay)
(From the order dated 11.11.2011 in Consumer Complaint No. 114 of 2010 of
the State Commission, Andhra Pradesh )
Sri Burla Ravindra Reddy,
S/o. Late Sri. Balakrishna Reddy,
Aged : 63 years,
R/o. Directors’ Quarters, Kalyan Nagar,
Hyderbad.
…… Appellant/s
Versus.
1.
Sri Mamidi Janardhan Reddy, ( “ Land Owner-1”)
S/o Sri Yadi Reddy, Aged: 44 Years,
Resident of Plot no. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
2.
Smt. Mamidi Parasanna, ( Land Owner 2” )
W/o. Sri MamidiJanardhan Reddy,
Aged: 38 years, resident of
Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
Rep. by her Irrecoverable General Power
of Attorney Holder,
Sri Mamidi Janardhan Reddy,
S/o Yadi Reddy, Aged: 44 Years,
Resident of Plot No. 21, Jupiter Colony,
Tirumalgherry, Secunderabad-500015.
Vide G.P.A. Document No. 57/2006 dated 03.06.2006
Registered at S. R. O.,
Shamshabad, Ranga Reddy District.
3.
M/s Sai Arvind Property Developers, (“Builders”)
A Partnership firm having its office at
Ground floor, Jewel Residency, Teacher’ Colony,
East Marredpally,Secunderabad-500026,
Rep. by its Managing Partner
Sri Gudimetla Kota Naasimha Rao,
S/o Late Kotilingam, Aged: 63 years,
Resident of Flat No. 2-B2,
Jagruthi Residency, Road No. 10,
East Marredpally, Secunderabad-500026. …Respondents
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER.
For the Appellant (s): Mr. Manish Pitale, Advocate
in F.A. No. (530 & 531 of 2011).
Mr. K. Maruti Rao and Mrs. K. Radha,
Advocates in F.A. No. (23 & 24 of 2012)
For the Respondent(s) : Mr. K. Maruti Rao and Mrs. K. Radha,
Advocates in F.A. No.(530 & 531 of 2011).
Mr. Manish Pitale, Advocate
in F.A. No. (23 & 24 of 2012)
Pronounced on: 07th May, 2012.
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Complaint Cases ( No. 113 and 114 of 2010 ) were filed by complainantsSri Koduru Subba Reddy and Sri Burla Ravindra Reddy, respectively against
builder- M/s Sai Arvind Property Developers(Builders) as well as land-ownersSri Mamidi Janardhan Reddy and Smt. Mamidi Parasanna, respectively on the
allegations that complainants invested about Rs. 35 lakh each, towards
purchase of independent houses costing Rs. 80 lakh each. However, their
dream were shattered due to incompetence of the builder as well as land
owners, since there was deficiency on their part, in completing the houses.
Accordingly, complainants filed complaints before Andhra Pradesh State
Consumer Disputes Redressal Commission, Hyderabad ( for short as ‘ State
Commission’ ).
2.
The complaints were resisted by the builder as well as land owners .
3.
State Commission, vide impugned order dated 11.11.2011, partly allowed
the complaints, and following order was passed;
C.C. No. 113/2010
In the result this complaint is allowed in part directing opposite party No. 3
to refund the amount of Rs. 34,20,000/ paid by the complainant together
with the interest at 9% p.a. from 08.10.2009 together with compensation of
Rs. 10,000/- and costs of Rs. 5,000/-. Case against opposite parties No. 1
and 2 is dismissal as we do not see any deficiency in service on their
behalf as opposite parties are land owners and the complainant did not
establish by way of documentary evidence that they have received
payments with respect to H. No. 297.
C.C. No. 114/2010
For the same reasons as stated in C.C. No. 114/2010, this complaint is
allowed in part directing opposite party No. 3 to refund the amount of Rs.
35,00,000/- paid by the complainant together with the interest at 9% p.a.
from 8.10.2009 together with compensation of Rs. 10,000/- and costs of
Rs. 5,000/-. Case against opposite parties 1 and 2 is dismissed as we do
not see any deficiency in service on their behalf as opposite parties are
land owners and the complainant did not establish by way of any
documentary evidence that they have received payments with respect to H.
No. 296”.
4. Aggrieved by the impugned order, builders filed (First Appeal Nos. 530 and
531of 2011), while complainants filed (First Appeal Nos. 23 and 24 of 2012) for
enhancement.
5.
Along with their appeals, complainants filed applications for condonation
of delay.
6.
Since, there is delay of about 25 days in filing of the appeals, for the
reasons mentioned in the applications, delay stands condoned
7.
It has been contended by learned counsel for the builder that complaints
are not maintainable since complainants themselves have defaulted in making
the payments. Therefore, they derailed the entire project of the builder. The
construction of the houses booked by the complainants and the developments
of the entire work, were inter linked with regular payments, as per agreed
schedule of the payment between the parties. Both complainants committed
default at the very initial stage in respect of the agreement.
8.
Insptie thereof, the builder continued with further stages of construction
in the belief that complainants would make good their default. However, in
order to over come their own defaults, complainants filed the complaints before
the State Commission. 9.
It is further contended that State Commission
completely ignored the fact that it were the complainants, who are defaulters.
Thus. there has been no deficiency on the part of builder.
10. On the other hand, learned counsel for complainants has contended that
builder has failed to complete the constructions as per schedule. No complete
amenities as per agreement executed between the parties were provided.
11. Other contention is that State Commission ought to have granted interest
from the dates of respective payments, that is, with effect from 25.2.2008,
13.03.2008, 4.5.2008, 13.05.2008 and 12.06.2008, instead from 8.10.2009.
Moreover, State Commission ought to have granted interest @ 18% p.a.,
instead of 9% p.a. since complainants arranged the funds from private sources.
12. Lastly, it is contended that only meager compensation of Rs. 10,000/has been granted. As per agreement, construction was to be completed by
13.02.2009 and if there has been delay in handing over the possession of the
houses, then builder had to compensate the complainants @ Rs.10,000/- per
month.
13. The points which arises for consideration are, as to whether there has
been any deficiency in service on the part of the builder and if so, to what relief
the complainants are entitled.
14. Case of complainants is that, after having received major portion of the
amount, builder has failed to complete the construction within the specified
period. Moreover, due to deficient act on the part of the builder, complainants
have been deprived of their houses before the scheduled date.
15.
Builder in its written statement admits that construction work had to
temporarily stopped and he is ready to perform his part of the share. Specific
averments to the effect have been made in Para 14 of the written statement,
which state;
“14. The Opposite Party further states that due to depletion in market and
Telangana Agitation, the real estate business has fallen drastically. So
the Opp. Party No. 3 explained the situation to all the members including
the Complainant and temporarily stopped the work and are waiting for
the restoration of the circumstances. If the performance of a promise
becomes impossible for any reason which the promisor could not prevent,
after the contract is made, the contract becomes void when the act
becomes impossible. At this juncture also the Opp. Party No. 3 is ready to
perform their part of the share on a moral ground and requested all the
members for the accumulation of money along with restoration of
favourable situation ”.
16.
Thus, as per builder own case, there is a delay on his part to complete
the construction of the houses.
17. Further, Clause 4 of the third agreement of sale-cum-construction, Ex. A-7
executed between the parties, reads as under;
“ The Builders ought to have completed the construction of the said house
and delivered possession of the same on or before 13 February, 2009,
with a grace time of three months beyond the said stipulated period of
completion. In the event of delay, on the part of the Builders in constructing
and delivering the possession of the houses, the Builders shall be liable to
pay to the Vendee an amount of Rs. 10,000/- (Rupees Ten Thousand only)
per month as rent. Any such amount to be payable shall be adjusted at the
time fo handing over possession of the House”.
17.
There is nothing on record to show that even till the filing of the
complaints, builder had completed the work of electrification, water supply and
sanitary.
18. State Commission in its impugned order observed;
“ It is an admitted fact that the builder stopped the work due to economic
crises and non receipt of payments from the purchasers, it is also to be
considered that the complainant has paid Rs. 34.20 lakhs way back in
2008 itself but the builder did not progress with the construction. Even Ex.
A9, valuation report, by a chartered engineer states that the construction
cost is only Rs. 22,42,000/-. It is an admitted fact that the complainant
paid an amount of Rs. 34,20,000/- by 12-06-2008 for House No. 297 and
till the date of filing of the complaint i.e. 01.11.2010 as per the
complainant’s affidavit, the opposite parties did not develop the layout and
did not complete construction of the said house. Therefore, we are of the
considered view that there is deficiency in service on behalf of the opposite
party No. 3 builder in receiving payments by 12-06-2008 itself and not
adhering to terms of the agreement with respect to delivery of the
possession of the said house and therefore we are of the considered view
that clause 12 of Ex. A7 agreement dated 08.10.2009, reads as follows:
12. The VENDEE, at any time during this Agreement & prior to
registration reserves his right to withdraw and cancel this
agreement, whereupon all the money received by the Builders
shall be repaid within one month thereof”
20. Since, deficiency in this case on the part of builder is writ large as builder
himself has admitted that construction work had to be stopped and as such
possession could not be handed over to the complainants within time, we do
not find any infirmity and illegality in the impugned order of the State
Commission.
21, Consequently, (Appeals No. 530 and 531 of 2011) filed on behalf of the
builder, are not maintainable and the same are hereby dismissed.
22. Now coming to (Appeals No. 23 and 24 of 2012), filed on behalf of the
complainants, we find nothing wrong with regard to interest as awarded @ 9%
p.a. by the State Commission. We do not find any reason to enhance the
interest rate to18% p.a.
23. However, we hold that builder is liable to pay interest on the amount paid
by the complainants from the dates of respective payments, that is, 25.2.2008,
13.3.2008, 4.5.2008, 13.5.2008 and 12.06.2008 instead from 8.10.2009.
24. As far as amount of compensation is concerned, in view of clause 4 of the
Agreement of Sale-cum-Construction Ex. A7, we are of the view that
complainants are entitled to compensation of Rs. 50,000/- each, instead of Rs.
10,000/-, as awarded by the State Commission.
25. With above modifications ( Appeal Nos. 23 and 24 of 2012) filed on behalf
of the complainants stand allowed.
Final Order:(i)
Appeal Nos. 530 and 531 of 2011, filed on behalf of the builder,
stand dismissed.
(ii)
Appeal Nos. 23 and 24 of 2012, filed on behalf of the
complainants are partly allowed.
No order as to costs.
………………………….J
(V.B.GUPTA)
PRESIDING MEMBER
…………………………..
( VINAY KUMAR)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3851 OF 2012
Alongwith
( I.A. Nos. 1 & 2 of 2012)
(Delay and Stay)
(From order dated 3.11.2011 in Appeal No. 2496 and 2497 of 2011 of Karnataka State
Consumer Disputes Redresdsal Commission, Bangalore)
M/s Agari Enterprises,
through its Proprietor
Sri Agari Raghavendra Rao
Having its office at Shibrikere Post
T. Yedapadavu 575164
Mangalore, Dakshina Kannada.
.
…… Petitioner
Versus
( Appeal No. 2496 of 2011)
1.
Sesappa Saphaliga
aged 41 years
S/o Ramappa Saphaliga
R/at Cordel House Shibrikere Post,
Mangalore Taluk.
…. Respondent No. 1
( Appeal No. 2497 of 2011)
2.
Bhujanga Amin
Aged 65 years
S/o Ramappa Saphaliga
R/at Kuppe Padavu,
Mangalore Taluk.
….. Respondent No. 2
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioners
:
Mr. Anuj Kastelino, Advocate
Pronounced on: 10th December, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Karnataka State Consumer Disputes Redressal Commission, Bangalore(for
short, ‘ State Commission’) vide impugned order dated 3.11.2011,dismissed Appeal
Nos.2496 and 2497 of 2011, filed by the Petitioner/OP. Petitioner ought to have filed
two separate petitions or in the alternative Registry ought to have given two separate
numbers to these petitions. Be that it as may, along with revision petition, an
application seeking condonation of delay of 251 days has also been filed.
2.
Brief facts are that respondents/complainants in both cases are self employed
person who supply fish to canteens and individuals by using Air Conditioned Tempo. In
November, 2010, they purchased a freezer to store fish at their residence and canteen
for Rs.29,500/- from the Petitioner who promised to deliver the freezer within a week.
But on 17.11.2010, Petitioner delivered a bottle cooler alleging it to be a freezer which
could be used for the storage of fish. Petitioner did not hand over the user manual,
warranty card or delivery challan to them. However, respondents took delivery of the
bottle cooler believing it to be a freezer. When they stored daily supply of fish in the
said cooler, the fish got rotten at the end of the day. On very next day, they approached
Petitioner’s show room and complained about the rotting of the fish for which they were
assured by the petitioner to send a service mechanic to check out the problem. After
that, respondents did not use the said cooler to store the fish. In the month of
November, 2010, one service mechanic visited respondents’ house as well as the
canteen and told that the said freezer is not a freezer which is used for storing fish but it
is only a bottle cooler. This amount to unfair trade practice and deficiency of service.
Request made by respondents to replace the bottle cooler and supply the freezer, vent
in vain. Therefore, they filed complaints.
3.
Defence taken up by petitioner in its written statement is that, one Madhava had
purchased two Blue Star Chest Cooler by paying Rs. 58,400/- in cash for which,
petitioner had issued the Cash-memo to him. After purchase, said Madhava requested
petitioner to deliver the chest coolers to the respondents. As such, petitioner issued the
delivery challan in the name of the respondents and delivered the chest/water coolers to
them. After using the said chest cooler for nearly 25 days, respondents came to his
show-room and, made false allegations. Respondents have filed the complaints only to
harass him.
4.
Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore,
(for short, ‘District Forum’) vide order dated 15.7.2011, allowed the complaint and
passed the following order;
“ The complaints are allowed. Opposite Party is directed to refund
Rs.29,500/-(Rupees twenty nine thousand and five hundred only)
to each Complainants along with compensation of Rs.2,000/(Rupees two thousand only) each and litigation expenses of
Rs.2,000/- (Rupees two thousand only) each to the Complainants
within one month from the date of receipt of this order”.
5.
Aggrieved by order of District Forum, respondents filed appeals before the
State Commission, which were dismissed at the admission stage itself.
6.
Hence, this revision.
7.
I have heard learned counsel for the petitioner and gone through the record.
8.
Grounds on which condonation of delay has been sought read as under;
“ a This Revision petition impugns the common final order and
judgment dated 03/11/2011 of the Hon’ble State Commission in
Appeal No.2496/ 2011 and 2497/2011, wherein the Hon’ble State
Commission dismissed the Appeal filed by the petitioner.
b. That the contents of petition are not repeated herein for the sake
and brevity. Hence same may be read as part of the present
application.
c. The petitioner approached the Hon’ble High Court to set aside the
order of the Hon’ble State Commission and the writ petition was
disposed off by the Hon’ble High Court with the finding that the
remedy lies with the Hon’ble National Commission. Hence the
petitioner approached this Hon’ble Commission. That the Petition
was disposed off by the Hon’ble High Court on 21.6.2012 and the
Certified Copy was ready on ____hence the 251 days delay in
filing this petition”.
9.
It is well settled that ‘sufficient cause’ with regard to condonation of delay in each
case, is a question of fact.
10.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation
of delay in question as a matter of right. The proof of a sufficient
cause is a discretionary jurisdiction vested in the Court by S.5. If
sufficient cause is not proved nothing further has to be done; the
application for condonation has to be dismissed on that ground
alone. If sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay. This aspect
of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona
fides may fall for consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause is shown
would naturally be limited only to such facts as the Court may
regard as relevant ”.
11.
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994
Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause should
normally be construed liberally so as to advance substantial
justice but that would be in a case where no negligence or
inaction or want of bona fide is imputable to the applicant. The
discretion to condone the delay is to be exercised judicially i.e.
one of is not to be swayed by sympathy or benevolence”.
12.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, it has
been observed ;
“We hold that in each and every case the Court has to examine whether
delay in filing the special appeal leave petitions stands properly
explained. This is the basic test which needs to be applied. The
true guide is whether the petitioner has acted with reasonable
diligence in the prosecution of his appeal/petition”.
13.
Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to
keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get
defeated if this Court was to entertain highly belated petitions filed
against the orders of the consumer Foras.”
14.
Further, Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd. &
Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd.
(Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed
inter alia, as under;
“ ……We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction”
15. In view of decision in M/s Advance Scientific Equipment Ltd.(supra) High Court
ought not to have entertained the writ petition filed by the petitioner, since petitioner had
an effective alternate remedy available under the Act. Under these Circumstances, the
act of petitioner in approaching a wrong forum, shall not entitle him to have the delay
condoned.
16. Under these circumstances, no sufficient cause is made out for condoning the long
delay of 251 days in filing the present petition. Accordingly, application for condonation
of delay is not maintainable. Consequently, the present revision petition being
hopelessly barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees
Ten Thousand Only).
17.
Petitioner is directed to deposit the cost by way of demand draft in the name of
“Consumer Legal Aid Account” within eight weeks from today.
18. In case, petitioner fails to deposit the cost within the prescribed period, then it
shall also be liable to pay interest @ 9% p.a., till realization.
19.
List on 15.02.2013 for compliance.
……………………………J.
GUPTA)
SSB/
(V.B.
PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3851 OF 2012
Alongwith
( I.A. Nos. 1 & 2 of 2012)
(Delay and Stay)
(From order dated 3.11.2011 in Appeal No. 2496 and 2497 of 2011 of Karnataka State
Consumer Disputes Redresdsal Commission, Bangalore)
M/s Agari Enterprises,
through its Proprietor
Sri Agari Raghavendra Rao
Having its office at Shibrikere Post
T. Yedapadavu 575164
Mangalore, Dakshina Kannada.
.
…… Petitioner
Versus
( Appeal No. 2496 of 2011)
1.
Sesappa Saphaliga
aged 41 years
S/o Ramappa Saphaliga
R/at Cordel House Shibrikere Post,
Mangalore Taluk.
…. Respondent No. 1
( Appeal No. 2497 of 2011)
2.
Bhujanga Amin
Aged 65 years
S/o Ramappa Saphaliga
R/at Kuppe Padavu,
Mangalore Taluk.
….. Respondent No. 2
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioners
:
Mr. Anuj Kastelino, Advocate
Pronounced on: 10th December, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Karnataka State Consumer Disputes Redressal Commission, Bangalore(for
short, ‘ State Commission’) vide impugned order dated 3.11.2011,dismissed Appeal
Nos.2496 and 2497 of 2011, filed by the Petitioner/OP. Petitioner ought to have filed
two separate petitions or in the alternative Registry ought to have given two separate
numbers to these petitions. Be that it as may, along with revision petition, an
application seeking condonation of delay of 251 days has also been filed.
2.
Brief facts are that respondents/complainants in both cases are self employed
person who supply fish to canteens and individuals by using Air Conditioned Tempo. In
November, 2010, they purchased a freezer to store fish at their residence and canteen
for Rs.29,500/- from the Petitioner who promised to deliver the freezer within a week.
But on 17.11.2010, Petitioner delivered a bottle cooler alleging it to be a freezer which
could be used for the storage of fish. Petitioner did not hand over the user manual,
warranty card or delivery challan to them. However, respondents took delivery of the
bottle cooler believing it to be a freezer. When they stored daily supply of fish in the
said cooler, the fish got rotten at the end of the day. On very next day, they approached
Petitioner’s show room and complained about the rotting of the fish for which they were
assured by the petitioner to send a service mechanic to check out the problem. After
that, respondents did not use the said cooler to store the fish. In the month of
November, 2010, one service mechanic visited respondents’ house as well as the
canteen and told that the said freezer is not a freezer which is used for storing fish but it
is only a bottle cooler. This amount to unfair trade practice and deficiency of service.
Request made by respondents to replace the bottle cooler and supply the freezer, vent
in vain. Therefore, they filed complaints.
3.
Defence taken up by petitioner in its written statement is that, one Madhava had
purchased two Blue Star Chest Cooler by paying Rs. 58,400/- in cash for which,
petitioner had issued the Cash-memo to him. After purchase, said Madhava requested
petitioner to deliver the chest coolers to the respondents. As such, petitioner issued the
delivery challan in the name of the respondents and delivered the chest/water coolers to
them. After using the said chest cooler for nearly 25 days, respondents came to his
show-room and, made false allegations. Respondents have filed the complaints only to
harass him.
4.
Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore,
(for short, ‘District Forum’) vide order dated 15.7.2011, allowed the complaint and
passed the following order;
“ The complaints are allowed. Opposite Party is directed to refund
Rs.29,500/-(Rupees twenty nine thousand and five hundred only)
to each Complainants along with compensation of Rs.2,000/(Rupees two thousand only) each and litigation expenses of
Rs.2,000/- (Rupees two thousand only) each to the Complainants
within one month from the date of receipt of this order”.
5.
Aggrieved by order of District Forum, respondents filed appeals before the
State Commission, which were dismissed at the admission stage itself.
6.
Hence, this revision.
7.
I have heard learned counsel for the petitioner and gone through the record.
8.
Grounds on which condonation of delay has been sought read as under;
“ a This Revision petition impugns the common final order and
judgment dated 03/11/2011 of the Hon’ble State Commission in
Appeal No.2496/ 2011 and 2497/2011, wherein the Hon’ble State
Commission dismissed the Appeal filed by the petitioner.
b. That the contents of petition are not repeated herein for the sake
and brevity. Hence same may be read as part of the present
application.
c. The petitioner approached the Hon’ble High Court to set aside the
order of the Hon’ble State Commission and the writ petition was
disposed off by the Hon’ble High Court with the finding that the
remedy lies with the Hon’ble National Commission. Hence the
petitioner approached this Hon’ble Commission. That the Petition
was disposed off by the Hon’ble High Court on 21.6.2012 and the
Certified Copy was ready on ____hence the 251 days delay in
filing this petition”.
9.
It is well settled that ‘sufficient cause’ with regard to condonation of delay in each
case, is a question of fact.
10.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation
of delay in question as a matter of right. The proof of a sufficient
cause is a discretionary jurisdiction vested in the Court by S.5. If
sufficient cause is not proved nothing further has to be done; the
application for condonation has to be dismissed on that ground
alone. If sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay. This aspect
of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona
fides may fall for consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause is shown
would naturally be limited only to such facts as the Court may
regard as relevant ”.
11.
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994
Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause should
normally be construed liberally so as to advance substantial
justice but that would be in a case where no negligence or
inaction or want of bona fide is imputable to the applicant. The
discretion to condone the delay is to be exercised judicially i.e.
one of is not to be swayed by sympathy or benevolence”.
12.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, it has
been observed ;
“We hold that in each and every case the Court has to examine whether
delay in filing the special appeal leave petitions stands properly
explained. This is the basic test which needs to be applied. The
true guide is whether the petitioner has acted with reasonable
diligence in the prosecution of his appeal/petition”.
13.
Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to
keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get
defeated if this Court was to entertain highly belated petitions filed
against the orders of the consumer Foras.”
14.
Further, Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd. &
Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd.
(Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed
inter alia, as under;
“ ……We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction”
15. In view of decision in M/s Advance Scientific Equipment Ltd.(supra) High Court
ought not to have entertained the writ petition filed by the petitioner, since petitioner had
an effective alternate remedy available under the Act. Under these Circumstances, the
act of petitioner in approaching a wrong forum, shall not entitle him to have the delay
condoned.
16. Under these circumstances, no sufficient cause is made out for condoning the long
delay of 251 days in filing the present petition. Accordingly, application for condonation
of delay is not maintainable. Consequently, the present revision petition being
hopelessly barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees
Ten Thousand Only).
17.
Petitioner is directed to deposit the cost by way of demand draft in the name of
“Consumer Legal Aid Account” within eight weeks from today.
18. In case, petitioner fails to deposit the cost within the prescribed period, then it
shall also be liable to pay interest @ 9% p.a., till realization.
19.
List on 15.02.2013 for compliance.
……………………………J.
GUPTA)
SSB/
(V.B.
PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1902 OF 2011
(Against the order dated 16.09.2010 in Appeal No.1297/2006 of the State Commission,
Gujarat)
Standard Chartered Bank
5th Floor, Sakar -3,
Income Tax, Ashram Road
Ahmedabad
……….Petitioner
Versus
Mr. Naran Bhai ShamjiBhai Bhandari
R/o Tarwade, TA Distt. Amreli,
Ahmedabad,
Gujarat
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Ateev K Mathur, Advocate
Mr. Ajay Monga, Advocate
Mr. Devmani Bansal, Advocate
For the Respondent
: Mr. Gunjan Malhotra, Advocate
Mr. Sahil Alvia, Advocate
PRONOUNCED ON: 10.12.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The
present
revision
Bank, Ahemdabad against
petition
the
is
filed
by
original
Standard
Chartered
complainant
Naran Bhai Shamjibhai Bhandari. It is filed against concurrent orders of the Additional
Consumer Disputes Redressal Forum, Ahemdabad in Complaint No.824/2001 and the
order of the State Commission, Gujarat in Appeal No.1297/2006.
2.
In filing the revision petition, there is delay of 156 days, which is sought to be
explained in an application for condonation, filed on behalf of the petitioner. The
knowledge of the impugned order of 16.9.2010, came came to the petitioner on
22.9.2010, when he was admittedly informed about it by his counsel. However, it is
claimed that the certified copy was received from the Commission on 30.12.2010. The
relevant paragraph reads:“That it is submitted that the Petitioner was informed about the
passing of the impugned order by its counsel on 22.09.2010. However,
the copy of the order was not forwarded and the same were stated to
have been applied. The Petitioner continued to follow up with the
counsel and requested to provide the certified copy of the order for filing
the appeal/revision before this Hon’ble Commission. Various mails were
sent by the Petitioner in this regard. Soft copy of the order was provided
to the petitioner on 10.12.2010. It may be noted that since the order was
in vernacular, the Petitioner requested for English translation of the
order. Eventually, on 30.12.2010 the Petitioner received the certified
copy of the order along with related papers of State Commission. Vide
email dated 18.02.2011 the Petitioner sent the mail to the under signed
counsel to share their views.”
3.
The revision petition was filed in this Commission on 26.5.2011, which is nearly
eight months from the date of knowledge as seen from the para cited above. The
application states that this time was spent in getting the documents translated from
Gujarati language to Hindi, consultation with their counsel in Delhi and in obtaining
necessary approvals. We have also perused the copies of correspondence through Email, submitted with the application for delaycondonation. All pertain to the period
between 18.2.2011 and 23.5.2011. This would clearly mean that between 22.9.2010
and 18.2.2011 i.e. for a period of nearly five months, no action was taken to ensure that
the revision petition is filed within the permissible period of 90 days. We therefore, hold
that the delay of 156 days has not been sufficiently explained. The revision petition is
therefore, liable to be dismissed on the ground of delay alone.
4.
Coming to the merit, the case of the Complainant is that his son Rameshbhai had
obtained a credit card from the OP/Bank valid for the period 1.10.2000 to
31.10.2002. The visa card carried a personal accident cover, with risk coverage of Rs.4
lakhs. Rameshbai was killed in car accident and therefore, the father/Complainant, as
his legal heir, sought the benefit under the insurance cover. Despite correspondence,
the claim form was not given to him and therefore a consumer complaint was filed
before the District Forum, claiming relief of Rs.4,95,501, with costs and interest.
5.
As seen from the written statement filed by the OP/revision petitioner, the claim of
the Complainant would lie against Insurance Co. and not against the OP/Bank. It was
admitted that a person holding visa card as on the date of his death in a road accident
would be entitled to receive Rs.4 lakhs under the Free Personal Accident Insurance
Cover. However, it was contended that:“That before the commencement of the services the person has
expired and the expenses of the card are also not paid. Even otherwise
the card holder is bound to send the declaration of assignment duly filled
to the insurance company which has not been complied with. That when
the card is received in the post/courier there is a starter’s pack in which
certain documents are required to be filled and sent to the company and
only then would the facility of the card start. That in the present case the
deceased was yet to become a member of the Bank and had still not
complied with all the requirements for starting the facilities.”
6.
District Forum rejected the contention of the OP holding that:“Considering the objections in writing submitted by the opponent it
is the say of the opponent that even though the visa card was issued,
however till declaration of assignment was not filled in, the deceased
cannot be regarded as their customer. Therefore the question of
payment of any amount does not arise. There is no dispute in respect of
other facts. Opponent have submitted copy of card member rules and
regulations. Behind Annexure-C under the title “Insurance benefit on you
card” there is a request to visa card holder that he must urgently send
declaration of assignment to be helpful in settlement of claim. But if we
read the whole paragraph then on the page behind Annexure-C it is
clearly stated that the card issued only with personal accident benefit and
he is entitled to the amount for an accident on road or in air
travel. Therefore on reading the instruction under “Insurance benefit on
you card” it cannot be said that the benefit commences only after filling of
declaration of assignment. The evidence put before us do not show that
such a condition was put forth by the opponent that the benefit under the
card will not be available unless declaration cum undertaking was filled
in.”
7.
While
dismissing
the
appeal
of
OP/Standard Chattered Bank,
the
State
Commission has observed that the credit card with validity from 1.10.2000 to 30.1.2002
was received by Rameshbai Bhandai. Even in case he has not received the card the
bank would still be liable to pay the insurance amount, as it had already issued the
credit card in his favour.
8.
We have perused the records as submitted by the revision petitioner. This
includes the following additional document filed on 2.4.2012, 27.8.2012 and 28.8.2012
by the petitioner—
“Additional document filed on 02.4.2012
1. Certified Copy of receipt of the District Forum in compliance of the
order
for
Rs.3,61,270/(Rs. Three Lacs Sixty
One
Thousand
TwoHundered Seventy Only) with typed copy.
2.
Copy
of
order
dated
passed
by
Addl.
Consumer
Dispute Redressal Forum at Ahmedabad in Complaint No.824/2001.
3. Copy of order dated 01.12.2001 passed by National Consumer
Disputes Redressal Commission, New Delhi in Revision Petition
No.1902/2011.
Additional document filed on 27.8.2012
1. Order dated 23.07.2012 passed by the Hon’ble National Consumer
Disputes Redressal Commission.
2. Copy of Order dated 08.09.2006 passed by the Hon’ble Additional
Consumer Disputes Redressal Forum, Ahmedabad (in Gujarati)
3. Translated Copy of Order dated 08.09.2006 passed by
the Hon’ble Additional Consumer Disputes Redressal Forum, Ahmedabad
(in English) duly notorised.
4. Proof of service.
Additional document filed on 28.8.2012
1. Order dated 23.07.2012 passed by the Hon’ble National Consumer
Disputes Redressal Commission.
2. Pay order No.00616 dated 27.08.2012 drawn on Standard Chartered
Bank, New Delhi towards cost.”
9.
It was specifically argued by the learned counsel for the revision petitioner that on
the question of claim under the personal accident insurance cover, the Complainant is a
consumer of the insurance company not of the Bank. This contention was raised in the
written response of the OP before the District Forum as also before the State
Commission. The State Commission has observed that the Complainant was unable to
join the insurance company as a party to the complaint for want of information regarding
insurance details of the deceased. It needs to be noted here that there is nothing in the
written submissions of the OP before the District Forum to show that any part of the
arrangement was directly required to be entered into between the deceased and the
Insurance Company. Secondly, in the revision petition the issue is raised once again. It
is claimed that the State Commission should have examined the record placed in this
behalf before it. But, there is no mention of the exact record which was submitted by
the Standard Chatered Bank and ignored by the State Commission. We therefore,
deem it proper to reject this contention at the threshold itself.
10.
In the same manner the revision petition seeks to re-agitate the grounds, which
have been considered and rejected by the fora below without specifically pointing out
the evidence led by the petitioner/Bank and not considered but ignored by the fora. We
therefore, hold that the revision petitioner has completely failed to make out any case
against the impugned order.
11.
Accordingly, the revision petition is dismissed for want of merit as well as on the
ground of limitation. Further, considering the conduct of the revision petitioner, we also
deem it proper to award additional cost of Rs.25,000 (Rupees Twenty Five
Thousand), which shall be paid to the respondent/Complaint within a period of three
months. Failing this, the amount shall carry interest at 9% for the period of delay. The
amount, if any, deposited by the revision petitioner with the District Forum, in
compliance with the order of this Commission made on 22.7.2011, shall be released in
favour of the respondent/Complainant, in part fulfilment of the award made in his favour
by the fora below. No order as to costs.
.………………Sd/-…………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
IA NOS. 1 & 2 OF 2011
(For Stay & C/Delay)
IN
(1)
REVISION PETITION NO. 2338 OF 2011
(From the order dated 08.02.2011 in Appeal No. 624/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Kirankumar Mafatlal Parmar
Aged 21 years,
Occupation – Studying
Address : Palanpur,
District Banaskantha
Gujarat
2.
Gemarbhai Shyamalbhai Patel
Address : Semondra, Taluka Palanpur
District Banaskantha
Gujarat
(2)
.… Respondents
REVISION PETITION NO. 2339 OF 2011
(From the order dated 08.02.2011 in Appeal No. 625/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Rameshbhai N. Parmar
Aged 31 years,
Resident at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
2.
(3)
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. at Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
.… Respondents
REVISION PETITION NO. 2340 OF 2011
(From the order dated 08.02.2011 in Appeal No. 626/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Khemabhai Manabhai Parmar
Aged 47 years,
Occupation – Service
2.
Gautambhai Khemabhai Parmar
Aged : 21 yrs., Occu. : Student
3.
Harshadkumar Khembhai Parmar
Aged : 19 yrs., Occu. : Student
All Resi. at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
4.
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. At Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
(4)
.… Respondents
REVISION PETITION NO. 2341 OF 2011
(From the order dated 08.02.2011 in Appeal No. 627/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
Versus
… Petitioner
1.
Lakshmanbhai N. Parmar
Aged 25 years,
Occupation – Labour
Resident at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
2.
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. At Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
(5)
.… Respondents
REVISION PETITION NO. 2342 OF 2011
(From the order dated 08.02.2011 in Appeal No. 628/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Punjabhai Savabhai Parmar
Aged 58 years, Occupation – Labour
2.
Laljibhai Punjabibhai Parmar
Aged 43 years, Occupation – Labour
Both resident at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
3.
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. At Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
.… Respondents
(6)
REVISION PETITION NO. 2343 OF 2011
(From the order dated 08.02.2011 in Appeal No. 629/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Arvindbhai Ramanbhai Parmar
Aged 40 years, Occupation – Labour
2.
Chiragkumar Arvindbhi Parmar
Aged 17 years, Occupation – Study
Both residing at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
3.
(7)
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. At Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
.… Respondents
REVISION PETITION NO. 2344 OF 2011
(From the order dated 08.02.2011 in Appeal No. 630/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Jaswantbhai Somabhai Alias Khemabhai Parmar
Aged 23 years, Occupation – Labour
Resident at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
2.
(8)
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. at Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
.… Respondents
REVISION PETITION NO. 2345 OF 2011
(From the order dated 08.02.2011 in Appeal No. 631/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Karsanbhai Allias Kishanlal R. Solanki
Aged 38 years, Occupation – Service
2.
Arunaben Karsanbhai Allias Kishanlal R. Solanki
Aged 33 years, Occupation – Labour
Both residing at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
3.
(9)
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. at Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
.… Respondents
REVISION PETITION NO. 2346 OF 2011
(From the order dated 08.02.2011 in Appeal No. 632/2007
of the State Commission, Gujarat)
The Oriental Insurance Co. Ltd.
Divisional Office – Unjha
Gujarat
… Petitioner
Versus
1.
Girishbhai Alia Gautambhai Ratilal Parmar
Aged 29 years, Occupation – Labour
Resident at Behind Eyes Hospital,
Kirtipura, Palanpura
Taluka : Palanpur,
District Banaskantha (Gujarat)
2.
Gemarbhai Shyamalbhai Patel (Chaudhary)
Aged : Adult, Occu. : Business
Resi. at Post : Semondra, Taluka Palanpur
District Banaskantha (Gujarat)
.… Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
For the Respondent(s) :
Mr. Mohan Babu Aggarwal, Advocate
Nemo
Pronounced on : 10th December, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Above noted revision petitions are being disposed of by this common order, since
facts are similar and common question of law is involved in these petitions.
2.
In these petitions, there is challenge to order dated 8.2.2011, passed by State
Consumer
Disputes Redressal Commission,
Ahmedabad
(short,
“State
Commission”). Along with these petitions, applications seeking condonation of delay
has also been filed. However, no period of delay has been mentioned in any application.
3.
Brief facts are that respondent no.1/complainant had gone with his mother and
other relatives on 10.9.2003 in jeep No.GJ-8-D-9113 from Palanpur toAmirgadh. On
the way, Jeep met with an accident. Mother of respondent no.1 died at the spot,
whereas other occupants received injury. The jeep in question is owned by respondent
no.2/OP no.2. It is further stated that jeep in question was insured with petitioner/OP
No.1. The
validity
of
the
said
insurance
policy
was
28.2.2003
to
27.2.2004. Accordingly, complaints seeking compensation were filed before District
Consumer Disputes Redressal Forum, Banaskantha at Palanpu, (for short, ‘District
Forum’).
4.
The complaints were resisted by the petitioner on the ground that vehicle in
question was insured as a private vehicle. In spite of this, there were 17 passengers
travelling in the jeep as hired passengers. Accordingly, the vehicle was being used for
commercial purpose. Thus, heirs of none of the passengers are entitled to any
compensation as per the policy conditions.
5.
District Forum, vide order dated 25.9.2006, allowed the complaints and passed
the following directions ;
“The complainant is entitled to receive the compensation of
Rs.1,00,000/- (one lakh) under head ‘PA to passenger’ from the
opponent no.1. The complainant is also entitled to the additional
compensation of Rs.500/- (five hundred) towards the costs of the
complaint and mental harassment. The opponent no.1 is directed
to deposit the said amount before this Forum within 40 days,
other than this all other demands made by the complainant are
dismissed.
No orders are passed against the opponent no.2.”
6.
Aggrieved by the order of District Forum, petitioner filed appeals before the State
Commission which dismissed the same, vide the impugned order.
7.
This is how these matters have reached before this Commission.
8.
Notice of present petitions was issued to the respondents. Respondent no.2 was
duly served by registered AD post but he did not appear. As such, vide order dated
14.9.2012, respondent no.2 was proceeded ex parte.
9.
Reply to these petitions has been filed on behalf of respondent no.1/complainant.
10.
I have heard learned counsel for the petitioner and have gone through the
records.
11.
In the application for condonation of delay, no period of delay has been mentioned
at all. This speaks about the functioning of
the legal department of
the
Petitioner, However, as per office note, there is delay of 33 days. Grounds on
which condonation of delay has been sought read as under ;
“4.
That the order was passed by the State Commission on
8.2.2011.
5.
That the certified copy received by counsel on
14.3.2011 and thereafter, the counsel intimated the impugned order
to the Co.
6.
That thereafter the official was deputed in the matter and to
collect file etc. in first week of April, 2011.
7.
That after getting files, the opinion was sought which was
received second week of May, 2011.
8.
That the file was sent to Delhi office along with other
connected matter file.
9.
That thereafter the matter was being drafted and filed
before the Hon’ble Commission.
10.
That the delay is not at all intentional or deliberate but due
to the reasons mentioned as aforesaid.”
12.
It is well settled that “sufficient cause” for condoning the dealy in each case, is a
question of fact.
13.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally
be limited only to such facts as the Court may regard as relevant.”
14.
In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court
has observed ;
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
15. Hon’ble Supreme
Court
in “Anshul Aggarwal vs.
New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC)” laid down that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to keep
in mind that the special period of limitation has been prescribed
under the Consumer Protection Act, 1986 for filing appeals and
revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if this Court
was to entertain highly belated petitions filed against the orders of
the consumer Foras.”
16.
Recently, Apex Court in Post Master General and others vs. Living Media India
Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“24. After referring various earlier decisions, taking very lenient view in
condoning the delay, particularly, on the part of the Government and
Government Undertaking, this Court observed as under;
“29. It needs no restatement at our hands that the
object for fixing time-limit for litigation is based on public
policy fixing a lifespan for legal remedy for the purpose of
general welfare. They are meant to see that the parties
do not resort to dilatory tactics but avail their legal
remedies promptly.Salmond in his Jurisprudence states
that the laws come to the assistance of the vigilant and
not of the sleepy.
30. Public interest undoubtedly is a paramount
consideration in exercising the courts' discretion wherever
conferred upon it by the relevant statutes. Pursuing stale
claims and multiplicity of proceedings in no
manner subserves public interest. Prompt and timely
payment of compensation to the landlosers facilitating
their rehabilitation /resettlement is equally an integral part
of public policy. Public interest demands that the State or
the beneficiary of acquisition, as the case may be, should
not be allowed to indulge in any act to unsettle the settled
legal rights accrued in law by resorting to avoidable
litigation unless the claimants are guilty of deriving benefit
to which they are otherwise not entitled, in any fraudulent
manner. One should not forget the basic fact that what is
acquired is not the land but the livelihood of
the landlosers. These public interest parameters ought to
be kept in mind by the courts while exercising the
discretion dealing with the application filed under Section
5 of the Limitation Act. Dragging thelandlosers to courts
of law years after the termination of legal proceedings
would not serve any public interest. Settled rights cannot
be lightly interfered with by condoning inordinate delay
without there being any proper explanation of such delay
on the ground of involvement of public revenue. It serves
no public interest.”
The Court further observed ;
“27. It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the
prescribed period of limitation for taking up the matter by way of
filing a special leave petition in this Court. They cannot claim that
they have a separate period of limitation when the Department was
possessed with competent persons familiar with court proceedings.
In the absence of plausible and acceptable explanation, we are
posing a question why the delay is to be condoned mechanically
merely because the Government or a wing of the Government is a
party before us.
28. Though we are conscious of the fact that in a matter
of condonation of delay when there was no gross negligence or
deliberate inaction or lack of bonafide, a liberal concession has to
be adopted to advance substantial justice, we are of the view that
in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology of
making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bonafide effort, there is no need to accept the usual
explanation that the file was kept pending for several months/years
due to considerable degree of procedural red-tape in the process.
The government departments are under a special obligation to
ensure that they perform their duties with diligence and
commitment. Condonation of delay is an exception and should not
be used as an anticipated benefit for government departments.
The law shelters everyone under the same light and should not be
swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation
offered by the Department for the delay except mentioning of
various dates, according to us, the Department has miserably
failed to give any acceptable and cogent reasons sufficient to
condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go
into the merits of Issues (b) and (c). The question of law raised is
left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are
dismissed on the ground of delay. No order as to costs.”
17.
As per petitioner’s case, certified copy of the impugned order was received by its
counsel on 14.3.2011. Thereafter, official was deputed to collect the file in first week of
April, 2011. After getting the file, opinion was sought, which was received in the
second week of May, 2011. Thereafter, the file was sent to Delhi office.
18.
In application for condonation of delay, no specific date or name of any official has
been mentioned as to which official has received the file and on which date and to
whom thereafter, the file was sent.
19.
Impugned order was passed on 8.2.2011, whereas revision petitions have been
filed only on 11.7.2011. There is no sufficient explanation at all, that after getting the
copy of the order in March, 2011, why over four months period was taken to file these
petitions. No name of the officials who have dealt with the file has been mentioned. Nor
affidavit of any of those officials who had been dealing with the matter, has been filed,
so as to show their bonafides.
20.
It is well settled that “sufficient cause” for condonation of delay in each case, is a
question of fact. Reasons for delay mentioned in the application does not come within
the purview of “sufficient cause”. Observations made by Apex Court in the authoritative
pronouncements discussed above are fully attracted to the facts and circumstances of
the present cases.
21.
Thus, gross negligence, deliberate inaction and lack of bonafides are imputable to
the petitioner. Accordingly, no sufficient grounds are made out for condoning the delay
in filing the present revision petitions. Applications for condonation of delay under
these circumstances are not maintainable and present revisions being barred by
limitation are hereby dismissed.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3148 OF 2012
(Against the order dated 12.05.2011 in First Appeal No.906/2005 of the State
Commission, Haryana)
1. HUDA through its Estate Officer, Sonepat
2. Chief Administrator HUDA Sector 6
Panchkula Haryana
……….Petitioners
Versus
Ramanand Dhaka
Son of Siri Chand,
Resident of village Sewli,
P.O. Jakholi, Tehsil
District Sonepat
Through its Lawful attorney
Pawan Kumar
Pawan Kumar Son of Rattan Lal
Resident of House No.1134,
Sector
14, Sonepat
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. R.S. Badhran, Advocate
PRONOUNCED ON: 11.12.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
The Haryana Urban Development Authority (HUDA) has filed this revision
petition against concurrent orders of the District Forum, Sonepat in Complaint No.180 of
2004 and of Haryana State Consumer Disputes Redressal Commission in First Appeal
No.906 of 2005. The petition has been filed with inordinate delay of 326 days.
2.
The
application
for condonation of
this
delay
categorically
states
that, “The Hon’ble State Commission announced the order on 12.5.2011 and issued the
first copy on 5.7.2011.”
It is therefore surprising that revision petitioner has also simultaneously filed IA No.3 of
2012, praying for exemption from filing of the certified copy of the impugned order on
the ground that it is not readily available with the petitioner. No explanation is offered
why the certified copy of the order received on 5.7.2011 was not available with the
petitioner for filing of the revision petition on 24.8.2012.
3.
From the above, it is also clear that the revision petitioner has taken more than 13
months to file the petition, from the admitted date of receipt of the impugned order. This
delay is sought to be explained in the following words:“That after obtaining the copy the order the case was processed
for taking the decision through various channels/branches of the
petitioner authority i.e. Accounts Branch, and Estate Officer,
HUDA Sonipat. After processing of the said case through concerned
division/branches the matter was referred to the legal branch and
ultimately Legal Branch proposed for filing the revision petition and the
matter was referred to the Administrator and the Administrator approved
the proposal for filing the revision petition and the case back to the Legal
Branch for engagement of counsel and for preparation of the draft
revision petition. The concerned branch engaged the counsel. The
relevant documents were supplied by the concerned branch to the
counsel for the petitioner. The counsel for the petitioner prepared the
draft revision petition after obtaining the relevant documents. The whole
procedure was time consuming and due to that reasons the petitioner
failed to file the revision petition within time.”
4.
Contents of the above para show total lack of details in explaining a huge delay of
326 days. We therefore, have no hesitation in rejecting it and holding that the delay of
326 days has not been sufficiently explained. The revision petition therefore merits
dismissal on the ground of limitation alone.
5.
The matter arises out of allotment of a plot to the Complainant/Respondent by
HUDA/revision petitioner in Sonepat on 6.2.2001. Despite regular payment of price
instalments by the Complainant, the possession was allegedly not handed over. More
importantly, it was alleged by the Complainant that the development works like street
lighting, water supply and sewage system etc. were also not completed. The
Complainant sought allotment of an alternate plot together with interest and
compensation till actual physical possession of the same is given to him.
6.
The District Forum allowed the complaint and directed HUDA to allot an alternative
plot within 30 days. The District Forum also directed the OP not to charge interest or
penalty. The State Commission has dismissed the appeal of HUDA on the grounds of
delay as well as absence of merit in the case. While doing so, the State Commission
has observed:“On merits, there is no force in this appeal. It is the opposite
parties – HUDA who has failed to develop and area and also failed to
deliver the actual physical possession of the plot in question to the
complainant. Moreover the area of the plot No.242/7 allotted to the
complainant was very less than the area as mentioned in the letter of
allotment. It is the appellant- opposite parties who had utilized the
hardened money deposited by the complainant for a long period and as
such the deficiency of service on the part of HUDA- opposite parties has
been established on the record.
Under the facts and circumstances of the case we find no case of
interference in the well reasoned order passed by the District Forum.”
7.
We have heard Mr. R.S.Badhran, Advocate on behalf of the revision petitioner and
perused the records as filed with the petitioner. Learned counsel could not point to any
specific instance of illegality or material irregularity in the impugned order, which could
justify invocation of jurisdiction of this Commission under Section 21 (b) of the
Consumer Protection Act, 1986. An examination of the revision petition itself shows that
grounds of challenge against the impugned order are very vague and non-specific. For
example, in para 3 details of allotment of the plot are given, but in para 4 (g) of the
revision petition, it is stated that both the foras below have failed to consider the fact that
the present dispute does not fall within the definition of ‘consumer dispute’. However,
the petition does not attempt to explain how the Complainant is not a consumer or how
is the complaint excluded from the purview of Consumer Protection Act. We thus have
no hesitation in holding that the revision petitioner has completely failed to make out a
case against the impugned order.
8.
The revision petition is therefore, dismissed on the ground of limitation as well as
merit. A cost of Rs.10,000/- (Rupees Ten Thousand) is awarded in favour of the
Complainant. The order of Haryana State Consumer Disputes Redressal Commission
in First Appeal No.906 of 2005 is confirmed.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1902 OF 2011
(Against the order dated 16.09.2010 in Appeal No.1297/2006 of the State Commission,
Gujarat)
Standard Chartered Bank
5th Floor, Sakar -3,
Income Tax, Ashram Road
……….Petitioner
Ahmedabad
Versus
Mr. Naran Bhai ShamjiBhai Bhandari
R/o Tarwade, TA Distt. Amreli,
Ahmedabad, Gujarat
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Ateev K Mathur, Advocate
Mr. Ajay Monga, Advocate
Mr. Devmani Bansal, Advocate
For the Respondent
: Mr. Gunjan Malhotra, Advocate
Mr. Sahil Alvia, Advocate
PRONOUNCED ON:
ORDER
PER MR.VINAY KUMAR, MEMBER
The
present
revision
Bank, Ahemdabad against
petition
the
is
filed
original
by
Standard
Chartered
complainant Naran Bhai
Shamjibhai Bhandari. It is filed against concurrent orders of the Additional Consumer
Disputes Redressal Forum, Ahemdabad in Complaint No.824/2001 and the order of the
State Commission, Gujarat in Appeal No.1297/2006.
2.
In filing the revision petition, there is delay of 156 days, which is sought to be
explained in an application for condonation, filed on behalf of the petitioner. The
knowledge of the impugned order of 16.9.2010, came came to the petitioner on
22.9.2010, when he was admittedly informed about it by his counsel. However, it is
claimed that the certified copy was received from the Commission on 30.12.2010. The
relevant paragraph reads:“That it is submitted that the Petitioner was informed about the
passing of the impugned order by its counsel on 22.09.2010. However,
the copy of the order was not forwarded and the same were stated to
have been applied. The Petitioner continued to follow up with the
counsel and requested to provide the certified copy of the order for filing
the appeal/revision before this Hon’ble Commission. Various mails were
sent by the Petitioner in this regard. Soft copy of the order was provided
to the petitioner on 10.12.2010. It may be noted that since the order was
in vernacular, the Petitioner requested for English translation of the
order. Eventually, on 30.12.2010 the Petitioner received the certified
copy of the order along with related papers of State Commission. Vide
email dated 18.02.2011 the Petitioner sent the mail to the under signed
counsel to share their views.”
3.
The revision petition was filed in this Commission on 26.5.2011, which is nearly
eight months from the date of knowledge as seen from the para cited above. The
application states that this time was spent in getting the documents translated from
Gujarati language to Hindi, consultation with their counsel in Delhi and in obtaining
necessary approvals. We have also perused the copies of correspondence through Email, submitted with the application for delaycondonation. All pertain to the period
between 18.2.2011 and 23.5.2011. This would clearly mean that between 22.9.2010
and 18.2.2011 i.e. for a period of nearly five months, no action was taken to ensure that
the revision petition is filed within the permissible period of 90 days. We therefore, hold
that the delay of 156 days has not been sufficiently explained. The revision petition is
therefore, liable to be dismissed on the ground of delay alone.
4.
Coming to the merit, the case of the Complainant is that his son Rameshbhai had
obtained a credit card from the OP/Bank valid for the period 1.10.2000 to
31.10.2002. The visa card carried a personal accident cover, with risk coverage of Rs.4
lakhs. Rameshbai was killed in car accident and therefore, the father/Complainant, as
his legal heir, sought the benefit under the insurance cover. Despite correspondence,
the claim form was not given to him and therefore a consumer complaint was filed
before the District Forum, claiming relief of Rs.4,95,501, with costs and interest.
5.
As seen from the written statement filed by the OP/revision petitioner, the claim of
the Complainant would lie against Insurance Co. and not against the OP/Bank. It was
admitted that a person holding visa card as on the date of his death in a road accident
would be entitled to receive Rs.4 lakhs under the Free Personal Accident Insurance
Cover. However, it was contended that:“That before the commencement of the services the person has
expired and the expenses of the card are also not paid. Even otherwise
the card holder is bound to send the declaration of assignment duly filled
to the insurance company which has not been complied with. That when
the card is received in the post/courier there is a starter’s pack in which
certain documents are required to be filled and sent to the company and
only then would the facility of the card start. That in the present case the
deceased was yet to become a member of the Bank and had still not
complied with all the requirements for starting the facilities.”
6.
District Forum rejected the contention of the OP holding that:“Considering the objections in writing submitted by the opponent it
is the say of the opponent that even though the visa card was issued,
however till declaration of assignment was not filled in, the deceased
cannot be regarded as their customer. Therefore the question of
payment of any amount does not arise. There is no dispute in respect of
other facts. Opponent have submitted copy of card member rules and
regulations. Behind Annexure-C under the title “Insurance benefit on you
card” there is a request to visa card holder that he must urgently send
declaration of assignment to be helpful in settlement of claim. But if we
read the whole paragraph then on the page behind Annexure-C it is
clearly stated that the card issued only with personal accident benefit and
he is entitled to the amount for an accident on road or in air
travel. Therefore on reading the instruction under “Insurance benefit on
you card” it cannot be said that the benefit commences only after filling of
declaration of assignment. The evidence put before us do not show that
such a condition was put forth by the opponent that the benefit under the
card will not be available unless declaration cum undertaking was filled
in.”
7.
While
dismissing
the
appeal
of
OP/Standard Chattered Bank,
the
State
Commission has observed that the credit card with validity from 1.10.2000 to 30.1.2002
was received by Rameshbai Bhandai. Even in case he has not received the card the
bank would still be liable to pay the insurance amount, as it had already issued the
credit card in his favour.
8.
We have perused the records as submitted by the revision petitioner. This
includes the following additional document filed on 2.4.2012, 27.8.2012 and 28.8.2012
by the petitioner—
“Additional document filed on 02.4.2012
1. Certified Copy of receipt of the District Forum in compliance of the
order
for
Rs.3,61,270/(Rs. Three Lacs Sixty
One
Thousand
TwoHundered Seventy Only) with typed copy.
2.
Copy
of
order
dated
passed
by
Addl.
Consumer
Dispute Redressal Forum at Ahmedabad in Complaint No.824/2001.
3. Copy of order dated 01.12.2001 passed by National Consumer
Disputes Redressal Commission, New Delhi in Revision Petition
No.1902/2011.
Additional document filed on 27.8.2012
1. Order dated 23.07.2012 passed by the Hon’ble National Consumer
Disputes Redressal Commission.
2. Copy of Order dated 08.09.2006 passed by the Hon’ble Additional
Consumer Disputes Redressal Forum, Ahmedabad (in Gujarati)
3. Translated Copy of Order dated 08.09.2006 passed by
the Hon’ble Additional Consumer Disputes Redressal Forum, Ahmedabad
(in English) duly notorised.
4. Proof of service.
Additional document filed on 28.8.2012
1. Order dated 23.07.2012 passed by the Hon’ble National Consumer
Disputes Redressal Commission.
2. Pay order No.00616 dated 27.08.2012 drawn on Standard Chartered
Bank, New Delhi towards cost.”
9.
It was specifically argued by the learned counsel for the revision petitioner that on
the question of claim under the personal accident insurance cover, the Complainant is a
consumer of the insurance company not of the Bank. This contention was raised in the
written response of the OP before the District Forum as also before the State
Commission. The State Commission has observed that the Complainant was unable to
join the insurance company as a party to the complaint for want of information regarding
insurance details of the deceased. It needs to be noted here that there is nothing in the
written submissions of the OP before the District Forum to show that any part of the
arrangement was directly required to be entered into between the deceased and the
Insurance Company. Secondly, in the revision petition the issue is raised once again. It
is claimed that the State Commission should have examined the record placed in this
behalf before it. But, there is no mention of the exact record which was submitted by
the Standard Chatered Bank and ignored by the State Commission. We therefore,
deem it proper to reject this contention at the threshold itself.
10.
In the same manner the revision petition seeks to re-agitate the grounds, which
have been considered and rejected by the fora below without specifically pointing out
the evidence led by the petitioner/Bank and not considered but ignored by the fora. We
therefore, hold that the revision petitioner has completely failed to make out any case
against the impugned order.
11.
Accordingly, the revision petition is dismissed for want of merit as well as on the
ground of limitation. Further, considering the conduct of the revision petitioner, we also
deem
it
proper
to
Rs.25,000 (Rupees
enhance
Twenty
the
Five
compensation
amount
Thousand), which
from
shall
be
Rs.5000/paid
to
to
the
respondent/Complaint within a period of three months. Failing this, the amount shall
carry interest at 9% for the period of delay. The amount, if any, deposited by the
revision petitioner with the District Forum, in compliance with the order of this
Commission
made
on
22.7.2011,
shall
be
released
in
favour
of
the
respondent/Complainant, in part fulfilment of the award made in his favour by
the fora below. No order as to costs.
.…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
………………………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
(1)
REVISION PETITION NO. 3117 OF 2012
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
Versus
Sameer Saksena
(2)
… Petitioner (s)
… Respondent (s)
REVISION PETITION NO. 3247 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
… Petitioner (s)
Versus
Shalu Sharma & Anr.
… Respondent (s)
(3)
REVISION PETITION NO. 3248 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
… Petitioner (s)
Versus
Bimla Kapoor & Anr.
… Respondent (s)
(4)
REVISION PETITION NO. 3249 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
Versus
Kuldeep Sharma
… Petitioner (s)
… Respondent (s)
-2-
(5)
REVISION PETITION NO. 3250 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
… Petitioner (s)
Versus
Shampa Chakraborty & Anr.
… Respondent (s)
(6)
REVISION PETITION NO. 3251 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
… Petitioner (s)
Versus
Sonu Jain & Anr.
… Respondent (s)
(7)
REVISION PETITION NO. 3252 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
… Petitioner (s)
Versus
Sarita Arora & Anr.
… Respondent (s)
(8)
REVISION PETITION NO. 3253 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
Versus
Amitabh Sehdev
(9)
… Petitioner (s)
… Respondent (s)
REVISION PETITION NO. 3254 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
of the State Commission, Haryana)
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)
Versus
Alka Vishnu
… Petitioner (s)
… Respondent (s)
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner (s)
:
Ms. Vandana Bhatnagar, Advocate
Pronounced on: 12th December, 2012
ORDER
Being aggrieved by common order dated 28.5.2012, passed by Haryana State
Consumer
Disputes Redressal Commission, Panchkula (for
short,
‘State
Commission’),petitioner/opposite party has filed these revision petitions.
2.
Brief facts are that respondents/complainants booked respective flats in Cosmos
Executive Floors, Palam Vihar, Gurgaon. Respondents executed agreement dated
2nd June 2005, with the petitioner. The construction was to be done as per terms,
conditions and specification as per agreement. The possession was to be delivered in
September, 2006. However, permissive possession was given to the respondents. After
taking possession respondents found the changed site plan as against the plan
supplied. Moreover, flats were found to be of sub standard material and not according
to the specifications. There were several deficiencies and flaws in the flats which
caused great harassment, mental agony and financial loss to the respondents. It is
alleged that petitioner has adopted unfair trade practice. Accordingly, respondents
claimed compensation and damages for harassment, mental agony etc. and penalty for
delayed possession.
3.
Petitioner
failed
to
Disputes Reddresal Forum,
file
any
reply
before
Gurgaon
(for
the
District
short,
Consumer
‘District
Forum’). Accordingly, defence of the petitioner was struck off by the District Forum on
14.9.2009.
4.
After hearing the parties and after appraising the material on record, District
Forum, vide order dated 25.5.2011, dismissed the complaints being not maintainable
on the ground of territorial jurisdiction. District Forum gave liberty to the respondents to
fresh complaint in a Competent Court of Jurisdiction.
5.
Respondents challenged the order of District Forum before the State
Commission. Vide its order dated 26.7.2011, State Commission set aside the order of
the District Forum and remanded back the case to the District Forum to re-decide the
same after following due procedure in accordance with law.
6.
Petitioner aggrieved by order dated 26.7.2011, filed (Revision Petitions No.3196-
3230 of 2011) before this Commission.
7.
Since order dated 26.7.2011 was passed by the State Commission without giving
any notice and without hearing the petitioner, this Commission vide its order dated
5.3.2012 set aside that order and accepted the revisions of the petitioner. The matter
was remanded to the State Commission to decide it afresh, in accordance with
law, after giving opportunities to both the parties.
8.
State Commission after hearing the learned counsel for the parties, vide
impugned order set aside the order of the District Forum. It remitted back the cases to
the District Forum, to re-decide it in accordance with law.
9.
Hence, the present revision.
10.
I have heard the learned counsel for the petitioner and gone through the record.
11.
It is contended by learned counsel for the petitioner that once agreement duly
signed as per Clause No.33 of the Floor Buyer’s Agreement, has been executed
between the parties, then the jurisdiction lies with Delhi Courts only. Therefore,
complaints filed by the respondents before the District Forum, Gurgaon are not
maintainable. Further, the registered office of the petitioner is located at Delhi and
petitioner works at New Delhi only. Moreover, petitioner is not having any office or
branch office located at Haryana. Hence, jurisdiction could be conferred only at Delhi
Courts.
12.
The basic question which arises for consideration as to whether Delhi Forum
alone has jurisdiction or respondents could have sought the jurisdiction of District
Forum, Gurgaon, also.
13.
Clause No.33 of the Floor Buyer’s Agreement read as under;
“33. That all disputes or differences arising between the Seller and the
Purchaser in respect of any matter concerning this Flat Buyers
Agreement shall be settled amicably between the parties failing
which the same shall be referred for Arbitration to be adjudicated
by a sole arbitrator, to be appointed by the seller and the venue for
arbitration shall be at New Delhi the language of conducting the
proceedings shall be English. The arbitration shall be held in
accordance with the provisions of Arbitration and Conciliation Act,
1996 or any statutory modification or enactments thereof for the
time being in force. The courts at Delhi/New Delhi alone shall
have jurisdiction to try and adjudicate upon any dispute between
the parties”.
14.
Relevant provision of Consumer Protection Act, 1986 (for short, ‘Act’) which deals
with the Jurisdiction of District Forum is Section 11 of the Act and it states;
“11.
Jurisdiction of the District Forum-(1) Subject to the other
provisions of this Act, the District Forum shall have jurisdiction to
entertain complaints, where the value of the goods or services and the
compensation, if any, claimed [does not exceed rupees twenty lakhs].
(2)
A complaint shall be instituted in a District Forum within the local
limits of whose jurisdiction:(a)
the opposite party or each of the opposite parties, where there
are more than one, at the time of the institution of the complaint,
actually and voluntarily resides or [carries on business or has a
branch office or] personally works for gain, or
(b)
any of the opposite parties, where there are more than one, at
the time of the institution of the complaint, actually and
voluntarily resides, or [carries on business or has a branch
office], or personally works for gain, provided that in such case
either the permission of the District Forum is given, or the
opposite parties who do not reside, or [carry on business or
have a branch office], or personally work for gain, as the case
may be, acquiesce in such institution; or
(c)
15.
the cause of action, wholly or in part, arises."
State Commission in its impugned order observed;
”It is not disputed that immoveable property in question is located at
Gurgaon, therefore, District Forum, Gurgaon cannot throw its liability
upon the Courts at Delhi by taking the shelter of clause No.33 of the
agreement because it is well settled proposition of law that by
mentioning any specific condition in the agreement one party cannot
take the benefit of territorial jurisdiction of the courts of their own
choice when the jurisdiction is otherwise vested in the District Forum
at Gurgaon. Even otherwise, the District Forum has itself given
contradictory findings. On the one side, it has observed that Gurgaon
Forum has no territorial jurisdiction, however, on the other hand it has
shifted the liability upon the Civil Court. Out of two places of territorial
jurisdiction, parties can choose one, but cannot create the jurisdiction
upon a court of their own choice by entering into an agreement, which
otherwise has no jurisdiction.”
16.
Though,
executed
as
per
Clause
no.33
of
the
Floor
Buyer’s
Agreement
between the parties, only Delhi Courts have the jurisdiction. However, the
Floor Buyer’s Agreement, cannot be read in isolation. It has to be read
whole. Other relevant clauses of this agreement are quoted hereunder;
“Clause No.18.
That the Purchaser agrees and undertakes to abide by all
laws, rule and regulations relating to Haryana Apartment
Ownership
Act,
1983
Haryana
Urban
Development
Authority Town & Country Planning Department or any
other statutory provisions as may be made applicable from
time to time on the said land and for any breach thereof the
purchaser shall be solely and exclusively responsible.
39.
That the Purchaser shall abide by all the laws, byelaws,
rules and regulations of Town & Country Planning
Haryana/HUDA/Local bodies or any other concerned
authorities and shall be solely responsible for any breach
thereof.
43.
That the Front & Rear Lawn on Ground Floor shall be the
exclusive property of the Ground Floor Flat Owner(s), while
the top terrace above Second Floor of the building shall be
exclusive property of the Second Floor Owner(s), who shall
have no right to raise construction of any kind whatsoever
without prior approval from the Haryana Govt. of competent
Authority in these portions.
44.
That the house tax shall be payable by the Purchaser for
the said Unit/Flat, to the Haryana Municipal Committee with
effect from the date on which the liability of paying the
house tax is fixed by the authorities for newly constructed
building. However, if the assessment of the property tax is
not made separately for each Unit/Flat and a consolidated
demand is made by the authorities, then in that event each
as
Purchaser shall pay proportionate share to the Seller on the
basis of the area of the Unit/Flat purchased. If however the
said Unit/Flat remains vacant, it shall be the responsibility of
the Purchaser to take action to inform the authorities
concerned in accordance with the provisions of Law and
shall keep the Seller
indemnified for all the charges levied by any authorities on
the Seller.”
17.
Thus, as per above clauses of the agreement, it is manifestly clear that if
respondents have to enforce the agreement, then only Courts at Gurgaon would have
the jurisdiction.
18.
It is well settled principle of law that where a relief is claimed in respect of
compensation for wrong to, immoveable property situated within jurisdiction of different
Courts, the suit may be instituted in any court within the local limits of whose jurisdiction
any portion of the property is situated.
19.
Property
in
these
cases,
that
is,
floors
in
Cosmos
Executive
Floors, Palam Vihar are situated in Gurgaon. Since these floors have been constructed
in Gurgaon only, it clearly shows that petitioner is “working for gain” at Gurgaon only.
20.
Thus, no jurisdiction or legal error has been shown to call for interference in the
exercise of power under section 21 (b) of the Act, since State Commission in its order
has given cogent reasons which does not call for any interference nor it suffer from any
infirmity or revisional exercise of jurisdiction.
21.
Under these circumstances, Gurgaon District Forum has got the jurisdiction to try
the complaints of the respondents. Thus, I do not find any ambiguity or illegality in the
impugned order.
22.
Accordingly, present revision petitions being without any legal basis, are hereby
dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only) each.
23. Petitioner is directed to deposit the total cost of Rs.45,000/- (Rupees Forty Five
Thousand only), by way of demand draft with ‘Consumer Legal Aid Account’ of this
Commission, within eight weeks.
24.
In case, petitioner fails to deposit the aforesaid cost within the prescribed period,
then it shall also be liable to pay interest @ 9% p.a., till realization.
25.
26
Pending application stands disposed of.
List on 22.2.2013 for compliance.
.…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
CONSUMER COMPLAINT NO.196 OF 2012
1. Kumari Femy,
D/o Vinod,
Kunnel House,
Thidanad, P.O. Kottayam,
Minor, represented by her
next friend, Father Vinod
Presently at 16, Frascati Hall,
Sweetmans Avenue,
Blackrock, Co Dublin, Ireland
2. Vinod, Kunnel House,
Thidanad P.O. Kottayam,
Kerala presently at 16,
Frascati hall, Sweetmans Avenue,
Balckrock, Co Dublin, Ireland
3. Bindu
W/o Vinod, Kunnel House,
Thidanad P.O.
Kottayam, Kerala
Presently at 16, Frascati hall,
Sweetmans Avenue, Blackrock,
Co Dublin, Ireland
……….Complainants
Versus
1. Dr. Kavitha. V.K,
Consultant Gynaecologist,
Marian Medical Centre, Arunapuram,
Pala, Kottayam District, Kerala
Also at
Vikas, 17, Neethinagar, Pattathanam,
Kollam, Kerala
2. Dr. Sunny Mathew,
Marian Medical Centre, Arunapuram
Pala, Kottayam District, Kerala
3. Dr. Cyriac Thomas,
Marian Medical Centre, Arunapuram,
Pala, Kottayam District, Kerala
4. Marian Medical Centre, Arunapuram,
Pala, Kottayam District, Kerala
Represented by its Administrator
in Charge, Sr. Bency.
.........Opposite parties
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: Mr. Jojo Jose &
Mr. Sishir Pinaki, Advocates
PRONOUNCED ON: 13.12.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
Consumer Complaint No.196 of 2012 has been filed by three complainants.
Complainant No.1 is a minor child, represented by her father. Complainant Nos.2 and 3
are respectively the father and the mother of the child. The four opposite parties,
against whom this complaint has been filed, are Marian Medical Centre, Kottayam,
Kearla (OP-4) and three of its doctor.
2.
Records produced by the Complainants show that before initiating the present
proceedings, the Complainant No.1 had filed a separate complaint against OP-1 and
OP-4 i.e. the consulting Gynaecologist of Marian Medical Centre and Medical Centre
itself, before District Forum, Kottaym in CC No.113 of 2011. In the proceeding of
21.4.2012, the District Forum considering an interim application filed by the
Complainant, had permitted her to withdraw the complaint with the following orders:“Petitioner represented. Petitioner filed IA 254/12 for withdrawing
the complaint. IA 254/12 allowed vide separate order. Petitioner is
allowed to withdraw complaint with a liberty to file fresh petition before
the proper fora having pecuniary jurisdiction. documents if any filed is to
be retuned to the petitioner as per rules.”
Thereafter, the present complaint has been filed on 18.7.2012.
3.
The matter was taken up on 17.9.2012 and Mr. Jojo Jose, Advocate was heard on
admission of the complaint. The complaint arises out of treatment of the mother of infant
Femy (Complainant -1) by the OPs. She was admitted in Marian Medical Centre on
22.6.2009 and Complainant No.1 was born on 23.6.2009 and on 24.6.2009, she was
discharged. It is alleged that in the course of the delivery per-vagina, the doctor pulled
the head of the baby with excess force due to which brachial plexus of the child was
injured. This resulted in paralysis of the right hand and injury to the right eye. It is also
alleged
that
if
the
concerned
doctor had
performed
this
delivery
through
ceasarian section, the resultant problem to the child could have being avoided.
Therefore, this consumer complaint has been filed, alleging gross negligence on the
part of the doctors.
4.
The Complainants have sought the following reliefs against the OPs jointly and
severely.:“(a) Rs., 25,07,00,000.00 (Rupees Twenty Five Crore and Seven Lakh
only) as damages and future treatment expenses as entitled and claimed
in Paragraphs No.110 to 123 of the Complaint with interest at the rate of
12% PA from the date of Complaint.
(b) Rs.1,00,00,000.00 (Rupees One Crore only) as interim damages for
the expenses already incurred and future treatment expenses.
(c) further interest at the rate of 12% per annum till the date of actual
payment.
(d) Rs. 25,000.00 (Rupees Twelve thousand only) as cost of the legal
notice sent by Complainants through their Counsel to the Opposite
Parties.
(e) Cost of this complaint.
(d) pass any order (s) which this Hon’ble Commission may deem fit in the
interest of justice.”
5.
The fact that the Complainant had first invoked the jurisdiction of the District
Forum, would show that their total claim, under all heads of relief, could not have
exceeded the pecuniary limit of Rs.20 lakhs, laid down for the District Forum under
Section 11 of the Consumer Protection Act, 1986. But, the Complaint petition does not
explain the reasons for withdrawal of the complaint from the District Forum. Nor do the
records contain a copy of the Interim Application, referred to in the order of the District
Forum, in which withdrawal of the complaint was sought.
6.
Learned counsel for the Complainant also failed to explain the reason why the
jurisdiction of the District Forum was invoked in the first place, when, apparently the
perception of the Complainant about the magnitude of the claim against the OPs was
even more than Rs. 26 Crores ! In other words, what has happened in the period of four
months, between withdrawal of the complaint from the District Forum on 21.4.2012 to
filing of the present complaint on 18.7.2012, which can justify an exponential increase in
the claim from say, Rs 20 lakhs to Rs 26 Crores.
7.
The list of documents enclosed with the complaint petition includes a copy of the
legal notice issued on 29.7.2009 to OP-1 and OP-4. The notice informs that after
consultation with several hospitals, they have sought appointment for further treatment
of the child at Christian Medical College, Hospital Vellore. Significantly, the notice also
states that:“In this circumstances doctor Kavitha as well as hospital
authorities were liable to compensate my client’s suffering by giving
medical expenses and also compensation for the disability suffered
to my client’s child.
At present as medical expenses my client had spent
Rs.81,246/- as per bill and about Rs.15,000/- as expenses. End of
this week itself my client is willing to go to Christian Medical
College hospital Velloor. So I humbly request you as an instalment
for bearing medical expenses you my immediately pay Rs.1,00,000/-
to my client before going to the Christian Medical College Hospital
Velloor.”
8.
Thus, admittedly as on 29.7.2009, the medical expenses actually incurred were
only Rs.81,246/-. Therefore, it needs to be understood how the actual and projected
cost of treatment can balloon into a figure of Rs.25.07 crores, by the date of filing of this
complaint i.e.18.7.2012.
9.
Annexure P-22 contains the details of medical bills issued by different hospitals
and drug stores for treatment of the child. A perusal of the same reveals that effort has
been made to inflate the same in different ways. Even a bill of food items consumed in a
restaurant is included. Multiple copies of the same bill are enclosed in an obvious
attempt to increase the volume. When confronted with these, learned counsel for the
Complainant sought time. But, even on the next date of hearing, he had no explanation
to offer.
10.
Even in a case where the allegation of medical negligence is established to the
satisfaction of the concerned consumer forum, the quantum of compensation, payable
to the victim, would need to be determined on the basis of the nature of the injury or
loss. It has to be commensurate with the loss or injury suffered. It cannot be arbitrary,
imaginary or remote to the cause. The law on this subject is well enunciated.
11.
Ratna Ghosh and Anr. Vs. Dr. P.K.Agarwal and Ors. (Civil Appeal No.6409 of
2010 decided on 6.8.2010 by H,ble Supreme Court of India) was a case where the
substantive loss suffered by the complainant was to the tune of Rs.2,19,000/- only but
compensation claimed was much larger and included exemplary damages of Rs.2
Crores. The National Commission held it to be a highly exaggerated claim, made only
to bring the matter within the jurisdiction of the National Commission. The claim was
therefore, not entertained, leaving the Complainant free to seek remedy before an
appropriate forum. This view of the National Commission was upheld by the Hon’ble
Supreme Court, observing—
“In our view, the National Commission did not commit any
error by refusing to entertain the complaint because the appellants
did not produce any tangible material for claiming exemplary
damages of Rs.2 crores. This being the position, the National
Commission rightly observed that the claim had been unreasonable
inflated for bringing the complaint within its jurisdiction.”
12.
Similarly, in Sujata Nath Vs. Popular Nursing Home and others, (Civil Appeal
NO.8642 of 2011 decided on 14.10.2011) the Complainant had made a total claim of
Rs.150 lakhs against the Nursing Home and others. Out of this, Rs.45 lakhs was
claimed towards ‘future expenditure on HIV medication’ and a further sum of Rs.35
lakhs for ‘future medical expenses relating to the progressive failure of the immune
system’. The basis how these figures were arrived at, was not explained. The National
Commission observed that even if the Complainant is able to establish the claim of
negligence and deficiency in service, as alleged, the compensation claimed or which
can be awarded by a Consumer Forum for such negligence or deficiency has to be
commensurate with the loss and injury suffered. It cannot be arbitrary, imaginary or for
a remote cause. The National Commission therefore, ordered that the complaint be
returned to the Complainant for presentation before an appropriate Forum, after making
suitable amendment in the complaint in accordance with law. This view of the National
Commission was upheld by the Hon’ble Supreme Court of India, observing that—
“In the complaint filed by her, the appellant had claimed
compensation of Rs.1,50,00,000/-, but despite an opportunity having
been given by the National Commission, she could not, prima facie,
show how she was entitled to rupees eighty lakhs towards future
medical treatment and rupees fifty lakhs for mental agony and
harassment allegedly caused by the respondents. Therefore, the
National Commission did not commit any error by refusing to
entertain the complaint and rightly returned the same for being filed
before an appropriate forum.”
13.
Considering the material examined above, we have no hesitation in holding that
the prayer made in the complaint petition is highly exaggerated and not borne out by the
material placed on record. Therefore, the complaint petition is dismissed, reserving
liberty to the complainant to seek remedy before an appropriate forum of competent
jurisdiction. Towards that, the time spent in the present proceedings shall be excluded
from determination of the period of limitation. We also deem it proper to clarify that
nothing in this order shall be construed as an expression of opinion on the merit of the
complaint.
.…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
………………………….
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION No. 600 OF 2012
(From the Order dated 30.11.2011 in C.M. No.754/2011 in FA No.1237/2010 of
Haryana State Consumer Disputes Redressal Commission, Panchkula)
Roshan Lal Saroha
S/o Shri Daiya Ram
R/o V. Kiwana, Tehsil Samalkha
District Panipat
Petitioner
Versus
1. The Oriental Insurance Co. Ltd.
Through its Sub Divisional Manager
LIC Building, Near Bus Stand, G.T. Road
Panipat
Respondents
2. The Regional Officer
The Oriental Insurance Co. Ltd.
Jiwan Jyoti Building
Ambala Cantt.
Through its Regional Manager
BEFORE:
HON’BLE MR. SURESH CHANDRA, PRESIDING MEMBER
For the Petitioner
:
Mr. Ankit Sibbal, Advocate
Pronounced on : 13th December, 2012
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner against the order dated
30.11.2011
passed
by
Haryana
Disputes Redressal Commission, Panchkula (‘State
State
Commission’
Consumer
for
impugned order reads as under:“None has come present on behalf of applicant. The civil
miscellaneous application is for recalling/review of the order
dated 14.9.2010. Besides the fact that it is barred by time of
322 days. Even otherwise no review is permissible under the
statute. Case called several times since morning but none
has put in appearance on behalf of applicant. No request or
short).
The
intimation has been received. Therefore, this application is
dismissed in default.”
2.
We have heard Mr. Ankit Sibbal, Advocate, learned counsel for the petitioner
and perused the record placed before us.
3.
It would be seen from the impugned order that the State Commission has
dismissed the M.A. No.754 of 2011 in which the petitioner had requested the State
Commission to recall/review its earlier order dated 14.9.2010 passed in F.A. No.1237 of
2010 filed by the petitioner before the State Commission. Since the Fora below do not
have the power to review their orders under the Consumer Protection Act, 1986, no fault
could be found with the impugned order and the same has to be confirmed and the
revision petition is liable for dismissal. Learned counsel for the petitioner has not been
able to show any provision of law which authorises the State Commission to
review/recall its own order passed under the C.P. Act, 1986.
4.
It may be relevant to mention here that the order dated 14.9.2010 passed in
appeal No.1237 of 2010, against which the review application in question had been filed
by the petitioner and dismissed by the State Commission vide its impugned order, has
not been challenged in the present revision petition. Besides this, it is also seen from
the revision petition and the list of dates filed by the petitioner that F.A. No.1237 of 2010
had been filed by the petitioner before the State Commission against the order dated
29.7.2010 passed by the District Forum by which the complaint filed by the petitioner
had been dismissed. A copy of this order of the District Forum, Panipat is placed on
record. It is interesting and relevant to take note of the observations of the District
Forum made in para 3 of its order while recording the reasons for dismissing the
complaint. The same are reproduced below:“OPs moved an application stating therein that the present
complaint is not maintainable because the earlier
complaint no. 355 of 2009 filed by the complainant was on
the same cause of action and the said complaint was
dismissed by this Forum, vide order dated 29.07.2010. It is
stated that against the said order dated 29.07.2010, the
complainant filed an appeal before the Hon’ble State
Commission on 22.08.2010, which was withdrawn on
14.09.2010. In support of this application, OPs filed copies
of order dated 29.07.2010 passed by this Forum and order
dated 14.09.2010 passed by the Hon’ble State
Commission. After perusal of the above said orders, it is
very much clear that the earlier complaint of the
complainant was dismissed by this Forum being time
barred. Now fresh complaint on the same cause of action
between the same parties involving the same issue is not
maintainable. Counsel for the complainant referred to the
citation AIR 2000 Supreme Court, page 941 titled as
New
India
Assurance
Co.
Ltd.
Vs.
R. Srinivasan in which it is held that “First complaint
dismissed for default of complainant - Second complaint on
same facts and cause of action - Not barred.” The above
citation is not relevant to the facts of the present case. In
the present case, the complaint of the complainant was
finally decided and it was dismissed being time barred. In
view of the above discussion, the present complaint is not
maintainable. Hence, the application filed by OPs is hereby
allowed and consequently, the present complaint is hereby
dismissed with no order as to costs.”
5.
It appears from perusal of these orders that the petitioner has been pursuing his
complaint again and again in spite of its dismissal by the District Forum earlier and
indulging in baseless litigation. In view of this also, the revision petition of the petitioner
would appear to be meritless. In these circumstances, we dismiss the revision petition
at the threshold with cost. The cost is quantified at Rs.2,500/- which the petitioner is
directed to deposit with the ‘Consumer Legal Aid Account’ of NCDRC within a period of
four weeks from the date of receipt of this order.
6.
List for compliance on 15.02.2013 in the category of directions.
……………Sd/-….……………
(SURESH CHANDRA)
PRESIDING MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2833 OF 2012
(Against the order dated 14.03.2012 in First Appeal No.
A/06/2448 of the State Commission, Maharashtra)
The New India Assurance Co. Ltd.,
Having office at 87, M.G. Road, Fort,
Mumbai, Maharashtra
Having its Regional office at
Delhi Regional Office-II,
Level-V, Tower-II, Jeevan Bharti Building,
124, Connaught Circus,
New Delhi- 110001
Through
Manager
its
……….Petitioner
Versus
M/s. Panchsheel Jewelers
Through its Proprietor,
Mr. Sunil Ganesh Mehta
Ruchir Tower, Opp. ICICI Bank,
60 Ft. Road, Bhayander (W),
Tal & Dist. Thane- 401101
Maharashtra
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Pramod Dayal, Advocate
& Mr. Nikunj Dayal, Advocate
PRONOUNCED ON: 14.12.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
The New India Assurance Co. Ltd. has filed this revision petition against
concurrent orders of the District Consumer Disputes Redressal Forum, Thane which
had allowed the complaint of M/s. Panchsheel Jewellers in complaint No.339 of 2004
and of the Maharashtra State Consumer Disputes Redressal Commission dismissing
the appeal of the revision petitioner in FA No.A/06/2448.
2.
The matter, as seen from the case record, arose from an incident of theft, which
took place in the shop premises of the Complainant/respondent on 8.5.2003 during the
lunch hours. Gold ornaments allegedly worth over Rs.21 lakhs and some cash were
stolen. Acting on the FIR lodged in this behalf, the Police recovered ornaments worth
Rs.12,47,300/-. Therefore, as observed by the State Commission, there is no dispute
about the fact of theft.—
“Perused the record and documents tendered by the parties.
There is no dispute regarding theft of jewelry occurred during the lunch
hours. The Police were able to recover only Rs.12,47,000/-. However,
total loss due to theft was valued to Rs.22,93,500/-. The Respondent/
Complainant subscribed to the insurance policy providing insurance
cover to the ornaments in the shop. The policy document covers display
window of the jewelry [included in the total section 1 Sum Insured] and
also provided insurance cover for the jewelry kept elsewhere. Total sum
Insured under the policy is Rs.21,51,000/-. The survey report mentioned
that AC unit had fallen on the floor and on top of it chair has been kept to
entire into the shop with intention to burglary. A big ply had also been
placed behind the AC grill and AC grill had been cut opened so as to get
access for burglary. The survey report is an important piece of document
and cannot be ignored. Therefore, intent of burglary of the jewelry by
breaking open the shop is clearly established form the record. Theft of
jewelry is undisputed fact.”
3.
Yet, the claim of the Complainant for the remaining value of Rs.10,46,500/- was
rejected by the OP/revision petitioner. From a perusal of the records it is evident that
the repudiation of the claim rested solely on the assumption/contention of the
OP/revision petitioner that in this case, for the purposes of the insurance policy,
‘business hours’ did not include the lunch break.
4.
The case of the Complainant, as seen from the complaint petition before the
District Forum was:“The complainant respectfully submits that the business hours of
the complainant are from 10.00 to 10.00 p.m. so also according to normal
business practice lunch hours are the part of working hours of
business. About the gold ornaments kept in the showcase it is not
possible every time, when the shop is closed for lunch time during
business hours, to keep the ornaments again in the locker, unless during
the night time. The ornaments were intact in the shop which were
properly and diligently locked.”
5.
On the other hand, as per the affidavit evidence before the District Forum, the
contention of the OP was:“The opponent vide its reply dated 18.09.2003 had clearly stated
to the complainant that as per the survey report it can be observed that
on 08.05.2003 at 1.30 pm after noon the shop was closed locking the
main gate and the shutter. The gold ornaments displayed in the
showcase were being kept as it is i.e. in the show case and were not kept
back in the locker. The warranty applicable as per the policy states that
warranted that all property including cash currency notes while at the
premises specified in the schedule of the policy shall be secured in the
locked safe of standard make at all time out of business hours. In view of
the above the claim preferred by the complainant falls under exclusion 12
of jewellers block insurance policy and hence the same is not
admissible.”
6.
District Forum rejected the contention of the OP/insurance company that the lunch
hours are to be excluded from the business hours. The State Commission has agreed
with the view taken by the District Forum. Now, the present revision petition has been
filed raising the same contention.
7.
From a perusal of the revision petition, we find that the decision of the State
Commission has been challenged on the ground that the terms of the policy have to be
strictly construed and no exception or relaxation can be made while interpreting the
same. In support, the revision petitioner has citied rulings of Hon’ble Supreme Court in
the following cases:“Deokar Export (P) Ltd. Vs. New India Assurance Co. Ltd., (2008) 14
S.C.C. 598,
Polymat India (P) Ltd. Vs. National Insurance Co. Ltd., (2005) 9
S.C.C. 174
Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance
Co. Ltd., (2010) 10 S.C.C. 567.”
8.
The law as laid down by the Apex Court is very clear. In the present case, as in
any other case, the terms of the policy need to be strictly construed. However, the
problem arises from the interpretation given by the revision petitioner to the same. We
have heard the counsel for the revision petitioner/New India Assurance Company, who
forcefully argued that under the terms of the policy all property, including cash at the
scheduled premises, should necessarily be secured in locked safe, at all times out of
business hours. Loss or damage to property in window display after business hours is
not covered.
9.
It was further argued that during lunch time, if the shop is kept open for attending
to customers and if the staff go out for lunch by turns, then the jewellery need not be
shifted into the safe. But in the present case, considering the duration for which the
shop was closed for lunch hours, the jewelery should have been shifted into the safe. A
similar argument is raised in the revision petition also. However, neither the revision
petition nor the counsel point to any provision in the policy, which would permit such an
interpretation of the lunch hours. In its absence, their argument amounts to bringing a
stipulation into the policy which is not expressly contained in it. We therefore, have no
hesitation in rejecting this contention of the revision petitioner.
10.
For the details examined above, we do not find any merit in this revision petition. It
is therefore dismissed for want of merit. No Orders as to costs.
.…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
………………………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3311 OF 2012
(Against the order dated 31.05.2012 in First Appeal No.1681/2011of the State
Commission, Haryana)
M/s. Puran Murti Education Society
Village Kami,
Tehsil & District Sonepat,
Haryana
Through its cashier:
Bhopal
Singh
……….Petitioner
Versus
S.D.O. (O.P.)
Sub Division UHBVNL,
Muthal Office,
Near Sector- 15,
Sonepat,
Haryana
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Dinesh Malik, Advocate
Mr. Manish Malik, Advocate
PRONOUNCED ON: 14.12.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The Puran Murti Education Society, Sonepat Haryana has filed this revision
petition against the order of the Haryana State Consumer Disputes Redressal
Commission in FA No.1681 of 2011. The State Commission has set aside the relief
granted to the Complainant /revision petitioner by the District Forum, Sonepat and
allowed the appeal of the S.D.O. OP Sub-Division UHBVNL on the sole ground that the
Complainant is not a consumer. The relevant para in the order reads:“At the very outset the question for consideration before us is whether
the complainant falls under the definition of “consumer” or not as defined in
Section 2 (1) (d) of the Consumer Protection Act, 1986 which is reproduced
as under:“2(1) (d)
“Consumer means any person who(i)
buys any goods for a consideration which has been paid or
promised or partly paid and partly promised, or under any
system of deferred payment and includes any user of such
goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment, when
such use is made with the approval of such person, but does
not include a person who obtains such goods for resale or for
any commercial purpose; or
(ii)
[hires or avails ] of] any services for a consideration which
has been paid or promised or partly paid and partly promised,
or under any system of deferred payment and includes any
beneficiary of such services other than the person who [hires
or avails of] the services for consideration paid or promised or
partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the
approval of the first mentioned person [but does not include a
person who avails of such services for any commercial
purpose] [Explanation- For the purposes of this clause,
“commercial purpose” does not include use by a person of
goods bought and used by him and services availed by him
exclusively for the purpose of earning his livelihood by means
of self-employment]”
Undisputedly, the electricity connection bearing A/c No.MM21-004-A
is a non domestic connection which was installed at the business premises
of the complainant i.e. Education Society wherein the electricity was being
used by the complainant for commercial purposes. The complainant has
failed to lead any evidence to prove the he was running the said education
society for earning his livelihood. Thus, as per the provision of Section
2(1)(d) of the Act 1986, the complainant does not fall within the definition of
“Consumer.”
2.
On this limited issue, whether the petitioner/Complainant is a consumer or not, the
revision petition contends that—
“c. That
the Hon’ble State
Consumer
Disputes Redressal Commission Haryana, Panchkula was failed to
appreciate
that
the
complainant
institution
is
an
Education Soeciety and is imparting education to the students and
the complainant is not using the electricity energy for making any
product or item for selling the same in the open market. Rather the
complainant is using the electricity connection for the benefit of
students by providing them all the electricity facilities.
D.
That
the Hon’ble State
Consumer
Disputes Redressal Commission Haryana, Panchkula was failed to
appreciate that the motive of the petitioner was of social cause i.e.
benevolent and hence is not for commercial purpose.
E.
That
the Hon’ble State
Consumer
Disputes Redressal Commission Haryana, Panchkula was failed to
appreciate that even if it is accepted that the user was not domestic,
it may be non-domestic. But it does not automatically become
“commercial”. The words “non-domestic” and “commercial” are not
interchangeable.”
3.
We have considered this contention of the revision petitioner with reference to the
record submitted before us and the arguments of Mr. Dinesh Malik, counsel for the
petitioner.
4.
At the outset, it needs to be observed that the stand of the Complainant itself, in
the petition filed before the District Forum, was that “the said Society is running an
Engineering College with the name and style of P.M. College of Engineering and
Polytechnic in the area of vill. Kami Teh & Distt Sonepat. The said Society has taken
one N.D.S. Electricity Connection in the above said college premises bearing a/c
no.MM21-0004-A and they have been making payment of the consumption bills of the
said connection to the respondent-Nigam regularly and without any default and nothing
is due of the Nigam towards the complainant-society.”
5.
Admittedly, therefore, the power connection in question is a non-domestic one. It
is taken and utilized for the purposes of running a private Engineering College. As cited
above, the revision petitioner has contended that ‘non-domestic’ does not automatically
become ‘commercial’ and that the motive of the petitioner is benevolent, for a social
cause, not for making products and selling them in the market. However, no evidence
is placed on record to show that the college is being run for pure philanthropy. We do
not find anything either in the contentions raised on behalf of the petitioner or in the
evidence placed on record that the College is being run for a charitable purpose. On
the contrary, when directly confronted on this point, learned counsel for the revision
petitioner conceded that the College is not providing free of cost education. We
therefore, find no merit in the argument advance on behalf of the revision petitioner.
6.
Consequently, the revision petition fails for want of merit and is dismissed. The
order of Haryana State Consumer Disputes Redressal Commission in First Appeal
No.1681 of 2011 is confirmed with no order as to costs.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY
KUMAR)
MEMBE
R
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
Revision Petition No. 3994 OF 2012
(from the order dated 20.07.2012 of the Andhra Pradesh State Consumer
Disputes Redressal Commission, Hyderabad in First Appeal no. 683 of 2011)
Mr Jajula Veeranjaneyulu
Son of Shri J Gandhi Veeraiah
Opp: to Old Police Station
Karempudi Post & Mandal
Petitioner
Guntur District
Andhra Pradesh
versus
State Bank of India
Represented by its Branch Manager
Karempudi Post & Mandal
Respondent
Guntur District
Andhra Pradesh
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR
For the Petitioner
MEMBER
Mr P Prabhakar, Advocate
Pronounced on 22nd November 2012
ORDER
JUSTICE J M MALIK, PRESIDING MEMBER
1.
The
whole
controversy
centres
around
the
question
whether Jajula Veeranjaneyulu complainant/petitioner had withdrawn a sum
of Rs.1,50,000/- from the Bank ?
2.
The complainant/petitioner had opened a Savings Bank Account with
the State Bank of India the opposite party/ respondent under savings bank
account no. 11509282941 on 08.12.2008. The complainant was having a
credit balance of Rs.1,87,530.12 paise in his account. Thereafter on enquiry
it transpired that an amount of Rs.1,50,000/- was transferred from his
account to another account bearing no. 030344251858 which is the joint
account of Mr. K S M Prasad, (who committed suicide on 08.01.2009),
cashier’s wife and her brother at Guntur, Andhra Pradesh. The grouse of the
complainant/petitioner is that he never authorised any person much less the
opposite party/respondent to transfer the amount from his account. He also
lodged a complaint on 19.01.2009 in this context. However, the opposite
party/respondent
insisted
that
the
amount
was
withdrawn
by
the
complainant/petitioner himself and not by somebody else.
3.
Ultimately, the complainant filed a complaint before the District Forum.
The District Forum allowed the complaint and directed the opposite
party/respondent to pay Rs.1,50,000/- together with interest as applicable
in the case of savings banks account from time to time. It also awarded
Rs.5,000/- towards compensation and Rs.1,000/- towards costs.
4.
Aggrieved by that order, the State Bank of India preferred an appeal
before the State Commission. The State Commission allowed the appeal and
dismissed the complaint. Aggrieved by the order of the State Commission
the complainant/petitioner filed the present revision petition.
5.
We have heard the learned counsel for the petitioner. He vehemently
argued that the petitioner never authorised any person to withdraw the said
amount. He argued that the deficiency of the petitioner stands proved and
therefore, the order passed by the District Forum should be restored. He
pointed out that Mr Suresh Kumar, Chief Manager of the State Bank of India
was appointed as an Inquiry Officer (in short, ‘the IO’) and after receipt of
the complaint filed by the complainant, the IO came to the conclusion that
the above transactions with regard to withdrawal of the amount he was
unable to give his opinion whether the said transaction was genuine or not.
6.
The record also goes to show that the OP/petitioner sent all the
withdrawal forms together with the account opening form and the complaint
dated 19.01.2009 of the complainant to the examiner of Questioned
Documents, Government of India, Hyderabad. The Government expert came
to the conclusion that the signature of the withdrawal forms and account
opening form and the letter dated 19.01.2009 were signed by the one and
the same person, i.e., the complainant himself. Due to this signature, the
amount of Rs.1,50,000/- was withdrawn from his account.
7.
This piece of evidence towers upon the rest. It is pertinent to note that
the complainant did not produce any evidence in rebuttal and no expert
evidence from the side of the complainant saw the light of the day In view of
this solid and unflappable evidence the case of the complainant pales into
insignificance. The case of the OP/respondent is supported by cogent and
plausible evidence. The order passed by the State Commission suffers from
no flaw.
8.
It is thus clear that the petitioner has no bone to pluck with the
respondent. The revision petition is ill founded and therefore dismissed at
the time of admission.
Sd/…………………………………….
[ J. M. Malik, J]
Presiding Member
Sd/……………………………………….
[ Vinay Kumar ]
Member
Satish