NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 1953 of 2011
(From the order dated 28.01.2011 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai in Appeal no. 1430 of 2009)
Kishore Shriram Sathe Resident of 7 Anand Apartments Shridhar Nagar, Chinchwad Pune –
411003
Petitioner
Versus
Mr Vivek Gajanan Joshi Resident of 6 Hindu Middle Class Society Opp. Apple Road, Deccan
Gymkhana Pune – 411004
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Ajay Vikram Singh, Advocate
Pronounced on 1st October, 2013
ORDER
REKHA GUPTA
Revision petition no. 1953 of 2011 has been filed against the judgment and order dated
28.01.2011 passed by the Maharashtra State Consumer DisputesRedressal Commission, Mumbai
(“the State Commission’) whereby allowed the first appeal no. A/09/1430.
The facts of the case as per the petitioner/complainant are that on or about 15.03.1988 the
respondent/ opposite party offered to sell the residential flat in a building named as Bhagirathi
Apartments situated at S.No. 272, plot no. 13, Chinchwad Taluka, Haveli, District Pune.
The petitioner was desirous to purchase a flat for residential purpose. The petitioner on
knowing about the construction of a building named ‘Bhagirathi Apartments’ approached the
respondent on or about 15.03.1988 with a view to purchase a residential flat in the above said
building.
On knowing the intention of the petitioner to purchase the residential flat, the respondent
offered
to
sell
flat
no.
7
situated
on
2nd floor
of
building
Bhagirathi
Apartments, Shridharnagar, Chinchwad, Pune 411 033.
The petitioner and the respondent made and executed an agreement dated 07.04.1998,
registered in the office of Joint Sub-Registrar, Haveli no. 2, Pune at S No. 5294. By the said
agreement the respondent agreed to sell and the petitioner agreed to purchase the said flat for a
total consideration of Rs.1,68,500/-. The respondent by the said agreement assured to give
possession of the said flat on or before 31.10.1988. The petitioner has paid to the respondent
Rs.1,40,000/- towards part payment as demanded from time to time.
Even after the stipulated date of possession respondent failed to construct the building
wherein residential flat was promised to be allotted to the petitioner.
Therefore, the petitioner on various occasions persistently made demands orally and in
writing either to give the possession of the flat or refund the amount received from the petitioner.
The respondent on every such occasion gave false assurance to refund the amount of
consideration of Rs.1,40,000/- along with the interest as agreed by the said agreement.
The respondent sent letters dated 24.01.1992, 10.03.1992 assuring the petitioner that certain
steps shall be taken whereby the petitioner need not suffer and worry. However, again the
respondent did not act as per his assurances.
The petitioner therefore recently sent letter dated 01.02.2005 to the respondent demanding
refund of said Rs.1,40,000/- along with interest and compensation. The respondent received said
letter on 04.02.2005 and showed his willingness before Mr Mehendall, the member of All India
ConsumerPanchayat, Pune, to refund the entire amount with interest @ 15% per annum and
compensation within 15 days. However, this time also the promise of respondent proved to be
false one.
Thus the respondent has wilfully failed and neglected to refund the amount of part
consideration of Rs.1,40,000/- received from the petitioner or to give possession of said flat till
date.
The cause of action to file this complaint first arose on 31.01.1988 when the respondent
failed to give possession of the said flat and thereafter on various occasions from time to time in
spite of his promises. The respondent on or about 04.02.2005 again promised to refund the said
due amount to the petitioner but did not do so. The cause of action is of continuing nature and
therefore this complaint is within limitation period. Relaying on the various assurances of
possession of said flat or refund of said amount given by the respondent the petitioner did not file
the complaint till date.
It is, therefore, kindly prayed that the respondent be ordered to:
(a)
To refund to the petitioner Rs.1,40,000/- along with interest @ 18% from the date of
payment till its realisation;
(b)
To pay Rs.2,00,000/- to the petitioner towards compensation for mental agony,
inconvenience to the petitioner and his family members, physical discomfort, loss of
benefit of rebate under Income Tax Act, interest paid litigation expenses, stamp duty,
registration fees etc.
(c)
Any other order in the interest of justice be kindly passed.
In their written version filed by the respondent/ opposite party has stated that the
respondent has completed construction of building and it was ready for giving possession.
However, the petitioner did not pay the balance amount. Therefore, it was not possible to give
possession to the petitioner. In spite of various intimations the petitioner avoided making
payment and delayed to take possession and in the meantime dispute arose between respondent
and land owner. Therefore, the respondent failed to give possession of said flat to the petitioner.
M/s Sayali Builders was a partnership firm. The respondent was a partner of said firm
and other partner was Mr Eknath Daguji Nikam. A land situated at S No. 272, Plot no. 13,
admeasuring 433 sq, mtr. Out of total 586 sq mtrs., was owned by Mr Eknath Daguji Nikam and
others. Mr Eknath Daguji Nikam and others transferred the development rights in the said land to
M/s Sayali Builders vide Development Agreement dated 25.02.1987 and the land owner of said
land MrEknath Daguji Nikam was himself a partner of the said partnership firm. The land
owners of said land gave power of attorney to the opposite party and EknathNikam for
development of said land and to act as per the Development Agreement. In pursuance to the said
power of attorney M/s Sayali Builders developed the said property and constructed 7 residential
flats and 3 commercial units. Meantime, petitioner was in need of a flat therefore he contacted
the respondent and agreed to purchase flat no. 7 for Rs.1,68,500/-. Accordingly,
M/s Sayali Builders executed and registered an agreement dated 07.04.1988 and agreed to give
possession upto 31.01.1988. When the construction of said building was being completed
M/s Sayali Builders informed the petitioner to take the possession after making balance payment.
However, the petitioner avoided to pay the amount and to take possession of said flat. Meantime,
dispute arose between M/sSayali Builders and said land’s original owner Nikam family
therefore, the land owners created a dispute by cancelling the development agreement and power
of attorney on 25.09.1989 and said land owners illegally took possession of the said building and
flat no. 7 which had been allotted to the petitioner. The respondent informed about it to the
petitioner by meeting him personally and by sending letter and informed that respondent is trying
to give possession of the said flat to the petitioner. Meantime, the respondent suggested to the
petitioner to take possession of the said flat from Civil Court. However, the petitioner did not file
any suit in the civil court till date.
The petitioner M/s Sayali Builders on 07.04.1988 made and executed an agreement.
However, the petitioner was required to file a complaint in consumer forum within limitation
period. Petitioner did not file a complaint within the limitation period. Hence, it is time barred.
Also petitioner executed agreement with M/s Sayali Builders, however, it is not made a party to
the complaint. Therefore, there is bar to the complaint. Therefore, the complaint deserves to be
dismissed.
The petitioner had filed the present complaint which came to be disposed of by the
District Consumer Redressal Forum, Pune (“the District Forum”) on 23.10.2008. An order came
to be passed directing the opponent to pay an amount of Rs.1,40,000/- together with interest @
12% per annum. The rest of the claims made by the petitioner were rejected. The aggrieved
opponent had preferred the first appeal before the State Commission. It came to be allowed by
the order dated 21/04/2009 passed by the State Commission. The main order passed in the
complaint was set aside. The record and proceeding was remitted to have the District Forum with
the directions to hear the petitioner/ complainant afresh after giving opportunity to both the
parties and to settle the dispute in accordance with law. It is under the aforesaid circumstances
the District Forum dealt with the complaint afresh.
The District Forum vide order dated 03.11.2009 observed that:
“Before the Hon’ble State Commission, it appears that plea of limitation was again
raised by the aggrieved opponent. In addition to that another plea was raised that the
complaint is not maintainable against the opponent. It is pointed out that the name of the
opponent is given as a partner of SayliBuilder. The later Firm is not impleaded as
opponent. Consequently therefore the failure to implead the Firm is fatal and therefore
on account of non joinder of the parties the complaint was liable to be dismissed. On the
aforesaid findings the Hon’ble State Commission was pleased to remand the complaint to
this Forum for disposal in accordance with law, afresh.
On behalf of the opponent the aforesaid plea of non-joinder of the Firm was again raised
before the Forum. It is not in dispute that the plea of limitation is again reiterated by the
opponent. Shri. Joshi the learned Advocate who appeared on behalf of the opponent has
urged before us that there are two technical pleas in the present case. Both of them go to
the very root of the matter. They deal with the maintainability of the complaint. One of
them is about the limitation and other being non joinder of the Firm. Again the
observations made by the Hon’ble State Commission in its order dt.21/4/2009 are relied
upon contending interalia that the Firm is a juristic person. The complainant is a
consumer in relation to the Partnership Firm.
When the agreement between the Firm and the complainant had taken place, the
opponent had styled itself as a partner of the Firm. The Firm was not sued but the
opponent in his individual name is sued. That being the position there was no legal
impediment for the opponent to take appropriate plea under Order XXX of the C.P.C.
The fact therefore remains that Order XXX being enabling provision it does not prevent
partners of a Firm from suing in his individual name and that the Firm is not a legal
entity. We therefore find that the aforesaid findings recorded by the Hon’ble Apex Court
way back in the year 1961 are squarely applicable to the facts of the present case. It is
not necessary to make further observations in this regard”.
The District Forum then went on to consider and deal with the issue of limitation. The
District Forum held that:
“In the instant case what has happened is the agreement was duly registered on 7/4/1988.
The payment from time to time was made by the complainant till 2/7/1990. The
complainant was to be handed over possession of the said flat by the end of 31/10/1988.
It may be worthwhile to mention that in the agreement dt.7/4/1988 the date of delivery of
possession is not specifically provided. On the other hand in clause 9 thereof it was
provided that the possession would be delivered after execution of the conveyance to the
society. Then there are number of letters exchanged between the parties. In one letter
dt.2/4/1988 the opponent has agreed to handover possession by the end of 31/10/1988. In
the subsequent letters of 1992 and on 10/3/1992 the complainant was assured that no loss
would be caused to him. There was litigation between one of the partner who incidentally
was the owner of the land and the present opponent. The Development Agreement was
probably terminated by the owner. The said owner had forcibly taken the possession of
the flat. The efforts were made by the opponent to disposses the said partner – owner and
to handover possession of the said flat to the complainant. In that background the
complainant was assured in the letter dt.24/1/1992 that he shall not be liable to sustain
any loss or damages. Meaning thereby the opponent had specifically admitted that the
agreement would be complied with. It was only on 6/2/2005. The complainant was
informed by other partner by name Shri. Nikam that there is no privity of contract
between him and the complainant at the other vis a vis the said flat. It was only on this
date i.e. on 6/2/2005 the complainant had learnt that the agreement in question was
terminated orally by one Shri. Nikam, who was probably Partner of the opponent
Firm. Now period of limitation for specific performance of the contract would begin to
run from the date mentioned in the agreement. We have seen earlier that in the
agreement dt.7/4/1988 there was no date fixed for performance of the agreement. The
complainant had learnt that the said agreement was rescinded by letter dt.6/2/2005 only.
The period of limitation would begin to run from that day. Obviously therefore reliance is
placed on Article 55 of the Limitation Act by the learned Advocate for the complainant
together with section 22 thereof is proper”.
The District Forum came to the conclusions that “in the instant case from the discussion
made herein above it is apparent that for the first time the agreement of April 1988 was refused
to be complied with by one of the partner of the Firm on 6/2/2005. It was from this date onwards
that the period of limitation would begin to run. We therefore find that we have no other option
but to adopt the reasoning and conclusions already arrived by us by earlier order dt.23/10/2008.
We therefore proceed to pass the following order:
ORDER
1.
“The complaint is partly allowed.
2.
The Opposite Party is hereby directed to refund to the Complainant, an amount
of Rs.1,40,000/- together with interest thereon @ 12% p.a., as from the date
of respective payments till realization thereof by the Complainant, within a
period of two months from the date of this order.
3.
Rest of the claims of the Complainant stands rejected.
4.
No order as to costs”.
Aggrieved by the order of the District Forum, the respondent filed an appeal before the
State Commission. The State Commission while allowing the appeal has observed as under:
“Opponent opposed the consumer complaint specifically raising contention that the
agreement was with ‘Sayli Builders’, which is a registered partnership firm. The property
belonging to one of its Partners, namely, Eknath Daguji Nikam, was given for development
to said partnership firm as per agreement dated 25.02.1987. In all seven residential flats and
three shops were to be constructed. Complainant was in need of a flat and therefore,
contacted M/s.SayaliBuilders and agreed to purchase Flat No.7 for consideration of Rs.
1,68,500/- from said firm and entered into an agreement dated 07.04.1988. Sayali Builders
asked the Complainant to take possession of the flat on payment of balance consideration.
The Complainant avoided to take possession. In the meantime thereafter dispute arose
between the Sayali Builders and the original land owners of the property and the original
land owners cancelled the development agreement dated 25.09.1989 and also revoked power
of attorney in favour of the Sayali Builders. Thereafter, those land owners also forcibly took
possession of flat no.7. These developments were brought to the notice of the Complainant by
the Opponent and it was also suggested to the Complainant to take possession through Civil
Court. It is alleged that the consumer complaint is barred by limitation and furthermore the
consumer complaint ought to have been filed against Sayli Builders and since
said Sayali Builders is not joined as a party, the complaint is not tenable.
After hearing both the parties the Forum initially settled the dispute by an order dated
23.10.2008. The same was challenged by the Opponent in First Appeal no.1558/2008.
Allowing the said appeal, matter was remanded back and it was also observed while
disposing the appeal that Sayali Builders ought to have been made a party. The matter was
remanded in view of those observations. It appears that thereafter Complainant did not take
any steps to addSayali Builders as a party. The matter was re-contested on the basis of
original pleadings, i.e. complaint and the written version. The matter stood disposed of by an
impugned order, supra.
The Agreement in question dated 7th April, 1988, the copy of which is on record, is not in
dispute. It can be seen that said agreement is entered with SayaliBuilders, the registered
partnership firm and not with the opponent. Though Opponent was shown as the partner
acting on behalf of said firm the complaint as drafted and to which the reference is made
earlier, the Complainant did not allege that the agreement was with the partnership firm,
but, described the Opponent as the builder and developer and stated that it is the Opponent
who offered him a plot thereafter and an agreement dated 07.04.1988 was entered into. It
shows that Complainant, since from the beginning did not want to bring a registered
partnership firm M/s.Sayali Builders into picture as a defending party. In fact once the
agreement is with the partnership firm, the service deficiency, if any, could be alleged only
against the said firm and not against any individual. Had it been a fact that all the partners
of M/s.Sayali Builders were joined as parties, the things could have been looked with
difference but, it is not the case before us. Considering the provisions of Indian Partnership
Act, inter se relationship between the partners of a firm is governed by the partnership
agreement. Therefore, to file a consumer complaint in the personal name of the Opponent
and that to describe him as a builder and developer who agreed to sell the flat, is per se not
only contrary to the agreement dated 07.04.1988, but also against the provisions of the
Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’ for brevity) and no
consumer complaint for want of hiring of any service of the Opponent in his individual
capacity would lie against the Opponent.
The Forum heavily relied upon the decision of Apex Court in the matter
of Purushottam Umedbhai and Company V/s. Manilal and Sons, reported in 1961 AIR(SC)
325. It has only explained the scope of Order XXX of Code of Civil Procedure, 1908 and
further explained that after incorporation of said Order in the scheme of Code of Civil
Procedure, an enabling provision is made which permits the partners constituting firm to sue
or be sued in the name of the firm. Provisions of Order XXX of Code of Civil Procedure 1908
are not made applicable to the consumer dispute under the Act as per Regulation No.26(1) of
the Consumer Protection Regulation 2005 and it is mandate of law that, in all proceedings
before the Consumer Forum, endeavour shall be made by the parties and their counsels to
avoid the use of provisions of Code of Civil Procedure, except the one provided for.
To decide the inter se relationship as a consumer and service provider between the parties to
consumer dispute one has to refer to a definition of “person” per section 2(1)(m) of the Act.
It includes a firm registered or not. The phrase “deficiency” (Section 2(1)(g) of the Act) is
defined as under:
“deficiency” means any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which is required to be maintained by
or under any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation to any
service.” (underlining provided).
Thus, it is clear that a registered partnership is recognized as a person vis-àvis jurisdic person as a service provider and therefore, if the deficiency in service is to be
alleged against the said registered firm the consumer complaint ought to have been filed
against the said firm. It may be that the partners of said firm could be joined along with
the firm, but, it is certainly not contemplated that a consumer complaint could be filed
only against a person like an opponent against whom the action is brought in his
personal capacity and certainly it is further not contemplated that only one partner of a
partnership firm could face consumer complaint in the absence of the firm and other
partners. Therefore, present consumer complaint suffers a vital defect and it cannot be
proceeded against the Opponent.
From the statement made by the Complainant himself it could be seen that Complainant
was well aware (as reflected from the correspondence since the year 1992 and from the
averments made in the complaint) that no construction of the building was coming up and
hence, it was not possible to get possession of the flat and demanded refund of the
amount, i.e. consideration paid. In paragraph 9 of the complaint, supra, the Complainant
alleged that by his letter dated 01.02.2005 which was received by Opponent on
04.02.2005, the opponent showed his willingness before Mr.Mahendall, the member of
All India Consumer Panchayat, Pune, to refund entire amount with interest @15% per
annum and compensation within 15 days. The complaint is also filed for refund of
consideration only, thus, it is a money claim and at that point of time the Complainant
already treated the original agreement to sell a flat or purchase a flat rescinded.
Therefore, for said money claim no consumer complaint would lie.
A reference has been made to a letter dated 06.02.2005 addressed to the Complainant by
one Shri S.E. Nikam (presumably land owner and one of the partners of Sayli Builders).
The Forum referring to this letter in paragraph 13 of the impugned order made certain
observations to the effect that “it was only on this letter date 06.02.2005 Complainant
learnt that the Agreement in question was terminated – by one Shri Nikam who was
probably partner of the opponent firm …………. The complainant had learnt that the said
agreement was rescinded by letter dated 06.02.2005 only. The period of limitation would
began to run from that day”
Such observation is a departure from the factual position and is a mis-statement of fact.
The letter dated 06.02.2005 written by Mr. S.E. Nikam, supra, acknowledged the
communication received from the Complainant dated 04.02.2002 and further informed
the Complainant to explain to said S.E. Nikam as to under which authority he was
claiming flat no.7 from Bhagirathi Apartment and further requested the Complainant to
forward to him the necessary documents showing his interest or a claim in the said
flat. Mr. S.E. Nikam also informed Complainant by said communication that there was no
agreement between him and the Complainant at any time and there is no transaction of
receiving money had taken place in between them. Thus, it is not the letter whereby any
contract was rescinded by said Shri S.E. Nikam either on his behalf or on behalf of
M/s.Sayali Builders.
As earlier recounted, Complainant was well aware from the correspondence from the
year 1992 itself that the agreement to handover possession of the flat would not be
materialized because no construction was at all coming up (as per case presented by the
Complainant himself). He further restricted his reliefs to claim refund of the
consideration paid i.e. `1,40,000/-. Therefore, the cause of action to file the consumer
complaint arose in the year 1992 itself and thus, the consumer complaint filed on
17.01.2006 is barred by limitation in view of the Provisions of Section 24-A of the Act.
For the reasons stated above, we hold accordingly and pass the following order:
ORDER
(i)
(ii)
Appeal is allowed.
Impugned order dated 03.11.2009 is set aside and in the result Consumer Complaint
No.19/2006 stands dismissed”.
Hence, this present revision petition.
The main grounds for the revision petition are as follows:
The State Commission has ignored the fact that as per order XXX of CPC the partner
of a firm can be sued in his individual name.
The State Commission has ignored the fact that the main reason of the CPC not being
made applicable in its original form to the consumer proceedings is merely to avoid the
technicalities of CPC which is very cumbersome and causes lot of delay.
Mr Eknath Dagdu Nikam, i.e., the other partner of Sayali Builder breathed his last on
06.05.1998 and the firm Sayali Builders had only two partners and as per Section 42 © of
the Partnership Act with the demise of one partner the firm is dissolved and
only Mr. Vivek Gajanand Joshi (Respondent) was left who can sue or be sued.
The State Commission has ignored the fact that the money was lying with the
respondents and as such the cause of action for refund of aforesaid money deposited by
the complainant is recurring and continuous.
We have heard the learned counsel for the petitioner and have also gone through the records
of the case carefully.
The two main points raised by the petitioner in the revision petition are that whether one of
the partners of the firm can be sued in his individual name and held responsible for the liabilities
of the partnership firm with whom the agreement was entered into and secondly, whether the
complaint had been filed within the limitation period.
With regard to the first question it is seen from agreement placed on record that it was
between Sayali Builders, a partnership firm registered under the Indian Partnership Act of 1932
and the petitioner. It is clearly mentioned in the agreement that Agreement of Development dated
20.06.1987
executed
betweenShri Eknath Daduji Nikam, Shri Shanatram Eknath Nigam
and Sou Sadhana Shantaram Nikam constitutes parternship firm
between Shri Eknath Daduji Nikamowner of the land and the builder Shri Vivek Gajanand Joshi
by the deed of partnership dated 14.06.1987. It also mentioned that builders had been granted
power and authorities under the General Power of Attorney dated 10.12.1987 for enabling the
builders to do various acts, deeds and things in the development of the said plot and in the
allotment and/ or sale of flats and garages on which is known as ownership basis. It was in this
capacity that the agreement had been entered into for Sayali Builders by Mr G G Joshi.
The petitioner had to be aware of these facts. As given in the written arguments by the
respondent, the dispute arose between M/s Sayali Builders and the said land’s original
owner Nikam Family, therefore the land owners created a dispute by cancelling the development
agreement and power of attorney on 25.09.1989 and the said land owners illegally took
possession of the said building and flat no. 7 which was allotted to the complainant. The
respondent had informed the petitioner by meeting him personally and by sending letters that he
is trying to give possession of the said flat to the petitioner. The respondent suggested that he
would take possession of the flat from the civil court. However, the respondent did not file any
civil suit in any civil court till date. This is also supported by the letter dated 24.01.1992, which
has been placed on record by the petitioner which is from the respondent to the petitioner
apprising of the problems of the partners as also cancellation of the agreement. The letter dated
25.06.2005 from Shri S E Nikam to the petitioner which is a response to the registered letter sent
by the petitioner on 04.01.2002, merely says that there is no proof that the flat no. 7 in Bhagirathi
Apartments was allotted to the petitioner and that he is not aware of any agreement/ deed
executed or dealing with regard to the money transaction between the petitioner and Shri S
ENikam.
In the above-mentioned circumstances, we agree with the order of the State Commission
where they have come to the conclusion that consumer complaint suffers a vital defect and it
cannot be proceeded against the opponent.
With regard to the second question of limitation neither the facts mentioned in the
complaint nor any argument made by the counsel for the petitioner justify the inordinate delay of
in filing the complaint on 17.01.2006. As per the facts of the case the agreement for purchase of
flat was signed on 07.04.1988. Whereas the agreement did not mention any date for handing over
the possession, as per the petitioner he was to have been delivered the possession of the flat by
end of 31.10.1988. He was made aware of the cancellation of the development agreement and
power of attorney as also the fact that land owners have illegally took possession of the said
building and flat no. 7 which was allotted to the complainant on 25.09.1989. In was in these
circumstances, that in 2002 that he even written to Shri S C Nikam, the land owner. Even
presuming that he was not aware of this fact immediately on cancellation, he has himself placed
on record a letter from the respondent dated 24.01.1992 apprising of the circumstances.
Therefore, the cause of action to file a consumer complaint arose in 1992 if not before, Hence,
this consumer complaint filed only on 17.01.2006 is barred by limitation, in view of the
provisions of section 24 (A) of the Act.
In discussing the import of the aforesaid section, the Apex Court has observed as under in
the case of State Bank of India v B. S. Agriculture Industries(I) [(2009) 5 SCC 121]:
“7. The bank resisted the complaint on diverse grounds, inter alia, (i) that the
complainant was not a consumer within the meaning of Consumer protection Act, 1986
(for short, ‘Act, 1986’); (ii) that the complaint was early time barred and beyond the
period of limitation; (iii) that the bills and GR’s were returned to B.M. Konar, the Sales
Manager of the complainant firm; (iv) that the drawee (M/s Unique Agro Service) had
accepted the liability of payment of the bills to the complainant vide letter dated May 11,
1994 and also deposited a cheque to the complainant in that regard.
8.
The District Forum framed two points for determination: (one) whether there is any
deficiency on the part of the opposite party and (two) whether B.M. Konar was
authorized agent in collecting the bills and GR’s from the Bank? Pertinently, despite the
specific plea having been raised by the Bank that the complaint was time barred, point
for determination in this regard was neither framed nor considered.
9. The District Forum held that there was deficiency in service by the Bank and that
the Bank was liable to compensate the complainant and consequently, directed the Bank
to pay to the complainant a sum of Rs. 2,47,154/- with interest @ 15% per annum from
April 21, 1994 and Rs. 5,000/- as compensation.
10. As stated earlier, the State Commission affirmed the order of the District Forum
and the National Commission also did not interfere with the concurrent orders of the
consumer fora.
11. Section 24A of the Act, 1986 prescribes limitation period for admission of a
complaint by the consumer fora thus:
“24A. Limitation period – (1) The District Forum, the State Commission or the
National Commission shall not admit a complaint unless it is filed within two
years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in subsection (1), a complaint may be
entertained after the period specified in sub-section (1), if the complainant
satisfies the District Forum, the State Commission or the National Commission,
as the case may be, that he had sufficient cause for not filing the complaint within
such period:
Provided that no such complaint shall be entertained unless the National
Commission, the State Commission or the District Forum, as the case may be,
records its reasons for condoning such delay.”
It would be seen from the aforesaid provision that it is peremptory in nature and requires
consumer forum to see before it admits the complaint that it has been filed within two
years from the date of accrual of cause of action. The consumer forum, however, for
reasons to be recorded in writing may condone the delay in filing the complaint if
sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in
section 24A is a sort of legislative command to the consumer forum to examine on its own
whether the complaint has been filed within limitation period prescribed thereunder.
12.
As a matter of law, the consumer forum must deal with the complaint on merits only if the
complaint has been filed within two years from the date of accrual of cause of action and if
beyond the said period, sufficient cause has been shown and delay condoned for the reasons
recorded in writing. In other words, it is the duty of the consumer forum to take notice of section
24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides
the complaint on merits, the forum would be committing an illegality and, therefore, the
aggrieved party would be entitled to have such order set aside.
Learned counsel for the petitioner has also cited two judgments, pertaining to the National
Commission as well as the Hon’ble Supreme Court of India. In the first case - Mopar Builders
and Developers Pvt. Ltd., vs Unity Co-op Housing Society Ltd. (RP no. 2743 of 2010) is not
applicable to the case on hand and second case pertaining to Lata Construction
and Ors vs Dr Rameshchandra Ramniklal Shah also does not apply to the case on hand.
In view of the above, we find that there is no jurisdictional error, illegality or infirmity in
the order passed by the State Commission warranting our interference. The revision petition is
accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand only).
Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name
of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case
the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable
to pay interest @ 9% per annum till realisation.
List on 22nd November 2013, for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2401 OF 2008
(From the order dated 17.04.2008 in Appeal No. 736/2008 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
Air Deccan (Deccan Aviation Ltd.) Rep. by its General Manager (Legal) No. 35/2, Cunningham
Road, Bangalore – 560052
…Petitioner/Opp. Party (OP)
Versus
1. Dinesh B.V. S/o Late Venkatramanaiah No. 553, 16th cross, CMH Road, Indiranagar,
2nd Stage Bangalore – 560008
2. Smt. Srimati W/o Late Venkatramanaiah No. 553, 16th cross, CMH Road, Indiranagar,
2nd Stage Bangalore – 560008
…Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Ms. Radha, Advocate with
Mr. Maruti Rao, Advocate
For the Res. No. 1 :
NEMO/Ex-parte
For the Res. No. 2 :
Ex-parte
PRONOUNCED ON 1st October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
17.04.2008 passed by the Karnataka State Consumer DisputesRedressal Commission, Bangalore
(in short, ‘the State Commission’) in Appeal No. 736/08 – Air Deccan (Deccan Aviation
Ltd.) Vs. Dinesh B.V. & Anr. bywhich, while dismissing appeal, order of District forum
allowing complaint was upheld.
2.
Brief facts of the case are that Complainant no. 1/Respondent no. 1 and his mother,
Complainant no. 2/Respondent no. 2 booked tickets with OP/petitioner for 19.11.2006 from
Bangalore to Chennai. Complainants got checked their luggage and got boarding pass. After
arriving in Chennai, they were unable to get their bag and on inquiry came to know that it was
misplaced and accordingly airport authorities issued endorsement in that regard. The said bag
was containing valuable clothes and other articles, but could not be traced. Alleging deficiency
on the part of OP, complainant filed complaint. OP-petitioner resisted complaint and denied
allegation of missing of the bag and further alleged that complainant has not mentioned the
weight of the alleged baggage and prayed for dismissal of the complaint. Learned District
Forum after hearing both the parties allowed complaint and directed OP to pay 400 US$
(Rs.15,804/-) along with Rs.1,000/- as litigation cost. Appeal filed by the petitioner was
dismissed by learned State Commission against which, this revision petition has been filed.
3.
None appeared for the respondents even after service and they were proceeded ex-parte.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that hand baggage lost and its weight could
not have been 20 kg and learned District Forum committed error in awarding compensation for
20 kg. baggage and learned State Commission further committed error in dismissing appeal;
hence, revision petition be allowed and impugned order be set aside.
6.
Perusal of record clearly reveals that hand bag was not missing, but bag was missing and as
per damaged/missing slip it was hand bag make but was not hand baggage. Perusal of copy of
boarding pass on the missing slip further reveals that weight of the baggage has not been
mentioned on the boarding pass. In such circumstances, learned District Forum has not
committed any error in allowing compensation for maximum weight of 20 kg, as per Carrier by
Air Act, 1972. Learned State Commission has not committed any error in dismissing appeal.
7.
We do not find any illegality, irregularity or jurisdictional error in the impugned order and
revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1572 OF 2013
(From the order dated 19.12.2012 in Appeal No. 483/2008 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)
With IA/2743/2013 IA/2744/2013 IA/2745/2013
(Stay, C/Delay, Exemption from filing the certified copy)
1. The Post Master Sub Post Office, Bijegaon Tq. Umari Distt. Nanded
2. Superintendent, Post Offices, Nanded Division, Nanded
3. The Post Master General Aurangabad Region, Aurangabad
…Petitioners/Opp. Parties (OP)
Versus
1. Shri Babu Rao S/o Sh. Gangaram Hambarde R/o Mauje Bijegaon Tq. Umari Distt. Nanded
2. Sow Kamalabai W/o Shri Babu Rao Hambarde R/o Mauje Bijegaon Tq. Umari Distt. Nanded
…Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Mr. R.L. Goel, Advocate
PRONOUNCED ON 1st October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/OP against the order dated
19.12.2012 passed by the Maharashtra State Consumer DisputesRedressal Commission,
Mumbai, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 483/08
– The Post Master & Ors. Vs. ShriBaburao & Anr. by which, while dismissing appeal, order of
District forum allowing complaint was upheld.
2.
Brief facts of the case are that complainants/Respondents are the husband and wife. Their
son Pralhad obtained Rural Postal Life Insurance Policy for a sum of Rs.1,00,000/- and deposited
premium of Rs.380/- on 4.3.2003. Pralhad died on 31.3.2003 and in the said policy, the nominee
was
his
wife
Smt.Sangita Pralhad Hambarde. Sangita filed
insurance
claim
with
the
OPs/petitioners which was repudiated on the ground that policy bond was not issued to
deceased Pralhad and there was no any contract. Complainants served notice on the OPs, as
claim was not settled. Alleging deficiency on the part of OP, complainant filed complaint before
District Forum. OP resisted complaint and submitted that as there was no existence of any
contract at the time of death ofPralhad and as policy bond was not issued to him, Pralhad cannot
be deemed to have been insured and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties allowed complaint and directed OPs to pay Rs.1,00,000/- along
with 9% p.a. interest and further awarded Rs.5,000/- towards mental agony and Rs.1,000/towards cost of litigation. Appeal filed by the petitioners was dismissed by learned State
Commission by the impugned order against which, this revision petition has been filed along
with application for condonation of delay.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner has filed application for condonation of delay of 19
days. For the reasons mentioned in the application, we allow the application for condonation of
delay of 19 days in filing revision petition.
5.
Learned Counsel for the petitioner submitted that order of District Forum be set aside only
to the extent of the word ‘nominee’ mentioned in para 3 of order of District Forum and submitted
that ‘nominee’ word may be deleted from the order of District Forum.
6.
Perusal of record clearly reveals that Pralhad appointed his wife Smt. Sangita as nominee
and claim filed by her was repudiated by petitioners and afterwards complainants who are
parents of deceased filed complaint before District Forum which was allowed. Thus, it becomes
clear that Sangita is not only nominee, but wife and legal heir of deceased. Learned District
Forum rightly observed in Clause III as under:
“The Applicants should file Succession Certificate to this forum & as per
the Succession Certificate orders of division of amount of insurance will
be issued & after issuance of such orders the amount will be paid to
applicants & nominee.”
7.
As complainants and Sangita wife of the deceased are legal heirs of the deceased, learned
District Forum rightly observed that division of amount of insurance will be made as per
Succession Certificate obtained by the petitioner”.
8.
We do not find any illegality, irregularity or jurisdictional error in the impugned order and
revision petition is liable to be dismissed at admission stage.
9.
Consequently, revision petition filed by the petitioners is dismissed at admission stage with
no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3066 OF 2008
(From the order dated 04/04/2008 in Appeal No. 190/2008 of the State Consumer
Disputes Redressal Commission, U.T., Chandigarh)
FIITJEE Limited ICES House, 29-A, Kalu Sarai, Sarvapriya Vihar, New Delhi – 110016
…Petitioner/Opp. Party (OP)
Versus
Ms. Ishaan Punj MIinor through his father and natural guardian Mr. Nirdosh Kumar Punj, R/o
651, Sector 69, SAS Nagar, Mohali, Punjab.
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: Mr. Mukesh M. Goel, Advocate
For the Respondent : NEMO
PRONOUNCED ON 1st October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
04/04/2008 passed by the State Consumer Disputes RedressalCommission, U.T., Chandigarh (in
short, ‘the State Commission’) in Appeal No. 190/08 – M/s. FIITJEE Ltd. Vs. Ishaan Punj by
which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/Respondent joined OP/Petitioner Institute in
February, 2006 for a period of 2 years classroom programme for IIT Joint Entrance Examination
and paid Rs.76,589/- as fees. After attending classes upto January, 2007, complainant found that
the education imparted at OP Institute was not fruitful so vide letters dated 8.2.2007 and
19.2.2007 complainant intimated to OP that he does not want to continue with the course and
requested for refund of the balance fee of the second year. As refund was not made, complainant
alleging deficiency on the part of OP filed complaint before District Forum. OP resisted
complaint and submitted that out of 76,589/- deposited by complainant, Rs.69.500/- was towards
course fee and Rs.6950/- was towards service tax and Rs.139/- was towards education cess. It
was further denied that coaching was not of desired purpose and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties allowed complaint and directed
OP to refund Rs.38,294.50 with cost of Rs.1100/- and Rs.2100/- as compensation and further
awarded 12% p.a. interest from 9.2.2006 till payment if the payment is not made within a period
of 30 days. Appeal filed by the petitioner was dismissed by learned State Commission against
which this revision petition has been filed.
3.
None appeared for the respondent even after service.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that in compliance to order of the State
Commission Rs.38,294/- has already been refunded to the respondent vide cheque dated
15.9.2008 and this revision petition has been admitted only to the extent of refund of interest and
cost. It was further submitted that as refund has been made immediately after impugned order,
the order allowing interest and cost be set aside.
6.
Learned Counsel for the petitioner has placed reliance on (2003) 6 SCC 696 – Islamic
Academy of Education Vs. State of Karnataka in which it was observed that educational
institution can only charge prescribed fees for one semester/year, but if an institution feels that
any particular student may leave in midstream then, at the highest, it may require the student to
give a bond/bank guarantee for balance fees for the whole course. It was further observed that if
educational institution has collected fees in advance, only the fees of that semester/year can be
used by the institution and balance fees must be kept in fixed deposits in a nationalised bank
which may be withdrawn as and when fees falls and at the end of the course, interest on those
deposits will be paid to the student from whom fees was collected in advance.
7.
Learned Counsel for the petitioner submitted that Hon’ble Apex Court has permitted
advance fees for the whole course and has further permitted to get bond/bank guarantee from the
student for the balance fees for the whole course if not received in advance, meaning thereby
institution does not commit any deficiency in receiving fees for the whole course except to the
extent that balance fees is to be deposited in FDR and interest accrued on that is to be returned to
the student. He further submitted that as 50% of the fees as ordered by District
Forum has already been refunded immediately after State Commission’s order, in such
circumstances, order levying interest and cost be set aside.
8.
Perusal of record reveals that out of the fees deposited by the respondent Rs.6950/- was
towards service tax and Rs.139/- was towards education cess which did not go in the pocket of
petitioner; even then, learned District Forum and State Commission allowed refund of 50% of
the aforesaid amount. As revision petition has been admitted only to the point of payment of
interest and cost, we deem it appropriate to set aside award of interest on two counts; firstly,
refund has been made just after 5 months of impugned order and District Forum allowed interest
only if payment is not made within a period of 30 days. Had petitioner deposited this amount
immediately after order interest was not payable. Petitioner had right to file the appeal and after
dismissal of first appeal petitioner has refunded amount within 5 months, in such circumstances,
respondent is not entitled to get interest; and secondly, District Forum allowed refund of 50% of
the tax deposited by petitioner on account of fees received from the respondent which apparently
could not have been ordered. In such circumstances, order imposing interest is liable to be set
aside.
9.
As far as cost awarded by the District Forum & State Commission is concerned, we are not
inclined to interfere with the cost awarded by the District Forum and the State Commission.
10.
Consequently, revision petition is partly allowed and impugned order dated 4.4.2008
passed
by
learned
State
Commission
in
Appeal
No.190/08
-FIITJEE
Limited
Vs. Mr. Ishaan Punj and order dated 26.2.2008 passed by learned District Forum in Complaint
No. 427/07 – Ishaan Punj Vs. FIITJEE Limited is modified and order imposing interest is set
aside and rest of the order is affirmed.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3535 OF 2008
(Against order dated 27.05.2008 in First Appeal No.109 of 2005 of the State Consumer Disputes
Redressal Commission, Delhi)
National Institute of Open Schooling A-24/25, Institutional Area, Sector-62, Noida-201301
....... Petitioner
Versus
Sh Vipin Sharma A-765, Shastri Nagar, Delhi-110052.
...... Respondent
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
For the Respondent
:
Mr. S. Rajappa, Advocate
:
In person
Dated : 3rd October, 2013
ORAL ORDER
Heard.
2. Short question which arise for consideration is as to whether Petitioner/O.P. was deficient in
not giving the result of Examination of Economics Subject to the Respondent/Complainant for
over two years when he had appeared for Examination in October/ November,2003. Further, due
to this act of the petitioner whether respondent is entitled to get compensation of Rs.5,000/- for
deficiency in service and for causing him mental agony and harassment.
3. Both the Fora below have given concurrent findings of facts against the petitioner.
4. Hon’ble Supreme Court in “Gurgaon Gramin Bank Vs. Khazani and another, IV (2012)
CPJ 5 (SC)” where debt amount being a paltry sum of Rs.15,000/- was not settled by the bank, it
observed;
“2. Number of litigations in our country is on the rise, for small and
trivial matters, people and sometimes Central and State
Governments and their instrumentalities Banks, nationalized or
private, come to courts may be due to ego clash or to save the
Officers’ skin. Judicial system is over-burdened, naturally causes
delay in adjudication of disputes. Mediation centers opened in
various parts of our country have, to some extent, eased the
burden of the courts but we are still in the tunnel and the light is
far away. On more than one occasion, this court has reminded the
Central
Government,
State
Governments
and
other
instrumentalities as well as to the various banking institutions to
take earnest efforts to resolve the disputes at their end. At times,
some give and take attitude should be adopted or both will sink.
Unless, serious questions of law of general importance arise for
consideration or a question which affects large number of persons
or the stakes are very high, Courts jurisdiction cannot be invoked
for resolution of small and trivial matters. We are really disturbed
by the manner in which those types of matters are being brought
to courts even at the level of Supreme Court of India and this case
falls in that category”.
5.
Since, a paltry sum of Rs.5,000/-(Rupees Five thousand only) only is involved in this case
and petitioner being an Institution of National level, we are not inclined to pass any order in this
case, in view of the decision of Gurgaon Gramin Bank(supra). However, the question of law is
left open to be decided in an appropriate case.
6. Vide order 01.12.2008, passed by this Commission, respondent was granted permission to
withdraw the sum of Rs.5,000/-. Hence, respondent is at liberty to withdraw that amount of
Rs.5000/- from the State Commission.
7. With these observations, present revision petition stands disposed of.
……..……………………J
(V.B. GUPTA)
(PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB/32
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1874 OF 2012
(Against the order dated 16.02.2012 in Appeal No. 1778/2005
of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur)
1. Union of India Through General Manager, West, Central Railway Jabalpur, M.P.
2. The Divisional Railway Manager West Central Railway Kota, Rajasthan
3. The Station Superintendent, Railway Station, Hindoncity, District Karauli, Rajasthan
4. The Chief Commercial Manager, West Central Railway, Jabalpur, M.P.
5. The Chief Claim Officer, West Central Railway, Jabalpur, M.P.
6. The Chief Claimant Officer, Western Railway Churchgate Mumbai, Maharashtra
...........Petitioners
Versus
1. Yash Industries Near Industries Area, Water Tank, Hindoncity, Through Proprietor Rajesh
Kumar, S/o Shri Babulal By Caste Mahajan R/o Mohan Nagar, Hindoncity District Karauli,
Rajasthan
2. Manij Kumar S/o Shri Babulal, By Caste Mahajan,R/o Mohan Nagar, Hindoncity District
Karauli, Rajasthan
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
For the Respondent
: Mr. Shailesh Prakash Sharma, Advocate
: Ex parte
Pronounced On 3rd October , 2013
ORDER
PER DR. S.M. KANTIKAR
1. The present Petition is filed under Section 21 of the Consumer Protection Act, 1986 against
the impugned judgment of State Consumer Disputes Redressal Commission, Circuit Bench,
Rajasthan, Jaipur (in short, ‘State Commission’) in Appeal No. 1778/2005 where by the
Appeal filed by the Appellant has been dismissed and the order of District Consumer
Disputes Redressal Forum, Karauli (in short, ‘District Forum’) in CC No. 11/2004 has
been upheld.
2. The brief facts of this case are:
Total 19 cartons of plastic frames, used for slates, were booked by the complainant, under
two separate builties from Paladhar station to be delivered at Hindon city station. But,
complainant received only 17 cartons. The Station Master at Hindon issued a short certificate
for deficit. On several enquires, the complainant did not get satisfactory reply from OP. Each
carton was of 32 kg in weight, at the rate of Rs.111/- per kg, for two cartons amounting to
Rs.7104/-. The Senior Divisional Manager, Western Railway, Kota had granted the claim for
Rs.500/-. Hence, alleging deficiency in service by OP, the complainant filed a complaint
before District Forum for an award of Rs.1,49,000/- towards compensation, along
with Rs.7104/-.
3. That the District Forum after hearing arguments of the parties, partly allowed the complaint
and ordered that out of both builties, one carton not being given, measuring 32 kg material
@ Rs.111/- per kg., Respondents would make payment of Rs.7104/- to the Complainant,
along with 6% interest, from 29.04.2003. If any amount has been paid to the Complainant,
earlier, the same is to be adjusted and Rs.200/- will be paid towards cost of litigation. The
aforesaid amount to be paid within two months.
4. Aggrieved by the order of District Forum, the OP filed an appeal No.1778/2005, before the
State Commission. The State Commission dismissed the said appeal.
5. Against the order of State Commission, OP preferred this revision.
6. We have heard the counsel of both the parties. The learned Counsel for petitioner vehemently
argued that Consumer Fora have no jurisdiction to entertain such claim. But, it could only
have been decided by Railway Claims Tribunal. The Counsel for the Petitioner brought our
attention to the provisions of Sections 13 and 15 of the Railway Claims Tribunal. The
relevant provisions of Sections 13 and 15, referred above, are reproduced hereunder:
“ 13. Jurisdiction, powers and authority of claims Tribunal – (1) The claims Tribunals
shall exercise, on and from the appointed day, all such jurisdiction, powers and
authority as were exercisable immediately before that day by any civil court or a claim
commissioner appointed under the provisions of the Railway Acta] Relating to the responsibility of the railway administrations as carriers under
chapter VII of the Railways Act in respect of claims fori) Compensation for loss, destruction damage, deterioration of non-delivery of animals or
goods entrusted to a railway administration for carriage by railways;
ii) Compensation payable under Section 82-A of the Railways Act or the rules made
thereunder; and
b] in respect of the claims for refund of fares or part thereof or for refund of fares or
part thereof or for refund of any freight paid in respect of animals or goods entrusted to
a railway administration to be carried by railways”
“15. 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 in relation to
the matters referred to in sub-section (1) of Section 13.”
7. The OP submitted that the value of such consignment was not declared by the Complainant, at
the time of booking. As per the provisions of Section 103 of the Railways Act, 1989, for any
consignment entrusted to Railway Administration for carriage by Railway and the value of
such consignment has not been declared as required under Sub Section (2) by the consigner,
amount of liability of the Railway Administration for the loss, destruction, damage,
deterioration or non-delivery of the consignment, shall, in no case exceed such amount,
calculated with reference to the weight of the consignment, as may be prescribed. It is
submitted that the amount, as was paid for non-delivery of the consignment was, as per the
provisions of Railway Act, 1989.
8. Therefore, we are of considered opinion that, both the fora below have erred in not observing
the provisions of Sections 13 and 15 of Railway Claims Tribunal Act. The Consumer Fora
have no jurisdiction to decide this case on hand, under the Consumer Protection Act, 1986.
Accordingly, we allow the revision petition and dismiss the complaint. Parties are directed
to bear their own cost. Liberty is given to the Complainant to approach proper Forum for his
claim.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Mss-22
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3827 OF 2012
(From order dated 02.07.2012 in First Appeal No. 540 of 2012 of the
State Consumer Disputes Redressal Commission, Haryana, Panchkula)
Lacchman, S/o Dola Ram R/o Village-Devrala, Tehsil & District-Hissar
… Petitioner
Versus
1.
Executive Engineer, Dakshin Haryana Bijli Vitran Nigam Limited Bhiwani, Haryana
2. SDO, Sub Urban, Dakshin Haryana Bijli Vitran Nigam Limited Bhiwani, Haryana
… Respondents
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. Sabyasachi Mishra, Advocate.
Pronounced On 3rd October , 2013
ORDER
PER DR. S.M. KANTIKAR
1. The Petitioner has filed the Revision Petition against the order
dated
02.07.2012 passed by the Hon’ble State Consumer Disputes Redressal Commission,
Panchkula, Haryana, (in short, ‘State Commission’) in First Appeal No. 540 of 2012,
challenging the order of the District Consumer Disputes Redressal Forum, Bhiwani,
Haryana, (in short, ‘District Forum’) in Consumer Complaint no. 20 of 2009. The
State Commission dismissed the Appeal on 02.07.2012, being bereft of merit. The
District
Forum
dismissed
the
complaint
on
21.03.2012,
after
appreciating the documents on record and also
after considering the statutory provisions and relevant judgments placed on file.
2. The facts in brief:
Shri Lacchman, the Complainant was a consumer of Dakshin Haryana Bijli Vitran Nigam
Limited,
Bhiwani,
Haryana
(in
short
DHBVNL) is
having
an
electricity connection bearing account No. B-23-DB-0343 and has been using and paying
the bills regularly. He has cleared the electricity bills, till December, 2005, and moved an
application for permanent disconnection of above said electricity connection. Thereafter, the
OP issued a bill, dated 06.12.2005, for Rs.3918/- upon which he met the SDO concerned,
who, advised to deposit Rs.240/- and that the remaining amount will be waived off to all the
farmers of Haryana State. It is further alleged that the SDO made necessary remarks in the
application
of
Complainant
and
directed
to
issue
PDCO.
The
Complainant further alleged that Shri Krishan alias Hari Kishan, Lineman, removed the
meter and handed over to Goverdhan, L.M. in the month of December, 2005, but it was
surprised to note that OP issued a Bill dated 11.04.2008, amounting to Rs.8289/-. The
Complainant visited the office of the OPs, but they did not pay any heed, and a written
complaint, dated 18.07.2008, was made to the higher authorities. Thereafter, the Office of
Chairman, Forum of Redressal Grievance of Consumers, Vidhut Sadan, Hissar, directed
the S.E. (OP) Circle, DHBVNL, Bhiwani, to redress the grievance, immediately. But, the
OPs again issued a bill dated 10.08.2008, amounting to Rs.9184/- and on enquiry it was told
that due to clerical mistake, the bill has been issued and the same will be rectified, as per rules
and regulations of the Nigam. The Complainant requested the OPs to issue “No Dues
Certificate” in January 2009, but OP refused to issue the same and demanded Rs.9184/-,
along- with surcharge, etc. Even after disconnection of electricity, in December, 2005, the OP
issued bill, which was wrong, illegal, arbitrary, against law and facts, and he is not liable to
pay the same. Hence, it amounts to deficiency in service on the part of OPs and as such, he
filed complaint No. 20/2009, in the District Forum.
3. The OPs denied the deficiency and all the allegations made by the complainant. OP stated
that the Complainant was a chronic defaulter and had not cleared his bills, for a long period;
therefore, he was not entitled to Waiver Scheme, as per conditions of the policy. Also, the
Complainant was not entitled to get “No Dues Certificate”, without making payment of
energy bills, along with surcharge, up to date.
4. The District Forum dismissed the complaint, ignoring the facts of the case.
5. Aggrieved by the order of District Forum, the complainant, preferred an Appeal No. 540 of
2012, before the state commission.
6. The State Commission heard both the parties and on the basis of evidence on record,
dismissed the appeal.
7. Hence, the complainant preferred this revision petition.
8. We have heard the Counsel for Petitioner and perused the evidence on record and the orders
of both the fora below. It was an admitted fact that the complainant was a consumer of OPs
and a chronic defaulter. The District Forum observed that there is no documentary
evidence to prove that the Complainant applied for disconnection of electricity in December
2005. It is also evident that the electricity meter of Complainant was neither removed nor
PDCO was affected. The Complainant did not produce any acknowledgement of receipt
from OPs regarding handing over of the meter to the concerned Lineman.
9. Therefore, we are of considered opinion that there is no deficiency in service on the part of
the OPs, and hence, we do not find any need to interfere with the orders of both the Fora
below.
The revision petition, is accordingly, dismissed. No order as to costs.
……………….…………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(Dr. S.M. KANTIKAR)
MEMBER
Mss-03
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2088 of 2013
(From the order dated 14.09.2012 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula in First Appeal no. 341 of 2012)
Ram Bhagat Son of Shri Ganga Bishan Post Office Bhattu Khurd Teshil and District Fatehabad
Haryana
Petitioner
Versus
1. M/s New Holland Fiat (India) Pvt. Ltd Plot no. Udyog Kendra Gautam Budh Nagar Uttar
Pradesh
2.
New India Tractors G T Road Fatehabad, Haryana
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Abhishek Garg, Advocate
Pronounced on 3rd October 2013
ORDER
REKHA GUPTA
Revision petition no. 2088 of 2013 has been filed under 21 of the Consumer Protection
Act, 1986 against the judgment/ order dated 14.09.2012 passed by the Haryana State Consumer
Disputes Redressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 341 of
2012.
As
per
the
facts
of
the
case
as
gleaned
from
the
District
Consumer
Disputes Redressal Forum, Fatehabad (‘the District Forum’) the petitioner had purchased one
tractor New Holland 5500 from respondent no. 2 against its price of Rs.5,40,000/- on 20.02.209
and at the time of purchase he was assured of two year warranty/ guarantee. It is further stated
that two after purchase of the tractor, the petitioner approached respondent no. 2 with the
complaint of excess consumption of diesel. This defect in tractor was repaired but that was not
up to the standard of company. Ultimately engine of the tractor stopped working due to
inadequate supply of diesel and there were many more defects in the tractor such as leakage in
silencer, excess of smoke etc. On complaint, the engineer of the respondents had checked the
tractor on 22.11.2009 who after some repair stated that now the tractor will function properly. As
per version of the petitioner, tractor was not in working position and he again brought the tractor
to the respondent no. 2 on 12.02.2010 where service of the same was provided but service book
and other documents were kept by the respondent no. 2 with the excuse that same are to be sent
to the company. The petitioner repeatedly requested the respondents to rectify the fault in his
tractor but the respondents were postponing the matter under one pretext or the other. Ultimately
he served the respondents a legal notice to this effect but same was not replied. The petitioner
had got checked his tractor from another mechanic who reported that engine of the tractor is not
working properly due to dust as dry air cleaner is fitted inside and cracks also appeared in the
tyres due to manufacturing defects. The petitioner prayed for getting necessary repair and
replacement of two big tyres of tractor besides compensation of Rs.50,000/- from the
respondents for harassment and Rs.1,00,000/- on account of expenses regarding hire of
alternative tractor for his agricultural work.
Upon notice the respondent no. 1 did not appear and was proceeded ex-parte,
however, Shri V K Mehta, Advocate appeared on behalf of respondent no. 2 and filed the written
statement by taking preliminary objections of maintainability, cause of action, locus standi and
jurisdiction. On merit the version of the petitioner was contested but at the same time it was
admitted that defect in tractor was removed by the Engineer of the company by changing the old
pump and satisfaction letter was got signed from the son of the petitioner to this effect and no
other complaint was received. As regards Form 22 is concerned, duplicate of same is to be given
against the affidavit of the petitioner, it was duly communicated to the petitioner over the
telephone and personally as well but petitioner has not given any such affidavit while denying
the rest of contents of the complaint, it is submitted that complaint in hand be dismissed with
costs.
The District Forum came to the conclusions that “the petitioner has proved the deficiency in
service on the part of the respondents, resultantly instant complaint is hereby allowed. The
respondent no. 1 - M/s New Holland Fiat (India) Pvt. Ltd., is directed to remove all the defects in
tractor including replacement of two big tyres enabling the petitioner to use the same in perfect
condition and to pay a sum of Rs.50,000/- as compensation on account of being deficient in
service and for the loss cause to the complainant for arranging an alternate mode including the
harassment of all counts and to provide the petitioner duplicate Form 22. Respondent no. 1 is
further directed to comply with the order within a period of one month failing which the
petitioner shall be entitled for replacement of tractor with the new one along with compensation
amount of Rs.50,000/-“.
Aggrieved by the order of the District Forum, the respondent no. 1/ opposite party no. 1
filed an appeal before the State Commission. The State Commission having considered the
arguments of the counsel had observed that, “in this case the complainant had made allegation
with regard to breakage in silencer axel smoke, cracks in tyres. But complainant not produced
any expert evidence on record. On the other hand appellant has also not moved any application
for expert evidence. Court has also not appointed any expert for evidence. We find that on most
of such like cases where the expert evidence is required generally that is not called because
neither the parties move such application under section 13 of the Consumer Protection Act. The
District Consumer Forum decides such technical issues merely on assumptions and presumption.
It is duty of District Consumer Forum in such like cases where expert evidence is required to
appoint an expert to examine such defect in goods. I, therefore, set aside the order passed by the
District Consumer Forum and direct the District Consumer Forum to take the expert evidence on
the defects in tractor. Further suggest that Consumer Forum shall appoint a person who will be
normally of a Government Agency and with requisite qualification and background to enable
them to submit the report as natural organisation.
In view of the above discussion, as in this case, patent illegality had been committed by not
considering above said fact, therefore, the order dated 06.12.2011 passed by the District
Forum, Fatehabad is
set
aside
and
the
case
is
remanded
back
to
the
District
Forum, Fatehabadto decide the same afresh in accordance with law within three months”.
Hence, the present revision petition.
Along with the present revision petition an application for condonation of delay of 176 days
has been filed. The reasons given in the application are that:
The State Commission, Haryana by misinterpretation of provisions contained in
section 13 of the Consumer Protection Act, 1986 vide the judgment impugned has set
aside the well-reasoned judgment dated 06.12.2011, passed by the District
Forum, Fatehabad, Haryana and remanded the matter back to be heard afresh.
On account of ill-formed advice, petitioner was misguided by local counsel
Mr Mahender Kumar Dharnia to
appear
before
District
Forum,Fatehabad as
the
complaint is being heard afresh as directed by State Commission. It was only now that on
advice of present filing counsel that petitioner is challenging the judgment impugned, as
the same is contrary to law and facts on records and inconsistent with legal precedents,
besides being violative of principles of natural justice. It is only on account of wrong
advice given by the petitioner’s local counsel that petitioner could not challenge the
judgment impugned and hence, delay has occurred which is neither intention nor
deliberate.
The certified copy of the impugned judgment was issued by the registry of the State
Commission, Haryana. On 23.10.2012 and there is a delay of 176 days in filing the
present revision petition. Applicant has a good case on merits and it will be in the interest
of justice that the delay in filing present petitioner be condoned.
We have heard the learned counsel for the petitioner and have gone through the records
of the case carefully.
The application contains absolute no dates or reasons to explain the day today delay or
give “sufficient cause” to condone the delay of 176 days except that he has been misguided by
the local counsel Mr Mahender Kumar Dharnia to appear before the District Forum, Fatehabadas
the complaint is being heard afresh as directed by the State Commission. Counsel for the
petitioner admitted that no action has been taken against the Advocate for his wrong advice.
The petitioner is supposed to explain the day-to-day delay, but the needful has not been
done. Moreover, petitioner has failed to provide ‘sufficient cause’ for the delay of 176 days. This
view is further supported by the following authorities.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil
2006), decided by the Apex Court on 08.07.2010 it was held:
Appeal
no.
1166
of
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon,
P. Ramanatha Aiyar, 3rd Edition, 2005]”.
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 thecondonation 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.”
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.”
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 176 days
in filing the present revision petition. The application for condonation of delay is without any
merit as well as having no legal basis and is not maintainable. Consequently, the present revision
petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five
thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the
petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay
interest @ 9% per annum till realisation.
List on 22nd November 2013, for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2547 of 2013
(From the order dated 28.08.2012 of the Punjab State Consumer
Disputes Redressal Commission, Chandigarh in First Appeal no. 1332/2007)
With
IA nos. 4269, 4270 & 4271 (Stay, exemption from dim documents, condonation of delay)
Bajaj Allianz Life Insurance Co. Ltd. Through Branch Manager SCO no. 3, Balaji Chambers
District Shopping Complex Ranjit Avenue, Amritsar
Petitioner
Versus
1. Shri Pawan Kumar Son of late Shri Ved Prakas H No. 2155, Sarai Bhagwan dass Gali No.
1, Chawal Mandi Amritsar
2. Shri Bhupinder Bawa Son of Late Shri Bawa Amar Nath 10 – B/s Prakash Cinema
Opposite Railway Station Amritsar
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Pankul Nagpal, Advocate
Pronounced on 4th October 2013
ORDER
REKHA GUPTA
Revision petition no. 2547 of 2013 has been filed under section 21 (b) against the order
dated 28.08.2012 passed by the Punjab State Consumer Disputes Redressal Commission,
Chandigarh (‘the State Commission’) in appeal no. 1332 of 2007.
The respondent no. 1/complainant has filed a complaint alleging therein that he had
purchased a life insurance policy for a sum of Rs.4,00,000/- by paying premium of Rs.10,000/per annum from the petitioner/ opposite party no. 1 through respondent no. 2/ opposite party no.
2, the authorised agent of petitioner on 11.10.2004. That the above said policy bearing no.
0005870798
was
in
the
name
of Smt AnitaKumari,
mother
of
respondent
no.
1. Smt Anita Kumari died on 04.04.2005 due to heart attack and an insurance claim was lodged
with the petitioner through opposite party no. 2 along with the original policy. But this claim was
repudiated by the petitioner on 27.09.2005. Alleging deficiency in service respondent has prayed
for a direction to the petitioner to pay an amount of Rs.4,00,000/- along with interest and
Rs.50,000/- as compensation.
On notice, the petitioner and respondent no. 2 appeared and filed separate written versions.
Petitioner/ opposite party no. 1 in its written version has submitted that complaint is not
maintainable in the present forum as the deceased had played a fraud on the petitioner by filing a
fake driving licence regarding her age proof in which the age was understated. Petitioner further
submitted that at the time of the policy, the deceased had intentionally submitted a faked driving
licence to escape the full medical examination. As per the terms of the policy, if the age of the
policy holder is more than 45 years and the sum assured is also more than Rs.3,00,000/- a full
medical examination becomes necessary. Petitioner has alleged that after verification it has come
to their notice that age of the deceased was shown on the ration card as 45 years and this ration
card was issued five years back. Therefore, at the time of taking the policy the age of the
deceased was more than 48 years. Deceased policy holder had four children as per the ration card
and their estimated age as on the proposal dates were 25 years, 23 years, 21 years and 19 years,
whereas age of one child was shown in the proposal form as 17 years.
It is further submitted that age of the nominee has been shown as 17 years in the proposal
form by recording his date of birth as 06.02.1987, whereas as per the PAN card the date of birth
of this nominee is 06.09.1982 and he is 22 years old. Petitioner has submitted that if any contract
is executed by misrepresenting the true facts and by fraud such contract is void abnitio. The
policy was obtained by fraud and misrepresentation by submitting the fake driving licence and
understating his age and age of the family members. It is further submitted that as per the
agreement in case of non-disclosure of information or fraud or misrepresentation in the proposal/
personal statement, declaration or in any connected document leading to the acceptance of the
risk, the company shall at its discretion, repudiate the claim under section 45 of the Insurance
Act.
The petitioner has further alleged that policy holder intentionally submitted the fake driving
licence regarding her age proof. The alleged driving licence does not exist in the record of the
licensing authority, Ajnala. After receiving intimation regarding the death of the policy holder,
petitioner
appointed
Sniffers
Indian Pvt. Ltd.,
to
investigate
the
death
claim
of
late Smt Anita Kumari on 28.05.2005 and also Shri M L Bhatia to investigate the death claim of
late Smt Anita Kumari on 11.07.2005. Petitioner had also written a letter to licensing
authority,Ajnala regarding verification of the driving license issued in the name of Mrs
Anita Kumari. The licensing authority has written in that letter that license no. 16097 dated
16.10.1991 in the name of Anita Kumari wife of Ved Prakash has not been recorded in the office
record and this licence is fake and bogus as per the record. During investigation, the investigators
have collected copy of the ration card, which was issued five years back and in which the age of
the deceased is mentioned as 45 years.
Petitioner has further submitted that if ration card is considered then the age at the time of
death of the insured comes to 50 years. As per the norms of the policy, full medical examination
was mandatory. As such company has rightly repudiated the claim. It was prayed that complaint
may be dismissed.
Respondent no. 2 i.e., Mr Bhupinder Bawa had admitted the contents of the complaint. He
also admitted that claim was lodged with petitioner through respondent no. 2 and the original
policy and the original death certificate was submitted to petitioner at the time of intimation of
death. He has further submitted that the job of respondent no. 2 was only to sell the policy and
respondent no. 2 sold the policy and premium of Rs.10,000/- was deposited with petitioner and
he handed over the receipt of the premium issued by petitioner to the insured. He prayed that his
name may be deleted.
The District Consumer Disputes Redressal Forum, Amritsar (“the District Forum”) came to
the following conclusions:
“The above discussion shows that proposal from exhibit R – 3 on the basis of which
insurance policy was issued is a document which is replete with cuttings and erroneous
information and where the date of birth of the nominee as well as the figure of sum
assured
have
been
altered
by
overwriting.
Similarly,
the
driving
license
of Smt Anita Kumari has been found to be a fake and forged driving licence which does
not exists in the records of the concerned licensing authority, Ajnala. It has also been
noted by us that age of the nominee has been projected wrongly and qualification of the
deceased life assured was also given wrongly as matriculate.
The above discussion would show that complicated questions of facts and law are clearly
involved in the present complaint and there is also an element of forgery and fabrication,
as has already been discussed in the preceding paragraphs.
In view of the above discussions, present complaint is hereby dismissed with no order as
to costs. However, the parties are free to avail their remedies before the Civil Court of
competent jurisdiction, if they so choose”.
Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before
the State Commission. The State Commission were of the opinion that, “in view of the above
discussion, we are of the opinion that the complaint was liable to be succeed but has been
wrongly dismissed by the learned District Forum. The impugned order passed by the learned
District Forum, therefore, cannot sustain. We, accordingly, allow the appeal and set aside the
impugned order passed by the District Forum. The complaint, is consequently, allowed and the
OPs are directed to pay the amount of Rs.4.00 lakh to the complainant within 30 days from the
date of receipt of copy of this order, failing which, they would be liable to pay it along with
interest @ 9% per annum since 27.10.2005 (one month after the repudiation letter dated
27.09.2005) till the amount is actually paid to the complainant. The litigation cost is assessed at
Rs.5,000/-“.
Hence, the present revision petition.
Along with the present revision petition, the petitioner/ opposite party no. 1 have filed an
application for condonation of delay of 185 days, however, as per the office report, the delay is
of 187 days. The reasons given for the delay are as under:
The petitioner has one of the branches at Amritsar and has its Head Office at Pune.
The Northern Zonal Office for handing Legal matter is situated at Chandigarh which
deals with the case of and files the cases before this Commission.
The order dated 28.08.2012 passed by the State Commission was prepared on
04.10.2012 and was received by the Branch Office of petitioner Company in October
2012 by post.
The order passed by the State Commission on receipt was thereafter forwarded to the
Head Office at Pune for taking an appropriate decision. However, the dealing assistant
Ms Debolina Ghatak raised certain queries for putting up the matter before the competent
authority of the company to take a final decision on whether the impugned order is to be
satisfied or further contested. Since the Advocate Mr Paras Money Goyal was not cooperating the facts could not be ascertained. However, in the meantime, Ms Debolina also
left the services of the company on 26.12.2012.
The fact that no final decision was taken on the impugned order dated 28.08.2012
passed by the State Commission was detected in last week of February 2013 and the
impugned order was put up before the Head (Legal) after obtaining the clarifications
initially sought for which was provided by Advocate Varun Chawla on inspection of case
records. The competent authority decided on 06.03.2013 that a revision is to be preferred
before this Hon’ble Commission.
Thereafter entire case papers of the said case was procured from Chandigarh
Advocate Mr Paras Money Goyal on 01.04.2013 as the said advocate had stopped
working with the petitioner company and the entire file was sent to Shri Pankul Nagpal,
Advocate for preparation of grounds of revision.
The said file was received by Shri Pankul Nagpal, Advocate on 02.04.2013 who
drafted the revision petition and sent the same to ShriRajinder Kalsi to comments and
approval.
However, Shri Rajinder Kalsi, the local representative of the petitioner company in
the legal department, met with an accident on 06.04.2013 and was on leave till
26.04.2013.
On joining his duties Shri Rajinder Kalsi immediately verified the pending matters
and vetted the draft revision petition and sent the same for approval to the Head Office at
Pune.
The present revision petition was approved and sent to Shri Pankul Nagpal, Advocate
for filing on 07.06.2013.
It is submitted that Shri Pankul Nagpal, Advocate due to the holidays in the court
from 05.06.2013 was on leave and was in Mumbai with his family to spend holidays.
Shri Pankul Nagpal, Advocate joined work only on 28.06.2013, and immediately
prepared the present application seeking condonation of delay.
The revision petition and the application had been received after signatures on
01.07.2013 and the same is being filed immediately.
We have heard the learned counsel for the petitioner and have also gone through the
records of the case carefully.
It will be seen from the reasons given above that the petitioner has dealt with the case
after receiving the order in a most casual and lackadaisical manner. The application does not
state that when the order was passed to the head office, Pune. After reaching the head office,
(date not mentioned) apparently the case was with the dealing assistant, till she left the service on
26.12.2012. It would also appear that there was no follow of such cases by any superior officer
because it was only in the last week of February 2013, that it was detected that the impugned
order was lying unattended without any action being taken thereon. Even after the competent
authority decided on 06.03.2013 that the revision petition had to be preferred before the State
Commission, the papers were obtained from the Chandigarh Advocate only on 01.04.2013 and
the revision petition was approved and sent to Shri Pankul Nagpal for filing thereafter on
07.06.2013. The petition was filed ultimately on 08.07.2013. It would appear that the petitioner
and their Advocates adopted a most casual approach.
The petitioner is supposed to explain the day-to-day delay, but the needful has not been
done. The petitioner has failed to provide ‘sufficient cause’ for the delay of 185/187 days. This
view is further supported by the following authorities.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil
2006), decided by the Apex Court on 08.07.2010 it was held:
Appeal
no.
1166
of
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon,
P. Ramanatha Aiyar, 3rd Edition, 2005]”.
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 thecondonation 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.”
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.”
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 185/187
days in filing the present revision petition. The application for condonation of delay is without
any merit as well as having no legal basis and is not maintainable. Consequently, the present
revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/(Rupees ten thousand only).
Petitioner is directed to pay the cost of Rs.5,000/- to the respondent directly by way of
demand draft and the balance amount be deposited by way of demand draft in the name of
‘Consumer Legal Aid Account of this Commission’ within four weeks. In case the petitioner
fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @
9% per annum till realisation.
List on 22nd November 2013, for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2437 OF 2012
(From the order dated 02.03.2012 in Appeal No. A/07/928 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai)
Rameshbhai S. Sarvaiyya Flat No.20, 5th Floor, Giriraj Apartment, 201, Walkeshwar Road,
Malabar Hills, Mumbai – 400006 (Maharashtra)
…Petitioner/Complainant
Versus
Shri Ramakant Ramchandra Jadhav Managing Director, M/s. Network Construction Pvt. Ltd.
26, Onlooker Building, 3rd Floor, Sir P.M. Road, Fort, Mumbai – 400001
…Respondent/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Vikas Nautiyal, Advocate
For the Respondent
:
Ms. Savita Singh, Advocate
PRONOUNCED ON 4th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 02.03.2012
passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short,
‘the
State
Commission’)
in
Appeal
No.
A/07/928
–
Shri Rameshbhai Shantilal Vs. ShriRamakant Ramchandra Jadhav by which, application for
filing additional documents was dismissed.
2.
Brief facts of the case are that complainant/petitioner filed complaint before District Forum
for refund of Rs.75,000/- and after hearing both the parties, complaint was dismissed by District
Forum. Petitioner filed appeal before State Commission and during pendency of appeal
petitioner moved application for filing additional documents which was dismissed by learned
State Commission vide impugned order against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that documents annexed with the application
were most relevant documents for disposal of the complaint and learned State Commission has
committed error in dismissing application; hence, revision petition be allowed and application
filed by the petitioner before State Commission be allowed and documents be taken on record.
On the other hand, learned Counsel for the respondent submitted that order passed by learned
State Commission is in accordance with law; hence, revision petition be dismissed.
5.
Perusal of record reveals that complainant/petitioner filed complaint before District forum
and in paragraph 5 of the complaint,complainant mentioned that after arriving at settlement,
OP/respondent issued cheques to the complainant and many a times, the cheques issued by the
OP were bounced back.
6.
Petitioner has not filed documents before District Forum but after dismissal of complaint,
during pendency of appeal, he moved application for filing additional documents along with
documents. Perusal of application reveals that petitioner has not given any reason for not placing
these documents on record before District Forum. Learned State Commission rightly observed
that such type of application cannot be entertained and rightly dismissed application. State
Commission further observed that if petitioner was to introduce additional documents, proper
procedure was to be followed which was not followed in the case and in such circumstances,
application was dismissed.
7.
We do not find any infirmity, irregularity, illegality or jurisdictional error in the impugned
order and revision petition is liable to be dismissed. But, at the same time, it would be
appropriate to give liberty to petitioner to move a fresh application in proper format with reasons
for not placing documents before District Forum which may be decided by learned State
Commission on merits after hearing both the parties, as this application has not been dismissed
on merits by impugned order.
8.
Consequently, revision petition filed by the petitioner is dismissed with no order as to cost,
but petitioner is given liberty to file another application in proper format, as directed above.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3438 OF 2008
(From order dated 16.05.2008 in First Appeal No.786 of 2007 of the State Consumer Disputes
Redressal Commission, Delhi)
1. Sherry Leasing Pvt. Ltd. Having its Registered Office at 41/12 Ashok Nagar, New Delhgi-18
Through it’s one of the Director Mrs. Sunita Mehta, R/o : -41/11 Ashok Nagar, New Delhi-18.
2. Mrs. Sunita Mehta W/o Sh. Hari Om Mehta, R/o 41/11 Ashok Nagar, New Delhi-18
…Petitioners
Versus
1. Mrs. Kamini Saigal W/o Late Krishan Kumar
2. Priyanka Saigal D/o Mrs. Kamini Saigal
3. Sandeep Saigal, S/o Mrs. Kamini Saigal All the residents of RU-241, Pitam Pura, New Delhi.
…Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Arvind Dua, Advocate for
Petitioners No.1 and 2 along
with Ms.Sunita Mehta, Petitioner
No. 2 in person.
For the Respondents : In person
Pronounced on: 7th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 16.5.2008 passed by State Consumer Disputes Redressal
Commission, Delhi (for short, ‘State Commission’), Petitioners/O.Ps have filed the present
petition.
2. Brief facts are that Respondent No.1/Complainant No. 1 deposited a sum of Rs.25,000/- with
petitioner no.1 and it issued FDR No.0074 dated 30.09.1995 which was due for payment on
29.09.1997. It is also stated that Respondent No.2/Complainant no.2 deposited a sum of
Rs.50,000/- and petitioners issued 2 FDRs of Rs. 25,000/- each dated 13.05.1995 bearing
Nos.SLPL-047 and SLPL-075 dated 30.09.1995, payable on 12.5.1997 and 29.09.1997
respectively. Likewise, Respondent no.3/Complainant No.3 deposited a sum of Rs.25,000/- with
the petitioner who issued FDR No.SLPL-044 dated 08.05.1995 payable on 07.05.1997. All the
aforesaid FDRs bear interest @ 14% P.A. When all the FDRs became matured for payment in
the year 1997,petitioners failed to pay on demand principal and interest there upon. Hence,
respondents served legal notice dated 22.12.1998 upon the petitioners and prayed for the
direction to the petitioners for making the payment of principal amount with interest @ 14% P.A.
Besides this, they have claimed Rs.One lac as compensation and Rs.11,000/- on account of
counsel fee.
3. Petitioners did not appear before the District Forum inspite of service. Hence, they were
proceeded exparte.
4. Consumer Disputes Redressal Forum, Janakpuri, New Delhi(for short, ‘District Forum’),
vide order dated 4.5.2001, allowed the complaint and passed the following directions;
“ In the result we direct the OP as under:
1. To pay the complainant No.1 the balance amount FDR No.0074 Dt.30.09.95
after adjusting the amount of Rs.10,000/- already paid by the OP to
complainant No.1 with interest @ 14% P.A. from 01.01.97 to 12.05.97 and
future interest thereafter,@ 12% P.A.
2. To pay the complainant No.2 a sum of Rs. 50,000/- towards her FDR No.047
dated 13.05.1995 alongwith interest @ 14% P.A. from 01.01.1997 to
12.05.97 and thereafter interest @ 12% P.A. till realization. And pay
Rs.25,000/- towards FDR No. 075 Dt.30.09.95 with interest @ 14% P. A.
from 01.01.97 to 29.and, thereafter, interest @ 12% P.A. till realization.
3. To pay the complainant No.3 a sum of Rs. 25,000/-towards his FDR No.044
Dt.08.05.95 with interest from 01.01.97 @ 14% P. A. till 07.05.97 and,
thereafter, interest @ 12%.
4. We direct the OP to pay a sum of Rs. 500 to each of the complainant towards
cos.
The respondent shall comply with the abvoe mentioned order within 45 days
of receipt of this order failing which proceedings u/s 27 of the Consumer
Protection Act may be initiated”.
5. Thereafter, District Forum in the execution proceedings, as per its order dated 24.08.2007 held
that, in the execution proceedings it cannot review, alter or change its own order and directed
petitioner no. 2 to pay the balance amount positively.
6. Being aggrieved, petitioners filed appeal before the State Commission challenging orders
dated 04.05.2001 and 24.08.2007 of the District Forum.
7. State Commission, vide order dated 16.5.2008 disposed of the appeal in the following terms;
“6. In view of the above reasons, there is no ground to interfere with the order
dated 24-08-2007 nor is there any ground to interfere with the impugned
orders. The appellant, therefore, shall make the payment to the respondent
with interest accruing from the order dated 4-1-2005 as the respondent is
in a very poor financial state and is in dire need of money and her son is
stated to have gone into depression after her husband’s death and is
incurring huge expenses for treatment and is also facing other problems
due to the financial crunch.
7.
In view of the equal liability of the appellant being Rs.30,000/- towards the
principal amount, the appellant shall pay within fifteen days the interest and
the amount of Rs.30,000/- in terms of order dated 4-1-2005 failing which
the District Forum shall take up proceedings under Sec. 25 & 27 of the
Consumer Protection Act.
8. All of the complaints have become redundant in view of the order dated 4-52001 passed by the District Forum. The appellant cannot be allowed to
reopen the issue after the matter has been decided on merits”.
8. Being aggrieved by the order of State Commission, petitioners have filed the present revision
petition.
9. We have heard the learned counsel for the petitioners as well as respondent who has argued
its case in person.
10. Petitioners herein were exparte before the District Forum as they did not appear despite
service. Under these circumstances, petitioners have no defence on merits.
11. District Forum, in its order has held;
“The complainants have established on record that they have deposited the
amounts to the OP as per their respective FDRs and OP has failed to
pay the said amount of FDR on its maturity as demanded by the
complainants, hence, there is a deficiency in service on the part of OP”.
12. State Commission while deciding the appeal observed;
“4. It is pertinent to mention that in our Order dated 14-03-2005 passed
in A-845/2002 Sunita Mehta v. Kamini Sehgal, who is respondent
in this case, the present appellant Sunita Mehta was allowed in
view of the undertaking given by her that she would settle the
accounts with other four Directors who are equally liable to make
payment of their share in the company to the respondent.In view of
this undertaking, this Commission passed the following
directions:-
“ In view of this undertaking the appeal is allowed and the
impugned order is set aside. The District Forum shall take
up the proceedings initially under Sec. 25/27 of the
Consumer Protection Act. However, District Forum shall
also consider the request of the appellant as to her
proportionate liability being one of the Directors as the
company comprises of four Directors”.
5. On the face of it the appeal against original order dated 04-05-2001 is
hopelessly time barred. The appellant has come up after years to
challenge this order without showing any sufficient grounds to condone
such inordinate delay. Moreover, the appellant has also been given the
relief as to her liability for the other directors of the company by the
aforesaid order dated 14-03-2005. On account of this the appeal
against order dated 12-05-2001 has become otherwise infructuous as
in the aforesaid appeal No. 845/02 decided on 14-03-2005 the
appellant had filed the above referred appeal for non-compliance of
order dated 4-5-2001 which impliedly meant that the appellant had
already accepted the said order and was successful in obtaining relief
as to her proportionate liability”.
13. Under section 21(b) 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
jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in
the exercise of its jurisdiction illegally or with material irregularity.
14. As there has been no defence on behalf of the petitioners before the District Forum on
merits, we do not find any infirmity or illegality in the impugned order of the State Commission
as well as that of the District Forum. Under these circumstances, present revision petition is not
maintainable and the same is dismissed.
15. Parties shall bear their own costs.
……..……………………J
(V.B. GUPTA)
(PRESIDING MEMBER
…………………………
(REKHA GUPTA)
SSB
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.309 OF 2013
With I.A. No.545 of 2013 for Stay
(From order dated 04.12.2012 in First Appeal No.345 of 2012 of the State Consumer Disputes
Redressal Commission, Lucknow, Uttar Pradesh)
Tej Bahadur Singh S/o Late Avadh Bihari Singh Village and Post Chiraiyacot (Vali Nagar)
District Mau, U.P.
…Petitioner
Versus
1. Virju Yadav S/o Late Satyadev Yadav R/o Village Hiranpur Post Kamarawa, Pargana
Chiraiyacot, District Mau, U.P.
2. Manager, Mahindra Maxmile 6 K 8th Floor West and Minister No.70, Dr.Radha Krishnan,
Salai Moila Pore, Chennai.
…Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Nikhil Jain, Advocate
Pronounced on: 7th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/O.P. No.1 being aggrieved by order dated 4.12.2012 passed by State Consumer
Disputes Redressal Commission, Lucknow, Uttar Pradesh (for short, ‘State Commission’)has
filed the present revision petition.
2. Respondent No.1/Complainant had filed a consumer complaint against the petitioner as well
as Respondent No.2/O.P. No.2 on the ground that petitioner had supplied bad quality of engine
oil due to which engine of his vehicle was seized and the engine oil had been produced by
respondent no.2.
3. District Forum issued notice of the complaint to the petitioner as well as respondent no. 2 but
they did not appear before it and as such both were proceeded exparte.
4. District Forum, vide its order dated 15.10.2011 partly allowed the complaint.
5. District Forum’s order was challenged by the petitioner before the State Commission.
6. On 4.12.2012, when the matter was listed before the State Commission, none appeared on
behalf of the petitioner and as such appeal of the petitioner was dismissed in default.
7. Being aggrieved by the order of State Commission, petitioner has filed this petition.
8. It has been contended by the learned counsel for the petitioner that counsel for petitioner
could not appear before the State Commission as he had gone to appear before the District
Forum to attend the case and by the time when counsel reached the State Commission, appeal
was dismissed in default on first call. The appeal ought not to have been dismissed on the first
call. Non-appearance on behalf of the petitioner before the State Commission is not intentional
but is bonafide.
9. In support, learned counsel has relied upon the decision of Apex Court in Lucknow
Development Authority Vs. Shyam Kapoor (2013) Supreme Court Cases, 754.
10. In the grounds of revision, petitioner has nowhere stated as to why he was not present in
person before the State Commission on the date of hearing. Moreover, petitioner has not
mentioned the name of the counsel who had to appear before the State Commission on the date
fixed. The story put forward by the petitioner does not inspire any confidence. Moreover, a
valuable right has accrued in the favour of the complainant.
11. Petitioner after having been proceeded exparte before the District Forum, did not choose to
pursue the appeal before the State Commission in a diligent manner. That is why his appeal was
dismissed in default.
12. Thus, careless and negligence on the part of the petitioner is writ large in this case since he
has been contesting this litigation in a very careless and casual manner. Therefore, the decision
of Lucknow Development Authority (supra) is not applicable to the facts of the present case.
13. Under section 21(b) 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
jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in
the exercise of its jurisdiction illegally or with material irregularity.
14. We do not find any infirmity or illegality in the impugned order passed by the State
Commission. Under these circumstances, present revision petition has no legal force and as such
the same stand dismissed with cost of Rs.5,000/-(Rupees Five Thousand only).
15. Petitioner is directed to deposit cost of Rs.5,000/- by way of demand draft, in the name of
“Consumer Legal Aid Account” of this Commission, within four weeks from today.
16. In case, petitioner fails to deposit the cost within the prescribed period, then he shall also be
liable to pay interest @ 9% p.a., till realization.
17. Pending application, if any stands disposed of.
18. List on 22nd November, 2013 for compliance.
…..…………………………
J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
SSB
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3650 OF 2008
(From the order dated 1.08.2008 in Appeal No. 2848/2001(Hry)RBT/272/2008 of the State
Consumer Disputes Redressal Commission, UT, Chandigarh)
Hukum Chand S/o Sh. Shiv Lal R/o Village Dhana P.O. Salawas, Distt. Jhajjar, Haryana
…Petitioner/Complainant
Versus
United India Insurance Co. Ltd. Through its Regional Manager, Regional Office, Sec-17,
Chandigarh
…Respondent/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Rishi Malhotra, Advocate
For the Respondent
:
Mr. S.M. Tripathi, Advocate
PRONOUNCED ON 7th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/Complainant against the order dated
1.8.2008 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh (in
short, ‘the State Commission’) in Appeal No. 2848/2001(Hry)RBT/272/2008 – United India Ins.
Co. Ltd. Vs. Hukam Chand by which, while allowing appeal order of District Forum allowing
complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner was owner of vehicle No. HR-
14A/1023, which was insured with OP/respondent for a period of one year from 30.4.98 to
29.4.99. This vehicle was taken away by some persons on 15.6.1998 after administering some
poisonous substance in the drink to the driver as well as conductor of the vehicle. Report was
lodged with the Police on 17.6.1998 and intimation was also given to OP. OP repudiated claim.
Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP
resisted complaint and submitted that as vehicle was plied as taxi, whereas vehicle was insured
as private vehicle and, thus violated terms and conditions of the policy, OP rightly repudiated
claim and prayed for dismissal of complaint. Learned District forum after hearing both the
parties allowed complaint and directed OP to make payment of insured estimated value along
with 12% p.a. interest and further awarded Rs.5,000/- as cost of litigation. Appeal filed by the
OP was allowed by the impugned order by the State Commission against which this revision
petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that inspite of violation complainant was
entitled to receive claim and learned District Forum rightly allowed complaint, but learned State
Commission committed error in dismissing complaint; hence, revision petition be allowed and
impugned order be set aside. On the other hand, learned Counsel for the respondent submitted
that order passed by learned State Commission is in accordance with law; hence, revision
petition be dismissed.
5.
Perusal of record clearly reveals that vehicle of the complainant was insured with OP as
private vehicle and during subsistence of insurance policy vehicle was stolen. Perusal of FIR
further reveals that vehicle was used as taxi and thus, there was clear cut violation of the terms
and conditions of the policy. Now, the question to be decided is whether complainant is entitled
to receive any compensation inspite of violation of terms and conditions of the policy.
6.
Learned Counsel for the petitioner has placed reliance on (2008) 11 SCC 259 – National
Insurance Co. Ltd. Vs. Nitin Khandelwal in which Hon’ble Apex Court has held that in case
of theft of vehicle breach of condition is not germane. In that case also vehicle was insured for
personal use and it was being used by the complainant as taxi, even then, order of State
Commission allowing 75% claim on non-standard basis which was upheld by National
Commission was upheld by Hon’ble Apex Court. Facts of the present case are similar as in this
case also vehicle was registered as private vehicle but was being used as taxi and it was stolen
during subsistence of insurance policy. In such circumstances, petitioner is entitled to 75% of the
IDV value on non-standard basis.
7.
Learned Counsel for the respondent has placed reliance on judgement by this Commission
delivered on 4.7.2013 – Madan Lal Vs.Oriental Insurance Co. Ltd. in which complaint was
dismissed as private vehicle was being used as a taxi. We do not agree with the view expressed
in
aforesaid
revision
petition
in
the
light
of
judgment
of Hon’ble Apex
Court
in Nitin Khandelwal (supra) case and revision petition is to be allowed and impugned order is
liable to be set aside.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
1.8.2008 passed by learned State Commission in Appeal No. 2848/2001(Hry)RBT/272/2008 –
United India Ins. Co. Ltd. Vs. Hukam Chand is set aside and order dated 21.5.2001 passed by
learned District forum in Complaint No.210 – Hukam Chand Vs. United India Ins. Co. Ltd. is
modified and respondent is directed to make payment of 75% of the IDV value of the vehicle on
non-standard basis along with 9% p.a. interest from the date of filing complaint till realization.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4405 OF 2012
(From the order dated 24.08.2012 in Appeal No. 796/2012 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
With IA/5951/2013
Satbir Singh S/o Sh. Abey Ram R/o VPO Kharak Punia Tehsil & District Hissar, Haryana
…Petitioner/Complainant
Versus
1. Reliance General Insurance Company Through its Branch Manager 88-E, Model Town,
Near Bhagwati Hotel, Hissar, Haryana
2. The Regional Manager Reliance General Insurance Co. Ltd. SCO No. 212-214, Sector 34-A,
Chandigarh
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: Mr. Akshay Verma, Advocate
Mr. Abhinav Singh, Advocate
Mr. Akashdeep Verma, Advocate
For the Respondents
: Mr. Navneet Kumar, Advocate
PRONOUNCED ON 7th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the order dated
24.08.2012
passed
by
the
Haryana
State
Consumer
Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No.
796/12 – Satbir Vs. Reliance General Ins. Co. & Anr. by which, while dismissing appeal of the
complainant, order of District forum allowing complaint was also set aside.
2.
Brief facts of the case are that Complainant/petitioner got his Bolero HR-39-A-9361
insured from OP/respondent for a period of one year from 8.5.2009 to 7.5.2010. On 1.11.2009,
vehicle was snatched by some culprits and FIR was lodged and intimation was also given to
OP. Claim was submitted to OP, but claim was repudiated by letter dated 2 8.5.2010. Alleging
deficiency on the part of OP, complainant filed complaint before District Forum. OP/respondent
resisted complaint and submitted that vehicle was insured as private car but was used for hire and
reward at the time of accident and was constantly being used for commercial purposes. Claim
was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after
hearing both the parties allowed complaint on non-standard basis and directed OP to pay
Rs.3,07,500/- along with 7% p.a. interest Petitioner filed appeal before learned State
Commission for enhancement of compensation and learned State Commission vide impugned
order while dismissing appeal set aside order of District Forum and dismissed complaint against
which this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that learned State Commission has
committed error in dismissing complaint on the appeal filed by the complainant for enhancement
of compensation even without any cross appeal from respondent; hence, revision petition be
allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent
submitted that State Commission had power to dismiss complaint even without cross appeal and
order passed by State Commission is in accordance with law; hence, revision petition be
dismissed.
5.
Perusal of record reveals that learned District Forum allowed complaint partly and directed
OP to pay Rs.3,07,500/- whereas complainant claimed Rs.4,10,000/- in the complaint.
Aggrieved by the order of District Forum complainant filed appeal before State Commission for
enhancement and learned State Commission vide impugned order while dismissing appeal, set
aside order of District Forum and dismissed complaint, though, no appeal was filed by
OP/respondent.
6.
Learned Counsel for the petitioner submitted that without any appeal or cross objections
State Commission had no power to dismiss complaint while dismissing appeal for enhancement
of compensation. On the other hand, learned Counsel for the respondent submitted that as both
the parties were present before learned State Commission, learned State Commission had power
to dismiss complaint even without appeal on behalf of respondent. In support of his contention
he has placed reliance on (2000) 3 SCC 607 – Dilip Vs. Mohd. Azizul Haq &Anr. in which it
was held that during pendency of appeal, if any, amendment is made in the Rent Control Act and
protection is given to the tenant, the tenant is entitled to protection given by amendment. This
judgment is not applicable to the facts of the present case as in that case appeal filed by the
tenant was pending before the Court and he was extended benefits on the basis of amendment in
Rent Control Act. On the other hand, in the case in hand, appeal was filed only by the
complainant for enhancement of compensation and no appeal was filed by OP for setting aside
order of District Forum.
7.
Learned Counsel for the respondent also placed reliance on (1999) 8 SCC 229 – Delhi
Electric Supply Undertaking Vs. BasantiDevi & Anr. in which it was held that Appellate
Court may pass any order as the case may require. In this case, Hon’ble Apex Court while
exercising powers under Article 142 of the Constitution granted relief to the complainant. This
citation is also not applicable to the facts of the present case as State Commission had no power
to exercise powers conferred on Supreme Court under Article 142 of the Constitution.
8.
Learned Counsel for the respondent could not place any citation depicting that once order
has been passed against the OP that can be set aside by the Appellate Court without preferring
appeal by the OP.
9.
After filing appeal for enhancement of compensation petitioner had every right to withdraw
the appeal or get it dismissed as not pressed and in such circumstances, State Commission had no
power to dismiss the complaint in appeal filed by the petitioner for enhancement of
compensation.
10.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
24.8.2012 passed by learned State Commission in Appeal No. 796 of 2012 – Satbir Singh Vs.
Reliance General Insurance Co. & Anr. is set aside and order of District Forum allowing
complaint partly is affirmed. There shall be no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3271 of 2013
(From the order dated 28.05.2013 of the Delhi State Consumer Disputes Redressal Commission,
Delhi in First Appeal no. 76 of 2013)
Harish Kumar Chadha Resident of 5/6, Pant Nagar Jangupura Extension
New Delhi – 110014
Petitioner
Versus
1. The Manager M/s Bajaj Allianz Life Insurance Co. Ltd Unit no. 603, 6th Floor, SG Mall,
Plot no. 8 Commercial Complex, DC Chowk, Rohini New Delhi – 110085
2. The Grievance Redressal Officer Bajaj Allianz Insurance Co. Ltd.
GF Plaza, Ground Floor, Airport Road Yervada, Pune – 411066 (Maharashtra)
3. Mr Rahul Manchanda C/o Bajaj Allianz Life Insurance Co. Ltd. Unit no. 603, 6th Floor, SG
Mall, Plot no. 8 Commercial Complex, DC Chowk, Rohini
New Delhi – 110085
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
HON’BLE MRS REKHA GUPTA
For the Petitioner
PRESIDING MEMBER
MEMBER
IN PERSON
Pronounced on 7th October, 2013
ORDER
REKHA GUPTA
Revision petition no. 3271 of 2013 has been filed under section 15 of the Consumer
Protection Act, 1986 against the order dated 28.05.2013 of the Delhi State Consumer
Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 76 of 2013.
The brief facts of the case as per the petitioner/ complainant are that the petitioner/
complainant took three life insurance policies which were purchased from M/s Bajaj Allianz Life
Insurance Co. Ltd., having their office at that time at Pitampura, later on shifted to Rohini. The
policies were purchased in the name of his son Ankit Chadha, his wife Premlata Chadha. All the
three policies were sold by Mr RahulManchanda, the agent of M/s Bajaj Allianz Life Insurance
Company Ltd., from Pitampura.
The purpose of purchasing the above said policies was for the higher education of his son,
who was studying in Hindu College at that time. Petitioner was assured by the agent –
Mr Rahul Manchanda, if the payment of the premium discontinues, the entire payment made by
the petitioner will be refunded along with the premium after three years in any case. No
Brochure or policy was issued by the agent at the time of registration.
Thereafter, the petitioner suffered a heavy loss in his business and could not make the
payment of the second installment of the premium and the policies lapsed. The company had
shifted their office from Pitampura to Rohini, without giving any intimation, neither by phone
nor by mail. It was a heavy loss of Rs.60,00,000/- so it was not possible for the petitioner to
make the payment of remaining installments of premium.
It was very difficult to find out the new office of the Company from Pitampura because
nobody was known to them. Finally, the petitioner got the address from some one of
their Rohini office and contacted the Manager of the company Mr Sharma and the petitioner
explained him the problem for the refund of the money, but he did not show any kind of
sympathy and told the petitioner to come after the maturity of the policies after three years.
After three years, when the petitioner again visited the office of the Bajaj Allianz Life
Insurance Co. Ltd., at Rohini and met ShriSharma, Manager of the Company and again he
behaved rudely and informed me that he cannot have a refund of his money and the same has
been forfeited by the Company as per rules laid down in their policy. Petitioner was not told
anything of this kind of rules by Mr RahulManchanda, who has not contacted him after the
issuance of the policies. It was a case of cheating as well as fraud by way of misdeclarationof
hiding the facts.
Thereafter, he wrote a letter to the Grievance Redressal Officer at their head office for
settlement of the dispute in Pune. The letter was written to the Grievance Redressal Officer on
14.05.2010 but nothing has been heard from him till date, as they had not responded to his letter
till date and it was an indication of bad intention of the company.
When he did not get any reply from the office of Grievance Redressal Officer, he also made
a
complaint
to
the
office
of
the
Life
Insurance
Ombudsman,
Life
Insurance
Building, 2/2A Asaf Ali Road, New Delhi – 110002. Thereafter a format was sent by them and
the same was sent after filling the same on the very same day on 09.08.2010, but he had not
heard anything from them also. Thereafter, he have decided to approach the District Consumer
Disputes Redressal Forum (V) (North West District), Shalimar Bagh for the refund of my
valuable money as Bajaj Allianz Life Insurance Co. Ltd., wanted to grab his valuable money by
way giving the reference of their untold policy.
Petitioner has prayed that the respondent company may kindly be directed to pay the
principal amount of all three policies – Rs.95,000/-;
Pay Rs.75,000/- as yearly premium on all the three policies to the petitioner;
Pay Rs.50,000/- to the petitioner for the mental as well as physical harassment and causing
severe damage to the health of the petitioner.
In their reply on behalf of the respondents/ opposite parties it has been denied that all the
three policies were sold to the petitioner by the same person, i.e., Rahul Manchanda. It was quite
evident from the documents of the policy that was issued by the respondent no. 1 that only one
policy no. 73116273 has been sourced by the above said person and the remaining two policies,
i.e., 0032083435 and 0039891782 have been sourced by Mr Varun Gupta who is an insurance
agent of the said insurance company therefore, the averment made by the petitioner is false,
wrong and has concocted a misleading storyline to eye wash the Forum.
It was vehemently denied that the agent of the respondent assured the petitioner, that if the
payment of premium of the policy discontinues, the entire amount will be refunded along with
the premium after three years. The petitioner purchased three policies, i.e., policy no.
0039891782 dated 21.02.2007 for Rs.5,00,000/- in the name of Mr Ankit Chadha (son) of the
petitioner and the policy that was issued by the respondent no. 1 was a ‘Capital Unit Gain Size
One’ plan, policy no. 0073116273 dated 28.10.2007 for Rs.2,00,000/- again in the name
ofMr Ankit Chadha (son) of the petitioner and the policy that was issued was a (Unit Gain Plus
Gold) Policy, and the policy no. 0032083435 dated 05.12.2006 for Rs.2,50,000/- in the name
of Mrs Prem Lata Chadha (wife) of the petitioner and the policy that was issued was a (New Unit
Gain). It was further denied that no ‘brochure’ or ‘policy’ format was shown at the time of
registration. It was stated that every term and condition was thoroughly explained by the agent of
the opposite party to the petitioner and after accepting all those terms and conditions, the
petitioner filled the proposal form and deposited the proposal deposit amount. The plea of not
knowing the policy format or conditions was baseless and a concocted story, as before signing all
the documents the petitioner was explained each and every term of the policy. The proposal of
the petitioner was accepted as proposed and the policies were issued to him. The original policy
bond containing terms and conditions of the insurance were duly received by the petitioner and
this fact of having received the policy bond has not been disputed by the petitioner. The
petitioner was given 15 days free look cancellation period from the date of receipt of the policy
body by the petitioner to review the terms and conditions of the contract as per the Policy
Holders’ Protection Regulation, 2002 and if he was dissatisfied with the said terms and
conditions of the policy, he would have given written notice to opposite parties to cancel the
policy within the said period of 15 days from the date of receipt of the policy bond. The
petitioner, however, being fully satisfied with the proposed plan and the terms and conditions of
the policy bond never approached the opposite parties to cancel the policy within 15 days free
look cancellation period and did not return the policy bond seeking refund of premium
permissible as per terms of the meaning there by that he was fully satisfied with the terms and
conditions of the policy and terms and conditions are deemed to be admitted on the part of the
petitioner and that the petitioner was fully satisfied with the policy conditions and has concocted
a false story just to mislead the Forum due to some ulterior motives to raise illegal financial
gains against the spirit of the contract of insurance and has filed a complaint after expiry of about
4 years from the commencement of the policy on vague and frivolous grounds. Moreover, there
is no cutting on the proposal form duly signed by the petitioner in English which proves that the
policy in question was issued as proposed by him.
It was vehemently denied that the insurance agent named Mr Rahul Manchanda from M/s
Bajaj Allianz Life Insurance Company Ltd., put any extra efforts to convince the petitioner to
purchase the said policies by explaining his poor financial situation. All these averments are
false, wrong and concocted. The petitioner purchased all the three policies of his own free will
and by keeping in mind the future of his son and for his higher education as explained by the
petitioner himself in the complaint.
On 05.12.2006 a proposal form was filed by petitioner for life insurance policy vide
proposal no. 0032083435. It is further submitted that petitioner opted for a New Unit Gain Plan
for a sum assured upto Rs.2,50,000/- by signing the said proposal form. The premium of
Rs.25,000/- was paid by the petitioner in lieu of the said policy on 05.12.2006 via cheque and
hence policy was issued. The policy was a New Unit Gain Policy with a fixed premium amount
of Rs.25,000/-. The premium was for 10 terms. The petitioner was given an option to withdraw
by way of partial or complete surrender of units after three years from the date of
commencement of the policy (provided premiums had been paid for all the three years).
Another policy was purchased by the petitioner on 21.02.2007. A proposal form was filled
by petitioner for life insurance policy videproposal no. 0039891782. Petitioner opted for a
Capital Unit Gain Size One plan for a sum assured upto Rs.5,00,000/- by signing the said
proposal form. The premium of Rs.50,000/- was paid by the petitioner in lieu of the said policy
on 21.02.2007 via direct debit and hence policy was issued. The policy was a Capital Unit Gain
Size One policy with a fix premium amount of Rs.50,000/- annually the premium was for 20
terms. The petitioner was given an option to withdraw by way of partial or complete surrender of
units after three years from the date of commencement of the policy (provided premiums had
been paid for all the three years).
A third policy was again purchased by the petitioner on 28.10.2007. A proposal form was
filled by the petitioner for life insurance policies vide proposal no. 0073116273. Petitioner opted
for a Unit Gain Plus Gold plan for a sum assured upto Rs. 2,00,000/- by signing the said proposal
form. The premium of Rs.20,000/- was paid by the petitioner in lieu of the said policy on
28.10.2007 and hence policy was issued. The policy was a Unit Gain Plus Gold policy with a
fixed premium amount of Rs.20,000/- annually. The premium was for 20 terms. The petitioner
was given an option to withdraw by way of partial or complete surrender of units after three
years from the date of commencement of the policy (provided premiums had been paid for all the
three years).
The respondents denied that the office of the respondent no. 1 was shifted without giving
any intimation as to every customer a mail was issued and was also informed telephonically
about the change of office address from Pitampura to Rohini by the customer care executive
from the respondent no. 1 company.
All the three policies that the petitioner opted for are different from each other in every
aspect and the said proposal, declaration along with the statement leading to the issuance of the
policies referred had been agreed to and accepted by the petitioner, as on the basis of the contract
the parties had entered into an agreement after considering all the terms of the policies. Further, a
free look period of 15 days was also given to the petitioner for cancellation of the policy. During
this period, the petitioner was at liberty to consult with anyone or scrutinize the policy contract
himself.
The first policy which was purchased by the petitioner was a New Unit Gain Plan and it
commenced from 05.12.2006 and sum assured in the policy was Rs.2,50,000/- with a premium
amount of Rs.25,000/- and the premium term of the policy was 10. In this policy, i.e., (New Unit
Gain), if any regular premium is not paid before the expiry of grace period, after three policy
years, provided premiums for three full years have been paid, the policy shall be kept in force for
full sum assured including additional benefits by cancellation of units at the prevailing unit price
to recover all charges including charge for insurance covers. The policy will be terminated and
fund value would be paid to the policy holder as and when Fund Value becomes equal to the
amount of one annual premium.
Similarly a second policy was purchased by the petitioner, i.e., 0039891782 on 21.02.2007
for a sum of Rs.5,00,000/- with a premium of Rs.50,000/- for the policy terms of 20.
Policy Number – 0039891782 was issued based on the proposal form filled and signed by
the policy holder where the policy holder has opted for Capital Unit Gain Size only with a
regular mode and frequency selected as yearly, which was a market linked policy and the value
of the policy was dependent on the unit prices. As per the policy condition the surrender value, if
any, is payable only after first three policy years and non-payment of premium will be processed
as per the clause mentioned below.
If the unpaid regular premium was due during the first three policy years and the policy
holder failed to make the payment before the expiry of the aforesaid grace period:
(i)
The policy shall immediately lapse along with all insurance covers.
(ii)
The policy holder may revive the policy within a revival period of two years
from the due date of first unpaid regular premium subject always to revival
conditions, failing which the contract shall be terminated and 100% of the value
of accumulation units in respect of regular premiums as on date of lapse, and the
top up premium fund value, if any shall be paid at the end of the third policy year
or at the expiry of the revival period, which is ever is later.
(iii)
If policy is lapsed and the death of the life assured happens, the existing fund
value would be paid and the policy will terminate immediately.
Thereafter, another policy was purchased by the petitioner with policy no. 0073116273
on 28.10.2007. The policy holder was assured for a sum of Rs.2,00,000/- with a regular premium
of Rs.20,000/- annually. The policy was (Unit Gain Plus Gold) where in case the policy holder
has failed to pay the regular premium the policy shall lapse along with all the insurance cover.
However, the fund will continue to participate in the market. The policy holder shall have an
option to review the policy within the revival period of two years on failing to do so the policy
shall be foreclosed. If regular premiums due during the first three policy years had not been paid,
surrender value, if any, was payable only after the expiry of the revival period or at the end of the
third policy year, whichever was later. The surrender charges applicable incase the regular
premium had not been paid within the grace period in the first three policy years, would be 60%
of the first years’ Annualized premium.
The
District
Consumer
Disputes Redressal Forum
(V)
(North
West
District),
Shalimar Bagh, Delhi (‘the District Forum’) vide their order dated 06.11.2012 has observed that
“a perusal of the record shows that the policies purchased by the petitioner had lapsed due to
non-payment of the yearly premium. The respondent has explained that as per the terms and
conditions of the policy the amount payable has already been refunded to the petitioner. The
petitioner on his part has not denied that the respondent had acted in accordance with the terms
and conditions of the policies purchased by the petitioner.
In the case of United India Insurance Company Ltd., vs Harchand Rai Chandan Lal,
the Hon’ble Supreme Court has held that the terms and conditions of the contract entered into
between the parties have to be strictly construed and no deviation can be made there from. In
view of this we hold that there are no merits in the complaint. The same is accordingly
dismissed”.
Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State
Commission. The State Commission vide order dated 28.05.2013, while dismissing the
appeal in limini, noted that the appellant/ complainant has no case at all, “the duty of the courts
towards an agreement is to ensure that the parties to an agreement abide by the terms and
condition of the contact between them. A perusal of the terms and conditions of each policy
unravels that the OP strictly adhered to, and acted in accordance with the terms and conditions
of the policies as held by the trial Forum above. The OP cannot therefore be faulted on this
court. The two earlier policies lapsed due to non-payment of the yearly premiums and there
remained nothing to be paid towards these two policies and whatever was due for the third
policy, was paid through a cheque by the OP to the petitioner”.
Hence, the present revision petition.
We have heard the petitioner in person and have gone through the records of the case
carefully.
In the revision petition no cogent grounds have been given to show that the 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. Further, his prayer in the revision petition is the same as his prayer in the complaint
except that he has prayed for a further amount of Rs.5,00,000/- due to loss of income of his son
because he could not enter any higher education due to lack of funds. He has not prayed for
setting aside the order of the State Commission.
He has admitted that he had taken three policies and due to problems in his business he
could not pay the second premium for all the three policies. He, however, stated that he had been
advised by the agent that if the payment of premium discontinued, the entire payment made by
him will be refunded along with the premium after three years in any case. He could not support
this statement with any evidence. It is also an admitted fact that the policies with the terms and
conditions were received by him. He had been given a 15 days free look cancellation period
from the date of receipt of policy bond to review the terms and conditions of the contract and
return the same if he was dissatisfied. He has admitted that he failed to pay the second
installment of the premium of the three policies due to heavy loss of his business. He was also
aware of the terms and conditions of the policy which had been issued to him. He was also
issued with the premium reminders, as per the reminders placed on record at pages 49 & 50.
In view of the above, we find that there is no jurisdictional error, illegality or infirmity in
the order passed by the State Commission as also the District Forum warranting our interference.
The revision petition is accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand
only).
Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name
of ‘Consumer Legal Aid Account’ of this Commission, within four weeks. In case the petitioner
fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest
@ 9% per annum till its realization.
List on 22nd November 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3396 OF 2013
(From order dated 12.08.2013 in First Appeal No. 433 of 2013 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Shri Kali Ram Son of Late Sh. Hukmi Singh Residing at 572/20, Om Nagar,
Gurgaon, Haryana-122001
… Petitioner
Versus
State Public Information Officer-Cum- Deputy Excise & Taxation, Gurgaon (East), Haryana
122001
… Respondent
BEFORE:
HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER
For the Petitioner
: In Person
Pronounced on 9th October, 2013
ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER
1.
The Complainant, Kali Ram, was a Clerk at Check Post Sikanderpur, Gurgaon under the office of
Deputy Excise & Taxation Commissioner, Gurgaon. During his service in the year 1989-90, his
Deputy Commissioner recorded some adverse remarks in his Annual Confidential Report(ACR). The
complainant made representation against it but it was unheard. Therefore, he sought information from
the Public Information Officer (PIO) of
the respondent by an application filed under RTI Act, 2005 but the PIO did not furnish the required
information within 30 days and supplied incomplete information after lapse of 28 days
thereafter. Therefore, alleging deficiency in service on the part of PIO of opposite party, the
complainant filed a complaint before the District Consumer Disputes Redressal Forum, Gurgaon (in
short, ‘District Forum’) seeking compensation of Rs.2,00,000/- and sought directions for complete
information. The opposite party appeared before the District Forum and stressed upon their point of
non-maintainability of such complaint. The District Forum allowed the complaint and held liable the
opposite party for deficiency in service and ordered compensation of Rs.5,000/- and Rs.3,000/- as
litigation charges to be paid within 30 days.
2.
Aggrieved by this order of District Forum, the opposite party filed an appeal before the State
Consumer Disputes Redressal Commission, Haryana (in short ‘State Commission’).
3.
It was vehemently argued by the opposite party before the State Commission that as there is
provision for filing appeal under the RTI Act, the complainant filed an appeal before the State PIO of
the opposite party. The said appeal was dismissed by appellate authority.
The State Commission relying upon the law laid down by Hon’ble Supreme Court in the case
4.
of Khanapuram Gandaiah vs. Administrative Officer and Ors AIR 2010 SC 615 wherein it was
held that the remedy for a
party aggrieved against the order of the Public Information Officer lies in a challenge by way of
appeal, revision or any other legally permissible mode, allowed the appeal.
5.
Against the order of State Commission, the complainant filed this revision petition.
6.
We have heard the petitioner, who is present in person at the admission stage. He argued that
there was deficiency in service and the complaint was maintainable.
The key controversy swirls round the question “Whether there lies a rub for the consumer fora to
3.
entertain the case pertaining to the Right to Information Act, 2005 (in short ‘RTI Act’)? The District
Consumer Disputes Redressal Forum partly allowed the complaint on the ground that these cases
come
within
the
realm
of
Consumer
Protection
Act,
1986. The
District
Consumer
Disputes Redressal Forum relied upon the following authorities.
i)
Kalawathi & Others Vs. United Vaish Co-operative thrift & Credit Society
Limited, reported in I (2002) CPJ 71 (NC)
Fair Air Engineers Pvt. Ltd., & Anr. V N.K. Modi reported in III (1996) CPJ 1
(SC)
ii)
iii)
DR. S.P. Thirumala Rao vs. Municipal Commissioner, revision petition No. 1975
of 2005 decided on 28th May, 2009
4.
We do not locate substance in the arguments advanced by the petitioner. First of all,
Sections 22 & 23 of the RTI Act, 2005 are crystal clear, and the same are hereby reproduced:“22. Act to have overriding effect :- The provision of this Act shall have
effect notwithstanding anything inconsistent therewith contained in the
Official Secrets Act, 1923 (19 of 1923), and any other law for the time
being in force or any instrument having effect by virtue of any law other
than this Act. From this, it is beyond doubt that this Act, however, has on
overriding effect in that the authorities under this Act may make
independent decisions about the question whether such disclosure or nondisclosure has any overriding public interest. Therefore, it may become
necessary for the authorities to independently decide whether disclosure of
information which itself being an act done in public interest, overweighs
the public interest sought to be protected under those enactments.
23. Bar of Jurisdiction of Courts :- No court shall entertain any suit,
application or other proceeding in respect of any order made this Act, and
no such order shall be called in question otherwise than by way of an
appeal under this Act”.
Again, Section 19 of the RTI Act, 2005, provides procedure for appeal.
5.
This view stands emboldened by a recent judgment by a Bench consisting of Hon’ble Mr.
Justice J. M. Malik and Hon’ble Dr. B. C. Gupta in the case of Smt. Tasleem Bint Hussain vs.
The State Public Information Officer, revision petition No. 737 of 2013 decided on
1st March, 2013 and the judgment rendered by a Bench headed by Hon’ble Mr. Justice
Ashok Bhan, President in the case ofT.Pundalika Vs. Revenue Department (Service Division)
Government of Karnataka, RP No. 4061 of 2010, decided on 31.03.2011. In this case it was
held:“Respondent, being aggrieved, filed an appeal before the State Commission,
which has been allowed by observing thus:“At the outset, it is not in dispute that complainant had filed an application
u/s 6 & 7 of the Right to Information Act to the OP No.4. But complainant
cannot be considered as a ‘consumer’ as defined under the C.P.Act since
there is a remedy available for the complainant to approach the appellate
authority u/s 19 of the RTI Act, 2005”.
“We agree with the view taken by the fora below. Petitioner cannot be
claimed to be a consumer under the Consumer Protection Act. There is a
remedy available for him to approach the Appellate Authority under Section
19 of the RTI Act, 2005. Dismissed.”.
6.
Again,
this
Commission
also
took
the
same
view
in RP
3276/2012, Pothireddipalli Sugunavati Vs. Territory Manager, Bharat Petroleum Corporation
Ltd., decided on 14.01.2013.
7.
Hence, this revision petition is devoid of merits, therefore the same is dismissed.
.…………SD/-………………
(S. M. KANTIKAR)
PRESIDING MEMBER
Naresh/12
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2023 OF 2013
(From the order dated 19.02.2013 in Appeal No. 410/2012 of the State Consumer Disputes
Redressal Commission, UT, Chandigarh)
With IA/3339/2013 (For Stay)
1. Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan, 16 Kasturba Gandhi Marg, New
Delhi – 110001
2. Ansal Properties & Infrastructure Ltd. Regional Office, SCO No. 183-184 Madhya Marg,
Sector 9-C Chandigarh
…Petitioners/Opp. Parties (OP)
Versus
Indu Dhir W/o Shri R.K. Dhir R/o H. No. 800, Sector 4, Panchkula, Haryana
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioners
:
Mr. Dalip Mehra, Advocate
With Ms. Sugandha Chugh, Advocate
For the Respondent
: Ms. Neha Kedia, Advocate
PRONOUNCED ON 9th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners against the order dated 19.02.2013
passed by the State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, ‘the
State Commission’) in Appeal No. 410/2012 – Ansal Properties & Infrastructure Ltd Vs. Indu
Dhir by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that Complainant/Respondent booked a shop for her own use
with OP/petitioners on 6.9.2008 and deposited a sum of Rs.10,71,250/- from 12.9.2008 to
15.1.2009. OP issued allotment letter dated 6.9.2008 and it was also assured that construction
would be started immediately and possession would be handed over before December, 2010. As
OP did not start the construction till December, 2010, notice dated 5.3.2012 was issued to the
OP, but no reply was received. Ultimately, complainant requested OP to refund deposited
amount with interest. As amount was not refunded, alleging deficiency on the part of OP,
complainant filed complaint before District Forum. OP resisted complaint and submitted that
allotment of shop was for commercial purposes; hence, complainant was not a consumer and
complaint was not maintainable. It was further submitted that complainant failed to make
payment as per given schedule and was defaulter in making payments, complainant was
repeatedly requested to make balance payment, but payment was not made. It was further
alleged that as per Clause 9 of the agreement, complainant was liable to pay interest @ 21% p.a.
on delayed payments and as per Clause 3 & 4 of the allotment letter, OP had right to cancel the
allotment in case payment is not made in time. Denying deficiency on the part of OP, prayed for
dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint
and directed OP to refund deposited amount of Rs. 10,71,250/- along with 9% p.a. interest and
further awarded Rs.7,000/- as cost of litigation. Appeal filed by the petitioners was dismissed by
learned State Commission vide impugned order against which, this revision petition has been
filed.,
3.
Heard learned Counsel for the parties finally at admission stage and perused record.
4.
Learned Counsel for the petitioners submitted that respondent failed to make payment as
per terms and conditions of allotment letter though shop was ready for delivery of possession;
even then, learned District Forum committed error in allowing refund of full amount along with
interest and learned State Commission further committed error in dismissing appeal; hence,
revision petition be allowed and impugned order be set aside and complaint be dismissed. On
the other hand, learned Counsel for the respondent submitted that order passed by learned State
Commission is in accordance with law, which does not call for any interference; hence, revision
petition be dismissed.
5.
It is admitted case of the parties that OP allotted shop to the complainant for a sum of
Rs.30,00,000/- and payment was to be made as per construction linked instalments plan. It is
also not disputed that complainant deposited Rs.10,71,250/- with the OP. As per Clause 10 of the
allotment letter, construction of shop was likely to be completed within 2 to 2½ years from the
date of commencement of work meaning thereby construction was to be completed in 2½ years
from the date of commencement of work. As per instalment plan, Rs.4,50,000/- were payable on
start of construction. From the record it is not clear when construction started, but as
Rs.1,90,625/- were paid by the complainant on 15.1.2009, it may be presumed that construction
must have started after 15.1.2009 and it was to be completed by 15.7.2011. This is also not
disputed that complainant has not made any payment on start of construction and on casting of
roof of basement, ground floor, etc. inspite of reminders dated 17.12.2009, 9.3.2011, 16.5.2011,
12.7.2011, 7.9.2011, 7.10.2011, 14.11.2011 and 13.2.2012.
6.
As per clause 3 of the allotment letter, if payments are not received by the OP within the
stipulated period, OP at is discretion had a right to cancel the allotment and in that event, earnest
money i.e. 20% of the allotment price of the shop was liable to be forfeited. OP by letter dated
25.7.2012, cancelled booking made in favour of the complainant and forfeited 20% of the basic
price.
7.
Learned Counsel for the petitioner submitted that as respondent failed to make payment as
per terms and conditions of allotment letter, petitioner had every right to cancel the allotment and
forfeit 20% of the basic price. Perusal of record clearly reveals that respondent failed to deposit
amount as per terms and conditions of allotment and petitioner by letter dated 25.7.2012
cancelled the booking and forfeited 20% of the basic price which is as per terms and conditions
of the allotment letter and respondent is not entitled to get refund of whole amount
deposited with the petitioner.
8.
Learned Counsel for the respondent submitted that as petitioner has not carried out
construction work for a long period, respondent was entitled to get refund of whole amount
deposited by him along with interest and learned District Forum rightly allowed complaint. This
argument is devoid of force because as per occupation certificate dated 7.3.2012 issued by
Greater Mohali Development Authority, occupation certificate has been issued for the allotted
shop etc. in favour of the petitioner. Thus, it becomes clear that construction of the allotted shop
has been completed before 7.3.2012, though; it should have been completed by 15.7.2011
meaning thereby, some delay has been caused in completion of construction. Merely because
there is some delay in completion of certificate, petitioner is not entitled to get refund of the
amount, rather petitioner could have been entitled for grant of compensation and interest on the
deposited amount for delayed period had he deposited all the instalments as per instalment
plan. As respondent has not deposited amount as per instalment plan, petitioner was not under
obligation to construct the shop within the stipulated period and in such circumstances, on
account of delay of some months in completing construction, respondent is not entitled to any
interest on the deposited amount.
9.
Perusal of record reveals that complaint has been filed on 26.3.2012 whereas occupation
certificate has been issued on 7.3.2012 meaning thereby, complaint has been filed for the
purposes of avoiding possession of the shop which cannot be permitted. Respondent was under
an obligation to make payment of the instalments and get possession of the shop, but he has
failed to make payment and his allotment has been cancelled as per terms of allotment letter and
he is entitled to get refund of money only after deduction of 20% of the basic price. Learned
District Forum has committed error in allowing refund of full amount and learned State
Commission has further committed error in dismissing appeal.
10.
Learned District Forum while allowing complaint observed in paragraph 7 of the order as
under:
“Further, it is also evident that the complainant has not made complete
payment to the opposite party and is a defaulter. The complainant is now
seeking refund. We do not think that the opposite party should have any
objection in refunding the amount paid by her for the booked property. If
the property is ready for possession, the opposite party will be able to find
many buyers for the same. Non-payment or inability to pay should not be
held as a ground to refuse refund. The money paid belongs to the
complainant and she does have a right to ask for refund”.
11.
Reasoning given for refund of amount is not convincing because it cannot be expected
from the OP to find buyer and refund money to the complainant who was unable to make
payment of rest of the instalments.
12.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
19.2.2013 passed by learned State Commission in Appeal No. 410/2012 – Ansal Properties &
Infrastructure Ltd Vs. Indu Dhir and order dated 10.10.2012 passed by District Forum in
Complaint No. 170 of 2012 – Indu Dhir Vs. The Managing Director, Ansal Properties &
Infrastructure Ltd. is modified and petitioner is directed to refund Rs.4,71,250/- along with 12%
p.a. interest from 25.7.2012, the date of cancellation of booking till payment. Parties to bear their
own costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3869 of 2008
(From the order dated 09.06.2008 of the Andhra Pradesh State Consumer
Disputes Redressal Commission, Hyderabad in Appeal no. 661 of 2008)
Life Insurance Corporation of India Branch Manager Naidupetta Branch
Nellore District Through Assistant Secretary Northern Zonal Office Jeevan Bharti,
Cannaught Circus New Delhi
Petitioner
Versus
N Shanker Reddy Son of Late Sarasamma Resident Malakalapudi Village Chittamuru Mandal
District Nellore, Andhra Pradesh
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Ashok Kashyap, Advocate
For the Respondent
Mrs R Radha, Advocate
Pronounced on 10th October 2013
ORDER
REKHA GUPTA
Revision petition no. 3869 of 2008 has been filed under section 21 (b) Consumer
Protection Act, 1986 by the petitioner/ Opposite party against the order dated 09.06.2008 in
Appeal
no.
661
of
2008
passed
by
the
Andhra
Pradesh
State
Consumer
Disputes Redressal Commission, Hyderabad (‘the State Commission’).
The brief facts of the case as per the respondent/ complainant are that the respondent is the
son of a policy holder N Sarasamma. The said Sarasamma took two policies bearing no.
650696766 and 840116947 with accident benefits. Subsequently she died on 05.04.2003 by
accidental slip from upstairs.
Respondent submitted a claim form to the LIC herein, requesting to pay the accident benefit
also. Instead of settling the claim under accident benefit, the LIC settled the claim only for the
policy amount and paid Rs.14,510/- vide cheque dated 17.06.2003 for policy no. 840116947 and
Rs.75,640/- vide cheque dated 27.06.2003 for policy no. 650696766.
Admittedly it was an accidental death as per the statements recorded by the sarpanch,
village Secretary and Mandal Revenue Officer,Chittamur. As it was an accidental death, LIC was
liable to pay another sum of Rs.14,510/- and Rs.75,640/- under the above said two policies
which was an accidental benefit as per the terms of the policy. But the respondent failed to do so.
Thus, there was a clear deficiency of service on the part of the LIC in not settling the claim under
the accident benefit scheme though it was confirmed that it was an accidental death. Hence, this
complaint.
Respondent/ complainant has prayed before this Commission to direct the LIC to settle the
claim under the accident benefit scheme in the policies referred to above, i.e., to pay Rs.14,510/and Rs.75,640/- along with interest from the date of the claim; grant cost of this complaint; to
pay damages of Rs.10,000/- to the respondent; and grant such other and further reliefs.
In the counter filed by the petitioner/ opposite party (LIC), they have admitted that it was
true that two policies were issued on the life of N Sarasamma with policy no. 650696766 and
840116947 for sum assured of Rs.40,000/- and Rs.10,000/- with date of commencement of risk
as 11.09.1990 and 28.07.1996 respectively. Both the policies were issued with accidental benefit
facility.
As per the conditions and privileges of the policy bond, condition no. 10-2 under the
caption “Accident Benefit” an additional sum equal to the sum assured would be paid if the life
assured should sustain bodily injuries resulting solely and directly from the accident which result
into the death of the life assured and the same was proved to the satisfaction of the corporation.
To prove the death by accident, either police report or hospital records confirming the
death as accidental were to be produced. In this case, no such reports were submitted. A copy of
the statement of some of the villagers of the deceased life assured which were signed by
thepanchayat Secretary
and Mandal Revenue
Officer
from
the
alleged
records
of
MRO, Chittamur vide LD NO. 413/ 2003 dated 06.04.2003 only was produced. But
MRO Chittamur vide letter RCA 148/2004 dated 02.04.2004, in reply to the Senior Divisional
Manager, United India Insurance Co. Ltd., Nellore LD NO. 413/ 2003 has dealt with the
correspondence of the fire accident subject related to Mettu village and honorarium paid in
favour of Shri SK Ramthu Sahab son of Khader Saheb of Mettu village but it does not relate the
alleged accidental death of N Sarasamma of Molakalapudi village. Hence, the accidental death
has not been proved to the satisfactory of the insurer.
Hence, nothing was payable towards accident claim. No costs, no damages as further reliefs
were payable as accidental death was not properly established. Hence, the CD should be
dismissed with heavy costs.
District Consumer Disputes Redressal Commission, Nellore, (“the District Forum’) vide
order dated 07.03.2008 while holding that “it is not in dispute that the respondent/ complainant’s
mother N Sarasamma obtained two policies with accidental benefits. As per exhibit A 4 the
deceased life assured N Sarasamma died in an accident while the policy was inforce. The
nominee is also entitled the accidental benefits. It is also not in dispute that the respondent/
complainant is a nominee for the said two policies. So under these circumstances, the opposite
party – LIC only paid Rs.75,640/- and Rs.14,510/- under two policies. But the opposite party did
not pay the accidental benefits under two policies. So non-payment of the accidental benefits to
the nominee who is the complainant/ respondent herein amounts to the deficiency of service on
the part of the opposite party. So the affidavit of the complainant coupled with Ex A1 to Ex A6
clearly established the guilt of deficiency of service on the part of the opposite party. The
complainant established the deficiency of service on the part of the opposite party. Accordingly,
this point is answered in favour of the complainant against the opposite party.
The District Forum ordered that the complaint is partly allowed with cost of Rs.2,000/- and
directing the opposite party to pay an amounts of Rs.14,510/- and Rs.75,640/- under the two
policies to the complainant together with interest per annum on 14,510/- and Rs.75,640/- from
the date of filing of this complaint i.e., from 23.02.2004 till the date of realisation and the
opposite party is directed to deposit the above said amount within one mother from the date of
receipt of this order”.
Aggrieved by the order of the District Forum the petitioner - LIC filed an appeal before the
State Commission. Vide order dated 09.06.2008, the State Commission came to the conclusion
that “we have her clinching evidence that the death is accidental. We have already given our
opinion as per it. Coming to the facts the complainant proved that the death of his mother is an
accidental death. The District Forum has correctly came to the finding holding that it is an
accidental death and the complainant is entitled to the double accidental benefits as provided on
the policy. It is a well-considered order. There are no grounds to interfere with the order of the
District Forum.
In the result the appeal is dismissed at the admission stage”.
Hence this present revision petition.
The main grounds for the revision petition are that:
Both the Fora below have failed to see that there was no averment in the pleading or
evidence placed on record to show that the life assured had fallen from the staircase and
died due to the said fall.
Both the Fora below have failed to see that there is no evidence like police report,
post-mortem report, Doctor’s certificate showing the cause of death due to accident.
Both the Fora below have failed to see that the complainant did not mention under
what circumstances she fell from the staircase and what injuries she suffered due to
alleged fall and the complainant failed to establish that the death of her mother was due to
fall from staircase.
Both the Fora below have failed that the principle laid down by the Kerala High
Court reported in AIR 1986 Kerala 201 (DB) that “in such contracts as one party is in
very strong position to know the material facts and the other is in very weak position to
discover them. The former is under duty not only to abstain from making false
representations of material facts but also to disclose, in good faith, such materials facts as
are within the knowledge of other party”.
Both the Fora below have committed material irregularity and illegality and have
exceeded their jurisdiction by allowing the accident Benefit. Moreover, even
if the case of accident benefit is made out, it is only an equal sum of the policy amount is
to be paid and no bonus and interest can be granted under the terms of the policy.
We have heard the learned counsel for the petitioner as well as the respondents and have
gone through the records of the case carefully.
It is an undisputed fact that the respondent’s mother had taken two policies bearing no.
650696766 and 840116947. Thereafter, as per the respondent she died on 05.04.2003 by
accidental slip from ‘upstairs’. The respondent has nowhere mentioned in the complaint as to
when the accident took place and the circumstances of the accident. He has also not mentioned
the injuries sustained and what action was taken after the accident. The respondent has also not
mentioned who discovered his mother after she fell down and what action was taken for
getting hermedical aid. It was also not clear from the complaint as to when she fell and when she
died. The respondent has filed the claim for insurance which has been repudiated by the
petitioner as there are no documents to prove that the incident of death was by accident. There is
no police report, no death certificate, no post mortem report and no certificate by any Doctor
certifying the cause of death. The only proof given is the statement made by the villagers of the
deceased life insured and the Panchayat Secretary and MRO from the alleged records of the
MRO Chittamur village LDO no. 413/ 2003 dated 06.04.2003. The petitioner has placed on
record the letter from MRO Chittamur dated 02.04.2004 which reads as follows:
“Subject: Issue of public copy of file bearing no. L Dis. 413/2003-dt.Reg
Reference: Senior Divisional Manager, Lr. Dt. 02.04.2004.
With reference to the letter cited it is informed that this office file bearing no. L Dis.
413/2003 dated 12.05.2003 dealt with the correspondence of fire accident subject relates
to Mettu village. Honorarium paid in favour of Sri S K M Saheb son
of Khadar Saheb ofMattu village, but it does not relate the alleged accidental death of
N Sarasamma of Melakalapudi village.
Yours faithfully,
Mandal Revenue Officer
Chittamur”
The District Forum surprisingly allowed the complaint on the ground that the burden “lies
on the opposite party to establish the death of N Sarasamma is a natural one”…………. When
the OP took the plea that the death of Nemalapudi Sarasamma is a natural one. But to prove no
scrap of paper was filed to show that N Sarasamma death is a natural one”.
It further held that “it is the case of the complainant that the complainant’s mother
N Sarasamma died due to falling from the staircase and that they did not give any report to the
police about the death of N Sarasamma as it was an accidental one. So the police reports and
other records were not available. The production of police reports and other records is not
required”.
It is not known and on what basis the State Commission has held that “as per the
complainant after the insured fell down accidentally from the upstairs she died while taking to
the hospital. The matter was not reported to the police. When the matter itself is not reported to
the police, registering the case by police and conducting inquest and post mortem on the
deceased does not arise. When death occur by accidental slip etc., nobody would report to the
police. It is not an offence. She cannot complain against herself for slipping from the steps. The
appellant intends that every accidental death should be equated to a death like a death by motor
vehicle accident. We believe that the appellants are in confusion over the expression ‘accident’.
She must not have anticipated slip from the steps would result in her death norher family
members. In such cases, there will not be any report to any authority. The District Forum has
elaborately discussed and gave finding”.
In the absence of any records, the respondent has failed to give any affidavit of any person
who was present at the time of accident or death. Even the panchanama report given
by the Panchayat Secretary merely says what was given in the complaint that N Sarasamma had
fallen down from the stairs and she was taken to Nellore by road and she died on the way. In
fact, this fact has not been mentioned in the complaint. There is no other information with regard
to the injuries sustained and when the death occurred. This report has been allegedly signed by
the Mandal Revenue Officer, Chittamur, though, later he has stated as mentioned earlier, that the
incident bearing no. L Dis 413/ 2003 dated 12.05.2003 does not pertain to N Sarasamma.
We are of the view that the respondent has failed to prove that the death was caused was
due to accident. No evidence has been placed on record by the respondent to establish the same.
Hence, the revision petition is allowed and the orders of the State Commission and the District
Forum are set aside and the complaint is dismissed, with no order as to cost.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3741 of 2008
(From the order dated 07.07.2008 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai in Appeal no. 1478 of 2007)
New India Assurance Company Ltd., Divisional Office 1st Floor, Near CBS
Old Agra Road Nasik – 422002 (Maharashtra) Through Manager Regional Office – 1
Jeevan Bharti Building 124 Cannaught Circus New Delhi – 110001
Petitioner
Versus
Smt Manish Abhay Bedmutha Resident of Post Ghoti Tal: Igatpuri District Nasik – 422002
(Maharashtra)
Nasik Merchant Co-operative Bank Ltd. Administrative Office A – 16 Industrial Estate
Babubhai Rathi Chowk Satpur, Nasik – 422002 (Maharashtra)
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Kishore Rawat, Advocate
For Respondent no. 1
Mr Sunil C Surana, Advocate
For Respondent no. 2
Ms Jyoti U Panwalkar, Advocate
Pronounced on 10th October 2013
ORDER
REKHA GUPTA
Revision petition no. 3741 of 2008 has been filed under section 21 (b) of the Consumer
Protection Act, 1986 against the order dated 07.07.2008 passed by the Maharashtra State
Consumer Disputes Redressal Commission, Mumbai in First Appeal no. 1478 of 2007.
The facts of the case as per respondent no. 1/ complainant are as follows:
The
respondent
no.
1
submits
that
as
a
wife/
widow
of
the
deceased
Dr Abhay Bansilal Bedmutha, the respondent no. 1 is the legal heir of the deceased
Dr Abhay Bansilal Bedmutha who was the consumer of the petitioner. The respondent no. 1 is
therefore, entitled to file the instant complaint against the petitioner.
The respondent no. 1 submits that deceased Dr Abhay Bansilal Bedmutha had a bank
account with respondent no. 2 - Bank and was a shareholder/ member of the respondent no. 2 –
Bank. The deceased was a consumer of both the Insurance Company as well as the Bank.
The
respondent
no.1
submits
that
respondent
no.
2
-
Bank
canvassed
a
Group Janata Personal Accident Insurance Scheme for all of its shareholders/ members, floated
by the insurance company. Accordingly, the deceased Dr Abhay Bansilal Bedmutha purchased
the said accident insurance policy for Rs.5,00,000/- under the Group Janata Accident Insurance
policy bearing no. 47/98/300232 from the Insurance Company through the Bank and paid
premium
amount
of
Rs.340/-
to
the
insurance
company
by
the
deceased
Dr Abhay Bansilal Bedmuthatowards the insurance coverage through the Bank. The said
accident insurance policy was valid for 12 years from the date of purchase thereof i.e., till
17.11.2010 and the same was/ is still valid on the date of accident vis-à-vis the death of the
deceased. Rs.5,00,000/- is the amount assured against any type of disability and in case of death.
All the necessary records and particulars regarding the said accident insurance policy coverage
concerning to the deceased are in possession of the insurance company.
On 14.10.2008 at about 07.00 p m while going to Vashi on his Hero Honda bearing
registration no. MH 03 U 824, at Sion-Panvel Road, near New Toll Naka, in the jurisdiction
of Vashi Police Station, the deceased Abhay Bansilal Bedmutha was unfortunately hit by an S T
Bus of MSRTC from behind and sustained grievous bodily injuries.
Immediately the deceased was taken to the M G M N Hospital, Vashi. However, on
admission the deceased was declared dead.
The
respondent
no.
1
being
a
widow
and
legal
heir
of
the
deceased
Dr Abhay Bansilal Bedmutha, submitted duly filled in claim application to the Bank on
13.11.2006 with the request to process her claim of assured insurance amount of Rs.5,00,000/-.
Thereafter, the Bank, after filling the required information in the said application, sent the said
application to the insurance company along with all the necessary documents viz., claim
application, a copy of the FIR and Panchnama, Death Certificate and Memorandum of Post
Mortem Report dated 14.10.2006, issued by NMMC General Hospital, Post Mortem
Centre, Vashi and other related papers for processing the claim of the respondent no. 1 as per the
insurance policy. The said claim application along with the other referred documents have been
duly submitted in the office of insurance company by the Bank.
Thereafter the insurance company vide letter dated 06.12.2006 informed the Bank with a
copy marked to respondent no. 1 rejecting the claim on the ground that petitioner had cancelled
the insurance policy of the deceased allegedly with effect from 04.06.2002 and also as the claim
allegedly lodged is after the purported date of cancellation of the policy. However, no such
information of alleged cancellation of the insurance policy was ever given to the deceased or to
any of its relatives/ legal heir, as falsely claimed by the Insurance Company.
The respondent no. 1 further submitted that the alleged act of the insurance company was
unilateral and arbitrary cancellation of policy of the deceased was not only illegal, bad in law,
absurd, void-ab-intio but also untenable in law. The insurance company had neither informed the
reasons of alleged cancellation of policy prior to the date of the cancellation nor sought any
consent prior to the alleged cancellation of policy either to the deceased or the insurance
company, nor refunded the premium amount of Rs.340/- so collected by the insurance company
for the insurance coverage, when the insurance company allegedly cancelled the policy.
Respondent no. 1 therefore, submitted that the aforesaid alleged act of unilateral and arbitrary
cancellation of the policy of the deceased and rejection of the claim by the insurance company
was nothing but an attempt to avoid the payment of guaranteed insurance amount of
Rs.5,00,000/- by illegal and improper means. Therefore, the said alleged action of the insurance
company are required to be set aside and they were directed to pay the assured insurance amount
of Rs.5,00,000/- with compound interest on monthly basis, at the prevailing market rate.
The petitioner/ opposite party no. 1 in their report before the District Consumer
Disputes Redressal Forum,
Nasik
(‘the
District
Forum’)
while
admitting
that
there
was Janata Personal Accident (Group) Policy of Rs.5,00,000/- of the deceased through the Bank
by the Insurance Company bearing no. 47/00344 with endorsement no. 47/30232 stated that the
same was subsequently cancelled with effect from 04.06.2002 under the terms and conditions of
the policy authorising the company to terminate the same at any time and accordingly such
notice dated 20.05.2002 was given to the Bank which was duly received by it. Not only this
policy was cancelled but the policy of all other branches of NAMCO Bank were also cancelled at
the same time. However, while cancelling the policy the pro-rata premium was required to be
refunded as per condition no. 5 of the terms and conditions of the policy which was not done by
the company and as such there was technical-cum-legal hitch in treating the policy as cancelled
legally. Thus, the said cancellation of policy had automatically became infructuous.
The accident in the present case seems to have taken place on 14.10.2006 but prior to that
the insurance company vide its letter no. 410 dated 06.09.2006 had informed the
Bank, Ghoti Branch about the cancellation of policy with effect from 15.09.2006 and had sent a
consolidated cheque no. 91913 dated 05.09.2006 of Bank of India for Rs.59,056/- towards refund
of proportionate premium in each case to be refunded to concerned members of the Bank
of Ghoti Branch but strangely enough the Bank had returned the amount by DD no. 817633 vide
letter dated 15.09.2006 for no just and proper reason unilaterally and that too without the
knowledge/ consent of the insured persons including the deceased of the company. The Bank
ought not to have returned the amount of refund of pro-rata premium to the insurer. By returning
that amount, the bank had run a risk of compensation for future period, i.e., from 15.09.2006. In
order to safeguard Bank’s interest and risk, the insurance company had sent back that DD to the
Bank vide its letter dated 07.02.2007 through which it was also again apprised of the fact that
irrespective of the fact whether they accept the cheque/ DD or not, this company would not be at
risk (liability) with effect from 15.09.2006, in view of the cancellation of policy and refund of
pro-rata balance premium as per condition no. 5 of the policy. Bank was also asked to refund the
aforesaid premium to the members concerned as per the list which had been already forwarded to
them vide Company’s earlier letter.
As the subject policy was a group accident policy through the Bank it was not expected to
inform each and every individual by the insurance company when the Bank was under obligation
to inform of the development with regard to the policy to its members.
The Bank having accepted the refund of pro-rata premium for the period from 15.09.2006
onwards they or the respondent/ complainant cannot now say that the policy was in existence on
the date of death of the deceased in this case.
The written statement of respondent no. 2/ opposite party no. 2 has not been filed. However,
as per the order of the District Forum the respondent no. 2 had openly “taken the side of the
complainant and they have declared and the fault is given to the OP no. 1. According to their
(Bank) saying they have no concern with the above dispute and they should be released from the
above case and such prayer they have been made”.
After hearing the learned counsel for the parties, the District Consumer
Disputes Redressal Forum, Nasik (‘the District Forum’) observed that “the opposite party no. 1
is taking the shelter of conditional no. 5 which is out of the conditions which are the terms and
conditions of the agreement deed. According to condition no. 5, that after giving the written
notice the insurance policy can be cancelled and the right of which is with the Insurance
Company this notice is to be sent to that person who had taken the policy. But before how many
days the notice is to be given about which it is not clearly mentioned in it. In spite of it, in our
opinion, it is essential the limitation of generally within 30 days. The insurance company has
been admitted that they have given the notice to the opposite party no. 2 only of the cancellation
of the policy. The opposite party no. 1 had mentioned the same under paragraph no. 7 B in their
written statement that it is not expected to send the notice to every consumer personally. It means
that the opposite party no. 1 had not sent any notice to any consumer about the cancellation of
the policy. In this way the opposite party no. 1 has violated the condition no. 5. In this section he
had been given the right to cancel the policy. But in our (Forum’s) opinion they cannot do
that. The explanation of which we are giving further.
The limitation of the policy is for 12 years it means from 18.11.1998 to 17.11.2010 and on
this faith the deceased Dr Abhay and others have taken or purchased the policy and if that policy
cancelled in the mid period then this is breach of trust of the consumers which we feel. It is OK
till that period when the recovery of the money is done from the consumer and till that period
when the interest of which is remained and obtained and when it is traced out about the damages
the policy is to be cancelled which is not framed in the legality.
The opposite party no. 1 had filed one letter to the last moment, the date of which is
23.09.2001. In this letter the opposite party no. 1 had shown such reasons at the time of
cancellation of the policy that the number of consumers was increased in the period of three
years and on account of which we are facing a loss in a very big extent, therefore, we are
cancelling the insurance policy. What is the type of this justice which is beyond to the
imagination, these companies shown the temptation at first, then contribute the money, they earn
the benefit of it and when the turn comes to giving the money then they breach their promises
and agreement. For such system there is no shelter or base of act. It is OK that they were having
the right to cancel the policy. But why this policy is cancelled the strong reasons of which is
wanted which is given by the Gujarat High Court in its judgment and about which instantly we
have mentioned according to the above given.
The opposite party no. 1 had which insurance policy was cancelled in the year 2002 that
was taken back and after that the policy was cancelled from 15.09.2006. This information was
given to the opposite party no. 2 by the opposite party no. 1 on 06.09.2006. The opposite party
no. 1 (Insurance Company) had sent one letter with the demand draft and sent one letter to
the Ghoti Branch and it is mentioned in it that after date of 15.09.2006 they are not responsible.
Therefore, the date of the letter is very much important. Deceased Dr AbhayBedmutha had died
due to an accident on 14.10.2006 and after that nearly about four months that amount sent to his
widow under the reference of prereted. The meaning of it is as such that the insurance policy was
live till 07.02.2007 and before it Dr Abhay Bedmutha had died. In these circumstances, also the
right for getting the full policy amount is with the respondent/ complainant certainly, according
to the law.
In our opinion the opposite party no. 2 had no concern about to take and give the policy in
any kind in the above case. No error is seen in their services. The error is seen certainly in the
service of the opposite party no. 1 they had vitiated the agreement”.
They therefore gave the following order:
(i)
(ii)
(iii)
The complainant application of the complaint against the opposite party no. 1
is admitted with the expenses of Rs.5000/-.
The opposite party no. 1 should pay Rs.5,00,000/- and the interest at the rate of
18% per annum from 13.11.2006 till that period to getting the full payment.
Similarly for the mental/ psychological harassment the damages amount of
Rs.10,000/- should be given to the complainant within 30 days and if the delay is
occurred for making the payment then the opposite party no. 1 should pay the
interest rate of 12% per annum.
The complaint application is dismissed without any expenses against the
opposite party no. 2.
Aggrieved by the order of the District Forum, the petitioner/ OP no. 1 filed an appeal
before the State Commission. The State Commission also held that “such a cancellation is bad in
law and cannot be acted upon. Therefore Forum below in our considered view rightly held that
complainant was entitled to get benefit of policy, since the said policy was cancelled arbitrarily
and not following the provisions contained in clause no. 5 of the policy, whereby company was
given unilateral right to cancel the policy. When Insurance Company is cancelling the policy, it
has to cancel the policy strictly as per clause no. 5 of the said policy and if clause no. 5 is not
properly followed, then Insurance Company cannot be heard to say that they had followed
clause no. 5 and cancelled the Janata Personal Accident Group Insurance policy pertaining to
respondent no. 1. In this view of the matter order passed by the Forum below is appearing to be
just and proper. Even affidavit filed on behalf of Insurance Company mentions that they have
committed legal blunder while cancelling the policy with effect from 04.06.2002 when in fact
they had not refunded pro-rata premium to all the policy holders. So company has committed
violation of terms mentioned in clause no. 5 of the terms of the said policy and therefore, they
cannot take benefit of cancellation clause. Forum below therefore rightly passed on award
against the appellant and we are finding no merit in this appeal. Hence, at the stage of
admission itself, appeal will have to be rejected summarily. Hence, the following order:
Appeal stands rejected summarily. Miscellaneous application for stay stands disposed
of”.
Hence, the present revision petition.
The main grounds for the revision petition are as follows:
The cancellation of the policy was strictly as per the terms and conditions of the
policy and the Hon’ble Supreme Court and the Hon’bleCommission has held that if the
policy is cancelled in terms of the policy condition, the same cannot be challenged by the
insured. The policy condition no. 5 contemplates that the cancellation notice has to be
sent to the insured and such notice shall be deemed sufficiently given if posted at the
address of the insured last registered in the books of the company. In the present case as
well as the registered letter was posted to the insured at the address given in the policy
and available in the records of the petitioner company.
Once the policy was cancelled, the question of payment of claim does not arise. The
complaint itself was not maintainable as there was no privity of contract between the
complainant and the petitioner company. The complainant in any case was not entitled to
challenge the cancellation in any manner as she was not privity to the contract. The
cancellation having been not challenged by the insured could not have been challenged
by the complainant.
The State Commission erred in recording the finding that the letter refunding the
cheque was dated 07.02.2007 it is submitted that the cheque of refund of premium was
sent vide letter dated 06.09.2006 and the Bank who is the insured under the policy was
duly acknowledged the same on 09.09.2006. The finding of the State Commission
therefore, is against the evidence on record. It is not understood as to from where the
State Commission has taken this date as 07.02.2007.
The Fora below further erred in holding that the cancellation per se is illegal as the
cancellation of the policy has not been informed to the individual member. It is submitted
that the policy was issued in the name of the Bank. As per condition no. 5 of the policy,
the termination notice has to be given to the insured. The notice was duly given to the
insured on 20.05.202. It was therefore, the duty of the Bank to have intimated to the
individual member/ account holder. If the bank has not intimated the cancellation to the
individual member, the insurance company cannot be found at fault.
As submitted above, the cancellation of the policy was not challenged, either by the
bank or the individual member on receipt of the cancellation letter in May 2002. Even
after the refund of the premium in 2006, there was no protest of any kind either from the
bank or from the individual member. In the circumstances, therefore, the widow of the
deceased member cannot challenge the cancellation of policy. Right to challenge is
vested with the Bank being the insured under the policy. The Consumer Fora cannot go
into the correctness of the policy condition and the question as to whether the
cancellation was valid or not. The jurisdiction of the Consumer Fora can only be invoked
if there is a privity of contract. Once there is no privity of contract, the complainant is not
a consumer and therefore, the complaint itself was not maintainable.
The complainant, if aggrieved, could have challenged the cancellation of the policy, if
permissible in law in a writ jurisdiction and not under the Consumer Protection Act.
In any case the insurance company be held liable because of violation of Section 64 V
B of the Insurance Act. The petitioner had already refunded the premium prior to the
accident and therefore, in the absence of any premium, the insurance company cannot be
held liable. If the premium has been retained by the bank and not refunded to the
individual member, it is the Bank who is liable and not the insurance company.
Because in any case the interest awarded at 18% per annum by the District Forum is
excessive, exorbitant and against the well settled law laid by this Commission and
the Hon’ble Supreme Court.
We have heard the learned counsel for the parties and have gone through the records of
the case carefully.
A copy of the policy has been placed on record. It is seen from the policy that the policy
was in the name of respondent no. 2, i.e., the Nasik Merchant Co-operative Bank Ltd.,/ OP Bank and not in the name of respondent no. 1. Hence, when the petitioner invoked clause no. 5
of the conditions it issued a letter dated 20.05.2002 regarding cancellation of JPA (Long Term)
Policy/ Endorsement no. 47/30109, 30232, 30647, 30704 and 30804. The said notice was issued
to the Branch Manager of the NMC Bank Ltd., The letter reads as follows:
“This has reference to your above mentioned policy/ endorsement.
We regret to inform you that as the claim ratio on the referred policy is very high we will
be cancelling the policy, evoking our condition no. 5 with effect from ________
The condition no. 5 reads as under:
The company may at any time by notice in writing terminate this policy provided that the
company shall in that case return to the insured the then paid premium in respect of such
person respect of whom no claim has arisen, less prorate part thereof for the portion of
the insurance period which shall have expired. Such notice shall be deemed sufficiently
given if posted addressed to the insured at the address last registered in the Company’s
books and shall be deemed to have been received by the insured at the time when same
would be delivered in the ordinary course of post.
Needless to mention that as the policy stands cancelled with effect from 04.06.2002 on
claim of whatsoever nature will be entertained/ tenable/ payable for any damages
occurred on or after 04.06.2002 which please note”.
Thereafter the petitioner realised that since the said premium on this pro-rata part thereof
for the portion of the current insurance period had not been released the said notice had become
infructuous. Thereafter they sent another letter dated 06.09.2006 addressed to the
Manager, Ghoti Branch of Nasik Merchants Co-operative Bank Ltd., which read as follows:
“Subject : Long term JPA Policy issued for a period of 12 years from 1998 covering your
shareholders and members vide our policy no. 152801/47/30 as per list attached issued
to your branch for the period as per list attached.
We hereby notify you that Long Term JPA policy was issued for a period 12 years with
effect from 1998 covering your shareholders and members vide aforesaid endorsement
stands terminated.
Please note that we have already cancelled the aforesaid endorsement vide our letter
dated NIL and accordingly proportionate premium being refunded to you. Consequent to
the cancellation of the policy and refund of proportionate premium for the remaining
period ofananta personal accident policy (group) A/C M/s Nasik Merchants Cooperative
Bank. The New India Assurance Co. Ltd., will be discontinued and the company will no
longer be on risk and will not be liable in respect of any claim arising under the said
policy with effect from 15.09.2006.
Please find enclosed a cheque no. 91913 dated 05.09.2006 for Rs.59,056/- being
proportionate amount of premium refunded to you. This refund is being made on account
of the policy holders on whose account you had obtained the above mentioned policy.
Please take further necessary steps to refund the proportionate amount to shareholders/
members of the bank. The copy of the list of all your insured members that were covered
under the policy is on your record.
Please note that the persons covered under the endorsement was as per list attached.
Claims were reported on this endorsement, hence, refund of _____ persons were made
through this payment.”
As per the learned counsel for respondent no. 2, thereafter it had written to petitioner vide
letter no. 15.09.2006 that:
“Your letter with a cheque of Rs.59,056/- dated 09.09.2006 bearing no. 091913 of Bank of
India, Shiwaji Garden Branch, Nasik is received in respect of aforesaid reference. In this
respect your attention is invited to your letter of May 2002.
As per that letter you had intimated about the cancellation of policies with effect from
04.06.2002 but as per that letter and its annexure date of cancellation is shown as
15.09.2006 and that date onwards you have refunded the amount which is contrary to your
letter of May 2002. As per your letter of May 2002, the Bank has published advertisement in
daily Deshdoot dated 28.05.202 about the cancellation of JPA policies taken from your
company for the amount of policy below Rs.1,00,000/-. However, while deducting the prorata it was necessary to deduct the amount upto 04.06.2002 and to send the amount for
further remaining period. Similarly, it was necessary to give interest @ of 15% per annum on
that amount for the period from the date of credit of that amount with you till the refund of
that amount.
As you failed to do so we are sending herewith a pay order no. 817633 for Rs.69,056/- dated
15.09.2006 against the cheque sent by you vide your aforesaid letter, which may please be
acknowledged and take the necessary action promptly.
Also note that policy would be in existence till date of refund of the amount with interest
thereon for the remaining period from 04.06.2002 onwards.”
The cheque was thus returned to respondent no. 2 by the petitioner vide letter dated
07.02.2007 stating that:
“It is further stated that we had cancelled the policy with effect from 04.06.2002 no
refund of proportionate premium as per condition no. 5 was refunded and due to this fact
a legal hitch was created. Due to this hurdle we had to shoulder the liability (risk) even
for further period from 05.06.2002 though the policy was cancelled earlier.
To overcome further liability, we have refunded the proportionate premium by the cheque
of which was returned by you unilaterally and that too without the knowledge/ consent of
the insured persons.
Hope the matter may now be cleared to you about the cancellation of policy, with effect
from 04.06.2002 and refund of balance premium. It is further added to state that it was
now, not necessary to refund the proportionate premium for the period from 05.06.2002
onwards, only after deducting the prorata premium upto 15.09.2006 especially in view of
fact, that no refund was made at all while cancelling the policy with effect from
04.06.2002. In view of aforesaid facts the cancellation of policy with effect from
04.06.2002 has automatically became infructuous.
Your contention that the refund of premium should have been refunded with interest @
15% from the date of receipt of premium through you till the time of refund is not correct
and legal and as such the same is denied by us. However, in no way
the prorata(proportionate) premium is required to be refunded with interest reiterating
the fact that we were already on risk upto 14.09.2006 and cease to be on risk with effect
from 15.09.2006.
Under such circumstances, you ought not to have returned the cheque of refund of
balance of premium. By returning the cheque we feel that you had run a risk of
compensation for future period i.e., from 15.09.2006. In order to safeguard your interest
and risk we here bytake liberty to send that demand draft back to you, which is enclosed
for your further necessary action. You are also requested to note that irrespective of the
fact whether you now accept the cheque or not, this company will not be at risk (liability)
with effect from 15.09.2006, in view of the cancellation of policy and refund of balance
premium after deducting prorata premium as per condition no. 5 of the policy.
Thus, it is advisable to accept the cheque and refund the proportionate premium to
members concerned as per the list which we have already forwarded to you with our
earlier letter”.
Counsel for the respondent no.2 admitted that no information regarding cancellation of
the JPA policy was sent to the individual beneficiaries even though the petitioner in their letter
dated 07.02.2007 had clearly mentioned that “by returning the cheque we feel that you had run a
risk of compensation for future period i.e., from 15.09.2006. In order to safeguard your interest
and risk we hereby take liberty to send the DD back to you for further necessary action. You are
also requested to note that irrespective of the fact whether you now accept the cheque or not, this
company will not be at risk/ liability with effect from 15.09.2006 in view of the cancellation of
the policy a refund of balance premium after deducting pro-rata premium as per condition no. 5
of the policy”.
It would appear that respondent no. 2 accepted this decision of cancellation of the JPA
policy under clause 5 and also accepted by default that they would be liable for any
compensation for the period from 15.09.2006 till such time the pro-rata premium was refunded
to individual beneficiaries after due intimation of cancellation of the policy. Learned counsel for
respondent no. 2 could not inform us as to when the premium has been refunded to respondent
no.1.
Learned Counsel for the petitioner has given three citations of the National Commission:
In the case of Ashok Jain vs Oriental Insurance Co. Ltd., - 1 (2012) CPJ 150 (NC),
wherein this Commission has observed that “it is thus clear that in cancelling the
insurance policy in question, the insurance company needed to write to “the insured” and not to
“the insured person”. Perusal of the certificate of insurance shows that the State Bank of India
Officers Association, Chandigarh Circle was recorded as the “insured”, whereas, Adesh Kumar
Jain was recorded as “the insured person”. In other words, for cancellation of the policy it was
sufficient for the insurance company to send notice only to the “insured”. Viz., the State Bank of
India Officers Association, Chandigarh Circle. It is not in dispute that this was done by the
Insurance Company. Hence, the contention of the learned counsel for the petitioner is not valid
and cannot be accepted”.
In the case of Usha Sharma and Ors vs New India Assurance Co. Ltd., and Ors, - I (2012)
CPJ 488 (NC), this Commission has held that “a perusal of the above condition would show that
the insurance company was within the right to cancel the policy in question at any time provided
the written notice are sent to the policy-holders and the balance premium for the unexpired/
uncovered policy period is returned to the insured. In the present case, as per condition no. 5 of
the insurance policy, the policy in question was cancelled by the insurance company and
intimation was sent to the policy holder by registered letter. Cheque of Rs.601/- towards balance
premium was also returned to the insured. Public notice of cancellation was also given through
newspapers and it was enough notice to the respondent regarding cancellation of the policy.
Since, the policy was cancelled during the life time of the insured and due intimation was given
to him along with cheque of balance premium, the insurance company was not liable to
indemnify the complainants. Even the Hon’ble Supreme Court in the case of United Indian
Insurance Co. vs Harcharan Chand Rai Chandan Lal, IV (2004) CPJ 15 (S) = V (2004) SLT876
and National Insurance Company vs Laxmi Narain Dhut – III (2007) CPJ 13 (SC) = IV (2007)
SLT 102 = II (200&) ACC 28 (SC) has held that the policy is a contract between the parties and
both the parties are bound by terms of contract”.
In the case of Nand Kumari and Ors vs Oriental Insurance Co. Ltd., - I (2012) CPJ 357
(NC), the National Commission has held that. “it is not in dispute before us that the policy could
be cancelled at any time by the insurer as averred by the respondent in paragraphs no. 4 and 5
of its written version. The insured died on 22.07.2006. Policy had been cancelled by the
respondent on 26.11.2000 and anintimation to that effect was sent to the insured by a registered
letter addressed to him at the address given by him in the proposal form for obtaining the said
policy. Intimation regarding cancellation was sent to the insured along with cheque off pro-rata
premium drawn on Bank of India”.
The present revision petition is covered by the three citations given. Undisputedly the group
insurance policy had been cancelled vide letter 410 dated 06.09.2006 with effect from
04.06.2002 and intimation to this effect was given to the insured which is the Bank along with
the intimation a cheque for Rs.59,056/- being proportionate amount of premium being refunded..
Counsel for the respondent has given two citations. The facts of the case do not apply to the
case in hand.
In view of the above, we are of the view that the petitioner had cancelled the policy as per
clause no. 5 of the terms and conditions of the policy which had been issued in favour of
respondent no. 2 even giving the reasons for cancellation of the policy. Respondent no. 2 did not
challenge the cancellation of the policy. Respondent no. 2 also failed to inform the individual
beneficiaries including respondent no. 1 of cancellation of the policy and failed to refund the prorata premium sent to them vide letter dated 06.09.2006. They thus denied the opportunity to the
petitioner and her husband to avail of an alternate policy, if they so desired. Petitioner’s husband
Dr Abhay BansilalBedmutha died on 14.10.2008. Hence, the revision petition is allowed and the
order of the District Forum is modified to the extent that complaint/ application of the complaint
is admitted only against respondent no. 2 who should pay the expenses of Rs.5,000/- as also
Rs.5.00 lakh with interest @ 9% per annnum from the date 13.11.2006 till that period to getting
the full amount. Similarly for the mental/ psychological harassment the damages amount of
Rs.10,000/- be given to the complainant within 30 days from the date of pronouncement of this
order.
However, we would like to place on record that many cases have come to our notice that
where the insurance company having offered attractive group insurance policies to various
institutions for the benefit of their employees later unilaterally withdrew the same as in the
instant case, where the claim ratio on the referred policy becomes high. This tantamounts to
unfair trade practice. Beneficiaries are tempted by the offer of attractive terms and money and
amounts are collected over the years and thereafter benefits are denied when they submitted their
claims. The Insurance company unilaterally decide that group insurance policies so offered
earlier be cancelled because they are no more financially viable and beneficial to them. A
protocol or procedure for cancellation and informing the beneficiaries is also not laid down.
Most often the individual remains unaware that they are no more covered for insurance, thus
denying the benefit of insurance even though they have been paying the premium for the
insurance policy over the years. Secretary, Ministry of Financial Service and Chairman IRDA
may like to review such cases of cancellation of group insurance policies by public sector and
private companies and take necessary action to ensure that the insurance companies cannot in
future unilaterally cancel the group insurance policy after having offered the same. Even if it is
to be cancelled it should be terminated not with retrospective effect, as the beneficiaries already
covered should remain covered for the duration of the policy. Copy of this order may be sent
Secretary, Department of Financial Services, Ministry of Finance, 3 rd Floor, Jeevan Deep
Building, Parliament Street, New Delhi – 110 001 and Chairman, Insurance Regulatory and
Development Authority, 3rd Floor, Parisrama Bhavan, BasheerBagh, Hyderabad 500 004,
Andhra Pradesh.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 1272 of 2013
(From the order dated 04.12.2012 of the Bihar State Consumer Redressal Commission, Patna in
Appeal no. 486 of 2012)
Bihar State Housing Board Through its Managing Director 6 Mangles Road Patna (Bihar)
Petitioner
Versus
Ms Raj Lakshmi Kumari Daughter of Late Khedharan Sharma C/o Shri Krishna Gopal Sharma
Resident of House no. LIG 164 Mustafabad, P S – Rampur District Gaya (Bihar)
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Ms Aparna Jha, Advocate with
Mr Braj K Mishra, Advocate
Pronounced on 10th October 2013
ORDER
REKHA GUPTA
Revision petition no. 1272 of 2013 has been filed under section 21 (b) of the Consumer
Protection Act, 1986 against the judgment and order dated 04.12.2012 passed by the Bihar State
Consumer Disputes Redressal Commission, Patna (‘the State Commission’) in First Appeal no.
486 of 2012.
The petitioner/ opposite party for the first time had filed a revision petition on 22.09.2011
against the order dated 25.03.2010 of the District Consumer Disputes Redressal Forum, Gaya
(‘the District Forum’), i.e., after about 1 ½ years. Subsequently, it was held that since the order
was final so revision was converted into an appeal which was duly accorded.
While dismissing the appeal, the State Commission has observed as under:
“We have gone through the impugned order passed on 25.03.2010 by the District Forum,
Gaya, in consumer complaint no. 98 of 2007, whereby and where under the complaint
filed by Raj Lakshmi Kumari against the Managing Director/ Revenue Officer and
Executive Engineer, Bihar State Housing Board have been finally disposed of and
direction has been given to the Housing Board to execute and register the final deed in
respect of LIG House no.164 Mustafabad, Rampur, District Gaya in favour of the
complainant – Raj LakshmiKumari. Accordingly, the Housing Board was directed to
execute and register the final deed in respect of LIG House no. 164 in favour of
complainant within a period of three months of the passing of the order, failing which the
complainant would be at liberty to get the order executed through the process of law at
the cost of the OP. The impugned order also shows that the OPs were furnished verified
photocopy on 19.11.2010. Now in the fact and circumstances, there is no ambiguity so far
the finality of the order is concerned and there was only remedy for the aggrieved party
to present appeal against the order. In such situation, if some revision is presented under
wrong impression of law, there cannot be excuse of wrong redressal chosen by the
Housing Board when they are equipped with distinguished and knowledgeable lawyers at
different levels.
It has been stated that after obtaining of the order impugned, the Executive Engineer,
Bihar State Housing Board, Gaya Division has sent the certified copy of the order to the
Legal Adviser of the Housing Board at the headquarter of the Housing Board at Patna on
10.12.2010, which was received in the Legal Section on 14.12.2010. The Legal Adviser of
the Housing Board sent the order of the allotment section and revenue section and it was
returned on 22.12.2010 and again proposal was sent before the Managing Director in
respect of challenge the said order and opinion of the Manager, Estate was obtained. The
Managing Director, thereafter, accepted the proposal of the Legal Adviser and sent the
file to the Manager, Estate by the Legal Adviser for opinion and the record was returned
by the Allotment Section to the Legal Section on 20.01.2011. As opinion was not clear,
hence, the record was again sent to the allotment section on 21.01.2011 and after specific
opinion, the file was sent by the allotment section to Legal Section on 28.02.2011.
Thereafter, Legal Section sent the file to the Revenue Section on 03.03.2011 for
calculation on the basis of order passed by the Consumer Forum, Gaya and Revenue
Section returned the said file after calculation on 15.07.2011, i.e., after more than four
months. The Legal Section sent the file to the Managing Director on 20.07.2011 seeking
permission for filing revision before the State Commission on 21.07.2011. The permission
was granted by the Managing Director and on 22.07.2011, the record was sent to the
panel lawyer of the Housing Board for drafting of the revision application and the
counsel for the Housing Board returned the same on 08.08.2011 after drafting the
revision application. Thereafter, the Legal Section of the Housing Board sent the draft of
revision to the allotment section on 09.08.2011 for verification and the allotment section
returned the same on 10.08.2011 and the draft was sent to the revenue section on
24.08.2011 by the legal section and revenue section returned the same after verification
on 30.08.2011. So according to the appellant, the above-mentioned time was consumed in
observing necessary paraphernalia and seeking instruction from the Board officials and
their concerned legal experts. The Housing Board sent the draft of the revision
application on 01.09.2011 along with the record to the Managing Director and the
Managing Director accordingly approved the draft, which was received by the Legal
Section on 06.09.2011 and signature of Managing Director was obtained on 22.09.2011.
The aforesaid facts culminating in consuming such long spell of time, now should be
considered as to whether it would amount to sufficient cause, which deterred or
prevented the appellant – Bihar State Housing Board in presenting their appeal for
setting aside the order passed in the month of March 2010 after lapse of about one and
half years, i.e., in the month of September 2011.
We would like to mention that any aggrieved party, who is supposed to be aware of the
existing law is required to act in such a manner so that he could place or file necessary
appeal/ revision etc., as provided under the Consumer Protection Act. The period of
filing such revision is only three months whereas the appeal against the final order
should have been filed within one month from the date of passing of the order/ knowledge
or receipt of the order. Here, what we find is that the file seems to have been processed
and scrutinized at various levels like, administrative, financial, legal besides opinion of
legal expert also have been obtained but there does not appear any justification for
retention of file for such a long period, which could be said to have prevented from
presenting the appeal within time by the Housing Board. There should not be any laxity
of law in such circumstances.
Having considered the aforesaid facts and grounds stated in the petition or canvassed
before us by the learned counsel for the appellant – Housing Board, we are unable to
concede to his prayer so far condonation of delay in filing of the appeal is concerned. We
have no hesitation to hold that the appellant could have been presented such appeal
within stipulated time as required under the law but they did not act for such manner so
as to comply the relevant provisions of law or order passed by the District Forum
concerned.
In the circumstances, we do hold that there is complete absence of any sufficient cause,
which prevented the appellant from presenting their appeal in time, which is directed
against final order, so question of treating a case of filing revision did not arise at any
level.
In the circumstances, we do not find any merit for condoning the delay in filing of the
appeal and hence, the same stands rejected”.
Hence, the present revision petition.
Along with the present revision petition an application for condonation of delay of 24 days
have been filed. The reasons given for the delay in the condonation application are as follows:
The copy of the impugned judgment and order was dispatched to the petitioner Board
on 11.12.2012. The petitioner Board evaluated the impugned judgment and order and
thereafter decided to file a revision petition against it. The petitioner Board thereafter sent
the papers to their advocate in Delhi to prepare the revision petition vide its letter dated
04.01.2013.
Upon receipt of the papers, the advocate for the petitioner drafted the revision petition
and sent the draft revision petition to the petitioner on 21.02.2013.
Upon receipt of the draft, the same was studied by the Legal Department and the
Revenue Department of the Board and after verification of the contents, by letter dated
25.03.2013, the approved draft of petition along with affidavit and vakalatnama was sent
to the advocate at Delhi. The packet containing the approved draft was received by the
advocate for the petitioners on 30.03.2013.
It is submitted that the petitioner is a Government organisation and every document
sent to the petitioner has to be carefully scrutinised by various departments to see that
there is no error in the documents. Therefore, by the very nature of scrutiny than by the
petitioner, the verification and approval of documents took some time. In these facts and
circumstances the petitioner prays that the delay in filing the petition may be condoned.
We have heard the learned counsel for the petitioner and have gone through the records
of the case carefully.
It is seen that even after receiving the order of the State Commission where it has
commented adversely on the in ordinate time taken for processing and scrutiny at various levels
before filing the appeal the petitioner has pleaded the same reasons once again before this
Commission to explain the delay in filing the revision petition. There are huge gaps at different
times and levels of processing which have been left unexplained. Repeated delays by the
petitioner before the State Commission as also the National Commission cannot merely be
excused and condoned on the grounds that the petitioner is a Government Organisation.
Petitioner has failed to put in place a system where such cases can be dealt with efficiently,
effectively and in a timely manner.
The petitioners have failed to give the reasons for the day-to-day delay. The petitioner
has failed to provide ‘sufficient cause’ to condone the delay of 24 days. This view is further
supported by the following authorities:
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil
2006), decided by the Apex Court on 08.07.2010 it was held:
Appeal
no.
1166
of
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon,
P. Ramanatha Aiyar, 3rd Edition, 2005]”.
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 thecondonation 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.”
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.”
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.”
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;
“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;
“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.
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 land losers 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 land losers. 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 the land losers 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;
“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.
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.
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.
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.
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.
In the light of the above discussion, the appeals fail and are dismissed on the
ground of delay. No order as to costs”.
Observations made by Apex Court in the authoritative pronouncements discussed
above are fully attracted to the facts and circumstances of the case.
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.
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.
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.
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.
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 24 days in
filing the present revision petition. The application for condonation of delay is without any merit
as well as having no legal basis and is not maintainable. Consequently, the present revision
petition being time barred by limitation and is dismissed with cost of Rs.20,000/- (Rupees twenty
thousand only).
Petitioner is directed to pay the cost of Rs.10,000/- by way of demand draft directly in the
name of Respondent and the balance amount of Rs.10,000/- be deposited in the name of
‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the
petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay
interest @ 9% per annum till realisation.
List on 22nd November, 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.2406-2407 OF 2013
With I.A. No. 4000 of 2013 for Stay
(From order dated 31.1.2013 in First Appeal No.575 of 2007 of the State Consumer Disputes
Redressal Commission, Punjab)
1. Punjab Urban Planning & Development Authority through its Chief Administrator, PUDA
Bhawan, Sector-62, SAS Nagar, Mohali.
2. The Estate Officer, Punjab Urban Planning & Development Authority, SCO 41, Ladowali
Road, Jalandhar(Now JDA)
…Petitioners
Versus
Sh. Atmanand Jain Shabha (Regd.), Chowk Jain Mandir Bazar Kalan, Jalandhar, through its
President
…Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Rachna Joshi Issar, Advocate
with Ms. Ambreen Rasool and Ms.
Ms. Aishwarya Kaushik, Advocates
Pronounced on: 10th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petitions have been filed by the Petitioners under Section 21(b)of The
Consumer Protection Act,1986 (for short, ‘Act’)for setting aside common order dated 31.1.2013
passed by State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short, ‘State
Commission’) in First Appeal No. 575 of 2007 and First Appeal No.150 of 2008.
2. Facts in brief are that Respondent/Complainant filed a complaint under section 12 of the Act
against petitioners making assertions that respondent is a registered society under the Societies
Registration Act, 1860. Petitioners are providing housing service to the general public for
consideration. In response to their advertisement, respondent applied for allotment of a plot
measuring 1,000 sq. yds. at Jalandhar for construction of a Jain Temple, under the scheme for
allotment of religious sites on leasehold basis for Temple, Gurudwara, Masjid and Church.
Respondent deposited Rs.50,000/-through bank draft dated 04.07.2001 and the same was
acknowledged by petitioners on 16.07.2001 for allotment of the plot. Petitioners vide its letter
dated 25.02.2002/18.03.2002 agreed to allot the plot and asked the respondent to deposit Rs.2.00
lacs as non-refundable security which was deposited through draft dated 02.04.2002 and receipt
was issued by the petitioners on 07.05.2002.
3. It is further stated that petitioners after several reminders provided the specimen of the
agreement for lease and respondent submitted the lease agreement through registered post on
06.02.2003 and petitioner no.1 signed the same in March and provided it to the respondent.
Petitioner no.1 wrote a letter dated 11.06.2003 to petitioner no.2 for allotment of plot/site to the
respondent.
4. Petitioner no.1 vide its letter dated 19.02.2004 suggested the site to the District Town Planner,
Jalandhar for allotment to the respondent, but till date no plot/site has been allotted despite the
receipt of the payment of Rs.2.50 lacs and respondent could not construct the religious temple till
now and religious feelings of the members of the respondent have been hurt
due to the said acts of the petitioners. The construction cost after 2001 has also increased
tremendously. The entire Jain Community suffered lot of mental tension, harassment and
inconvenience and now the steep rise in the construction cost is assessed to the tune of Rs.20.00
lacs. Thus, respondent prayed that petitioners be directed to allot the plot/site to them and to pay
Rs.20.00 lacs as compensation with costs.
5. In the written reply petitioners took preliminary objections stating that respondent has no
locus standi to file the complaint because respondent does not fall under the definition of
consumer under the Act. Petitioner no.1 issued letter of intent under which it was clearly stated
that the said offer was tentative and the site to be allotted was yet to be earmarked. Necessary
formalities for earmarking the site are still under progress and the same is also evident from
Para-7 of the complaint. In the absence of any promise/timeframe under the intent letter to allot
the site, no cause of action has accrued to the respondent against the petitioners.
6. On merits, it admitted that respondent is a registered society and petitioners are providing
housing services to the general public. The respondent applied for allotment of a plot measuring
1000 sq. yds. at Jalandhar for construction of a Jain Temple. Petitioners have admitted that
respondent had paid Rs.2.50 lacs and vide letter dated 19.02.2004, petitioner no.2 suggested
the site to the District Town Planner, Jalandhar for the allotment of the plot to the respondent,
but till date no plot has been allotted. It was further pleaded that some sites available with the
petitioners had already been shown to the respondent, but respondent for the reasons known to it,
rejected the proposal. The site under the scheme was to be allotted on concessional rates subject
to the availability of the plot. There is no new scheme in operation under which a suitable plot
can be allotted to the respondent. Hence, it was prayed that complaint may be dismissed with
costs.
7. District Consumer Disputes Redressal Forum,Jalandhar (for short, ‘District Forum’) vide its
order dated 26.2.2007, allowed the complaint and passed the following directions;
“We hold that respondents have not allotted the plot to the complainant
that amounts to deficiency on the part of the respondents and
complainant is entitled for refund of the amount with 10% interest from
the date of deposit till payment. Interest would serve as compensation to
the complainant. Complainant is also entitled for Rs.3,000/- as cost of
litigation”.
8. Being Aggrieved by the order of the District Forum, respondent filed (Fist Appeal No.575 of
2007) whereas, petitioners filed (First Appeal No. 150 of 2008) before the State Commission.
Vide impugned order, the State Commission allowed (First Appeal No. 575 of 2007) of the
respondent and modified the order of District Forum and directed the petitioners:
“ To allot the plot of 1000 sq.yds. to the appellant after identifying the
suitable land and shall get the approval of R.P.D.C., if any, within two
months from the receipt of copy of the order and to pay compensation of
Rs.1,00,000/- (Rupees One Lac) for rise in construction charges during
last 12 years. The order of the District Forum for refund of the amount
along with interest is set aside. The litigation costs of Rs.3,000/awarded by the District Forum are enhanced to Rs.10,000/-“.
9. On the other hand, (First Appeal No. 150 of 2008) of the petitioners was dismissed.
10. Being aggrieved by the impugned order, petitioners have filed this revision.
11. We have heard learned counsel for the petitioners and have gone through the record.
12. It has been contended by learned counsel for the petitioners that impugned order is contrary
to the well settled principle and ratio of the Hon’ble Supreme Court in Delhi Development
Authority Vs. Pushpendra Kumar Jain (1994)Supp 3SCC, 494 where the Court held that right
to allotment does not arise by mere identification or selection of the allottee and the right to
allotment arises only on the communication of the letter of allotment. It is also contended that
when no deficiency is found in the service rendered by a public authority, it was unjust for the
State Commission to have saddle the petitioners with unjustified liability to pay compensation to
a litigant who had caused loss to the public authority by involving it into frivolous litigation.
13. Further, it is contended that can an allottee of a plot which is to be earmarked(“as is where
is” basis), be termed as a “consumer” under the Act and can Petitioners’ Authority be regarded
as “service provider”, contrary to the ratio of Hon’ble Supreme Court’s judgments, inter alia,
in U.T, Chandigarh Vs. Amarjeet Singh & Others, (2009) 4 SCC 660, which has been reaffirmed by the Court, in, Punjab Urban Planning & Authority & Ors. Vs. Raghu Nath Gupta
& Ors. (2012) 8 SCC 197?
14. Lastly, it is contended that, unfortunately the sites which were available for allotment and
were got physically inspected by the representative of the respondent were not acceptable to the
respondent for allotment. This fact has been admitted by the respondent in para 7 of its
complaint that, one of the sites was also referred by the Petitioners, vide letter dated 19.2.2004,
for approval of the District Town Planner Jalandhar. The said site, however, was not yet
approved by District Town Planner, Jalandhar. Thus, impugned order is liable to be side aside.
15. State Commission in its impugned order observed;
16. The appellant is a registered society and applied for allotment of a
plot measuring 1000 sq.yds. at Jalandhar for construction of a Jain
Temple. The appellant also paid Rs.2.50 lacs. The dispute has arisen
between the parties on the version of the appellant that the respondents
are not allotting the plot and the version of the respondent is
that appellant was offered and shown the available site/sites, but the
representative of the appellant did not accept the same. The
respondents vide letter Ex.C-2 asked the appellant to nominate four
persons, with authority letter, to attend the interview for allotment of
the land to religious places. Another letter Ex.C-3 was written to attend
the interview on 25.09.2011 at 12.30 P.M. Letter of Intent is Ex.C-4.
Vide receipt Ex.C-5, a sum of Rs.2.00 lacs was deposited. Vide letter
Ex.R-6, Chief Administrator wrote to the Additional Chief
Administrator,PUDA, Jalandhar to allot 1000 sq.yds. land on
leasehold basis. Vide letter Ex.C-7,Estate Office, PUDA, Jalandhar
wrote to the District Town Planner, Jalandhar about the purpose of
keeping a pocket of land behind plots no.1 to 8 and also other land
lying vacant near the commercial parking. The Administrator Officer
(Policy) vide letter Ex.C-8 wrote to the Additional Chief Administrator,
PUDA, Jalandhar to identify the land and to allot the same
immediately. Similar letter is Ex.C-9.
17. From the above discussion, it is clear that the officials of the
respondents have been writing to the District Town Planner, Jalandhar
and other authorities, to identify the plot and allot the same to the
appellant. During the course of arguments, the counsel for the
respondents have produced on record letter dated 21.03.2005 written
by Estate Officer, PUDA, Jalandhar to Additional Chief Administrator,
PUDA, Jalandhar wherein it is mentioned that for identification of the
land, the case was considered in the meeting of Regional Planning and
Design Committee (R.P.D.C.) at serial no.21.10, but still the land has
not been identified. It was further stated that after identifying the land
by District Town Planner, Jalandhar and after taking the approval of
the R.P.D.C., the allotment can be made. Another letter in this regard
was written on 06.05.2005 as per which, as per the record, in Urban
Estate, Phase-I and Phase-II, Jalandhar, whichever the lands were
available regarding that, the consent was not given by the
representative of the appellant. It was further mentioned that till the
case regarding the availability of the land is identified by the District
Town Planner, Jalandhar and is considered by the R.P.D.C., till then
the formal allotment letter of the land is not possible to be issued and
the case be again considered in the coming R.P.D.C. meeting.
18. The respondents have not denied anywhere the allotment of the plot
to the appellant, but due to non-availability of the appropriate plot or
due to consent not given by the representative of the appellant, the plot
in question has not yet been allotted to the appellant. The respondents
are considering the case of the appellant for identification of the land
as well as for the allotment of the land and this process is going on for
the last more than 12 years. The District Forum has not taken notice of
all these facts and has allowed the refund of the amount deposited and
not satisfied with the said order, the appellant is in appeal before this
Commission, for modification of the impugned order. We are of the
opinion that respondent no.1 has also asked the authorities of PUDA,
Jalandhar to allot the plot to the appellant for raising the Jain Temple,
but no concrete steps have been taken to allot the said land. The
respondents have reserved the areas in every scheme for the
construction of the religious places and the identification of the land
and allotment of the land to the appellant cannot be made a ground to
linger on with the matter.
19. In view of above discussion, the appeal filed by the appellant (F.A.
No.575 of 2007) is accepted and the impugned order under appeal
dated 26.02.2007 passed by the District Forum is modified and the
respondents are directed to allot the plot of 1000 sq.yds. to the appellant
after identifying the suitable land and shall get the approval of
R.P.D.C.,if any, within two months from the receipt of copy of the order
and to pay compensation of Rs.1,00,000/- (Rupees One Lac) for rise in
construction charges during last 12 years. The order of the District
Forum for refund of the amount along with interest is set aside. The
litigation costs of Rs.3,000/- awarded by the District Forum are
enhanced to Rs.10,000/-“.
16. Under Section 21(b) of the Act, this Commission can interfere with the order of the State
Commission where such State Commission has exercised jurisdiction vested in it by law, or has
failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or
with material irregularity.
17. As per written statement filed by the petitioners, they themselves have admitted para Nos.1
to 7 of the complaint. It is also an admitted fact that no allotment has yet been made by the
petitioners to the respondent. Petitioners in the present case are taking shelter only on this plea
that necessary formalities for earmarking the sites are still under progress. Moreover, in the
absence of any promise/time framed work under the intent letter to allot the site, no cause of
action has accrued to the respondent.
18. We are really appalled, shocked and surprised at such defence taken up by the petitioners. As
per letter of intent dated 25.2.2002, petitioners were contemplating to allot to the respondent a
site measuring 1,000 Sq. Yds in Urban Estate, Jalandhar. The letter of intent states;
“In case you are interested for the allotment, you may send your consent
alongwith security amount of Rs.2.00 lacs within 90 days failing which it
will be presumed that you are not interested for the allotment. In that
case, letter of intent shall be withdrawn and earnest money will be
refunded to you after deducting processing fee as per policy.
Chief Administrator”.
19. Admittedly, after receipt of the above letter of intent, respondent deposited Rs.2 lacs with the
petitioners in April/May,2002. Thus, amount as demanded by the petitioners is lying with them
for last more than 11 years, but petitioners are delaying the allotment on one pretext or the other.
This act on the part of the petitioners being a Public Authority amount to “unfair trade practice”
and this act of the petitioners is in consonance with the conduct of private builders who make the
Consumers run from pillar to post. Petitioners’ Authority has been created for the welfare and
betterment of the society and not to harass the citizens. Respondent in the present case being a
registered society, has deposited Rs.2 lacs as demanded by the petitioners themselves, long ago
for allotment of a religious site, but even after 11 years, petitioners have failed to complete the
necessary formalities for earmarking the site, which as per petitioners’ case is still under
progress.
20. Petitioners as per their own case are service providers and are sitting over RespondentSociety’s money for last 11 years. Thus, deficiency in service on the part of petitioner is writ
large in this case. Moreover, present case is not a case of an auction purchaser and as such
decision of Amarjeet Singh(supra) is not applicable to the fact of the present case.
21. Thus, in our opinion, the findings recorded by the State Commission are based on correct
analysis of the facts and documents produced by the parties and no jurisdictional error has been
committed by the State Commission in passing the impugned order.
22. Now the question which arise for consideration is as to what should be the quantum of
punitive cost to be imposed upon the petitioners for not allotting the respondent religious site for
more than 11 years without any justification. Admittedly, respondent has complied with the
demand of the petitioners about 11 years back and that to within the specified time. Therefore,
keeping in view of the principle of law laid down by Apex Court in Bikaner Urban
Improvement
Trust
Vs.
Mohal
Lal
2010
CTJ
121(Supreme
Court)(CP) and
in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil Appeal Nos. 4912-4913 of
2011 decided on July 4, 2011, we hereby impose punitive cost of Rs.1 lac (Rupees One Lac
only) upon the petitioners for indulging in unfair trade practice and for causing undue
harassment to the respondent. Moreover, petitioners have kept the amount deposited by the
respondent, more than 11 years ago without any sufficient and justifiable cause.
23. This punitive cost should be paid to the respondent for the sufferings they have faced during
the last 11 years. Petitioners are therefore, directed to deposit demand draft of Rs.1 lac(Rupees
One Lac only) in the name of respondent with this Commission, within one month from today.
In case, petitioners fail to deposit the cost within the specified period, then they shall also be
liable to pay interest @ 9% p.a. till its realization.
24. Meanwhile, petitioners shall recover the cost amount from the salaries of the delinquent
officers who have been pursuing this merit less litigation, with the sole aim of wasting the public
exchequer. The affidavit giving details of the officers from whose salaries the cost has been
recovered, be also filed within one month
25. Cost deposited by the petitioners be paid to the respondent only after expiry of period of
appeal or revision, preferred if any.
26. With these observations present petitions stand disposed of.
27. List on 29th November, 2013 for compliance.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2399 OF 2008
(From the order dated 1.06.2007 in Appeal No. 405/2004 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Malkiat Singh S/o Sh. Chand Singh Mason, R/o Village Garnala, Distt. Ambala.
…Petitioner/Opp. Party (OP)
Versus
Paramjit Walia D/o Niranjan Singh Walia R/o H. No. 331, Model Town, Ambala City,
District Ambala
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
In person
For the Respondent
:
NEMO
PRONOUNCED ON 10th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated 1.6.2007
passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short,
‘the State Commission’) in Appeal No. 405 of 2004 – Paramjit Walia Vs. Malkiat Singh by
which, while allowing appeal, order of District forum dismissing complaint was set aside.
2.
Brief facts of the case are that complainant/respondent engaged OP/petitioner for extension
of roof of two rooms. OP carried out work at complainant’s house from 6.4.1999 to 14.4.1999.
OP put lintel on the roof of the said house. Complainant incurred expenditure of Rs.5,000/- for
the material and Rs.4950/- for labour. On 26.4.1999, the lintel of the roof was opened. It was
found that lintel was uneven and not at the level of old construction. Alleging deficiency on the
part of OP, complainant filed complaint before District Forum. OP resisted complaint; denied
allegations made in the complaint and submitted that he had done the work according to his skill
and intelligence. It was further submitted that complaint has been filed to deprive OP for
payment of the labour work done by him. It was further submitted that complainant fixed the
rate of labour wages @ Rs.170/- per day and not Rs. 150/- per day. It was further submitted that
OP never opened lintel, it was opened by the complainant himself without consent of OP and OP
is not responsible for the loss in such circumstances and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties dismissed complaint along with
cost of Rs.5,000/-. Appeal filed by the complainant was allowed by learned State Commission
vide impugned order and directed OP to pay Rs.9950/- and further awarded Rs.5,000/- for
mental agony against which this revision petition has been filed.
3.
None appeared for the respondent, though, on earlier dates, Counsel for the respondent
appeared.
4.
Heard petitioner in person and perused record.
5.
Perusal of record reveals that District Forum dismissed complaint for want of expert
evidence as well as substantive evidence to substantiate the case. Learned State Commission
while allowing appeal held that there was no necessity to lead expert evidence because the
defects in the lintel are patent and visible and can be ascertained on examination with naked
eyes.
6.
Perusal of record reveals that learned State Commission has placed reliance on paragraph 4
of the complaint and written statement and on that basis appeal was allowed. Learned State
Commission observed that OP nowhere denied stand of complainant in paragraph 4 of the reply,
but paragraph 4 of written statement runs as under:
“That para no. 4 of the complaint is absolutely wrong and denied. The
lintel was never opened by the respondent or hislabourers, he has got it
opened with his own will and without the consent of the respondent. So,
the respondent is not liable for any loss as alleged.”
7.
Thus, it becomes clear that OP denied allegations of paragraph 4 and further submitted that
lintel was never opened by the OP or his labourer, but it was opened by the complainant without
consent of the OP. This denial cannot be presumed to be admission on the part of OP that mason
work was defective.
8.
Complainant has not led any evidence except his own affidavit and in the absence of any
supporting evidence it cannot be presumed that work done by the OP was defective and roof was
uneven when OP denied allegation in affidavit.
9.
Thus, it becomes clear that learned District Forum did not commit any illegality in
dismissing complaint and learned State Commission has committed illegality in allowing appeal
and impugned order is liable to set aside.
10.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
1.6.2007
passed
by
learned
State
Commission
in
Appeal
No.
405
of
2004 –
Paramjit Walia Vs. Malkiat Singh is set aside and complaint stands dismissed with no order as
to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 448 OF 2013
(From the order dated 17.10.2012 in Appeal Nos. 526 & 685/2008 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
With IA/4937/2013 (Placing Record)
Sulekh Chand S/o Sh. Kalu Ram R/o Village Badarpur, Tehsil Indri, District Karnal
…Petitioner/Complainant
Versus
1. Tata Motors Ltd. Through its General Manager, 26th Floor, World Trade Centre-I, CUFFE
Parade, Mumbai – 400005
2. M/s. Metro Motors Pvt. Ltd. 76/1, GT Road, Karnal
3. Dinesh Sharma, Employee of Metro Motors Pvt. Ltd. Head Office 10 Mile Stone, GT Road,
Village and Post Office Mohra, Ambala
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Robin Dutt, Advocate
PRONOUNCED ON 10th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 17.10.2012
passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short,
‘the State Commission’) in Appeal Nos. 526 & 685 of 2008 – M/s. Metro Motors Pvt. Ltd.
& Anr. Vs. Sulekh Chand & Ors. and M/s. Tata Motors Vs. Sulekh Chand & Ors. by which,
while allowing appeals, order of District Forum allowing complaint was set aside.
2.
Brief facts of the case are that Complainant/petitioner purchased ICV 6 wheeler TATA
LPT/1109/36 HI-Deck-Ex.II model from OP No. 2/Respondent No.2 authorized dealer of OP
No. 1/ Respondent No.1 and paid Rs.1,15,248/- and remaining price i.e. Rs.5,73,000/- was got
financed by the complainant. OP also provided printed brochure of the vehicle according to
which, vehicle was having a maximum permissible gross weight of 11900 kgs. and a pay load of
8315 kgs. whereas its unladen weight
was
3585 kgs. which was
not
as
per
brochure. Complainant approached OP for taking back the vehicle and refunding the amount,
but OP did not refund money. Alleging deficiency on the part of OP, complainant filed
complaint before District Forum. OPs contested complaint and submitted that complainant failed
to repay loan instalments as per schedule and possession of the vehicle was taken by OP and
vehicle has been re-sold to M/s. GianiMotor. Further, denying any deficiency, prayed for
dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint
and directed OP to refund Rs. 1,15,248/- along with 10% p.a. interest and further to pay
Rs.50,000/- as cost. Appeals filed by the OPs were allowed by learned State Commission vide
impugned order against which, this revision petition has been filed.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that vehicle supplied by the respondents to the
petitioner is not as per specifications in the brochure and learned District Forum rightly allowed
complaint, but learned State Commission has committed error in dismissing complaint; hence,
revision petition is admitted.
5.
Learned Counsel for the petitioner could not show any variation in the specifications
mentioned in the sale letter and learned State Commission rightly allowed appeals and dismissed
complaint as no deficiency could have been attributed to the OPs.
6.
In the revision petition at page 25, petitioner has filed Photostat copy of the brochure.
During pendency of revision petition, petitioner filed I.A. No. 4937 of 2013 and by this
I.A., photocopy of brochure was taken on record. Perusal of both the brochures reveals that there
is some difference in both the brochures. In the brochure filed at page 25 Payload (kg) has been
shown as 8315 whereas in the brochure filed along with application, maximum payload (kg) has
been shown as 8355 and in front of this 8315 has also been shown. Learned Counsel for the
petitioner could not clarify for what purpose weights in second columns have been given. When
both the brochures filed by the petitioner do not tally, we cannot arrive at a conclusion that any
of the above brochures was given by respondents to the petitioner and vehicle sold to the
petitioner does not tally with specifications mentioned in the sale letter.
7.
Learned Counsel for the petitioner submitted that unladen weight of the vehicle has been
mentioned as 3350 kgs. in the Registration Certificate whereas after deducting 8355 from 11900
it should have been 3545. We are not convinced with this argument because unladenweight
cannot be obtained by reducing maximum Payload from maximum permissible GVW and in
such circumstances, we do not find any infirmity, illegality or jurisdictional error in the
impugned order and revision petition is liable to be dismissed at admission stage.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission stage with
no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4156 OF 2011
(From the order dated 24.08.2011 in First Appeal No. 175/2009 of Uttarakhand State Consumer
Disputes Redressal Commission)
1. Chaitanya Prasad s/o Nand Kishore
2. Rajesh Kumar s/o Daulat Ram
both residents of Badri Vishal Travels Gopal Kuti, Rishikesh, District Dehradun
through Chaitanya Prasad
... Petitioners
versus
National Insurance Co. Ltd. through its Branch Manager Branch Office, Hardwar Road
Rishikesh, District Dehradun Uttarakhand
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. S.M. Tripathi, Advocate
Mr. B.S. Sharma, Advocate
For the Respondent
Mr. Abhishek Kumar, Advocate
PRONOUNCED ON : 10th OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 24.08.2012, passed by the Uttarakhand State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 175/2009,
“Chaitanya Prasad & Anr. versus National Insurance Co. Ltd.”, vide which the appeal filed by
the petitioner/complainant against the order dated 25.08.2009, passed by the District Consumer
Disputes Redressal Forum, Dehradun in consumer complaint no. 94/2008, was dismissed and the
order passed by the District Forum, allowing the said complaint, was upheld.
2.
Brief facts of the case are that both the petitioners/complainants got their Tata 709 Bus,
bearing registration number UA 07 C/8018 insured with the respondent / OP, National Insurance
Co. Ltd. (for short the ‘insurance company’) for the period from 29.04.2007 to 28.04.2008, vide
policy No. 462201/31/07/6300000359 and the IDV of the said vehicle was estimated to be
Rs.5.40 lakh. On 12.08.2007, when the said vehicle was going from Pipalkoti from Badrinath, it
met with an accident, due to which it suffered extensive damage. An information regarding the
accident was conveyed to the OP insurance company on 13.08.2007 and information was also
given to the Police Station Joshi Math by the driver of the vehicle Surya Prakash. A spot survey
of the vehicle was got carried out by the insurance company through its surveyor R.R.
Sharma. The salvage of the vehicle could not be retrieved by the complainant due to constant
landslides etc. The insurance company informed the complainants on 14.09.2007 to retrieve the
salvage and store it in safe custody and present the estimates of repairs so that final survey could
be conducted. The complainants retrieved the salvage on 28.11.2007 and paid Rs.30,000/- for
bringing the same to Rishikesh. It has been stated in the complaint that the complainants had
been paying an amount of Rs.200/- per day for safeguarding and storing the salvage of the said
vehicle. The final survey was carried out by the OP insurance company through surveyor
V.P. Singhal on 5.12.2007 and as per their letter dated 12.12.2007, the repair estimate of
Rs.7,74,331/- was prepared by Commercial Motors, Rishikesh and another estimate of
Rs.1,98,000/- was prepared by Abdul Guffar, Rishikesh, the body-makers. In this way, a total of
Rs.9,72,331/- was stated to be required to repair the said vehicle. However, the Insurance
Company offered to the complainants on 21.2.2008, a sum of Rs.44,000/- as settlement amount,
but the complainant demanded a sum of Rs.5,40,000/- being the IDV of the vehicle. The
complainant stated that the surveyor V.P. Singhal & Company had termed the condition of the
vehicle as ‘major damage’. The case of the complainants is that it is a case of total damage and
Rs.5,40,000/- being the IDV of the vehicle, should be paid to them along with interest @15%
p.a. from the date of the accident and the cost incurred for retrieving the salvage and its storage
and maintenance should also be paid, along with Rs.20,000/- for mental harassment and
Rs.10,000/- as cost of litigation. The District Forum vide their order dated 25.08.2009 awarded a
sum of Rs.3,70,000/- to the complainant along with interest @7% p.a. from the date of the
presentation of the complaint. The District Forum based their conclusion on the basis of
surveyor report in which the estimate of compensation on repair basis has been stated to be
Rs.3,70,000/-. An appeal was filed against this order of the District Forum before the State
Commission by the complainants, but it was dismissed vide impugned order. It is against this
order that the present revision petition has been made before us.
3.
At the time of hearing before us, learned counsel for the petitioner has drawn our attention
towards the terms and conditions stated in the “Private Vehicles Package Policy” issued by the
Insurance company, in which it has been stated that “IDV will be treated as market value
throughout policy without any further depreciation for the purpose of total loss/constructive total
loss claim.” Learned counsel for the petitioner stated that the salvage of the vehicle had been
collected by the respondent company on 24.10.2009. He pleaded that the orders passed by the
State Commission vide which order of the District Forum had been upheld, should be set aside
and the complaint should be allowed, and the relief as demanded by the complainant should be
provided.
4.
In reply, learned counsel for the respondent insurance company stated that the surveyor had
brought out in his report that the repair liability was worked out at Rs.3,70,000/- which was less
than 75% of the IDV and hence, the insured should get the vehicle repaired as per the estimate
submitted by him. Learned counsel, however, could not give any reasonable explanation as to
why the labour charges to the tune of Rs.1.98 lakh as estimated by the surveyor were to be
excluded.
5.
We have examined the material on record and given a thoughtful consideration to the
arguments advanced before us. The basic issue involved in the present case is that the
complainant is demanding compensation based on the IDV of vehicle as shown in the insurance
policy. The complainant has also demanded interest @15% on IDV, i.e., Rs.5,40,000/- from the
date of accident, i.e., 12.08.2007 till realisation and also the cost incurred in retrieval of salvage
and compensation for mental harassment and litigation cost etc. It has been brought out from the
material on record that the vehicle suffered extensive damage due to the accident. It has been
stated in the report of the surveyor V.P. Singhal and Co. that the original estimate for repair was
Rs.8,31,000/- including Rs.1.98 lakh as cost of labour. It is not understood how the surveyor has
stated the estimate of repair to be Rs.3.7 lakh. In the sheet of loss assessment attached with the
surveyor report, the cost of labour component has been stated to be zero, meaning thereby that
the estimate does not represent correct picture about damage. Since it has been admitted that the
IDV of the vehicle as stated in the insurance policy is Rs.5.4 lakh and it is clear from the material
on record and facts regarding the retrieval of salvage etc. that it is a case of total damage to the
vehicle. It is held, therefore, that the complainants are entitled to get compensation based on
IDV of the vehicle as stated in the insurance policy. This revision petition is, therefore, allowed
and the orders passed by the State Commission and District Forum are modified to the extent that
a sum of Rs.5.4 lakh shall be payable to the Complainants along with interest @7% p.a. from the
date of complaint till realisation. A sum of Rs.10,000/- shall also be allowed to the complainants
as cost of litigation. The revision petition stands disposed of accordingly.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2311 OF 2008
(From the order dated 16.05.2007 in First Appeal No. 1261/1996 & 1306/1996 of Uttar Pradesh
State Consumer Disputes Redressal Commission)
Lavlesh Singh proprietor Lovely Provision Store c/o Shivarpan Trading Co. Babaru Road,
Kalu Kunwa, Banda – 210001.
... Petitioner
Versus
United India Insurance Co. Ltd. having its Divisional Office at 497, Sadar Bazar, Jhansi Branch
Office at Dhima Chauraha, Aliganj, District Banda
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Nikhil Jain, Advocate
For the Respondent
Mr. S.M. Tripathi, Advocate
PRONOUNCED ON : 11th OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 16.05.2007, passed by the Uttar Pradesh State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1261/1996,
“United India Insurance Co. Ltd. versus Lavlesh Singh,” and FA No. 1306/1996, “Lavlesh Singh
versus United India Insurance Co. Ltd.” vide which the State Commission modified the order
dated 12.08.1996 passed by the District Consumer Disputes Redressal Forum, Banda. The
District Forum had allowed the complaint filed by the complainant/petitioner Lavlesh Singh and
order to compensate him by paying Rs.91,000/- as compensation alongwith interest @9% p.a.
from the date of filing of the complaint. The State Commission dismissed the appeal filed by the
complainant, but partly allowed the appeal filed by the OP/respondent and reduced the amount of
compensation to Rs.25,000/- along with interest @ 9% p.a.
2.
Brief facts of the case are that the complainant/petitioner runs a general store and stationery
shop in the name of Lovely Provision Store at Moh. Chhawni Road, District Banda. As per the
complaint, he made an investment of approx. Rs.2 lakh in the shop and had got it insured for the
period from 2.03.1993 to 1.03.1994 vide insurance policy number 17286 for an amount of Rs.1.7
lakh. The said shop caught fire on the intervening night of 26/27.02.1994, whereupon the local
fire brigade arrived at the spot and extinguished the fire. Information about the incident was also
given to local Police. It has been stated that there was a loss of Rs.1.5 lakh due to fire to the
stocks and furniture of the shop. The OP insurance company appointed a surveyor to assess the
loss and the said surveyor stated that the loss was to the extent of Rs.13,733.48ps. only. A
consumer complaint was filed by the complainant before the District Forum and the said Forum
awarded a sum of Rs.91,000/- to the complainant along with interest @9% p.a. stating that the
Fire Department had assessed the loss to that extent. Two appeals were filed against the said
order of the District Forum – one by the complainant for enhancement of compensation and the
other by the insurance company. The State Commission dismissed the appeal of the complainant
but partly allowed the appeal filed by the OP Insurance Company and directed that a sum of
Rs.25,000/- be paid to the insurance company as compensation along with interest @9% p.a. It
is against this order that the present petition has been made.
3.
It was stated before us at the time of arguments by the learned counsel for the petitioner that
the survey report in question did not reflect correct picture about the loss and in fact, the survey
report had been submitted after the filing of the complaint in question. It has been demanded in
the petition that a sum of Rs.1.5 lakh should be awarded along with interest @ 24% p.a. The
learned counsel for the respondent, however, stated that the order passed by the State
Commission was in accordance with the facts on record and they had not filed any petition
against this order although a sum of Rs.25,000/- had been awarded against assessment of loss
made by the surveyor to the tune of Rs.13,733.48 only.
4.
We have examined the entire material on record and given a thoughtful consideration to the
arguments advanced before us. A careful perusal of the facts of the case indicates that the
surveyor assessed the loss of stock at Rs.12,333.55ps. but he stated in his report that the insured
had not submitted sufficient evidence and documents in support of purchase of stocks and hence
after making a deduction of 30%, the surveyor arrived at a figure of Rs.8,638.48ps. for loss of
stock. The surveyor further stated that there was loss of Rs.5100/- only to furniture and fittings
and in this way, the total loss was assessed at Rs.8,633.48ps. + Rs.5,100 = Rs.13,733.48ps. The
surveyor also mentioned that the insured has taken excess coverage of stocks and assets. The
surveyor has also stated that the insured did not maintain any books of accounts, stock register,
cash memo etc. and he did not produce any documentary evidence regarding the insured
stocks. The insured is also not paying any sales tax / income tax etc. and he was not preparing
any profit and loss statement or balance-sheet and hence, there was no authentic figure of
purchase and sales etc.
5.
In the grounds of revision petition, the petitioner has stated that they had submitted
documentary evidence about the stocks to the surveyor and insurance company, but they have
not substantiated their statement by referring to any particular document etc. In the light of these
facts, it is clear that the order passed by the State Commission vide which they have awarded a
sum of Rs.25,000/- to the complainant against the estimated figure of Rs.13,733.48ps. by the
surveyor, does not suffer from any illegality, irregularity or jurisdictional error. The said order
has not been challenged by the insurance company by way of filing revision petition etc.
6.
Based on the discussion above, the impugned order passed by the State Commission is
upheld and the present revision petition is ordered to be dismissed with no order as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3318 of 2013
(From the order dated 23.01.2013 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula in Appeal no. 413 of 2009)
Chandan Singh Son of Shri Birkha Ram Resident of Village Qazipur Tehsil and District Jhajjar
Petitioner
Versus
National Insurance Company Ltd. Regional Office, SCO Nos. 337-340 Sector 35 B, Chandigarh
Through its Authorised Signatory
Magma Shrachi Finance Ltd. 1st Floor, Narain Complex Civil Road, Rohtak
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr S P Jha, Advocate with
Mr Vikrant Bhardwaj, Advocate
Pronounced on 10th October 2013
ORDER
REKHA GUPTA
Revision petition no. 3718 of 2013 has been filed against the order dated 23.01.2013
passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (‘the State
Commission’) in First Appeal no. 413 of 2009.
The brief facts of the present case as conveyed from the record that truck bearing
registration no. HR 46 C 9534 of the complainant/ petitioner was insured with the respondent /
opposite party no. 1/ insurance company with effect from 24.05.2005 to 23.05.2006. On
14.12.2005 when the truck was on its way from Yamuna Nagar to Rajkot and reached
near Mehla on NH No. 8, the front tyre of the truck burst due to which truck caught fire and
burnt. Rapat no. 569 dated 14.12.2005 was lodged with the concerned police. Upon intimation,
the insurance company appointed a surveyor/ loss assessor of the company namely Shri K S
Hans, who inspected the vehicle and assessed the damage/ loss of the vehicle in the following
manner:
On Repair Basis
On Total Loss Basis
Rs.13,41,637/Rs. 7,98500/-
On net of salvage basis
Rs. 6,23,500/-
In view of the above assessments, the surveyor recommended the loss on net salvage basis
subject to the terms and conditions of the policy. However, the claim submitted by the petitioner
was repudiated by the insurance company on the ground that at the time of obtaining the
insurance policy, the petitioner did not disclose that the petitioner had obtained the claim during
the subsistence of the previous policy on his insured truck and thus by fraudulent means the
complainant/ petitioner illegally got 20% discount as “No Claim Bonus” qua the premium of the
policy. Forced by these circumstances, the petitioner invoked the jurisdiction of the District
Consumer Forum by filing a complaint.
Upon notice, the opposite parties appeared and contested the complaint by filing their
separate written statements. The Insurance Company in their separate written statement justified
the repudiation of petitioner’s claim on the ground stated in the preceding paragraph of this order
and prayed for dismissal of the complaint.
Respondent no. 2/ Opposite party no. 2 – Magma Shrachi Finance Limited in their separate
written statement stated that the petitioner had taken a loan of Rs.9,55,261/- from it and the
petitioner always remained irregular in making the repayment of the loan amount. The last
instalment was to be paid on or before 01.04.2007 and the total receivable amount was
Rs.10,70,762/-. The execution of agreement and payment of subsequent instalments all had
happened beyond the territorial jurisdiction of the District Forum and therefore, the District
Forum had no territorial jurisdiction to entertain the complaint, it was prayed that the complaint
merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, the
District Consumer Disputes Redressal Forum,Jhajjar (‘the District Forum’) accepted the
complaint and granted the following reliefs:
“.........we, therefore, direct the respondent no. 1 to pay the insured amount i.e.,
Rs.8,00,000/- to the respondent no. 2 at once and respondent no. 2 is then directed to
deduct their amount outstanding against the complainant and make the payment of
balance amount to the complainant without any delay. Respondent no. 1 is further
directed to calculate the interest @ 9% per annum on the amount of Rs.8,00,000/- from
the date of filing of complaint i.e., 26.11.2007 till realisation of final payment and pay it
to the complainant on account of deficiency in service caused to him. The
order be complied within one month. Accordingly, the present complaint stands disposed
of”.
The State Commission in their order dated 23.01.2013 came to the conclusion that “the
facts of the instant case are fully attracted to the authoritative pronouncements of Hon’ble Apex
Court and the National Commission cited (supra). From the evidence produced by the appellant
– opposite parties it is well established on the record that the complainant/ petitioner had
submitted a false declaration Ex R 9 and took benefit of 20% rebate as ‘No Claim Bonus’ by
fraudulent means. District Forum has failed to appreciate the above stated cogent and
convincing evidence and erred in allowing the complaint. Hence, the impugned order cannot be
allowed to sustain.
As a sequel to our aforesaid discussion, this appeal is accepted, impugned order is set
aside and the complaint is dismissed”.
Hence, the present revision petition.
Along with the present revision petition an application for condonation of delay of 90
days has been filed. However, as per the office report, there is a delay of 139 days. Counsel for
the petitioner could not give the date from which date 90 days had been calculated.
The reasons given for the delay are as under:
On 31.01.2013, the certified copy of impugned order was dispatched from the office
of State Commission however, this was served upon the petitioner on the 3rd week of
February 2013.
In between March to August 2013, the petitioner was confined to bed on account of
various ailments, including the advance age of the petitioner coupled with the shocking
information of dismissal of his complaint when the petitioner is at the double loss, one
that he has lost his vehicle and second the compensation awarded by the District Forum
was set aside by the State Commission.
In the month of September 2013, petitioner ultimately collected the case file
including the entire documents from his advocate at Chandigarh and started arranging the
requisite fund for preparing the present petition before this Commission. Thus, in that
process a delay of 90 days have been caused in filing the present petition before this
Commission.
We have heard the learned counsel for the petitioner and have gone through the records
of the case carefully.
The petitioner has failed to give date on which the impugned order dated 23.01.2013 was
received. Though it is admitted by the petitioner that it was despatched on 31.01.2013, but he
could not give any evidence to support the fact that it was received by him in the 3 rdweek of
February 2013.
Counsel for the petitioner has stated that the petitioner is in an advanced age and is 77
years of old. This was a blatant contradiction of the fact that in his affidavit the petitioner has
given his age as 65 years. The petitioner has also failed to mention the various ailments that he
has been suffering from and the plea of bad health and having been confined to bed is not
supported by any medical certificate. In fact in his application for condonation of delay without
any explanation he has jumped from 3rd week of February when he received the impugned order
of 23.01.2013 to September 2013 when he ultimately collected the case file including the entire
documents from the Advocate at Chandigarh.
Revision petition was thereafter filed on 17.09.2013. The petitioner has failed to give
day-to-day explanation for the delay of 139 days. The petitioner has also failed to provide
‘sufficient cause’ to condone the delay of 139 days. This view is further supported by the
following authorities:
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil
2006), decided by the Apex Court on 08.07.2010 it was held:
Appeal
no.
1166
of
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon,
P. Ramanatha Aiyar, 3rd Edition, 2005]”.
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 thecondonation 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.”
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.”
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 139 days
in filing the present revision petition. The application for condonation of delay is without any
merit as well as having no legal basis and is not maintainable. Consequently, the present revision
petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five
thousand only).
Petitioner is directed to deposit the cost of Rs.5,000/- in the name of ‘Consumer Legal
Aid Account of this Commission’ within four weeks from today. In case the petitioner fails to
deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per
annum till realisation.
List on 22nd November, 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3221 OF 2013
(From order dated 15.05.2013 in First Appeal No. 919 of 2010 of the
State Consumer Disputes Redressal Commission, Madhya Pradesh, Bhopal)
Bank of Baroda Sarafa Bazar, Through Branch Manager, Lashkar, Gwalior, M.P.
… Petitioner
Versus
1.
Ratan Singh Paviva , R/o Village Rawatpur, Pichore, Gwalior, M.P.
2. Mr. Rajiv Sharma, Proprietor M/s Rajiv Traders Jawahar Colony, Gwalior Road, Dabra,
Gwalior, M.P.
3.
Mr. S.M. Khan Occupation Bank Manager (Former) Bank Of Baroda, Branch Sarafa Bazar
Lashkar, Gwalior, M.P.
… Respondents
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. Arun Aggarwal, Advocate.
Pronounced On 10th October , 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The present Revision Petition is filed by the Petitioner Bank Of Baroda under Section 21 (b)
of Consumer Protection Act, 1986 against the order of the State Consumer Disputes
Redressal Commission, (in short, ‘State Commission’) Bhopal, Madhya Pradesh. The State
Commission dismissed the Appeal filed by the Bank Of Baroda in Appeal No. 919 of 2010
setting aside the order of the District Consumer Disputes Redressal Forum, (in short,
‘District Forum’) in Consumer Complaint No. 700 of 2009. The District Forum passed an
order on 26.02.2010, and, allowed the complaint.
2.
Facts of the case in brief:
The Complainant, an Agriculturist, bought a tractor P.T. Escort 439 from M/S Rajiv Tractors,
Dabra, Gwalior (OP-1), after availing loan from Bank of Baroda (OP-3). The OP-2 Mr.
S.M. Khan, Branch Manager of OP-3 Bank, issued a loan sanction and asked the
complainant to get the tractor from OP-1. On the basis of letter from OP-2, the proprietor
Mr. Rajiv Sharma (OP-1), issued a cash memo dated 4/3/2008, detailing the engine no. E3042699 and Chassis No. B-3039770. He endorsed a hypothecation agreement in favor of
OP-3
Bank,
and
mentioned
about
receipt
price of the tractor and Rs.1,00,000/-, towards
of
amount
insurance
of Rs.4,
of
56,941/the
i.e.,
tractor.
The Complainant also paid the amount for registration to OP-1, and he was asked to
obtain the documents from the Bank. But, OP-2, Mr. S.M. Khan, did not give documents of
tractor to the complainant. On 07.03.2008 when the tractor met with an accident, it was
seized by the officials of Police Station, Jhansi Road, Gwalior. When the documents of
tractor were demanded from the OP-2 & 3, they kept on avoiding him. Therefore, on
suspicion of foul play, the complainant got the information from the RTO Office about the
details of registration of the tractor, and it was learnt that tractor having Chassis No. B3039770 and Engine No. E-3042699 bearing Registration No. MP 07 AA 1258, registered in
the name of Ganga Ram Rawat, S/o Rudra Singh, Village Kheda, Tehsil Bhitarwal, District
Gwalior. Complainant came to know that it was a fraud committed by OP-2 & 3, and in
connivance
with
each
other,
had
seized
the old tractor which was sold earlier,
on 11.05.2007, to Ganga Ram Rawat because of nonpayment of installments. After
refurbishing, painting and removing its registration number plate, same tractor has been sold
to the complainant, claiming it to be a new one, and original documents were kept hidden by
them. Thus, the complainant filed a complaint before the District Forum, Gwalior seeking
directions to the OPs to give new tractor or its price and insurance amount along with interest
and compensation on the ground of committing gross deficiency in service.
3. The District Forum allowed the compliant, and passed an order on 26.02.2010 holding that
Branch Manager, Bank of Baroda, S.M. Khan, former Bank Manager and dealer Rajiv
Sharma
have
directing OP-1,
committed deficiency in service and unfair trade practice,
Bank of Baroda,
and
to receive the disputed tractor in
its present condition from the Complainant, without any recovery of loan sanctioned
against the tractor from the OP-1, and Branch Manager, Bank of Baroda ,the OP-3, to
deposit the margin money which was deposited by the Complainant for approval of loan,
along with interest, with the District Forum, within one month from the date of order. It
further directed that the said money was to be paid to the Complainant. It is also directed
that , OP-2 Rajiv Sharma, Prop. M/s Rajiv Traders and Branch Manager, Bank of Baroda
shall deposit Rs.10,000/- each, separately, as compensation and Rs.1,000/- each, separately,
as costs of proceedings, to be paid to the Complainant, within one month.
4. Aggrieved by this order, OP-3, filed an appeal before the State Commission.
5.
The State Commission examined the evidence on record and found that Branch
Manager, Bank of Baroda, Sarafa Bazar, Lashkar, Gwalior, S.M. Khan, occupationManager (former) Bank of Baroda, Branch Sarafa Bazar, Lashkar, Gwalior and Dealer Rajiv
Sharma, S/o Parmanand Sharma, Prop. M/s Rajiv Traders, Gwalior Road, Dabra, all three,
in connivance with
each
other,
have
financed the tractor having Chassis no.
B-
3039770 and Engine No. E-3042699 to the OP-1, Ratan Singh Pawaiya, and that the
same was sold earlier, on 11.05.2007, to Ganga Ram Rawat,
S/o Shri Rudra Singh,
Village Kheda, Tehsil Bhitarwar, District Gwalior. Hence, the State Commission upheld the
order of District Forum.
6.
Aggrieved against the order of State Commission, the Petitioner filed this Revision
Petition.
7.
We have heard the Counsel for Petitioner at admission stage, perused the evidence on record
and orders of both the Fora below.
8.
It is an undisputed fact that, the complainant obtained the quotation for purchase of a
new tractor from the OP-1. Even there is no dispute in this regard that OP-1 has sold out a
tractor having Chassis No. B-3039770 and Engine No. E-3042699 vide Cash Credit Memo
dated 04.03.2008.
9.
The District Forum observed;“ it is proved in the present case that the tractor having Chassis no B3039770 and Engine no. E-3042699 which was sold showing it brand new to Applicant
No.1, that tractor instead of being new tractor, was earlier sold to some Ganga Ram,
S/o Rudra Singh, R/o Bhitarwar, Gwalior in the year 2007 vide Ex.C-9 and C-10,
which was registered in RTO, Gwalior at Registration No. MP 07 AA 1258 and then
definitely, by selling out old tractor to the Applicant after receiving the price of new
tractor from the Non-Applicant no. 3, not only deficiency in service and unfair trade
practice has been committed, but criminal offence has also been committed.
10. Therefore, it is clear that the disputed tractor was already hypothecated with the OP-3 Bank
earlier in favour of Ganga Ram, S/o Rudra Singh and the same was shown to be sold to the
Applicant. Thereafter, OP-3 should have made the payment after receiving explanation from
the OP-1.
11. It is clear that there was a nexus between OPs, i.e. OP-3 by sanctioning loan, twice, on same
tractor and making payment to the OP-1. Such services are unfair trade practices and
amount to absolute deficiency in service by OPs.
12. It is so apparent that, OP-2 had the complete knowledge of the improper act of OP-1 i.e. the
disputed tractor was an old one and was already registered in some other’s name, earlier,
and disputed tractor is hypothecated because of sanctioning of loan in the name of other
person, Ganga Ram earlier, therefore, OP-2 deliberately did not supply the documents to
the complainant. Hence, liability should be fixed on all the OPs.
13. Therefore, we are of considered view that there is no need to interfere with the observations
made by the Fora below. We endorse the same order passed by both the Fora below. Also,
such service providers deserve to be properly punished. Accordingly, we impose punitive
costs of Rs.25,000/- upon OP-1 and OP-3, each, which is to be deposited in Consumer Legal
Aid Account of this Commission.
14. The OPs are directed to comply with the entire order within 60 days, otherwise, it will carry
interest @ 9% pa till its realization. The Revision Petition is dismissed.
……………….…………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(Dr. S.M. KANTIKAR)
MEMBER
Mss-07
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3060 OF 2013
WITH (I.A. NO.5314 OF 2013, FOR C/DELAY)
(Against the order dated 27.02.2013 in Appeal No. 219/2010
of the State Commission, Delhi)
Air India Express Through Mr.J.K.Sood Manager Admn. Office of General Manager – S & M
ED Office Complex, IGI Airport, T-1 Behind Bus Stop, Palam Airport Near Post Office New
Delhi – 110037
....... Petitioner
Versus
Shri Sunil Goyal R/o S-473, Greater Kailash – 1 New Delhi – 110048
…... Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Suhaas Joshi, Advocate with
Mr. Ashish Kumar, Advocate
Pronounced on : 10th October, 2013
ORDER
REKHA GUPTA
Revision Petition No. 3060 of 2013 has been filed by the petitioner under Section 21 (b) of the
Consumer Protection Act, 1986 (for short, ‘Act’) against the impugned order dated 27.2.2013,
passed by Delhi State Consumer Disputes Redressal Commission, (short, “State Commission”)
in First Appeal No.219 of 2010.
The respondent/complainant purchased a valid ticket through internet on 28.4.05 for
traveling to Dubai via Abu Dhabi for 22.5.2005 and return ticket for 26.5.2005. The ticket was
purchased through internet as the same was for low fare. The flight in question only goes
to Dubai. The respondent had no option but to arrange for pick up from Abu Dhabi and back by
road and paid 100 per cent transfer fare amount of Rs.17,000/-. Extra charges were paid for
entering Abu Dhabi. The visa to Dubai is given only with the hotel confirmation. Respondent
received a call from petitioner/opposite party on 19.5.05 at about 3 P.M. informing that the flight
to Abu Dhabi on 22.5.2005, 24.5.2005 and 26.5.2005 have been cancelled on account of some
technical snag. The respondent visited to the office of the petitioner and met Ms.
Rita Chawla who declared that they were refunding the ticket amount without any cancellation
charges and reasons for technical snag were that there was no air craft available on the said base.
The complainant requested to be accommodated in alternate seats in AirIndia but Ms.
Rita Chawla refused to accommodate the respondent as well as other group passengers and
behaved in a very rude manner. The respondent was forced to purchase tickets of Air India
amounting to Rs.16,337/- as against each ticket which was costing Rs.9,150/-. The respondent
could travel to Dubai after purchasing ticket on higher fare. Respondent has claimed refund of
visa charges refund of 85 US dollars which equal to Rs.3,785/- and difference amount of ticket
price Rs.7,237/-, visa extension charges of Rs.17,000/- along with other compensation.
Petitioner pleaded that the respondent was refunded the entire ticket amount on account of
cancellation of flight. The air ticket is non-transferable and, therefore, no alternate seats could be
given to the respondent. The respondent was informed in advance about cancellation of flight so
that he could make alternative arrangements. Petitioner denied any deficiency in service.
District Consumer Disputes Redressal Forum, New Delhi (For short, “District Forum”)
passed the following order ;
1. OP will refund the difference amount of ticket price i.e. Rs.7,237/- to the
complainant. Complainant had to obtain advance visa for which 85 US
dollars of which equated amount spent were totaling to Rs.3,785/- and Visa
Extension charges of Rs.17,000/- to the complainant. OP will therefore, pay
Rs.28,022/- to the complainant towards expenses directly incurred by the
complainant for no fault of his.
2. On account of mental agony, harassment and for deficiency in service, OP
will pay Rs.50,000/- towards compensation
3. OP will pay Rs.10,000/- towards cost of litigation to the complainant.”
Aggrieved by the order of the District Forum, petitioner/opposite party has filed an
appeal before the State Commission, which vide its order dated 27.2.2013 dismissed the same.
Hence, the revision petition.
Along with present petition, petitioner has filed an application for condonation of delay
of 43 days. The reasons given for the delay are as follows ;
“That the certified copy of the impugned judgment dated
27.2.2013 was received by the petitioner on 15.4.2013 and the statutory
period of limitation of 90 days for preferring revision petition expired
on 14.7.2013. Consequently, there is a short inadvertent delay of ……..
days in filing of the instant petition.
That the petitioner being a state agency has to comply with a
number of official formalities and technicalities and had to go through
numerous stages before filing instant revision petition.
That the delay in filing of the present petition is due to
procedural formalities common to Government Departments, of seeking
approvals at every stage and there has been no lack of diligence on part
of the petiiotner in pursuing the matter.
That the petitioner respectfully submits that the said delay is
neither willful nor due to any inaction but was purely due to
administrative reasons as set out above and this is an appropriate case
for condoning the delay.
That it is respectfully submitted that the petitioner has a very
good case on merits and if awarded an opportunity to argue the matter
on merits, it has every likelihood of succeeding before
this Hon’ble Commission.
We have heard learned counsel for the petitioner and gone through the record of the case.
The reasons given for the delay in the application are general, vague and not
specified. The only argument given by the learned counsel for the petitioner was that the
petitioner being a state agency takes time to comply with a number of official formalities and
technicalities and procedural formalities common to Government departments. These too have
not been specified. The petitioners have failed to explain the day to day reasons for the delay of
43 days and also failed to give sufficient cause to condone the delay.
Learned counsel for petitioner has relied upon a judgment in Esha Bhattacharjee Vs.
Mg. Commit. of Raghunathpur Nafar ACAD & Ors. (Civil Appeal Nos.8183-8184 of
2013). He draws our attention to para 15 of this judgment. He could not, however, confirm
whether the facts of the instant cited case were comparable to the present case.
Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development Authority,
IV(2011) CPJ 63(SC) has observed ;
“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.
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.”
Under these circumstances, no sufficient cause is made out for condoning the delay of 43
days in filing the present petition. Accordingly, application for condonation of delay is not
maintainable. Consequently, the present revision petition being barred by limitation is hereby
dismissed with cost of Rs.20,000/- (Rupees Twenty Thousand Only).
Cost of Rs.10,000/- to be paid by way of demand draft in the name of the respondent and
remaining cost of Rs.10,000/- to be deposited 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.
List on 22.11.2013 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
………..…………..………..
(REKHA GUPTA)
MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2652 OF 2013
(Against the order dated 18.04.2013 in First Appeal No.252 of 2011 of the Kerala State
Consumer Disputes Redressal Commission, Rajasthan, Chennai)
Mr. K Bhaskaran, S/o Mr. P. Krishnan Kutty, Subramania Apartments, New No. 39/06, Old
No.38/6 C.P. Ramaswamy Road, Alwarpet, Chennai 600018.
… Petitioner
Versus
1. Standard Chartered Bank Ltd. Represented by Manager, 29/30, Raja Rajeswari Towers,
2nd Floor, Dr. Radhakrishnan Salai Mylapore, Chennai- 600004
2. Officer, Customer Care, Standard Chartered Bank, India Bankcard Centre, 3rd & 4th Floor,
Raheja Point, Magarath Road, Bangalore-560025.
…. Respondents
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. K. Vijay Kumar, Advocate
Pronounced on : 10th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
In this revision petition filed under Section 21(b) of the Consumer Protection Act,
1986(for short, ‘Act’) there is challenge to order dated 18.4.2013 passed by State Consumer
Disputes Redressal Commission, Chennai(for short, ‘State Commission) in First Appeal No.
252 of 2011.
2. Brief facts are that Petitioner/Complainant had availed the services of Respondents/O.Ps.by
holding five credit cards issued by Respondent No.1. It is alleged that Petitioner had been
making prompt payments for all the five cards. Only because of the services offered by the
respondents went against the agreed norms, petitioner decided to withdraw from the said
services. After consulting the official of the respondent no.1 and as per the advice received,
petitioner cut into pieces all the five cards and sent the same to respondent no.1 along with 12
cheques for full and final settlement of the entire dues. Respondent No.1 having received the
letter and cheques along with cut pieces of five credit cards had also encashed all the 12 cheques.
Only after the 12 cheques were honoured, respondent no. 1 started sending further demand letters
to the petitioner as if he owed money to respondent no.1 under the said credit card transactions.
Having accepted the said 12 cheques towards the settlement of entire dues and having encashed
them, respondent no.1 is estopped from claiming any further amount from the petitioner. The act
of respondents in initiating proceedings before the Tamil Nadu State Legal Service Authority
amounts to deficiency in service on their part.
3. Respondents in their written statement admitted that petitioner had availed five credit card
issued by respondent no.1. However, respondent no.1 had not sent any full settlement letter to
the petitioner giving him the plan, amount and period of repayment. The petitioner, suo motto
had sent a letter enclosing 12 cheques for Rs.8,520/- each as there was no settlement of dues, as
alleged and no repayment from 2006. So, the respondents in the normal course referred the
matter to the Lok Adalat of the Tamil Nadu State Legal Services Authority. Resorting to the
recovery of dues through Lok Adalat cannot amount to deficiency in service on the part of the
respondents.
4.
District Consumer Disputes Redressal Forum, Chennai (South)(for short, ‘District Forum’),
vide order dated 20.12.2007, dismissed the complaint of the petitioner being devoid of merits.
5. Being aggrieved by the order of District Forum, petitioner filed appeal before the State
Commission, which was dismissed, vide impugned order dated 18.4.2013.
6. Hence, this revision petition.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that there has been deficiency on
the part of the respondents in as much as constant harassment is being caused to the petitioner
even after full and final settlement made by the petitioner.
9. District Forum, in its order held;
“Credit card history in respect of five credit cards dated 27.03.2008
issued by the opposite party is Ex B1. Credit card statement for the
period from July 2005 to August 2006 is Ex B2.
Perusal of Ex B2 would reveal that the complainant had
outstanding amount due to the opposite party bank even after the
realization of 12 cheques sent by the complainant towards full and final
settlement. For recovery of dues from the complainant, the opposite
parties referred the matter to the Lok Adalat. In the above
circumstances, we are of the considered opinion that resorting to
recovery of dues through the Lok Adalat would not amount to
deficiency in service”.
10. State Commission, while confirming the order of District Forum, in its impugned order
observed;
“5. We have carefully considered the arguments of the complainant and record
relied upon by the complainant and as well as the respondents/opposite
parties before the District Forum even though the complainant alleged
that in view of the final settlement he had sent 12 cheques for
Rs.1,02,328/- against the due for Rs.1,27,910/- as per Ex.A1 statement
of account and on that basis he had also surrendered the credit cards
by cutting into pieces and thereby claimed entire discharge, the
opposite party contended that since the dues are pending matter was
referred to Lok Adalat for recovery of money which cannot be
considered as deficiency of service. On perusal of the Ex.A3 Lok
Adalat notice along with the statement details of the 5 cards containing
total outstanding dues in each case after the last usage date and the
complainant did not file any letter of settlement to prove that he was
directed to pay only a sum of Rs.1,02,328/- instead of Rs.1,27,910/- as
final settlement. So the letter sent by the opposite party under Ex.A5,
the complainant was requested to furnish the settlement letter to enable
them to look into the matter to do the needful and thereby it is clear
that there was no effective settlement by way of documentary proof and
thereby the complainant cannot claim any discharge from the entire
dues and the dispute to be settled between the parties themselves in this
regard as it involves question of principal amount, interest, penal
interest etc as per the terms and conditions of the agreement for
receiving the credit card facility service and thereby the District Forum
by considering all the relevant materials in detail came to the proper
conclusion by dismissing the complaint with which finding, we find no
need for any interfere and this appeal to be dismissed as devoid of
merits and accordingly”.
11. After perusing of the record, we find that there is nothing on record to show that petitioner
has made any full and final settlement with the respondents in respect of his Credit Card amount.
12. Both the Fora below have categorically held that a sum of Rs.1,27,910/- was due against the
petitioner against which he himself had sent a sum of Rs.1,02,328/- towards full and final
settlement unilaterally.
13. Under section 21 (b) of the Act, this Commission can interfere with the order of the State
Commission where such State Commission has exercised jurisdiction not vested in it by law, or
has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction
illegally or with material irregularity.
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. In view of the concurrent findings of facts given by both the Fora below, we do not find any
infirmity or illegality in the impugned order passed by the state Commission. Hence, present
revision petition has no legal force and the same is hereby dismissed.
16. No order as to costs.
……..……………………J
(V.B. GUPTA)
(PRESIDING MEMBER
…………………………
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2451 OF 2011
(From the order dated 07.04.2011 in Appeal No. 4220/2010 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
With IA/1686/2013 (Placing Addl. documents)
Shivashankar S/o Malkappa,Aralaguppi R/o Taluk Office Board Hangal, Haveri District
Karnataka State
…Petitioner/Complainant
Versus
1. Bajaj Allianz General Insurance Co. Ltd. 4th Floor, Kalburgi Mansion, Lamington
Road, Hubli, Now rep. by Bajaj Allianz General Insurance Co.Ltd. 31, Ground Floor, TBR
Tower, 1st Cross, New Mission Road, Adjacent to Jain College, Bangalore
2. The Manager, Karnataka Bank Ltd. Hangal, Haveri District, Karnataka State
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Manish Gupta, Proxy Counsel
For Mr. Anand Sanjay M. Nuli, Advocate
For the Res. No. 1
:
Mr. Priyadarshi Gopal, Advocate
For the Res. No. 2
:
Deleted
PRONOUNCED ON 11th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 07/04/2011
passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short,
‘the State Commission’) in Appeal No. 4220 of 2010 – M/s. Bajaj Allianz Gen. Ins. Co. Ltd.
Vs. Shivashankar & Anr. by which, while allowing appeal, order of District Forum allowing
complaint was set aside.
2.
Brief facts of the case are that Complainant/petitioner, owner of passenger van KA-27/8744
got it insured from OP No. 1/Respondent No. 1 for a period of one year from 4.8.2008 to
3.8.2009. The vehicle was financed by OP No. 2/Respondent No. 2. Vehicle met with an
accident on 22.7.2009 at 4 A.M. FIR was lodged and intimation was given to OP No.
1. Complainant incurred expenses of Rs.1,99,035/- in repairs and submitted claim which was
repudiated by OP No. 1. Alleging deficiency on the part of OPs, complainant filed complaint
before District Forum. OP No. 1 resisted complaint and submitted that vehicle was driven
by Umesh at the time of accident who was not possessing valid driving licence. It was further
submitted that vehicle was carrying 19 passengers against the capacity of 12 passengers and in
such circumstances; claim was rightly repudiated and prayed for dismissal of complaint. OP No.
2 submitted that no claim has been filed against him and prayed for dismissal of complaint.
District forum after hearing both the parties, allowed complaint partly and directed OP No. 1 to
pay 75% of the assessed damages of Rs.86,982/- along with 9% p.a. interest and further awarded
Rs.5,000/- towards mental agony and Rs.5,000/- towards cost of the complaint.
Appeal filed by the OP No. 1 was allowed by State Commission vide impugned order against
which, this revision petition has been filed.
3.
Respondent No. 2 was deleted on the request of petitioner.
4.
Heard learned Counsel for the parties finally at the admission stage and perused record.
5.
Learned Counsel for the petitioner submitted that at the time of accident, vehicle was
driven by Bairappa and learned District Forum rightly allowed complaint, but learned State
Commission has committed error in allowing appeal on the ground that the vehicle was being
driven by Umesh, who was not possessing valid driving licence; hence, revision petition be
allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent
submitted that order passed by learned State Commission is in accordance with law; hence,
revision petition be dismissed.
6.
It is not disputed that petitioner’s vehicle was insured by Respondent No. 1 and vehicle met
with an accident during subsistence of insurance policy and petitioner incurred expenses in
repairs of the vehicle.
7.
Now, the main question is who was driving the vehicle at the time of accident. In FIR
lodged by one injured Basavaraj, it has specifically been mentioned that vehicle was driven
by Umesh. It appears that after investigation, challan was filed against Bairappa instead
of Umesh. In FIR, this fact has specifically been mentioned that driver himself sustained
injuries. Injured persons filed MACT claim and Motor Accident Tribunal decided all claims by
order dated 29.11.2011 and held that Insurance Company is not liable to pay compensation as
vehicle was driven by Umesh at the time of accident who was not holding any driving licence to
drive the said vehicle. During the course of arguments, learned Counsel for the petitioner
admitted that no appeal has been filed by the petitioner against the order of Motor Accident
Tribunal. In such circumstances, it can be very well inferred that at the time of
accident, Umesh was driving vehicle who was not holding driving licence to drive the
vehicle. Learned State Commission has not committed any error in holding that Umesh was
driving the vehicle and he also sustained injuries.
8.
Petitioner has not placed on record injury report of Bairappa which could have proved the
fact that Bairappa was driving the vehicle at the time of accident and in such circumstances; it is
proved that Umesh was driving the vehicle at the time of accident. Petitioner has also not placed
on record driving licence of Umesh. As there was violation of terms and conditions of insurance
policy, learned State Commission rightly allowed appeal and dismissed complaint.
9.
We do not find any illegality, irregularity or jurisdictional error in the impugned order and
revision petition is liable to be dismissed.
10.
Consequently, revision petition filed by the petitioner is dismissed with no order as to
costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2622 OF 2012
(From the order dated 16.04.2012 in Appeal No. 302/2007 of the Punjab State Consumer
Disputes Redressal Commission, Chandigarh)
M/s. Honda Cars India Ltd. Plot No. A-1, Sector 40/41, Suraj Pur – Kasna Road,
Greater Noida Indl. Dev. Area Gautam Budh Nagar, U.P. – 201306
…Petitioner/Opp. Party (OP)
Versus
1. Jatinder Singh Madan Proprietor M/s. G.N. Associates, 1, The Mall, Lawrence Road,
Amritsar, Punjab.
2. Prestige Honda, Lally Motors Ltd. G.T. Road, Near Bye Pass, Amritsar, Punjab
…Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Dhruv Wahi, Advocate
For the Res. No. 1
:
Mr. Mahaling Pandarge, Advocate
For the Res. No. 2
:
Mr. Saurabh Sharma, Advocate
PRONOUNCED ON 11th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 16.04.2012
passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short,
‘the State Commission’) in Appeal No. 302 of 2007 – Jatinder Singh Madan Vs. Honda Cars
India Ltd. by which, while allowing appeal, order of District Forum dismissing complaint was
set aside.
2.
Brief facts of the case are that Complainant/Respondent No. 1 Proprietor of G.N.
Associates purchased Honda Seil GXI Car No. PB-02-AP-8283 from OP No. 2/Respondent No.
2 manufactured by OP No. 1/Petitioner on 16.9.2005 and price of the Car was paid and there
was warranty of 24 months or 40,000 kmts. whichever is earlier. It was further alleged that after
its first service at 1000 kms. Power steering of the car jammed and became heavy which was
repaired by OP No. 2. Again after few days some problem occurred and car was delivered after
9 days after replacement of steering wheel and gear box assembly. Same fault developed again
after 1½ months and steering wheel and gear box assembly was replaced. 4th time on 14.1.2006
and 5th time on 15.2.2006 same fault occurred. In such circumstances, complainant insisted for
replacement of car, but OP refused. Alleging deficiency on the part of OP, complainant filed
complaint before District Forum. OPs resisted complaint and submitted that no technical/expert
evidence has been led by the complainant to prove manufacturing defect. It was further
submitted that default may be due to mishandling and rough driving by the complainant. It was
further submitted that complaint involves disputed questions of law and fact which can be
decided only by Civil Court; hence, prayed for dismissal of complaint. Learned District Forum
after hearing both the parties dismissed complaint as car was registered in the name of M/s. G.N.
Associates whereas complaint was filed by Jatinder Singh Madan. Appeal filed by the
complainant was allowed by the State Commission by impugned order and directed petitioner to
replace the steering wheel and gear box assembly and other connected parts and further awarded
compensation of Rs.1,00,000/- for mental agony and Rs.10,000/- as litigation expenses against
which, revision petition has been filed.
3.
Heard learned Counsel for the parties finally at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that complainant has sold the car during
pendency of appeal; hence, he remains no moreconsumer under the Consumer Protection Act
and complaint is liable to be dismissed. It was further submitted that merely because car has
been taken to workshop for 4 to 5 times, it does not amount to manufacturing defect as steering
wheel and gear box assembly had already been replaced; even then, learned State Commission
has committed error in allowing complaint; hence, revision petition be allowed and impugned
order be set aside. On the other hand, learned Counsel for the Respondent No.1 submitted that
order passed by learned State Commission is in accordance with law; hence, revision petition be
dismissed. Learned Counsel for the Respondent No. 2 supported cause of petitioner.
5.
Learned Counsel for the petitioner submitted that as during pendency of appeal car has
been sold by Respondent No. 1 to AmritpalSingh on 13.4.2010 and further it has been transferred
to Rajinder Bawa on 17.6.2011 without permission from State Commission, Respondent No. 1
remains no more consumer under the Consumer Protection Act and not entitled to any
relief. Perusal of copy of registration certificate proves fact of transfer of vehicle by complainant
to Amritpal Singh and in turn to Rajinder Bawa. Learned Counsel for the Respondent no. 1 also
admitted sale of vehicle. Learned Counsel for Respondent No. 1 has nowhere submitted that
vehicle was transferred during pendency of appeal with the permission of State Commission.
6.
We
have
held
in
R.P.
No.
2562
of
2012
– Tata
Motors
Ltd.
& Anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami)
& Anr. decided on 25.09.2013 that once vehicle is sold during pendency of the complaint,
complainant does not remain consumer for the purposes of Consumer Protection Act. In that
judgment, we have placed reliance on I (2008) CPJ 249 (NC) – HoshiarpurImprovement
Trust Vs. Major Amrit Lal Saini and judgement dated 23.4.2013 passed by this Commission
in Appeal No. 466 of 2008 – Mr.Rajiv Gulati Vs. Authorised Signatory M/s. Tata
Engineering & Locomotive Co. Ltd. & Ors. In this case, as vehicle has been sold by
complainant during pendency of appeal which was filed in the year 2007 and decided in the year
2012, complainant ceases to be a consumer under C.P. Act and complaint is liable to be
dismissed. Had Respondent No. 1 brought this fact to the notice of State Commission learned
State Commission would not have directed petitioner to replace the steering wheel and gear box
assembly and other connected parts because Respondent no. 1 was not possessing vehicle at the
time of passing the judgement.
7.
Learned Counsel for the petitioner submitted that there was no manufacturing defect in the
vehicle; even then, learned State Commission wrongly allowed complaint and directed to replace
steering etc., though, it had already been replaced twice before filing complaint. Perusal of
record reveals that steering gear box was replaced twice before filing complaint and again
learned State Commission vide impugned order directed petitioner to replace the steering wheel
assembly and other connected parts without any expert report or opinion. We are not inclined to
decide this aspect whether by taking vehicle to workshop for 4 to 5 times it would amount to
manufacturing defect or not because we have already held that complainant ceases to be a
consumer under the Consumer Protection Act and in such circumstances; complaint is liable to
be dismissed on this sole count.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
16.4.2012 passed by learned State Commission in in Appeal No. 302 of 2007 –
Jatinder Singh Madan Vs. Honda Cars India Ltd. is set aside and complaint stands dismissed
with no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 292 OF 2012
(From the order dated 11.10.2011 in Appeal No. A/11/423 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai)
Oriental Insurance Co. Ltd. Through its Authorized Signatory 88, Janpath,
New Delhi
…Petitioner/Opp. Party (OP)
Versus
Shri Pradip Deoram Jadhav Shrikrishna Colony Vinchur Road, Yeola Tal Yeola, District Nashik
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
For the Respondent :
Ms. Neerja Sachdeva, Advocate
Mr. Sunil Kumar Ojha, Advocate
PRONOUNCED ON 11th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 11.10.2011
passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short,
‘the
State
Commission’)
in
Appeal
No.
A/11/423
–
Oriental
Ins.
Co.
Ltd. Vs. PradipDeoram Jadhav by which, while dismissing appeal, order of District Forum
allowing complaint was upheld.
2.
Brief facts of the case are that Complainant/Respondent purchased Family Floater Policy
No. 164000/48/11/00178 from OP/Petitioner and it was valid for the period 16.8.1999 to
15.8.2000. It was further submitted that OP-Development Officer apprised him about new
policy named Family Floater Policy. He applied for it and OP issued policy on 28.4.2010. It
was further submitted that as he was not feeling well on 28.4.2010, he went to Dr. Muley for
general
check-up
who
advised
him
to
contact Dr. Manoj
B. Chopada Nashik. He
contacted Dr. Chopadawho advised him to undergo Angiography and Angioplasty which was
performed on 29.4.2010. He incurred expenditure of Rs.2,50,000/-, but his claim was repudiated
by OP on the ground that he suppressed the fact of suffering from BP, though, he was not the
patient of BP and did not take any medicine. Alleging deficiency on the part of OP, complainant
filed complaint before the District forum. OP contested complaint and submitted that
complainant was suffering from hypertension since 4 years and he had not disclosed this fact;
hence, claim was rightly repudiated and prayed for dismissal of complaint. Learned District
Forum after hearing both the parties allowed complaint and directed OP to pay Rs.2,00,000/along with 9% p.a. interest and further awarded Rs.15,000/-for mental agony and Rs.1,000/towards cost of litigation. Appeal filed by the OP was dismissed by learned State Commission
vide impugned order against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that impugned order is not a speaking order
and further submitted that inspite of material on record about complainant disease, Learned
District forum committed error in allowing complaint and learned State Commission further
committed error in dismissing appeal; hence, revision petition be allowed and impugned order be
set aside. On the other hand, learned Counsel for the respondent submitted that order passed by
learned State Commission is in accordance with law; hence, revision petition be dismissed.
5.
Perusal of record clearly reveals that complainant obtained policy on 28.4.2010 and on the
very day he contacted Dr. Chopada who advised him to undergo Angiography and Angioplasty
and the next day this was performed. Perusal of record further reveals that in proposal form
complainant submitted that he was in good health and denied every sort of disease, whereas
complainant was suffering from hypertension since last 4 years. Learned State Commission
observed that merely by filing certain photo copies, is not synonymous to tendering of evidence
and disputed fact is not at all established. In our opinion, aforesaid order of State Commission is
not in accordance with law, as complainant himself admitted in the complaint that on the day of
obtaining policy, he was not feeling well and contacted Dr.Chopada who advised him to undergo
Angiography and Angioplasty and on the next day the Angiography and Angioplasty was
performed. Learned State Commission ought to have discussed documents filed by the parties
before the District forum and should have passed reasoned order.
6.
Apparently, the aforesaid order is not a speaking order whereas it has been observed by
the Hon’ble Apex Court in in (2001) 10 SCC 659 – HVPNL Vs. Mahavir as under:
“1.In a number of cases coming up in appeal in this Court, we find that
the State Consumer Disputes Redressal Commission, Haryana at
Chandigarh is passing a standard order in the following terms:
‘We have heard the Law Officer of HVPN – appellant and have
also perused the impugned order. We do not find any legal
infirmity in the detailed and well-reasoned order passed by District
Forum, Kaithal. Accordingly, we uphold the impugned order and
dismiss the appeal’.
2. We may point out that while dealing with a first appeal, this is not the
way to dispose of the matter. The appellate forum is bound to refer to the
pleadings of the case, the submissions of the counsel, necessary points for
consideration, discuss the evidence and dispose of the matter by giving
valid reasons. It is very easy to dispose of any appeal in this fashion and
the higher courts would not know whether learned State Commission had
applied its mind to the case. We hope that such orders will not be passed
by the State Consumer DisputesRedressal Commission, Haryana at
Chandigarh in future. A copy of this order may be communicated to the
Commission”.
7.
In the light of aforesaid judgment, we deem it appropriate to remand the matter back to the
State Commission for disposal of appeal by a reasoned speaking order.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
11.10.2011 in Appeal No. A/11/423 – Oriental Ins. Co. Ltd. Vs. Pradip Deoram Jadhav is set
aside and matter is remanded back to the State Commission for disposal of appeal by a speaking
order by giving opportunity of being heard to both the parties.
9.
Parties are directed to appear before the State Commission on 27.11.2013.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3579 OF 2011
(From the order dated 05.07.2011 in Appeal No. 1131/2004 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
With IA/5306/2013 (Placing Addl. Documents)
Nathu Singh S/o Shri Daljit Singh R/o Plot No. 87, Parsu Ram Nagar, Near Rattangarh,
Ambala City
…Petitioner/Complainant
Versus
1. Haryana Urban Development Authority Sector 6, Panchkula through its Chief Administrator
Panchkula
2. Estate Officer, Haryana Urban Development Authority Sector 7, Ambala City.
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. G.I. Sharma, Advocate
For the Respondents :
Mr. Sudhir Bisla, Advocate
PRONOUNCED ON 11th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 05.07.2011
passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short,
‘the State Commission’) in Appeal Nos. 1131 of 2004 – The Estate Officer, HUDA
Vs.Nathu Singh by which, while allowing appeal, order of District Forum allowing complaint
was partly modified.
2.
Brief facts of the case are that Complainant/petitioner was allotted Plot No.
751/2008, Ambala vide allotment letter dated 12.4.1989 for Rs.51,290/-. Complainant deposited
price of the plot, but OP did not offer possession of the plot. Complainant surrendered the plot
vide letter dated 6.3.2003 and asked for refund of money. As money was not refunded, alleging
deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted
complaint and submitted that offer of possession was made to the complainant vide letter dated
4.10.1996 and as per policy of the HUDA, complainant is liable to pay 10% of the total price in
case of surrender of plot and deduction of 10% of the total price of the plot was made as per
policy of HUDA; hence, complaint be dismissed. Learned District Forum after hearing both the
parties allowed complaint and directed OP to refund the total deposited amount with interest @
10% p.a. and further awarded Rs.1,000/- as cost of proceedings. Appeal filed by the OP was
allowed by learned State Commission vide impugned order against which this revision petition
has been filed.
3.
Heard learned Counsel for the parties finally at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as plot was not developed the possession
was not given in 3 to 4 years, petitioner surrendered the plot and he was entitled to receive full
deposited amount along with interest and learned District Forum rightly allowed complaint, but
learned State Commission has committed error in modifying the order; hence, revision petition
be allowed and impugned order be set aside. On the other hand, learned Counsel for the
respondents submitted that inspite of offer of possession, petitioner has not taken possession of
the plot and surrendered plot. In such circumstances, order passed by learned State Commission
is in accordance with law; hence, revision petition be dismissed.
5.
It is not disputed that plot was allotted by respondent to the petitioner vide allotment letter
dated 12.4.1989. It is also not disputed that possession was offered vide letter dated 22.5.1993,
but it was withdrawn vide letter dated 29.6.1993. Record further reveals that possession of plot
was again offered by respondent to the petitioner vide letter dated 4.10.1996, but it appears that
instead of taking possession petitioner surrendered plot vide letter dated 6.3.2003 and in such
circumstances, respondent was entitled to deduct 10% of the total price as per HUDA
policy. Learned District Forum wrongly allowed complaint and learned State Commission has
rightly allowed appeal and held that petitioner is entitled to receive surrendered amount as per
HUDA policy.
6.
We do not find any illegality, irregularity or jurisdictional error in the impugned order and
revision petition is liable to be dismissed at admission stage.
7.
Consequently, revision petition filed by the petitioner is dismissed with no order as to cost.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2000 OF 2013
WITH (I.A. NO. 3298 OF 2013, For Stay)
(Against the order dated 08.02.2013 in Appeal No.1314/2012 of the State
Commission, Rajasthan)
1. Chairman Jaipur Vidyut Vitran Nigam Ltd. Vidyut Bhawan, Jyoti Nagar,
Jaipur, Rajasthan
2. Executive Engineer Jaipur Vidyut Vitran Ltd. District - Karauli, Rajasthan
3. Assistant Engineer Jaipur Vidyut Vitran Ltd. District - Karauli, Rajasthan
....... Petitioners
Versus
Mahendra Singh S/o Shri Rich Pal Singh R/o Jeetkipur, Tehsil – Nandoti District – Karauli
Rajasthan
…... Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Ajatshatru Mina, Advocate
Pronounced on : 11th October, 2013
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Present revision petition has been filed by the Petitioner/OPs under Section 21 (b) of the
Consumer
Protection
Act,
1986 (for short,
‘Act’)
for
setting aside order
dated 8.2.2013, passed by Rajasthan State Consumer Disputes Redressal Commission, Jaipur
(short, “State Commission.
2.
Brief facts are that Respondent/Complainant filed a complaint stating that he has SIP
connection No.15020093 of 10 HP for which he was paying bill regularly. Previously, a Meter
No.6366217 was installed and on the basis of reading, an amount of Rs.4,317/- was deposited on
1.1.2010 and a new meter was installed on 1.1.2010 which was already used and it reflected a
meter reading of 24000 units. A bill was sent to him showing reading of 24617 units on
24.2.2010 and it showed previous reading as 8712. Thus, a bill for 15905 units
was preponed showing the old meter number 6366217. Consequently, bill for Rs.64,377/- was
sent. This act of petitioners show that the bill was prepared without application of mind. Thus,
respondent has prayed for the cancellation of the incorrect bill and to award compensation of
Rs.45,000/-.
3.
Petitioners in their reply have admitted Meter No.176540 has been installed. It has been
further stated that respondent has consumed all the units mentioned in the electricity bill.
However, petitioners have also fairly conceded that the wrong bill was issued to the respondent
due to human error as there were two different connections arising from one sub-station.
Therefore, the meter reader inadvertently interchanged the units consumed by the consumer and
accordingly, the incorrect electricity bill was issued. However, after receiving the complaint,
petitioner issued correct bill after reducing 5957 units from the impugned electricity
bill. Thereafter, meter reader again recorded the reading of 20448 units on 26.5.2010 in the
presence of the respondent after taking his signatures. However, to verify the fact, a report was
sought by Asst. Engineer from the Junior Engineer. Accordingly, the Junior Engineer conducted
a report found that the electric meter was functioning properly. Thus, there was no deficiency in
service on the part of the petitioner.
4.
District Consumer Disputes Redressal Forum, Karauli Camp Hindaun City (for short,
“District Forum”), vide order dated 22.5.2010, allowed the complaint and ordered that ;
“The complaint of the complainant has been partly allowed and it
is ordered that bill dated 4.3.2010 of Rs.64,377/- in account No. SIP
15020093 is cancelled that it is ordered to issue amended bill on average
basis, considering the usage of previous one year.
It is ordered to pay Rs.10,000/- (Rupees Ten Thousand only) to
the complainant as compensation for mental and physical harassment
and Rs.5,000/- is ordered to be paid for prosecution expenses. The
complainant is entitled to pay 9% interest if failed to pay, within two
months.”
5.
Aggrieved by the order of the District Forum, petitioner filed an appeal before the State
Commission, which dismissed the same vide impugned order.
6.
Hence, this revision petition.
7.
We have heard learned counsel for the petitioner and gone through the record of the case.
8.
It has been contended by learned counsel for the petitioner that State Commission has
dismissed the appeal of the petitioner without assigning any reason thereof and therefore, it has
violated the basic principle of law by dismissing the appeal and the plea raised by the petitioner
has not been dealt with. As such, impugned order is liable to be set aside.
9.
District Forum, while allowing the complaint held ;
5.
The non-complainant has admitted to issue the bill on 4.3.2010 of 15905
consumed units and on the complaint by the complainant, an amended bill
was issued reducing 5957 units.
6.
The non-complainant has admitted to change the meter on 1.1.2010 and it
has shown nil unit but no documents have been presented to show that
what was the reading at the time of installation. Non-complainant has also
submitted a unit chart consumed by the complainant in which at any time
from 2007 to 2010, there was no consumption more than 1033 units while
the bill in question was sent of 18660 units.
7.
A meter reading of 20448 has been shown by the meter reader on
28.5.2010 while at the time of inspection by Junior Engineer was 20704
unit. It is clear that the consumption of the complainant in 22 days is 256
units while the bill of two months is of 18660 units which cannot be
justified and authentic.
8.
A notice has been sent by Asst. Engineer to the meter reader but it seems
that the signatures are being made by another person or employee and this
notice has neither dispatched by putting dispatch number nor any date has
been mentioned. There is no date under the signature and as such, there is
no action against the meter reader.
9.
On the basis of observations made, it is clear that non-complainant has
committed acted negligently and without application of mind, issued the
bill dated 4.3.2010 which comes in deficiency of service and on this basis
the bill issued on this basis the bill issued on 4.3.2010 is liable to be
cancelled and complainant is entitles to get the compensation.”
10. Petitioner in response to para 4 of the complaint has made following averments ;
“That the contents of para 4 of the complaint are based on
incorrect and fictitious facts. It is admitted that the meter No. 176540 has
been installed but the fact of already consumed units is false and
fictitious. It is humbly submitted that complainant consumed all the units
mentioned in the electricity bill. However, it is fairly conceded that the
wrong bill was issued to the consumer due to human error as there were
two connections arising out of one sub-station. Therefore, the meter
inadvertently interchanged the units consumed by the consumer and
accordingly, the incorrect electricity bill was issued. However, the noncomplainants right after receiving the complaint, issued the correct bill
after
reducing
the
5957
units
from
the
impugned
electricity
bill. Thereafter, meter reader again recorded the reading of 20448 units
on 26.5.2010 in the presence of the complainant after taking his
signatures. To verify the fact, a report was sought by A.En. Nadauti from
the Junior Engineer. Accordingly, the Junior Engineer conducted a
report found that the electric meter is functioning properly.”
11.
Thus, as per defence of the petitioners themselves, wrong bill has been issued to the
respondent due to human error as there were two connections arising out of one sub-station and
the meter reader, therefore, inadvertently interchanged the units consumed by the consumer.
Accordingly, incorrect electricity bill was issued. Petitioner has nowhere mentioned what was
the wrong bill and what are the numbers of two connections and which meter reader had
inadvertently interchanged the units consumed by the respondent. Petitioners have made
absolutely vague averments and it does not lead us anywhere.
12.
Though, it is correct that State Commission has not given any reason in its impugned order
but nevertheless we after going through the entire record are unable to reach at any conclusion as
on what basis, respondent issued the rectified bill.
13.
Thus, no jurisdictional or legal error has been shown to us to call for interference in the
exercise of powers under Section 21 (b) of Act. The present revision petition has no legal basis
and consequently, it is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).
13.
Petitioner is directed to deposit the cost of Rs.5,000/-, by way of demand draft in the name
of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case,
petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable
to pay interest @ 9% p.a., till realization.
14.
Pending applications also stand dismissed.
15.
List on 29.11.2013 for compliance.
.………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..………..
(REKHA GUPTA)
MEMBER
Sg/St
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 309 OF 2008
(Against the order dated 26.05.2008 in Complainant No.47 of 1996 of the State Commission,
Maharashtra)
M/s. Nikhil Builders Through their Partners:
1. Mr. Dilip Vishnu Salvi’
2. Mr. Chetan Vishnu Salvi
3. Mr. N.G. Pasthe
All have their address at Salvi Wadi, Deshbandhu Chaphekar Marg, Mulund (East), Mumbai
400081
...... Appellant
Versus
1. Shri Swami Kumar Banvalikar R/o Flat no.1, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
2. Mrs. Pushpa Kumar Bathe R/o Flat no.2, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
3. Mr. Chandrashekhar M.Pandit R/o Flat no.4, Indraprastha Building,
Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081
4. Mrs. Asmita A. Kale, R/o 83/A, Desai Building, 1st floor, Gharpure Path, Girgaum, Mumbai
400004
5. Shri Kamlakar Y. Patankar R/o Flat no.7, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
6. Shri Jagannath W. Mokal, R/o Flat no.8,Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
7. Shri Vijay N. Pednekar R/o Flat no.9, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
8. Shri Gajanan S. Thakur R/o. Flat no.10, Indraprasta Building Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
9. Shri Nitin B. Chavan R/o Flat no.B-6, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
10. Mrs. Nilam N. Karne R/o Flat no.B-9, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
11.Mrs. Mangala P. Banavalkar R/o Shop no.2, Indraprastha Building, Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
12. Nav Indraprastha Co-op. Hsg. Soc. Ltd., Chaphekar Bandhu Marg,
Mulund (E), Mumbai 400081
….Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant
: Mr.S.K.Sharma, Advocate with
Mr. Uday B. Wavikar, Advocate
Mr. Vikas Nautiyal, Advocate
For the Respondents
: Mr. Rajeev Sharma, Advocate
Mr. Abhishek Birthray, Advocate
Mr. A.P.Rege, Advocate
Mr. Sahil Bhalaik, Advocate
PRONOUNCED ON: 23rd Oct. 13
ORDER
PER MR. VINAY KUMAR, MEMBER
M/s. Nikhil Builders have challenged the award of the Maharashtra State Consumer
Disputes Redressal Commission in Consumer Complaint No.47 of 1996 filed by the present
respondents. The complaint before the State Commission is filed by 11 purchasers of flats
together with their society namely, Nav Indraprastha Co-op. Housing Soc. Ltd.,
Mumbai. Sixteen reliefs were sought by the appellant. The State Commission has granted the
following: “1. O.P./Builder/developer is directed to obtain Occupation Certificate
from local authority concerned.
2. From the date of respective occupation of the flats by the complainants,
the complainant are liable to pay municipal taxes in respect of their own flats and
for all other flats, the builder is responsible to pay municipal taxes.
3. O.P. /Builder is directed to pay Rs.24,000/- to the complainants towards
reimbursement of additional levy sewage tax, which was paid by the complainants.
4. O.P/Builder is directed to pay the cost incurred, if any, by the
complainants for formation of society.
5. O.P/Builder is directed to pay proportionate maintenance charges of
Rs.120/- per month in respect of those flats, which were retained by the builder for
his own purpose or for resale.
6. O.P./Builder is directed to execute Deed of conveyance in favour of
complainants or in favour of complainants society i.e. complainant no.12 within a
period of two months from the date of this order.
7. O.P./Builder is directed to remove the unauthorized construction and to
hand over that space to the society already formed by the complainants.
8. O.P./Builder is directed to transfer individual meters in the name of
respective complainants at his own expenses.
9. O.P./Builder is directed to pay Rs.2000/- each to all the complainants
including complainant no.12 newly added Co-operative Housing Society and to
bear its own cost.
10. Builder is also directed to pay Rs.10,000/- each to all the complainants
except complainant no.12 for the mental harassment suffered by complainants for
so many years.”
2.
During the course of consideration of the appeal filed by the OP/Nikhil Builders against the
above order, this Commission gave a notice of hearing to the respondents/Complainants on relief
no.7 i.e. the direction to the builder to execute the conveyance deed in two months. As for the
other reliefs granted by the State Commission, the appellant was directed on 6.3.2009 to
complete the compliance within two weeks. Therefore, consideration of the appeal has got
limited only to the question of non execution of the conveyance deed.
3.
The two sides were also directed to file their written synopses/arguments. The same has
been filed on behalf of the respondents/Complainants. Written synopsis/arguments had already
been filed on behalf of the appellant/OP. The case of the appellant has been argued by Shri
S.K.Sharma, Advocate assisted by Shri Uday B. Wavikar, Advocate. On behalf of
respondents/Complainants Mr. Sahil Bhalaik and Mr. Rajeev Sharma Advocates have been
heard.
4.
The case of the complainants before the State Commission was that they had entered into
individual agreements in 1984 with the OP/builder for purchase of flats. As per approved plan,
the building was to have five floors, with four shops on the ground floor and in all 12 residential
flats on the remaining four floors. The plan, as shown to them had the approval of the BMC. The
Builder/OP had assured delivery within one year from the date of the agreement. But, they were
actually put in possession of their flats in 1989. Allegedly, after 1991 the builder started
extending portions of the building, contrary to the approved plan. The builder ultimately
constructed six floors as ‘B’ wing of the building, in addition to the existing block, ‘A’ wing.
Due to this, despite getting possession of their flats six years ago (at the time of the complaint)
the complainants were not able to get conveyance deed from the builder.
5.
The reply of the appellant/OP before the State Commission was that the plan for ‘A’ Wing
of the building was approved by the BMC in 1986. It was for 500 square meters out of total land
of 943.2 square meters. The remaining 443.2 square meters had been declared surplus under the
Urban Land Ceiling Act. After the Competent Authority ULC exempted an area of 216.50
square meters, out of the total surplus of 443.20 square meters, the builder found it necessary to
utilize the additional FSI by amending the earlier plan. Hence, the revise proposal was made for
constructing the additional ‘B’ wing of the building. As per OP/builders, the revised plan was
submitted in 1988 without proposing any alteration or modifications in the flat in ‘A’
wing. Allegedly, the modification of the plan was approved by BMC in 1989, permitting
construction of the ‘B’ wing.
6.
On the question of execution of conveyance deed, the submission of the OP/builders before
the State Commission was that since the Cooperative Housing Society of the flat owners had
already been formed, it was willing to execute the same in favour of the Society. However, the
State Commission has observed that it was also pleaded on behalf of the OP that the amended
plan for the sixth floor of the ‘A’ wing had already been submitted to BMC for approval. In this
context, the Commission has observed that—
“Coming now to the important prayer about conveyance, we are finding
that till today builder has not executed Deed of conveyance in favour of society. It
is the bounden duty of the builder/developer even under Maharashtra Ownership
Flats Act that he should execute conveyance deed in favour of society once society
of flat purchasers is formed. It is the tendency of unscrupulous builders not to
execute Deed of Conveyance in favour of society and not to form and get registered
Co-operative society with the ill motive of exploiting TDR rights and additional
FSI, if any available on the plot. For this purpose, most of the builders and
developers are very shy of executing Deed of conveyance in favour of society and
with this aim only, often they avoid to get registered Co-operative society of flat
purchasers. As per Agreement executed between builder and flat purchasers in this
case and also under Maharashtra Ownership Flats Act, builder and developer has
to execute Deed of Conveyance in favour of society at the earliest. This has not
been done till today and therefore, there is obvious deficiency in service on the part
of the builder, statutory as well as contractual in not executing Deed of conveyance
in favour of the society. So direction will have to be given in this regard to the
opponent/builder to execute Deed of conveyance in favour of complainants or in
favour of complainants society i.e. complainant no.12.”
7.
As per the records, the original plan, in so far as Wing ‘A’ of flats concerning the
Complainants is concerned, was approved way back in 1984. The flats were constructed and
admittedly, the Complainants were put in possession of their respective flats in 1989. As per the
written statement before the State Commission filed in March 1997, on behalf of the OP,
construction of ‘A’ wing was completed in 1988. In the same year, revised plan was submitted.
Admittedly, it was approved by the BMC in 1989, permitting the OP to put up the ‘B’
wing. Here, the WS clearly states that the revised plan did not propose any change, alteration or
modification in the flats agreed to be sold to the purchasers of the first building. If this is to be
believed, the OP could not have put up 5thand the 6 floors in Block-A, subsequent to sale of flats
in the first four floors to the Complainants. This gap is sought to be covered in a very vague
statement, at the end of para 4 of the WS. It reads:“It is false to say that we have constructed two flats in ‘A’ wing during the
year 1993. A wing was completed in the year 1988 and no construction was
undertaken after 1992 in ‘A’ wing as alleged.”
Significantly, in the affidavit of Shri Sudhakar Amare, Architect of the appellant, filed before the
State Commission on 11.11.2008, it is stated that:
“I say that we have already obtained part occupation certificate for phase-I,
A wing for 1st to part 4th floor on 7/12/1991 from the office of the building proposal
department of Mumbai Municipal Corporation.”
8.
From a joint reading of these two averments it becomes clear that in so far as flats of
the complainants in ‘A’ Wing are concerned, the occupation certificate for the first four
floors was admittedly obtained in 1991 itself and addition of the 5th and the 6th floors in this
Block was made by the Opposite party between 1988 and 1992. It is therefore, amply clear
that, with or without addition of the 5th and 6th floors to ‘A’ wing, there was nothing to
prevent the OP from executing the conveyance deed for the flats of the Complainants on
1st to the 4th floors of the same building. Strangely enough, the WS filed before the State
Commission, years later on 12th March 1997, offers no clear explanation for failure of the
OP to do the same.
9.
Even in arguments advanced on behalf of the appellant/OP before this Commission, there
is no attempt to explain the failure to act on the occupation certificate obtained from BMC in
1991. The case made out is that even now the BMC has not issued completion certificate for the
modified project. It is argued that:“The Appellant was under statutory inability to obtain the building
completion certificates in view of the delay in taking over possession of the
remaining portion of the land acquired by the Special Land Acquisition Officer for
60 ft. D.P. road. The procedure of taking over possession of the said land by the
Special Land Acquisition Officer and BMC is not under the control of the
Appellants and therefore, they cannot be blamed with the tag of deficiency in
service.”
10.
In our view, this argument is nothing more than an attempt to enlarge the scope of the
present proceedings. It goes well beyond the pleadings of the OP before the State
Commission. It was not the case of the appellant/OP that any dispute existed in this regard. The
WS filed before the State Commission had clearly stated that a portion of the land for this road
had already been handed over to BMC and the BMC had already developed 44 ft. wide road
thereon. We therefore, have no hesitation in rejecting this contention.
11.
In conclusion, it is held that the impugned order passed by the Maharashtra State Consumer
Disputes Redressal Commission in CC No.47 of 1996 is based on correct appreciation of the
evidence on record. No case is made out for interference with the same. The Appeal is
therefore, dismissed. Further, considering the conduct of the appellant/OP and its consequence
for the respondents/complainants, further cost of Rs.5000/- (Rupees Five Thousand) is awarded
in favour of each and every Complainant. This shall be in addition to the cost awarded by the
State Commission and shall be paid within a period of three months from the date of this order.
…..…………….…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………….…….……
(VINAY KUMAR)
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 266 OF 2008
(Against the order dated 29.02.2008 in Complaint No. 28/2005 of the
U.P. State Consumer Disputes Redressal Commission)
Dr. J.L. Chaudhary S/o Shri M.L. Chaudhary R/o B-697, MIG Flats East of Loni Road, Shahdara
Delhi-110093
…
Appellant(s)
Versus
1. Ashok Thakkar Prop. Of M/s Thakkar Builders C-91, Preet Vihar Delhi-110092
2. K.C. Kapoor S/o Late Shri S.D. Kapoor R/o Ground Floor, C-104 Ramprastha Colony,
Sahibabad District Ghaziabad, U.P.
…
Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Appellant(s)
: Dr. J.L. Chaudhary, Appellant in person
For Respondent(s)
: Mr. Anup Kumar, Advocate for R-1
Mr. Astender Kumar, Advocate for R-2
Pronounced on 23rd October, 2013
ORDER
PER VINEETA RAI
This First Appeal has been filed by Dr. J.L. Chaudhary, Appellant herein and Original
Complainant before the U.P. State Consumer Disputes Redressal Commission, Lucknow
(hereinafter referred to as the State Commission) being aggrieved by the order of the State
Commission which had disposed of the case by concluding that since the reliefs being claimed
fall within the provisions of the Specific Relief Act, it would be appropriate for the case to be
adjudicated before a competent Civil Court.
2.
BRIEF FACTS:
In his complaint before the State Commission, Appellant/Complainant who is a Doctor in
the Municipal Corporation of Delhi had stated that he had approached the Respondents/Opposite
Parties No. 1 and 2, who are involved in the business of constructing and selling flats, for
purchase of a residential flat in property no. C-104, Ramprastha Colony, Sahibabad, District
Ghaziabad, U.P. Thereafter a Tripartite Agreement between the parties was entered into by
which Appellant/Complainant was offered a fully furnished second floor flat with covered area
of 297 sq. meters besides roof rights and certain other amenities for a total sale consideration of
Rs.34,00,000/- as part payment. Appellant/Complainant paid Rs.6,51,000/- vide two cheques
dated
07.05.2004
and
09.08.2004. However,
the
flat
finally
offered
to
the
Appellant/Complainant was contrary to the terms and conditions of the Tripartite Agreement
since instead of 5 bedrooms only 4 bedrooms were constructed and several amenities and
facilities like safety railings, car park etc. as also roof rights were not given. Being aggrieved,
Appellant filed a complaint before the State Commission on grounds of unfair trade practice and
claimed a sum of Rs.10,00,000/- towards mental agony and pain.
3.
Respondents/Opposite Parties challenged the above contentions through a written
rejoinder and stated that the Appellant’s complaint before the State Commission was based on a
tampered, manipulated and forged agreement, particularly the first page of the document. It was
contended that the flat in question was constructed as per the approved plan of the Ghaziabad
Development Authority and the details were contained in the actual Agreement dated 31.05.2004
which
was
handed
over
to
the
Appellant/Complainant
for
signing
which
the
Appellant/Complainant retained without signing it and instead sought reliefs before the State
Commission on the basis of a forged and manipulated document, to which Respondents/Opposite
Parties were never a signatory.
4.
The State Commission, as stated earlier, had dismissed the complaint on the ground that
since the reliefs claimed by the Appellant/Complainant fall within the Specific Relief Act, he
may file the case before the competent Civil Court. The State Commission further observed as
follows :
“Whether the agreement dated 09-06-2004 is a forged one or not, whether there
is an agreement as alleged by the opposite parties at all or not, whether the
complainant has committed default in performing his part of the contract or not
and whether there has been default on the part of the opposite parties in fulfilling
the terms and conditions of the contract or not, all these matters can only be
decided on the basis of the detailed evidence and its appraisal which is obviously
not possible before the Fora.”
5.
Being aggrieved by the order of the State Commission, the present First Appeal has been
filed.
6.
Appellant/Complainant in person and the Counsel for Respondents/Opposite Parties
essentially reiterated the submissions made by them before the State Commission.
7.
We have considered the submissions made by the parties as also the order of the State
Commission. We note that the Appellant and the complaint filed by him on grounds of unfair
trade practice is covered under Sub-Sections (b), (c) and (d) respectively of Section-2 of the
Consumer Protection Act, 1986 (hereinafter referred to as the Act). The State Commission has
not decided the case mainly on the grounds that elaborate documentary evidence is required and
since specific relief is sought, the case may be decided by a Civil Court. However, in this
connection, it may be noted that in cases filed under the Consumer Protection Act the first Court
of fact is often required to record both oral and documentary evidence, permit cross-examination
of the witnesses and seek expert opinion whenever considered necessary. Further, Section-3 of
the Act provides an additional remedy to consumers besides those that may be available under
other laws. The Consumer Fora have also been admitting and deciding cases of this nature
where consumers have filed complaints against builders/developers on grounds of deficiency in
service/unfair trade practice, as in the present case and as such no complex issues of law or fact
are involved which cannot be decided by the Consumer Fora.
8.
In view of the foregoing reasons, we do not agree with the order of the State Commission
and set aside the same. The case is, accordingly, remanded back to the State Commission to
decide it afresh in accordance with law. Nothing stated herein may, however, be treated as a
comment on the merits of the case. Parties are directed to appear before the State Commission
on 27.01.2014 for further directions.
Sd/(D.K. JAIN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2529 OF 2008
(From the order dated 22.11.2007 in Appeal No. 1157/2006 of the Andhra Pradesh State
Consumer Disputes Redressal Commission, Circuit Bench at Tirupati)
New India Assurance Co. Ltd. Delhi Regional Office-I, Level-5, Tower- II, Jeevan Bharti,
Connaught Circus New Delhi – 110001 Through Authorized Representative
…Petitioner/Opp. Party (OP)
Versus
Anumula Venkateswarlu S/o Late A. Subbaiah, R/o D. No. 19/307, Petra, Kurnool, Andhra
Pradesh
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Ajit K. Singh, Advocate
For the Respondent
:
NEMO
PRONOUNCED ON 23rd October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 22.11.2007
passed by the Andhra Pradesh State Consumer DisputesRedressal Commission, Circuit Bench
at Tirupati (in short, ‘the State Commission’) in Appeal No. 1157of 2006 – The New India
Assurance Co. Ltd. Vs.Anumula Venkateswarlu by which, while dismissing appeal, order of
District Forum allowing complaint was upheld.
2.
Brief facts of the case are that Complainant/respondent’s lorry AP 21 6756 was insured by
OP/petitioner and insurance coverage was valid upto 6.9.2004. On 6.7.2004, vehicle met with an
accident. Complainant submitted claim documents to the OP, but claim was repudiated on the
basis that the driver of the vehicle was not holding valid driving licence and vehicle was used for
carrying passengers at the time of accident; though, driver was having LMV licence. Alleging
deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted
complaint and submitted that driver of the vehicle was not holding valid and effective driving
licence to drive lorry. He was having driving licence to drive LMV, but not the transport vehicle
and claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties allowed complaint and directed OP to pay Rs.1,95,405/- along with
interest and further awarded Rs.25,000/- as compensation. Appeal filed by the petitioner was
dismissed by learned State Commission vide impugned order against which, this revision
petition has been filed.
3.
None appeared for the respondent even after service.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that as driver of the vehicle was not
possessing valid driving licence at the time of accident, petitioner rightly repudiated the claim,
but learned District Forum has committed error in allowing complaint and learned State
Commission further committed error in dismissing appeal; hence, revision petition be allowed
and impugned order be set aside.
6.
Perusal of record clearly reveals that at the time of accident, driver of the vehicle
was possessing only LMV licence, whereas vehicle in question was transport vehicle. Learned
District Forum while allowing complaint held that when driver of the vehicle was having licence
to drive LMV then the nature of vehicle was whether; transport vehicle or non-transport vehicle
was immaterial. Apparently, this reasoning given by District Forum while allowing complaint is
contrary to law laid down by the Apex Court.
7.
Learned District Forum has also placed reliance on judgement of Hon’ble Apex Court in
2001 (1) ALJ 312 – Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., but that
judgement has been distinguished by Hon’ble Apex Court in I (2008) CPJ I (SC) – New India
Assurance Co. Ltd. Vs. PrabhuLal and it was held that if driving licence does not contain
endorsement of transport vehicle in the licence, driver cannot be held to be possessing valid
driving licence to ply transport vehicle. The driver in the case in hand was in possession of
licence for driving LMV. Thus, it becomes clear that for driving transport vehicle, endorsement
of transport vehicle is required in the driving licence without which driver cannot drive transport
vehicle and it would be treated that driver of the vehicle was not possessing valid driving
licence. If it is held that driver was not possessing valid driving licence at the time of accident,
insurance company was within its rights to repudiate the claim for damages to the vehicle and
petitioner has not committed any deficiency in repudiating the claim for damages to the
vehicle. Learned District Forum has committed error in allowing complaint and learned State
Commission has further committed error in dismissing appeal and revision petition is to be
allowed.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
22.11.2007 passed by learned State Commission in Appeal No. 1157of 2006 – The New India
Assurance Co. Ltd. Vs. Anumula Venkateswarlu and order dated 23.3.2006 passed by District
Forum in CD No. 157/2005 –Anumula Venkateswarlu Vs. New India Assurance Co. Ltd. are set
aside and complaint stands dismissed with no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 96 OF 2013
(From the order dated 07.05.2012 in Appeal No. 1768/2011 of the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur)
Nirula’s Potpourri A Unit of South Asian Hospitality Service Pvt. Ltd. 30, Power House
Building, 4th Floor, Hauz Khas Village, New Delhi – 110016
…Petitioner/Opp. Party (OP)
Versus
Mr. Manoj Kumar Gupta 282, Guru Jambeshwar Nagar, Lane Number - 9, Gandhi
Path, Vaishali Nagar, Jaipur, Rajasthan
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Shalabh Singhal, Advocate
PRONOUNCED ON 23rd October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 7.5.2012
passed by Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State
Commission’) in Appeal No. 1768 of 2011 – Nirula’s Potpourri Vs. Manoj Kumar Gupta by
which, while dismissing appeal, order of District forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/respondent was member of OP/petitioner and
OP issued coupon to the complainant for discount at the time of dinner at OP-restaurant. On
6.11.2009, complainant along with his family members went to OP No. 2 for dinner and OP
issued bill for Rs.2071.45 in which Rs.119.354 was charged for service and Rs.219/- and Rs.28/for tax without mentioning type of tax and thus charged illegal tax. Alleging deficiency on the
part of OP complainant filed complaint before District Forum. OP was proceeded ex-parte and
learned District Forum after hearing complainant allowed complaint and directed OP to refund
Rs.366.45 along with 9% p.a. interest and further directed OP to pay Rs.25,000/- as
compensation to the complainant and Rs.25,000/- to be deposited with State Consumer Welfare
Fund and also allowed cost of Rs.2500/-. Appeal filed by the petitioner was dismissed by
learned State Commission vide impugned order against which this revision petition has been
filed along with application for condonation of delay.
3.
Heard learned Counsel for the petitioner and perused record.
4.
Petitioner has filed revision petition along with application for condonation of delay of 157
days, but as per office report, there is delay of 150 days. Petitioner submitted that papers were
handed over to Counsel for filing revision petition in July, 2012, but Counsel did not file revision
petition and in the last week of December, 2012, he expressed inability to file revision petition
and in such circumstances, the matter was handed over to the present Counsel on 3.1.2013 and
revision petition was filed on 9.1.2013 and prayed for condonation of delay. No doubt, there is
inordinate delay of 150 days in filing revision petition, but as impugned order is non-speaking
order as well as appeal was filed for setting aside ex-parte order whereas learned State
Commission dismissed appeal without any reasoning and District Forum while allowing refund
of excess tax, imposed cost of Rs.50,000/- on the petitioner, we deem it appropriate to condone
the delay in filing revision petition subject to cost of Rs.5,000/- to be deposited by the petitioner
with the “Consumer Legal Aid Account” of this Commission.
5.
Perusal of impugned order reveals that it is not a speaking order and learned State
Commission has observed as under:
“The subordinate district forum has passed the order after detailed
analysis of all the facts and evidences of the case and therefore we do not
find any justification for re-appreciation of all the facts and evidences of
the case.
In the light of the facts and circumstances of the case, we do not find any
infirmity in the order dated 6.4.2011 passed by the Led. District Forum,
Jaipur II, Jaipur in Complaint Case No. 314/2010. Since the District
Forum has rightly appreciated the facts brought on record therefore there
is no ground for interference. Besides that on the merits also there seems
to be no substance in the appeal”.
6.
Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:
“1.In a number of cases coming up in appeal in this Court, we find that
the State Consumer Disputes Redressal Commission, Haryana at
Chandigarh is passing a standard order in the following terms:
‘We have heard the Law Officer of HVPN – appellant and have
also perused the impugned order. We do not find any legal
infirmity in the detailed and well-reasoned order passed by District
Forum, Kaithal. Accordingly, we uphold the impugned order and
dismiss the appeal’.
2. We may point out that while dealing with a first appeal, this is not the
way to dispose of the matter. The appellate forum is bound to refer to the
pleadings of the case, the submissions of the counsel, necessary points for
consideration, discuss the evidence and dispose of the matter by giving
valid reasons. It is very easy to dispose of any appeal in this fashion and
the higher courts would not know whether learned State Commission had
applied its mind to the case. We hope that such orders will not be passed
by the State Consumer Disputes Redressal Commission, Haryana at
Chandigarh in future. A copy of this order may be communicated to the
Commission”.
7.
In the light of above judgment, it becomes clear that Appellate Court while deciding an
appeal is required to deal with all the arguments raised by the appellant and as learned State
Commission has not dealt with arguments of the appellant, it would be appropriate to remand the
matter back to the learned State Commission for disposal by speaking order after dealing with all
the contentions and arguments raised by the petitioner.
8.
Perusal of order sheet of District Forum reveals that petitioner was proceeded ex-parte on
the basis of presumption as notice sent by Regd. Post not received back and more than one
month had already passed. Petitioner filed appeal with a request to set aside ex-parte order on
the ground that notice was not received by the petitioner and learned State Commission vide
impugned order has not given any reason regarding ex-parte order and dismissed appeal on
merits without speaking order. In such circumstances, revision petition is to be allowed and
matter deserves remand.
9.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
7.5.2012 passed by learned State Commission in Appeal No. 1768 of 2011 – Nirula’s Potpourri
Vs. Manoj Kumar Gupta is set aside and matter is remanded back to learned State Commission
to decide the appeal by a reasoned speaking order after giving an opportunity of being heard to
the parties.
10.
Petitioner is directed to appear before the learned State Commission on 28.11.2013.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2377 OF 2013
(From the order dated 09.05.2013 in Appeal No. 3170/2012 of the Gujarat State Consumer
Disputes Redressal Commission, Ahmedabad)
With IA/3941/2013 (For stay) IA/3942/2013 (For exemption from filing C/c)
1.
M/s. Torque Automotive Pvt. Ltd. G-4, Shapath IV (Opp. Karnavati Club)
S.G. Highway, Ahmedabad
2.
M/s. Torque Automotive Pvt. Ltd. 2nd Floor, Mrudul Tower Behind Times of India
Ashram Road, Ahmedabad
…Petitioners/Opp. Parties (OP)
Versus
Dinesh Bhanwarlal Daga A-502, T.P.S. 14.301 Shilalekh, Opp. Police Stadium Near Spectrum
Tower, Sahibaug Ahmedabad
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners :
Mr. Vipin Singhania & Mr. Chirag A. Patel, Advocates
For the Respondent:
In person
PRONOUNCED ON
23rd October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 9.5.2013
passed by Gujarat State Consumer Disputes RedressalCommission, Ahmedabad (in short, ‘the
State Commission’) in Appeal No. 3170 of 2012 – Torque Automobiles (P) Ltd. Vs.
Dinesh Bhanwarlal Daga by which, while dismissing appeal, order of District forum allowing
complaint was upheld.
2.
Brief facts of the case are that complainant/respondent purchased car Skoda Laura on
8.12.2010 from OP No. 1/Petitioner and made payment of Rs.13,18,000/- and took delivery of
the car. This car was manufactured by OP NO. 3. Warranty card of OP No.3 was not given to
the complainant. During the warranty period, service was done on 6.4.2011 and it appeared that
colour of the door of the car was changing and there were other complaints. OP changed oil,
lubricants etc. for which Rs.7,924/- was paid by the complainant, but payment receipt was given
in the name of Mihirbhai Maheshbhai by OP No. 1. Service book of car was also not
given inspite of demand and legal notice. Later on, service book was given by OP No. 1, but it
was general in which Skoda Superb, Skoda Laura, Skoda Yeti was written. This service book
does not bear any stamp. It appears that previously this car was sold to Mihirbhai, so service
book of the car was not given to the complainant and OP followed unfair trade
practice. Alleging deficiency on the part of OP, complainant filed complaint before District
Forum. OP No. 1 and 2/petitioners filed reply and submitted that the complainant had seen and
inspected car and after being satisfied purchased the car. It was admitted that warranty book was
not given at the time of delivery of the car, but car was repaired and serviced. It was further
submitted that this car was first allotted to Mihirbhai, but for some reason, he had cancelled the
booking, but due to mistake of the staff, name of Mihirbhai could not be deleted and bill was
generated in the name of Mihirbhai. It was further submitted that now service book has been
delivered to the complainant and prayed for dismissal of complaint. Learned District Forum after
hearing both the parties allowed complaint and directed OP No. 1 & 2 to give new car to the
complainant in place of old car or reimburse amount of the car and further awarded
compensation of Rs.5,000/- and Rs.2,000/- as litigation expenses. Appeal filed by the petitioners
was dismissed by leaned State Commission vide impugned order against which this revision
petition has been filed.
3.
Heard learned Counsel for the petitioners and respondent in person finally at admission
stage and perused record.
4.
Learned Counsel for the petitioner submitted that car sold by the petitioner to respondent
was new one and complaint has been filed only on the basis of suspicion due to service bill
generated in the name of other person in whose name the car was earlier booked. It was further
submitted that there was no complaint of change in colour of the car; even though, learned
District Forum committed error in allowing complaint and learned State Commission further
committed error in dismissing appeal; hence, revision petition be allowed and impugned order be
set aside. Respondent in person submitted that complaint was filed not on the basis of suspicion,
but on the basis of delivery of old car and order passed by learned State Commission is in
accordance with law; hence, revision petition be dismissed.
5.
Perusal of record reveals that as per retail invoice, car was sold by petitioner to respondent
vide bill dated 14.12.2010 and Engine No. TMBCNE reflected in the retail invoice has been
shown in registration certificate issued in favour of respondent. In that registration certificate,
car has been shown as new and its month and year of manufacture has been shown as August,
2010. Respondent has not placed any evidence on record to substantiate his arguments that car
sold by the petitioner to him was old one. Learned Counsel for the petitioner has also placed
reliance on Rule 42 of the Central Motor Vehicles Rules, 1989 according to which, no holder of
a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether
temporary or permanent. Had petitioner sold this vehicle earlier to Mihirbhai, respondent
should have placed on record registration certificate of this vehicle issued in favour
of Mihirbhai. In the absence of any such registration certificate and any expert opinion, it cannot
be held that vehicle sold by the petitioner to respondent was old one.
6.
It is not disputed that first service bill issued by the petitioner to the respondent was in the
name of Mihirbhai. It appears that only on the basis of this invoice respondent presumed that
this car was previously sold to Mihirbhai. Respondent has already admitted in his reply that
previously Mihirbhai booked this car, but as he cancelled his booking, his name was not deleted
by mistake of the staff. It appears that only on this ground, bill for service charges was issued in
the name of Mihirbhai instead of respondent, but this cannot be the sole basis for holding that
vehicle delivered by petitioner to respondent was earlier sold toMihirbhai.
7.
Record further reveals that service book has also been given by the petitioner to respondent
and time to time services have been given by the petitioner. Merely because service book is
not specifically for Skoda Laura, it cannot be presumed that service book of this vehicle was
given by the petitioner to so called earlier purchaser Mihirbhai.
8.
Job card dated 5.4.2011 also does not reveal complaint of change of colour of door of the
car. Respondent has also not placed on record any evidence in support of his contention that
colour of door of the car has changed. In such circumstances, it cannot be presumed that colour
of door of the car changed and petitioner sold the old car.
9.
It appears that respondent has filed complaint alleging unfair trade practice only on the
basis of suspicion. Learned Counsel for the petitioner has placed reliance on IV (2008) CPJ 18
(SC) – KLM Royal Dutch Airlines Vs. Director General of Investigation & Registration in
which it was held that –
“Element of unfair trade practice definitely stands at a higher and
onerous platform than the deficient service. For making out a case of
unfair trade practice an element is involved to the extent of making false
and misleading statement and representation and in order to make a case
of unfair trade practice such ingredients, which are part and parcel of the
concept of unfair trade practice has to be alleged and must be proved and
established.
10.
In the case in hand, respondent could not prove any unfair trade practice on the part of
petitioner and learned District Forum committed error in allowing complaint and learned State
Commission further committed error in dismissing appeal and in such circumstances, revision
petition is to be allowed.
11.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
9.5.2013 passed by learned State Commission in Appeal No. 3170 of 2012 – Torque
Automobiles (P) Ltd. Vs. Dinesh Bhanwarlal Daga and order of District Forum dated 16.7.2012
is set aside and Complaint No. 390/2011 – Dinesh Bhanwarlal Daga Vs. Torque Automobiles (P)
Ltd. is dismissed. There shall be no order as to costs.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4803 OF 2012
(From the order dated 26.09.2012 in First Appeal No. 824/2009 of Delhi State Consumer
Disputes Redressal Commission)
Raj Bala w/o Raj Kumar Chauhan r/o Flat No. 202, Ashirwad Enclave Plot No. 104, I.P.
Extension, Patparganj, Delhi - 110092.
... Petitioner
Versus
1. The Managing Director Skoda Auto India Pvt. Ltd. Plot No. A-1/1, Snehdra, Five Star
Industrial Area, MIDC Aurangabad – 431201.
2. M/s. Sai Automobiles,
A
division
77, Patparganj Industrial Area, Delhi – 110092.
of
M/s Abhishek
International Pvt. Ltd.
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Alok K. Prasad, Advocate
Mr. Tarun Chauhan, In person
For the Respondents
Mr. Vipin Singhania, Advocate
PRONOUNCED ON : 23RD OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 26.09.2012 passed by the Delhi State Consumer Disputes
Redressal Commission (for short ‘the State Commission’) in FA No. 824/2009, “Smt.
Raj Bala versus Managing Director, Skoda Auto India Pvt. Ltd. & Anr.”, vide which appeal
against the order dated 12.10.2009, passed by the District Consumer Disputes Redressal Forum,
in case number 119/2008, allowing the complaint in question, was dismissed.
2.
Brief facts of the case are that the petitioner purchased a Skoda Octavia Elegance car from
the dealer respondent no.2, M/s. SaiAutomobiles on 28.03.2008 and paid a price of
Rs.11,97,269/- as basic cost after raising loan from the State Bank of Hyderabad. The vehicle
was got registered against registration no. DL 13C 0940 in the name of the petitioner, and
insurance policy was obtained from M/s. United India Insurance Co. with an annual premium of
Rs.38,345/-. It has been alleged that within a short period of 8 to 10 days of the purchase, the
following manufacturing / technical defects were found in the new vehicle:(i)
Tilting of vehicle towards left side, i.e., instability in steering wheel, making the driving
very risky and unstable.
(ii) Gross bubbling in Clutches of the vehicle thereby, making the driving of the car very
uncomfortable and tiring.
3.
The said defects were brought to the notice of the dealer respondent no. 2 and the vehicle
was taken to the workshop five times during the period 01.04.2008 to 25.05.2008, but the
technical staff of respondent no. 2 was not able to remove these defects. The vehicle was taken
to M/s. Continent Auto Services, another authorised workshop, who also could not rectify the
fault. The job cards dated 11.04.2008 and 22.04.2008 indicated manufacturing defect in ‘Caster’
which was not within the specified limit range and causing instability of steering wheel, which
could result in serious accident on driving, as the vehicle tilted abnormally towards left side. The
complainant wrote many letters to respondent no. 1 manufacturer and respondent no. 2 dealer,
requesting them to do the needful, but their grievance was not redressed. The vehicle has been
lying with respondent no. 2 since 25.5.2008 and the defects have not been removed. The
complainant then filed the consumer complaint in question seeking refund of Rs.12,86,316/- paid
as consideration for the said vehicle. The District Forum vide their order dated 12.10.2009
directed both the OPs to pay a compensation of Rs.30,000/- along with litigation cost of
Rs.10,000/- jointly and severally. The OPs were also directed to hand over the vehicle to the
complainant after extending the existing warranty for at least one year. The complainant filed
appeal before the State Commission against the order passed by the District Forum which was
dismissed vide impugned order. It is against this order that the complainant has filed the present
revision petition before us.
4.
At the time of hearing before us, the learned counsel for the petitioner stated that the vehicle
started showing major problems, viz., tilting towards the left side, bubbling in clutches and
instability in the steering wheel within one week of the purchase of the vehicle. The learned
counsel has drawn our attention to the expert opinion given by an Automobile Engineer, Raman
Kumar, in which it has been stated that the vehicle was bubbling towards left when it was tested
on road and it was very dangerous to drive the vehicle in that condition. Shri Raman Kumar
opined that there was some manufacturing defect in the vehicle due to which it was not running
properly in spite of the fact that the alignment was proper, before and after the road test. The
said report was given by Raman Kumar after making joint inspection with another
Engineer Lajpat Rai Munjal, whose opinion is, however, contrary to the opinion expressed by
Raman Kumar. Learned counsel stated that the orders passed by the State Commission should
be set aside and the entire cost of the car should be refunded along with interest @ 18% p.a. and
rather, a criminal case should be instituted against the respondents and expert for wrong
deposition.
5.
On the other hand, the learned counsel for the respondent/OP vehemently argued that they
never refused to provide service to the petitioner or to remove the defects in the vehicle. In fact,
the vehicle did not suffer from any defect but still the petitioner had abandoned the vehicle and it
had been lying with the respondents since a long time. The learned counsel stated that during the
pendency of the appeal before the State Commission, they had appointed two experts to carry out
joint
inspection
and
to
give
a
report. The
report
given
by
the
automobile
engineer, Lajpat Rai Munjal very clearly says that there was no defect in the vehicle. Even if the
vehicle is pulling to the left slightly, it cannot be categorised as defect, rather it is just a
‘condition’ and not a ‘defect’. The learned counsel has drawn our attention to another report
given by Manbir Singh Suri on 25.04.2009, in which it has been stated that the car was in no
danger of any accident while driving it due to misalignment on the wheels as no sideway drag in
any direction was encountered while driving and the steering was also stable and the wheels
were fully aligned. It has been categorically stated in the said report that the car does not suffer
from any manufacturing defect, excessive tyre wear or steering vibration. Even the report given
by Raman Kumar Engineer has stated that the alignment of wheels was proper before and after
the road test. The learned counsel further stated that the District Forum had reached the right
conclusion that the claim of the complainant regarding any inherent manufacturing defect in the
vehicle was not justified. They awarded a compensation of Rs.30,000/- for the inconvenience
caused to the complainant in bringing the vehicle to the workshop for repairs a number of times.
6.
The learned counsel has cited a number of rulings given by the Hon’ble Supreme Court and
the National Commission in support of his arguments. It has been observed by the National
Commission in “Premanchal Motors versus Ramdass & Anr.” as reported in [II (2009) CPJ 98
(NC)] that the abandonment of a new vehicle soon after its purchase or after repairs, at the
premises of the manufacturer or the dealer concerned was not a prudent conduct on the part of
the consumer. In “Maruti Udyog Limited versus Hasmukh Lakshmichand and Anr.” [III (2009)
CPJ 229 (NC)], the National Commission observed that the manufacturing defect is a
fundamental basic defect and to prove such a defect, opinion of expert is necessary. The onus to
prove that there was manufacturing defect was on the complainant as observed by the National
Commission in “Classic Automobiles versus Lila Nand Mishra & Anr.” [I (2010) CPJ 235
(NC)]. In “Maruti Udyog Limited versus Casino Dias” [IV (2009) CPJ 144 (NC)], it was
observed by the National Commission that consumers cannot throw their weight around and be
adamant to decide on their own that there is manufacturing defect in the vehicle without any
supporting evidence or justification. The learned counsel argued that in the present case, there
was no evidence of any manufacturing defect and hence the present petition should be dismissed.
7.
We have examined the entire material on record and given a thoughtful consideration to the
arguments
advanced
before
us. The
District
Forum
relying
upon
the
report
of Manbir Singh Suri surveyor, observed that there was no inherent manufacturing defect in the
vehicle. They, however, awarded a sum of Rs.30,000/- to the complainant along with litigation
cost of Rs.10,000/- for the inconvenience caused to the complainant for taking the vehicle to the
workshop frequently within a short period. The State Commission after obtaining report from
two experts came to the same conclusion and dismissed appeal, relying upon the statement of the
respondents that they were ready to provide service of the vehicle in question free of charge, if
taken to the workshop.
8.
Based on the material on record and relying upon the reports of experts taken on record, it is
made out that there is no manufacturing defect in the vehicle which may necessitate its
replacement or refund of the value of the vehicle to the complainant. The District Forum vide
their order have already allowed a sum of Rs.40,000/- to the complainant and also directed the
respondents to extend the warranty of the vehicle by at least one year. The said order was not
challenged by the respondents before any higher authority. The State Commission have also
endorsed the order of the District Forum. We, therefore, find no reasons to differ with the orders
passed by the State Commission and the District Forum. The revision petition in question is,
therefore, ordered to be dismissed and the respondents are directed to take necessary action as
ordered by the District Forum in their order dated 12.10.2009. There shall be no order as to
costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2019 OF 2008
(From the order dated 27.12.2007 in First Appeal No. 6 & 23/2006 of Assam State Consumer
Disputes Redressal Commission)
Sri Anil Chandra Dey s/o Prasanna Kumar Dey Satsangh Ashram Road, P.O. – Silchar – 7,
P.S. Silchar District – Cachar (Assam)
... Petitioner
Versus
1. The New India Assurance Co. Ltd. Registered Office at New India Assurance Building 87,
Mahatma Gandhi Road, Mumbai – 400001 (Maharashtra)
2. The Divisional Manager, The New India Assurance Co. Ltd. Capital Travels Building, Club
Road P.O. – Silchar – 1, P.S. Silchar District – Cachar (Assam)
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Shuvodeep Roy, Advocate
For the Respondent(s)
Mr. Mohan Babu Agarwal, Advocate
PRONOUNCED ON : 23rd OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 27.12.2007 passed by the Assam State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 6/2006, “New
India Assurance Co. versus Anil Chandra Dey” and FA No. 23/2006, “Anil Chandra Dey versus
New India Assurance Co. Ltd. & Anr.” Both these appeals were directed against the order passed
by the District Forum on 12.12.2005 on the complaint filed by Anil Chandra Dey vide which a
sum of Rs.2,10,000/- was ordered to be paid by the OP insurance company to the complainant
for damage to his residence during floods along with interest @9% p.a. and Rs.7,000/- as
compensation for mental agony and Rs.2,000/- as cost of litigation. Vide impugned order, the
appeal no. 23/2006 filed by the complainant for enhancement of compensation was dismissed,
whereas the appeal filed by the insurance company was partly allowed and it was directed to pay
a sum of Rs.97,000/- as cost of damage along with Rs.3,000/- as compensation for mental agony
along with interest @ 8% p.a. from the date of the claim till realisation.
2.
Brief facts of the case are that the complainant/petitioner Amit Chandra Dey got his
residential house insured with the OP, New India Assurance Co. Ltd. vide policy no.
530600/48/01/0045 for the period 29.06.2004 to 28.06.2005 against fire, flood, earthquake,
etc. It has been mentioned in the complaint that the residential building and the household goods
like, furniture, fittings, personal effects, books etc. were got insured for a sum of Rs.12.6
lakh. The insurance company, however, says that the said building and articles were insured for
a sum of Rs.8.6 lakh. In the month of July, 2004, the said premises were badly affected by
floods. It has been stated that the flood water remained stagnant at the premises from 20.07.2004
to 03.08.2004, causing lot of damage to the building as well as the household articles. The
complainant informed the insurance company on 21.07.2004 about the flood. The insurance
company deputed a surveyor N.R. Paul for assessing the loss and damage, who visited the
residence of the complainant on the same day. The said surveyor assessed the loss to be
Rs.30,050/-. The insurance company sent a letter to the complainant on 07.01.2005, asking him
to accept the amount of Rs.30,050/- as full and final settlement, but the complainant refused to
accept the amount, saying that the assessed amount was much less than the loss suffered by
him. He requested the insurance company to reconsider the assessment, but his request was
turned down by the OP, insurance company. The complainant then filed a consumer complaint
before the District Forum Cachar, claiming an amount of Rs.2,83,500/-alongwith interest
@12.5% and compensation for mental agony etc. The District Forum vide their order dated
12.12.2005 asked the insurance company to pay a sum of Rs.2,10,000/- along with interest @9%
p.a. from the date of complaint and also to pay Rs.7,000/- for mental agony, etc. and Rs.2,000/as cost of litigation. Against this order, two appeals as stated above were filed before the State
Commission. The appeal filed by the complainant for enhancement of compensation was
dismissed and the appeal filed by the insurance company was partly allowed and the State
Commission ordered to pay a sum of Rs.97,000/- for damage and Rs.3,000/- for mental agony
along with interest @8% p.a. on all these amounts. It is against this order that the present
petition has been filed by the complainant.
3.
At the time of hearing before us, learned counsel for the petitioner has drawn our attention
to the contents of the insurance policy in question, saying that the damage caused by the floods
to the building as well as to the household articles is fully covered under the policy and adequate
compensation should have been paid by the insurance company to him. Referring to the report
of the surveyor, the learned counsel stated that the said report is not conclusive as held by
the Hon’ble Supreme Court in “New India Assurance Co. Ltd. versus Pardeep Kumar” [(2009) 7
SCC 787], in which it has been held that the approved surveyor’s report may be basis or
foundation for settlement of a claim by the insurer in respect of loss suffered by insured, but such
report is neither binding on the insurer nor insured. Learned counsel maintained that the factual
position about the floods and the consequential damage had not been disputed by the other party
and the order of the State Commission also shows that the factum of damage was an admitted
fact. Learned counsel further stated that the claim made by the petitioner was supported by
documentary evidence and photographs taken during the days of the floods. He had also
produced concerned contractor before the District Forum who made a statement that he had done
the repair works in the premises for which bill for Rs.1,43,000/- was raised and the money had
also been received by the contractor.
4.
Learned counsel for the respondent insurance company stated that the District Forum had
not given any reasons for coming to the conclusion that the complainant was entitled to get a
sum of Rs.2.5 lakh for compensation for damage. They made an appeal against the order of the
District Forum but they had not challenged the impugned order passed by the State Commission
and payment had also been made as per the order passed by the State Commission. The learned
counsel further stated that the State Commission had come to the right conclusion that boundary
wall was not part of the residential building and hence, compensation could not be given for
damage to the boundary wall. Learned counsel pleaded that the revision petition should be
dismissed.
5.
We have examined the material on record and given a thoughtful consideration to the
arguments advanced before us.
6.
A careful perusal of the order passed by the State Commission has revealed that the State
Commission has discussed the amounts claimed by the petitioner under various items, the
corresponding amount indicated by the surveyor against each item and then arrived at a figure
for award of damage against each item. The State Commission have indicated that while
arriving at the awarded amount, they have taken into account the surveyors’ report, the
photographs, the contractors bill, money receipts, etc. The State Commission reached the
conclusion that a sum of Rs.97,000/- should be given to the petitioner against the claim for
Rs.2,83,500/- filed by him. Although, no scientific explanation has been given for arriving at a
figure against each item, but on the other hand, the petitioner has also failed to provide any
documentary proof which may lead to the conclusion that he is entitled to get compensation to
the tune of Rs.2,83,500/-. Even at the time of arguments, learned counsel for the petitioner could
only say that they had some supporting documents for the repair work amounting to
Rs.1,43,500/- only.
7.
On the item regarding repairing, flooring and plastering of the house, the State Commission
has awarded an amount of Rs.32,000/-, against the claimed amount of Rs.73,500/- whereas the
amount assessed by the surveyor is only Rs.14,250/-. It is felt that since the water remained
stagnant in the house in question for a number of days, the petitioner may have spent
more amount on repairing, flooring and plastering etc. It is felt that a further amount of
Rs.20,000/- more may be awarded to the petitioner against this item, making the total amount of
compensation to be Rs.1,17,000/- in addition to Rs.3,000/- already awarded as compensation for
mental agony. This petition is, therefore, partly allowed and it is ordered that a sum of
Rs.20,000/- more shall be payable to the petitioner on account of repair, flooring and plastering
of the house. There shall be no order as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 270 OF 2009
(Against the order dated 30.06.2009 in S.C Case No.7/O/05 (Old No.83 of 2004) of the State
Commission, West Bengal)
1. Asim Kumar Chattopadhyay, S/o Late Devendra Nath Chattopadhyay Resident of 209, BT
Road, 3rd Floor, Kolkata- 700036
2. Mrs. Paiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay, Resident of 209, BT Road,
3rd Floor, Kolkata- 700036
...... Appellants
Versus
1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036
1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036
1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami,
191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201
1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,
14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301
2A. Sri Prabhakar Banerjee, S/o Late Indubhusan Banerjee, 29/2/13 Motilal Maullick Lane,
Kolkata- 700035
2B. Sri Saibal Mukherjee, S/o Late Nirmal Kumar Mukherjee, 79 Neogipara Road, Kolkata700036 (Joint executors of the estate of Late Nirmal Kumar Mukherjee (Original Respondent
No.2))
.....Respondents
FIRST APPEAL NO. 271 OF 2009
(Against the order dated 30.06.2009 in S.C Case No.8/O/05 (Old No.84 of 2004) of the State
Commission, West Bengal)
Dr. Sudhanshu Sekhar Patra S/o late Sannyasi Patra R/o 209, B T Road, 3rd Floor, Kolkata 700036, Distt- North 24 Parganas PS Baranagar
2. Mr. Nibedita Patra W/o Dr. Sudhanshu Sekhar Patra R/o 209, BT Road, 3rd Floor, Kolkata 700036, Distt-North 24 Parganas PS Baranagar
...... Appellants
Versus
1 (a). Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1 (b) Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1 (c) Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036
1 (d) Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami,
191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201
1 (e) Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,
14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301
2. Mr. Nirmal Kumar Mukherjee
3. Mr. Swapan Kumar Mukherjee S/o of Late Joygopal Mukherjee 79, Neogi Para Road,
PS Baranagar, Kolkata- 700036 Distt- North 24 Parganas
.....Respondents
Shri Nilmony Mukherjee has since died on 8.11.2009
FIRST APPEAL NO. 319 OF 2009
(Against the order dated 30.06.2009 in S.C Case No.8/O/05 (Old No.84 of 2004) of the State
Commission, West Bengal)
1 (a). Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1 (b) Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1 (c) Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036
1 (d) Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami,
191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201
1 (e) Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,
14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301
2A. Sri Provkar Banerjee, S/o Late Indubhusan Banerjee, 29/2/13 Motilal Maullick Lane,
Kolkata- 700035
2B. Sri Saibal Mukherjee, S/o Late Nirmal Kumar Mukherjee, 79 Neogipara Road, Kolkata700036 (Joint executors of the estate of Late Nirmal Kumar Mukherjee (Original Respondent
No.2))
3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036
...... Appellants
Versus
1. Sudhanshu Sekhar Patra S/o Late Sannayasi Patra
2. Mrs. Nibedita Patra W/o Sudhanshu Sekhar Patra Both Resident of 209, BT Road
3rd Floor, Kolkata – 700036
.....Respondents
FIRST APPEAL NO. 320 OF 2009
(Against the order dated 30.06.2009 in S.C Case No.7/O/05 (Old No.83 of 2004) of the State
Commission, West Bengal)
1 (a). Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1 (b) Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata70036
1 (c) Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036
1 (d) Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami,
191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201
1 (e) Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,
14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301
2.Nirmal Kumar Mukherjee 79, Neogi Para Road Kolkata 700036
3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036
...... Appellants
Versus
1. Mr. Asim Kumar Chattopadhyay S/o Late Devendra Nath Chattopadhyay
2. Mrs. Papiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay Both Resident of 209, BT
Road 3rd Floor, Kolkata – 700036
.....Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
IN FA No. 270-271 /2009
For the Appellant
: Mr. Kunal Chatterji, Advocate and
Ms. Maitrayee Banerjee, Advocate along
with both appellants in person
For the Respondents : Mr. Sukumar Pattojshi, Sr. Advocate with
Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu,
Ms. Rupali S. Ghosh, Advocates
IN FA No. 319-320 /2009
For the Appellants : Mr. Sukumar Pattojshi, Sr. Advocate with
Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu,
Ms. Rupali S. Ghosh, Advocates
For the Appellant
: Mr. Kunal Chatterji, Advocate and
Ms. Maitrayee Banerjee, Advocate
PRONOUNCED ON: 24th October, 2013
ORDER
PER MR. VINAY KUMAR, MEMBER
These four appeals arise from two very similar orders passed by the West Bengal State
Consumer Disputes Redressal Commission in two independent complaints. SC Case No.7/0/05
was filed by Mr. Asim Kumar Chattopadhyay with his wife as Complainant No.2. SC Case
No.8/0/05
was
filed
by
Dr.Sudhanshu Sekhar Patra with
his
wife
as
the
second
Complainant. Both complaints were against the same builders/OPs and were taken up for
consideration together, by the State Commission.
2.
In both cases, the State Commission has made the following award:“In view of the delay in delivery of possession of the flat and withholding of
other facilities including deed of conveyance leading to various proceeding
including the present one compelling the complainants to suffer mental agony as
also financial loss, OPs are liable to pay to the complainants compensation of
Rs.1,50,000/-. The OPs are liable to execute and register the deed of conveyance
for the sale of the flats to the complainant as no defence has been shown for not
doing the same as is required to be done under the agreement. The balance
consideration, if any, may be adjusted against the total compensation payable.
We direct the OPs to pay further compensation of Rs.1,50,000/- on account
of the motor garage to the complainants and consideration amount will be reduced
by Rs.1,00,000/- at the agreed price.
The OPs are also directed to install lift in the lift well constructed in the
premises within a period of three months from this order.
The OPs are also directed to execute and register the deed of conveyance
for the sale of the flats in favour of the complainants within two months from the
date of this order and in default thereof the complaints will be entitled to get the
conveyance registered through the machinery of the Forum.
The OPs are directed to pay litigation cost of Rs.30,000/- to the
complainant.
All payments including compensation are to be made by OPs to
complainants within 60 days from the date of this order and in default the
complaints will be entitled to recover the same in accordance with law along with
interest at the rate of 9% per annum for the period of default.”
3.
In the above back ground, the four appeals are taken up for disposal through this common
order. During pendency of these appeals, OP No.1, NilmonyMukherjee, reportedly passed away
on 8.11.2009. His legal representatives were therefore, permitted to be brought on record. In
another significant development, the OPs, in compliance with the direction of this Commission,
have installed and operationalised a lift in the concerned building. A statement was made in this
behalf by learned counsel, Mr S.K.Pattjoshi on 18.8.2010 before this Commission.
4.
In both cases the Complainants have filed their appeals seeking enhancement of
compensation to Rs.18 lakhs and in respective cross appeals, prayer for setting aside the
impugned order has been made on behalf of the opposite parties. The case of the
builders/Opposite
parties
has
been
argued
by MrS.K.Pattjoshi assisted
by
Mr. Sanjoy Kumar Ghosh and Mr. Prabir Basu, Advocates. On the other hand, the appeals of the
two Complainants have been argued by Mr. Kunal Chatterji, Advocate together with
Ms. Maitrayee Banerjee, Advocate. We have perused the records of the four appeals and have
heard the respective counsels for the two sides.
5.
The main ground pressed on behalf of the appellants/Complainants relates to failure of the
OP/builder to provide 150 sq. ft. motor garage. As per the memorandum of appeals, the State
Commission has exceeded its jurisdiction by accepting the contention of the OPs that in view of
subsequent transfer of rear portion of their land by the OP to his sons, the provision of garage
had become impossible. It was further argued by learned counsel for appellants/Complainants
that under Clause 3(iv) of the agreement executed between the parties, total consideration of
Rs.12 lakhs was towards a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. This
agreement is dated 31.5.2000. By a subsequent gift deed the builder had chosen to gift away this
land which was meant for the garage. Learned counsel further argued that even now garage can
be constructed in view of the letter written by the competent authority and Sub- Divisional
Officer, Barrackpur on 5.9.2003 to the Chairman Baranagar Municipality. Under this letter, the
gift deed was required to be treated as a nullity, in terms of the provision in Section 5 (3) of UL
(CR) Act, 1976.
6.
Mr S.K.Pattjoshi, Senior Advocate, graciously conceded the point that non provision of the
garage was a direct violation of the agreement and hence a deficiency of service. But, responding
to the argument that even now it was possible for the OPs to provide the garage, he vehemently
argued that
this Commission is not competent to issue a direction for the same, in view of the provision in
Section 14 of the Consumer Protection Act 1986. This provision allows the consumer fora to
grant one or more of the reliefs listed therein, if they come to a conclusion that the goods or the
services, as the case may be suffered from any defects contained in the complaint. Learned
counsel argued that while this gives wide powers to the consumer fora to grant adequate relief to
the consumer, the power under this provision does not extend to enforcing specific performance
of the contract. The second leg of the argument of ShriPattjoshi was that the land in question
was no longer available as District Magistrate North 24 Pargana District had passed an order on
24.6.2013 vesting the same in the State, consequent upon withdrawal of exemption under the
Urban Land Ceiling Act, vide order No.1436-UL/O/II. In the above background, learned
counsel for the appellants/Complainants argued that compensation of Rs.1.5 lakhs awarded in
this behalf by the State Commission is grossly inadequate in comparison with the enormity of the
conduct of the OPs, which has resulted in long term inconvenience to the Complainants.
A perusal of the impugned order shows that on the question of failure to provide the garage the
State Commission has given full consideration to the evidence on record and arrived at the
following conclusion—
“As regards the claim for motor garage of 150 sq. ft., we find that the same
is duly provided in the agreement. Factually the same has not been disputed by the
OPs but it is stated in their written version that the said provision was included by
mistake. It is contended that OPs are unable to provide the said motor garage as
the space wherein the said motor garage was indicated in the sanctioned plan, does
not belong to OPs and such space is no more available for construction of motor
garage and, therefore, pleading impossibility of execution, OPs asked for refusal of
the claim applying the provision of Section 12 of the Specific Relief Act. We have
considered the provisions of Section 12 as referred to. In the present case the OPs
not only provided the said motor garage in the agreement but also in the sanctioned
plan by the municipality and, the OPs themselves changed the situation by making a
gift of the said land in favour of their sons on 27.06.2003 long after the agreement
was executed in May, 2000. Though donees are also bound as they got the property
by a deed of gift from the OPs and thus stepped into shoes of the doners but as
the donees have not been made parties to this proceeding appropriate order cannot
be passed against the donees. But for not providing the motor garage in the
aforesaid manner the OPs’ action became deficient in service as not only the
complainants suffered inconvenience for want of motor garage and as the flats
suffered in value being without the facility of motor garage because of the voluntary
action of the OPs in making a gift of the property, but also sale of 150 sq.
fit. being impossible, less area was being sold.”
7.
The above conclusion has been questioned in the appeal filed by the appellants contending
that the State Commission has illegally passed an order reducing the consideration amount of the
flat, while it does not have powers to over right the terms of the agreement between the
parties. We find this argument completely unacceptable. As already observed, Clause 3 (iv) of
the Agreement between the two parties very specifically provides for total consideration of Rs.12
lakhs for a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. Having deprived the
Complainant of the motor garage, in blatant and indefensible violation of the agreement, it does
not lie in the mouth of the OPs to question the conclusion reached by the State Commission that
their conduct was not only a deficiency of service but had also resulted in depriving the
Complainant of 150 sq. ft. of area included in the agreement of sale. We therefore, have no
hesitation in rejecting this argument.
8.
On the question of compensation, the appellants/ Complainants have, as already noted,
sought enhancement from Rs.1.5 lakhs to Rs.18 lakhs. Neither in the appeal memorandum nor
in the arguments of their counsels any attempt has been made to justify the basis of seeking such
multi-fold enhancement in compensation. We have also noted that during the course of the
present proceedings, the lift has been installed in this building in the year 2010, though after a
lapse of nearly 8 years from physical delivery of flats. We therefore, find no justification for
enhancement of compensation.
9.
From the detailed consideration above, we conclude that the orders of the State
Commission are based on correct appreciation of the evidence on record. There are no grounds
to interfere with the same. Consequently, all four appeals are dismissed. The orders of West
Bengal State Consumer DisputesRedressal Commission in SC Case NO.7/0/05 and
8/0/05 are confirmed. Parties to bear their own costs.
…..…………….…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………….…….……
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CIRCUIT BENCH AT JAIPUR, RAJASTHAN
REVISION PETITION NO. 4974 OF 2008
(From order dated 22.10.2008 in Appeals No.679 & 641 of 2006 of the State Consumer Disputes
Redressal Commission, Rajasthan)
Arjun Singh, S/o Prahlad Singh, By caste Rajpur, R/o Roongti, Tehsil Bonli, District
Sawaimadhopur, (Rajasthan)
.... Petitioner
Versus
1.Paras Traders Through its proprietor Mangi Lal Jain S/o Kajod Mal Jain, aged 52 years, R/o
Miitrapura, Tehsil Bonli, District Swaimadhopur (Rajsthan)
2.Castrol India Limited, White House, 91 Balkeshwar, Mumbai (Maharshtra)-400006
..... Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
REKHA GUPTA, MEMBER
For the Petitioner : Ms. Kumud L.Das, Advocate alongwih
HON’BLE MRS.
petitioner in person.
For the Respondents : Mr. Vizzy Aggarwal, Advocate
Pronounced on: 24th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 22.10.2008, passed by State Consumer Disputes
Redressal
Commission,
Circuit
Bench,
Jaipur
(for
short,
‘State
Commission’)
Petitioner/Complainant has filed this revision petition.
2. Petitioner filed a complaint before District Consumer Disputes Redressal Forum,
Swaimadhopur (for short, ’District Forum’) on the allegations that in the year 1997 he had
purchased one Mahindra Tractor from its authorized dealer for agricultural purposes and for
earning livelihood. In the month of November, 1997 to get the engine oil changed, petitioner
purchased one can of 5 Ltrs. and one can of one Ltr. CRB Tiscus Engine Oil and one oil filter,
the product of Respondent No. 2/O.P. No. 2 from Respondent No.1/O.P. No.1 on 29.11.1997,
being authorized dealer of respondent no. 2, for which a bill was issued by respondent no.1.
However, in the bill respondent no. 1 has mentioned only 5 Ltrs. engine oil but did not
mention regarding oil filter and can of 1 Ltr.
3. On the very next date, petitioner poured the said engine oil in the engine of his tractor but
just after about one hour, engine of the tractor got heated and it got seized. Petitioner called
the mechanic who after checking told him that due to use of duplicate engine oil, engine has
seized and it has been caused due to inferior quality of oil.Petitioner immediately contacted
respondent no. 1 but no action was taken by him. It is alleged that respondent no 1 is not
authorized dealer of respondent no.2.Due to supply of inferior quality of the engine oil,
petitioner had to incur a sum of Rs.50,000/- on its tractor and till date, the tractor has been
parked at the shop of respondent no. 1 and petitioner has not been able to use the same.
Accordingly, petitioner has prayed that respondents be directed to pay Rs.1 lac as
compensation.
4. Respondent no.1 in its reply has stated that petitioner purchased only 5 liters can of engine
oil for which bill was issued and the same was manufactured by respondent no.2. Rest of the
allegations has been denied by respondent no.1.
5. Respondent no.2 in its written statement took the plea that without laboratory test/analysis of
the container of the engine oil and wrapper fixed on it, it is not in a position to state that whether
the container of the oil is of respondent no.2 or not. Respondent No. 2 can only take the
responsibility of sealed engine oil. It is also stated that petitioner did not get the tractor checked
from the authorized dealer or company’s mechanic. Therefore, complaint merits dismissal.
6. District Consumer Disputes Redressal Forum, Sawaimadhopur, (for short, ‘District
Forum’)vide order dated 10.12.1998, dismissed the complaint.
7. Aggrieved by the order of District Forum, petitioner filed Appeal No.82 of 1999 before
Rajasthan State Consumer Disputes Redressal Commission, Jaipur.
8. The State Commission, vide order dated 25.2.2001, allowed the appeal and set aside the order
of District Forum and remanded the matter back to the District forum for disposal of the
complaint afresh.
9. Thereafter, District Forum, vide order dated 25.9.2002 referred the matter to the State
Commission for necessary guidance/directions in the light of fact that container of the disputed
oil was not available with it.
10. The State Commission sent the file back to the District Forum, with following comments;
“Seen. D. F. is directed to decide the complaint as per rules. The
Commission is not to review or revive final Order in the manner
stated by the D. F.”.
11. Thereafter, District Forum by majority judgment dated 20.3.2004 held that; respondent no.1
had indulged in unfair trade practice as it was not authorized to sell engine oil and directed
respondent no.1 to the petitioner a compensation of Rs.1,94,000/-.
12. Respondent No.1 preferred Appeal No.806 of 2004 against order dated 20.3.2004 of the
District Forum.
13. State Commission, vide order dated 19.4.2004, allowed the same and remanded back the
matter to District Forum.
14. Thereafter, District Forum, vide order dated 21.3.2006, allowed the complaint and directed
respondent no. 1 to pay a sum of Rs.1 lac to the petitioner towards expenses incurred for repair
of the tractor and to pay further sum of Rs.7,000/- as compensation.
15. Order dated 21.3.2006 of the District Forum was challenged by the respondent no.1 by way
of filing Appeal No.641 of 2006 before the State Commission. Petitioner had also filed Cross
Appeal No.679 of 2006.
16. State Commission, vide impugned order 22.10.2008 allowed the appeal of respondent no. 1
and dismissed the appeal of the petitioner.
17. Hence, the present revision petition.
18. Petitioner in support of its case has placed on record written submissions. We have heard the
learned counsel for the parties and have gone through the written submissions also.
19. Case of the petitioner is that respondent no.1 has supplied 1 Ltr. engine oil which was
spurious in nature and as such engine of his tractor got seized and damage was caused to the
same.
20. It is the case of Petitioner that bill for 5 Ltrs. can of engine oil was given but no bill for one
Ltr. can was given. It does not appeal to the common sense that when petitioner had purchased
three items from respondent no. 1 and for one major item, cash-memo has been issued, then why
for other two small items, respondent no.1 would not issue the cash-memo. In the absence of bill
for 1 Ltr. can of engine oil, story put forward by the petitioner does not inspire any confidence.
21. Now coming to the report of mechanic on which much reliance has been placed by the
petitioner’s counsel which states;
“Today on 2.12.1997 I have checked the Tractor Mahendra B275 belonging
to Arjun Singh Ji Rajput S/o Shri Prahlad Singh R/o Village Rungti Police
Station Bonli. After checking I have found that due to duplicate oil and
duplicate oil filter the Tractor engine is seized and there is a noise in the
crank.
Sd/Rasid
Mahendra Tractor WorkShop, Bonli,
District SawaiMadhopur”.
22. As per above report, the mechanic has nowhere stated as to on what basis he reached at the
conclusion that Tractor engine had been seized due to duplicate oil. There is nothing on record
to show that above mechanic got the engine oil analyzed from any laboratory. Merely, on the
above writing of the mechanic, no findings can be given that the 1 Ltr. engine oil can was
aduplicate oil.
23. The entire case of the petitioner is based on conjuncture and surmises. There is nothing on
record to show that 1 Ltr. can of engine oil sold by respondent no.1 was duplicate oil and due
to which engine of petitioner’s tractor got seized.
24. Under these circumstances, we hold that petitioner has miserably failed to establish any
deficiency against respondent no.1. Hence, present revision petition having no merits is hereby
dismissed. Consequently, the complaint filed by the petitioner before the District Forum also
stand dismissed.
25. Parties shall bear their own cost.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2754 – 2755 OF 2013
(From the order dated 27.08.2012 in F.A. Nos. 1611/2011 & 1612/2011
of Rajasthan State Consumer Disputes Redressal Commission)
WITH I.A. No. 4713/2013 I.A. No. 6182/2013 I.A. No. 6183/2013
(Condonation of Delay, Stay & Early Hearing)
M/s Morani Hyundai Morani Cars Pvt. Ltd. Opp. Sitabari, Tonk Road, Jaipur
through Manoj Morani authorised signatory
... Petitioner
versus
Yatinder Parkash Sharma s/o Rajender Prasad Sharma, r/o 27, Bhagwan Path, Rail Nagar, Kings
Road, Jaipur
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Tarjit Singh, Advocate
PRONOUNCED ON : 24th OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 27.08.2012 passed by the Rajasthan State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1611/2011,
“M/s. Morani Hyundai Morani Cars Pvt. Ltd. versus Yatinder Parkash Sharma” and FA No.
1612/2011, “Yatinder ParkashSharma versus M/s. Morani Hyundai Morani Cars Pvt. Ltd.” and
orders dated 10.07.2013 passed in M.A. no. 32/2013 in both these appeals. These two appeals
were preferred against the order dated 26.07.2011 passed by the District Consumer Disputes
Redressal Forum, Jaipur allowing the consumer complaint in question. Through impugned
order, the appeal filed by the OP/Petitioner was dismissed and the appeal filed by the
complainant was allowed and the amount of compensation awarded to the complainant was
enhanced.
2.
Brief facts of the case are that the respondent/complainant Yatinder Parkash Sharma
purchased a Hyundai Santro Car from the petitioner/OP on 09.03.2009 for a consideration of
Rs.3,60,306/-. It has been alleged in the complainant that the actual purchase date was
09.03.2009, but the petitioner/OP issued the bill on 12.03.2009 and the insurance risk cover was
also issued on 09.03.2009. The whole payment and tax was received by the OP on 09.03.2009,
but the registration certificate was prepared on 13.03.2009 and given to the complainant after one
and a half months. The complainant alleged that the total cost of the car including the
registration amount comes to Rs.3,74,746/- but the OP received an amount of Rs.3,87,000/meaning thereby that an excess amount of Rs.12,254/- was charged from the complainant. The
complainant is also liable to receive an excess amount of Rs.18,015/- from the OP on account of
insurance risk cover. The complainant demanded the refund of excess amount of Rs.12,254/and insurance risk cover amount of Rs.18,015/- along with Rs.3,00,000/- for physical, mental,
financial damages from the OP. The District Forum allowed the complaint vide their order dated
20.06.2011 and ordered the OP to pay excess amount of Rs.12,254/- along with interest @9%
p.a. from the date of filing of the complaint till realisation, Rs.5,000/- for harassment and
Rs.2,000/- towards litigation expenses. Two appeals were preferred against the order of the
District Forum before the State Commission; the appeal filed by the OP was dismissed vide
order dated 28.07.2012, whereas the appeal of the complainant was accepted and the OP was
directed to pay a sum of Rs.12,254/- for excess amount charged, Rs.18,015/- for insurance risk
cover, Rs.50,000/- for harassment and Rs.10,000/- as cost of litigation with interest @9% p.a.
from the date of complaint, i.e., 25.06.2009.
3.
It is made out from record that the present petitioner/OP filed application dated 30.11.2012
before the State Commission for amendment of the order dated 27.08.2012 but the said
application was dismissed on 14.12.2012 by the State Commission as none was present before
the State Commission on that date. An application was filed by the petitioner/OP again before
the State Commission on 06.03.2013 requesting for recalling the order dated 14.12.2012. The
said application was dismissed on 22.04.2013 since the petitioner was not present before the
State Commission on that date. Still another application was filed on 06.05.2013 before the State
Commission for recall of the orders dated 14.12.2012 and 22.04.2013, but the same was
dismissed vide impugned order dated 10.07.2013. It has been observed by the State Commission
in their order dated 10.07.2013 that if the petitioner had any objection regarding the order dated
28.07.2012, he should have gone before the National Commission by way of revision
petition. The State Commission also imposed a cost of Rs.10,000/- on the petitioner.
4.
At the time of hearing before us, the learned counsel for the petitioner was asked to explain
the delay of 238 days in filing the present petition before the National Commission. The learned
counsel has drawn our attention to the application for condonation of delay filed along with the
revision petition, wherein it has been stated that the delay occurred due to the filing of
miscellaneous applications before the State Commission for obtaining clarifications about the
impugned order and the said delay was neither intentional nor deliberate.
5.
We have examined the material on record and given a thoughtful consideration to the
arguments advanced by the learned counsel for the petitioner. It is very clear that the impugned
order was passed on 27.08.2012, but the petitioner filed the present petition after a delay of 238
days. No valid explanation or convincing reasons have been advanced by the petitioner to
explain this delay. Even the State Commission have observed that the petitioner filed
miscellaneous applications before them three times and he wasted the precious time of the
Commission because he did not present himself before the State Commission at the time of
hearing. The State Commission even imposed a cost of Rs.10,000/- upon the petitioner while
dismissing the 3rd miscellaneous application filed by him. It is very clear that the order dated
10.07.2013 and the earlier order passed on 02.04.2013 and 14.12.2012 are in accordance with
law, because the State Commission was not authorised to carry out any review on their own
earlier order dated 27.08.12. This view has been taken by the Hon’ble Supreme Court in
“Rajeev Hitender Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr.” [2011
9
SCC
541]
according to which powers to review or recall its order do not lie with the State Commission or
the District Forum.
6.
It has been held by the Hon’ble Supreme Court in a number of recent judgements that unless
there is a cogent and convincing explanation for the condonation of delay in filing the petition,
the same should not be condoned. In R.B. Ramlingam Vs. R.B.Bhavaneshwari 2009 (2)
SCALE 108, Hon’ble Supreme 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.”
7.
Hon’ble Supreme Court after exhaustively considering the case law on the aspect of
condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat
Industrial Development Corporation reported in (2010) 5 SCC 459 as under;
“We have considered the respective submissions. The law of
limitation is founded on public policy. The legislature does not
prescribe limitation with the object of destroying the rights of the
parties but to ensure that they do not resort to dilatory tactics
and seek remedy without delay. The idea is that every legal
remedy must be kept alive for a period fixed by the legislature. To
put it differently, the law of limitation prescribes a period within
which legal remedy can be availed for redress of the legal injury.
At the same time, the courts are bestowed with the power to
condone the delay, if sufficient cause is shown for not availing the
remedy within the stipulated time.”
8.
Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla Industrial
Development Authority observed as under:
“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”.
9.
In the present case, there is clearly a delay of 238 days in filing the present petition and no
cogent reason have been given for the condonation of delay. The factum of filing review
applications a number of times before the State Commission is no ground for condonation of
delay of 238 days in the present case. The revision petition is, therefore, ordered to be dismissed
on ground of delay.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3853 OF 2011
With I.A. No. 01 of 2011 for Stay
(From order passed in Appeal No.598 of 2008 of the State Consumer Disputes Redressal
Commission, Maharashtra, Circuit Bench at Nagpur)
M/s K. C. Associate, Through its partner Shri Sanjay Pandey, O/o 14, Vikas Ashram lay out,
Karve Nagar, Nagpur-25.
.... Petitioner
Versus
Shri Pradeep S/o Zabaji Boriwar Aged about 43 years, Occ: service, R/o Qtr. No. D/2, Near Ravi
Nagar Post Office, Ravinagar, Nagpur.
...... Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
REKHA GUPTA, MEMBER
HON’BLE MRS.
For the Petitioner : Mr. Sunil D. Shukla, Advocate
Pronounced on: 25th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/O.P. aggrieved by order dated passed by State Consumer Disputes Redressal
Commission, Maharashtra, Circuit Bench at Nagpur(for short, ‘State Commission’) has filed the
present revision petition.
2. Brief facts are that Respondent/Complainant wanted to have his own house, entered into an
agreement with the petitioner for purchase of Duplex Bungalow with construction for a
consideration of Rs.6,43,000/- for 725 Sq. Fts. Out of total plot admeasuring 1765 sq. Fts.
Situated at Khasra No. 16(New), 245 and 246 (old), Mouza Lawa Teh. Nagpur. It is alleged that
in the agreement plot number was not decided. The petitioner promised to mention the plot
number at the time of sale deed of the said plot and plot NO.75 was informed to the respondent
at the time of agreement. Respondent paid Rs.1,43,000/- and Rs.10,500/- through cheques to the
petitioner. It is further alleged that petitioner had promised to execute the sale deed within two
months from the date of agreement. However, it neither gave the possession nor executed the
sale deed of plot.
3. It is further alleged that respondent had invested total sum Rs.2,53,000/-and as such he
prayed for execution of the sale deed in respect of above Duplex Bungalow and in alternate, in
case of non-execution of sale deed, petitioner be directed to refund the amount of Rs. 2,53,000/with interest and compensation to the respondent.
4. Notice of complaint was issued to the petitioner by Consumer Disputes Redressal Forum,
Nagpur (for short, ’District Forum’).It appears from the acknowledgement that notice was
received by the petitioner on 28.7.2007 but even after receipt of the notice, petitioner failed to
appear before the District Forum. Accordingly, petitioner was proceeded exparte, vide order
dated 04.09.2007.
5. District Forum, vide order dated 21.09.2007, partly allowed the complaint and passed the
following directions;
“ 1. The complainant’s complaint is partly allowed.
2. The Opposite Party is directed to execute the sale deed to the
complainant in respect of 725 sq. fts. constructed Duplex Bungalow on
plot admeasuring 1765 sq. fts. situated at Mouza Lawa, Tah. & Distt.
Nagpur, Khasra No.16 (New) 245 and 246 (old) in P.H. No.4 layout
after receiving the balance amount as per agreement. The complainant
has to bear the expenses of sale deed.
OR
If the Opposite Party is unable to execute the sale deed then he
refund Rs. 2,53,000/- with interest @ 18% per annum from 14.12.2006
till its realization to the complainant and to pay compensation of
Rs.1,00,000/- to the complainant.
3. Opposite Party is directed to pay Rs. 3,000/-towards cost of instant
proceedings to the complainant”.
6. Petitioner filed an appeal before the State Commission, which dismissed the same, vide its
impugned order.
7. We have heard learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that petitioner did not receive any
notice from the District Forum and as such petitioner was wrongly proceeded exparte.
9. It is further contended that mother of counsel of the petitioner had undergone bye-pass
surgery at Nagpur and as such counsel for the petitioner was busy in her treatment. Moreover,
petitioner had also undergone couple of operations of his eyes and breathlessness and due to this,
petitioner could not attend the matter on 01.08.2011 before the State Commission and as such
there are sufficient grounds for setting aside the impugned order.
10. We had summoned the original record of the State Commission. As per record of the State
Commission, it is manifestly clear that petitioner had received the notice from the District Forum
on July 28,2007.(Photo copy of acknowledgement is at page 48 of the State Commission’s
record). The District Forum, vide its order dated 31.08.2007 has held “OP absent when called.
The notice to the OP is served and acknowledgement is on record. The matter to proceed exparte
against the OP”.
11. Thus, petitioner after receiving the notice from the District Forum had chosen not to appear
before that Forum and there is no explanation of the petitioner for its non-appearance. Therefore,
the order passed by the District Forum is perfectly legal.
12. The State Commission while rejecting the appeal of the petitioner held;
“This appeal takes exception to the ex parte judgement and order dated
21.09.2007 passed by District Consumer Disputes Forum, Nagpur in C. C.No.
314/07.
This appeal is pending before admission since the month of July, 2008. Ad
interim stay was granted and notice before admission was issued to the
Respondent Shri Pradip Boriwar, who, in response to the notice appeared
through Adv. More and Adv. Borkar on 11.09.2008 and then the matter was
adjourned for hearing on condonation of delay as well as stay application. The
record reveals that on 9th April, 09, Mr. Shukla, Adv. for the appellant sought
adjournment by making application in writing. The same application was
resisted by the learned advocate appearing for the Respondent, but no order
appears to have been passed by the commission. However, since after
9.4.2009, appellant as well as his advocate Shri Shukla remained absent
though the matter was adjourned from time to time since 9.4.2009. Today also
the appellant as well as his advocate Shri Shukla are absent. Respondent Shri
Pradip Boriwar as well as his advocate Mr. Borkar are present. Adv. Borkar
submitted that there is no merit in the appeal. The impugned order is ex-parte
and there is already a delay of more than 10 months in preferring this appeal.
On perusal of the record, we find much force in the submission of Mr. Borkar,
learned advocate for the Respondent. Hence we pass the following order.
ORDER
Appeal is rejected”
13. Admittedly, appeal before the State Commission was filed on 25.07.2008. Thus, on the face
of it, appeal filed before the State Commission was hopelessly barred by limitation. Be that as it
may, State Commission has rightly dismissed the appeal of the petitioner, as neither petitioner
nor his counsel were present before it on the date of hearing. Further, it is apparent from the
impugned order that, after 9.4.2009, petitioner as well his advocate remained absent though the
matter was adjourned from time to time since 9.4.2009.
14. Moreover, petitioner had not placed any document on record to show that petitioner
counsel’s mother was suffering from ailment during that period nor petitioner had filed any
medical record to this effect that during that period he was confined to bed and was unable to
attend the proceedings before the State Commission.
15. Under section 21(b) of the Consumer Protection Act,1986, this Commission can interfere
with the order of the State Commission where such State Commission has exercised jurisdiction
not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise
of its jurisdiction illegally or with material irregularity.
16. Above record speaks volume about the conduct of the petitioner. Petitioner has chosen not to
appear before the District Forum and as such was rightly proceeded exparte. Thereafter, there
was delay in filing of the appeal before the State Commission and even then before the State
Commission, petitioner as well as its counsel did not appear before it without any justifiable as
well as sufficient cause. The intention of petitioner is just not to comply with the award passed
by the District Forum and to deprive the respondent the fruits of the decree.
17. The present revision petition having no legal merit has been filed just to waste the time of
this Commission and to abuse the process of law, is hereby dismissed with punitive cost of
Rs.20,000/-(Rupees Twenty Thousand only).
18.
Petitioner is directed to deposit the aforesaid cost by way of demand draft, in the name of
respondent with this Commission, within four weeks from today. In case, petitioner fails to deposit
the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till
realization. However, the cost be paid to respondent only after expiry of period of appeal/revision
preferred, if any.
19. Pending applications also stand disposed of.
20. List on 29th November, 2013 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..………..
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 298 OF 2008
(Against the order dated 09-05-2008 in Complainant Case No.
C-311/2002 of the State Commission, Delhi)
Ms. Iqbal Kaur C-66 Malviya Nagar, New Delhi- 110017
...... Appellant
Versus
Vice-chairman, Delhi Development Authority (DDA) Vikas Sadan, INA New Delhi
….Respondent
FIRST APPEAL NO. 392 OF 2008
(Against the order dated 09-05-2008 in Complainant Case No.
C-311/2002 of the State Commission, Delhi)
Delhi Development Authority (DDA) Vikas Sadan, INA New Delhi
...... Appellant
Versus
Ms. Iqbal Kaur D/o Sri Sahib Ditta Mal C-66, Malviya Nagar New Delhi
….Respondent
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Ms. Iqbal Kaur
: Mr. Lajinder Singh,
Authorised Representative
For Delhi Development Authority : Ms. Girija Wadhwa, Advocate
PRONOUNCED ON: 25/10/2013.
ORDER
PER MR. VINAY KUMAR, MEMBER
As seen from the record, complainant Iqbal Kaur had applied to the OP/Delhi
Development Authority for allotment of a shop, to earn her livelihood. A shop was allotted on
29.2.1996 in Commercial-cum-Staff Housing Complex in Land Acquisition Category (LAC).
The entire price of Rs 4,86,205/- was paid by 15.6.1996. An application was moved on
27.6.1996 requesting for possession of the shop, as full consideration had already been paid.
Allegedly, after a series of letters and multiple visits to the DDA, involving prolonged
harassment, the possession was eventually received on 12.9.2003 i.e. after lapse of over seven
years.
2.
Ten months before the delivery of possession, a consumer complaint had been filed before
the Delhi State Consumer Disputes Redressal Commission in November 2002, seeking
possession with refund of excess amount paid and compensation of Rs.11 lakhs. The State
Commission allowed the complaint and awarded lump sum compensation of Rs.50,000/-,
observing that—
“We have taken a view that whenever a consumer makes payment of entire
consideration the first and foremost duty of the service provider is to handover
possession and later on get the formalities required to be completed. In this case
the delay was of about 7 years.”
3.
Both sides have appealed against the above order. The complainant has filed the appeal
(FA/298/2008) to seek enhancement of compensation. On the other hand, DDA has filed its
appeal (FA/392/2008) to set aside the impugned order which has awarded compensation of
Rs.50,000/-, on the ground that there was no deficiency of service on its part.
4.
The record submitted on behalf of the two sides have been perused. Delay of 24 days in
filing of appeal by the DDA, has been condoned. Counsel for the DDA, Ms Girija Wadhwa,
Advocate and Mr Lajinder Singh, Authorised Representative of the complainant have been
heard. Significantly, during the course of hearing of these appeals, learned counsel for the DDA
informed that half of the awarded amount has already been paid to the complainant and DDA is
willing to pay the remaining half, in full compliance of the impugned order. Learned counsel
argued that the complainant has been compensated, more than adequately in the impugned order.
Hence, there is no case for the amount being enhanced in appeal. Per contra, it was clarified by
the AR of the complainant that the latter is not agreeable to withdrawing his claim for
enhancement of compensation, even if the DDA voluntarily makes full compliance with the
award of the State Commission.
5.
As seen from the Memorandum of appeal, the main ground for seeking enhancement of the
compensation is that the State Commission should have compensated the complainant for the
actual loss suffered, instead of awarding a lump sum amount. It is contended that the State
Commission has itself held that there was unjustifiable delay of over seven years, despite full
payment in 1996 itself. It has held that non adjustment of earnest money of Rs.5000/- was an act
of highhandedness. Similarly, it held that the demand letter of 29.2.1996 was wrong and yet did
not order refund of additional interest on the concerned amount. This has an obvious reference to
the following observations in the impugned order—
“13. After having accorded careful consideration to the aforesaid conspectus of
facts we find that the conduct of the OP was deficient, malafideand arbitrary. The
OP labeled the allotment letter as provisional illegally when all the terms and
conditions and eligibility criteria was fulfilled at the time of applying for the
shop. Adjustment of Rs.5,000/- as earnest money in the demand-cum-allotment
letter dated 29-02-1996 was a high handedness of the OP and was against all the
rules and regulations of the DDA. The complainant was to make the payment by
02-05-1996 and without any interest. She deposited Rs.2.56 lakhs by 02-051996. For the remaining amount she sought extension from OP and paid Rs.2.60
lakhs with interest for one month on it by 21-05-1996 but still OP charged interest
on the whole amount from 22-03-1996 as is evident by the OP’s letter dated 08-081997. The allotment-cum-demand letter dated 29-02-1996 was wrong as it didn’t
adjust Rs.5,000/- deposited as earnest money. The demand of Rs.8,574/- was
wrong and illegal and raised with malafide intentions. The demand for Rs.8,574/should not have been raised at all in view of delayed issue of letter of demand and
adjustment of the earnest money of Rs.5,000/- due to complainant by the OP.
The fact remains that OP was to refund Rs.8,574/- and adjust Rs.5,000/paid as earnest money with interest from the date of these deposits. This was
intentionally not done by the OP to delay the possession. OP has not maintained
anywhere as to which documents were not submitted, whereas the complainant had
submitted all the documents time and again between 1996 to 2002 to the OP
including unwarranted demands as stated in the letters mentioned in para 8 of the
complaint. It is wrong that the complainant submitted the complete set of
documents only on 07-05-2002 as alleged. There is no policy of the DDA that
before the issue of the possession letter, conveyance deed (CD) papers should be
stamped from the Registrar as alleged. The complainant was issued CD, perpetual
lease and site plan on 11-10-2002 for the first time along with a covering letter all
wrongly filed with name of the complainant as also the location of the shop in the
market and its dimensions and these were returned on 18-10-2002 for
corrections. It is wrong that the possession letter could not be issued to the
complainant because the complainant failed to give the complete set of documents
to the OP.
14. The complainant has suffered loss due to delayed delivery of possession as
she had to pay 5% extra stamp duty as the same was increased from 8% to 13%
whereas the OP has unjustly gained by retaining the entire consideration amount
for such a long time and delayed the possession on one pretext or the other.”
6.
Considering the above, we are of the view that in the interest of justice and equity there
is need to enhance the quantum of compensation. We therefore, enhance the amount of lump
sum compensation from Rs.50,000/- to Rs. 80,000/-, which shall be paid to the complainant
within two months. Delay, if any, shall carry interest at 9%. The appeal of the complainant is
partly allowed in the aforesaid terms. For the same reason, the appeal of the Delhi Development
Authority stands dismissed.
…..…………….Sd/-…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………Sd/-….…….……
(VINAY KUMAR)
S./MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1933 OF 2013
(From the order dated 17.01.2013 in Appeal No. 2312 of 2010 of the
Rajasthan State Consumer Disputes Redressal Commission, Jaipur)
WITH IA/3169/2013
(CONDONATION OF DELAY)
Duli Chand S/o Sh. Ami Lal R/o- 55-56, Sector-12 L Hanumangarh Junction Hanumangarh
… Petitioner
Versus
The New India Assurance Co. Ltd. Through Jaipur Regional Office, 2nd Floor, Nehru Place,
Tonk Road, Jaipur
… Respondent
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B. C. GUPTA, MEMBER
For the Petitioner
: Mr. Amit Singh, Advocate
PRONOUNCED ON : 25th OCTOBER, 2013
ORDER
PER HON’BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
This Revision Petition has been filed by the petitioner against impugned order
dated17/01/2013, passed by the State Commission Rajasthan in Appeal No. 2312/2010, The New
India Assurance Co. Ltd. vs. Duli Chand, by which while allowing the appeal, order of the District
Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner had taken a Carrier’s Legal Liability
Policy for his tanker no. RJ13G6715 and he attached his tanker with M/s. S. D.
Ganesh Gadia Filling Station, who was the contract carrier of Indian Oil Corporation. On
27.12.2008, complainant’s tanker was carrying 20,000 lt. of diesel, met with an accident and diesel
barring 242 lt. was destroyed. Complainant lodged claim with the Opposite Party, which was
repudiated on the ground that at the time of accident, complainant was not acting as a
carrier. Alleging deficiency on the part of the Opposite Party, complainant filed complaint before
the District Forum. Opposite Party resisted complaint and submitted that as complainant was not
acting as a carrier at the time of accident, Opposite Party rightly repudiated the claim and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties allowed the complaint
and directed the Opposite Party to payRs. 6,55,098/- alongwith 8% p.a. interest and further
awarded Rs. 5,000/- for mental agony and Rs. 1,000/- as litigation expenses. Appeal filed by the
Opposite Party was allowed by the State Commission vide impugned order against which this
Revision Petition has been filed alongwith application for condonation of delay.
3.
Heard learned counsel for the petitioner at admission stage and perused record.
4.
Petitioner has filed application for condonation of delay for 18 days. As there is delay of only
18 days, we allow application for condonation of delay and delay stands condoned.
5.
Learned counsel for the petitioner submitted that as petitioner was insured with the respondent
and was carrying diesel and met with an accident, petitioner was entitled to get indemnified and the
District Forum rightly allowed the claim but the State Commission has committed error in allowing
the appeal, hence Revision Petition be admitted.
6.
Learned counsel for the petitioner admitted that petitioner had no contract with the Indian Oil
Corporation but petitioner’s tanker was attached with M/s. S. D. Ganesh Gadia Filling Station, who
had contract of carrying oil of Indian Oil Corporation. Thus it becomes clear that the petitioner had
no carriage contract with Indian Oil Corporation and in such circumstances, petitioner was not
entitled to get any compensation for loss of diesel due to accident. The State Commission rightly
placed reliance on I (2012) CPJ 267 (NC) National Insurance Company Ltd. vs. Mehboob Khan
while allowing appeal.
7.
We do not find any irregularity, illegality or jurisdictional error in the impugned order and
Revision Petition is liable to be dismissed at admission stage.
8.
Consequently, Revision Petition filed by the petitioner is dismissed at admission stage, with no
order as to costs.
..……………………………
(K. S. CHAUDHARI)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
PSM
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2473 OF 2012
With
IA/5116/2013(For recalling case record)
IA/6301/2013(For directions)
(From the order dated 09-03-2012 in Appeal No. 3136/2007 of the State Consumer Disputes
Redressal Commission, Haryana)
R.K. VARMA R/o House no-164,Sector-23, Gurgoan – 122017 Haryana
… Petitioner/Complainant
Versus
1. DIRECTOR / CONTROLLER, KALYANI (ESCORTS) & 2 ORS. Kalyani Hospital, M.G
Road, Gurgoan Haryana
2. The Director/ Controller Metro Multi Specialty Hospital, Noida, Sector-12, Noida, Haryana
3. The New India Assurance Co. 386-387, Jacobpura Old, Railway Road Gurgaon, Haryana,
Policy, No-354100/46/05/32/00000358
… Respondents/Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B C. GUPTA, MEMBER
For the Petitioner
:
In person
For Respondent No. 1
:
Ms. M. Malika Chaudhari, advocate
For Respondent No. 2
:
Mr. Anjum Javed, advocate
For Respondent No. 3
:
Mr. Navdeep Singh, advocate
PRONOUNCED ON
25th OCTOBER, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order dated 0903-2012 passed by the learned State Consumer Disputes Redressal Commission, Haryana (in
short, ‘the State Commission’) in Appeal No. 3136 of 2007 – The Director, Metro Multi
Speciality Hospital Vs. R.K. Verma & Ors., by which while allowing the appeal, order of the
District Forum allowing the complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner’s father Sultan Singh was admitted
in Kalyani Hospital (Escorts) on 11-11-2006 and was diagnosed heart attack. He was put on
temporary pace-maker. Complainant was advised to shift his father to some better equipped
hospital. Complainant found a seat in hospital of Opposite Party No. 2/respondent no.
2. Ambulance was sent by Opposite Party No. 2 to pick up the patient but it was without pace
maker so another person was sent from Opposite Party No. 2 hospital to Gurgaon along with
pace-maker but unfortunately that pace-maker was not functioning properly. Doctors of
Opposite Party No. 1/Respondent No. 1 hospital refused to lend pace-maker. In such
circumstances, ambulance left without taking the patient and after couple of hours complainant’s
father died. Alleging deficiency on the part of Opposite Parties, complainant filed complaint
before District Forum. Opposite Party No. 1 & 2 did not file written statement but Opposite
Party No. 3 – insurance company who covered risk of hospital and doctors filed written
statement and submitted that policy does not cover dispute relating to lending of pace-maker and
prayed for dismissal of complaint. Learned District Forum after hearing the parties, allowed
complaint partly and directed Opposite Party No. 2 to pay Rs. One lakh as damages to the
complainant along with 6% p.a. interest and further awarded Rs.3,000/- as cost of
litigation. Appeal filed by Opposite Party No. 2 was allowed by learned State Commission vide
impugned order, against which this revision petition has been filed.
3.
Heard petitioner in person and learned Counsel for the respondents and perused record.
4.
Petitioner submitted that on account of negligence of Respondent No. 2, petitioner’s father
could not be saved and learned District Forum rightly allowed complaint but learned State
Commission has committed error in allowing appeal, hence revision petition be allowed and
impugned order be set aside. On the other hand, learned counsel for Respondent No. 2 submitted
that order passed by learned State Commission is in accordance with Law, hence revision
petition be dismissed. Learned counsel for Respondent No. 1 & 3 submitted that complaint has
not been allowed against them and petitioner has not filed appeal against the order of the District
Forum, hence they are not liable for any compensation.
5.
District Forum fastened liability on Respondent No. 2 as ambulance of Respondent No. 2
was without any pace-maker. Petitioner, during course of arguments, submitted that ambulance
was required to be equipped with pace-maker, which could have been put while taking patient to
the hospital and his father could have been saved and thus Opposite Party no. 2 committed
deficiency. On the other hand, learned counsel for Respondent No. 2 submitted that petitioner
does not fall within the purview of consumer under Consumer Protection Act and further
submitted that it was not necessary that ambulance should have been equipped with pace-maker
and further submitted that pace-maker could not have been inserted in ambulance during journey.
6.
Petitioner’s main allegation is that ambulance called from Opposite Party No. 2 was not
equipped with pace-maker. Petitioner has nowhere mentioned in the complaint that petitioner
hired services of Opposite Party No. 2 for consideration which had already been paid or
promised to be paid. Petitioner falls within the purview of consumer under Section 2(d) (ii) only
when he hires or avails off any service for consideration which has been paid or promised. We
do not find any averment in the complaint regarding payment or promise for payment of any
consideration for the services of Opposite Party No. 2 and in such circumstances petitioner does
not fall within purview of consumer under Consumer Protection Act and revision petition is
liable to be dismissed on that ground alone.
7.
Learned State Commission has rightly observed that no evidence has been led by the
petitioner that every ambulance must be equipped with pace-maker. It was further rightly
observed that pace-maker cannot be inserted in ambulance during road journey from one hospital
to another. Learned State Commission has not committed any illegality, irregularity or
jurisdictional error in allowing appeal and revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is dismissed with no order as to
costs.
.……………….………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
( DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1554 OF 2012
(From the order dated 16.01.2012 in First Appeal No. 1965/2006 of Haryana State Consumer
Disputes Redressal Commission, Panchkula)
State Bank of Patiala Railway Road Branch, Kurukshetra, Haryana-136118
... Petitioner
Versus
Krishan Kaul W/o M. L. Kaul, R/o- House No. 15, Sector-13, Kurukshetra, Haryana-136118
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
For the Respondent
: Mr. Bheem Sain Jain, Advocate
and Mr. Udayan Singla, Advocate
: Mr. S. C. Phogat, Advocate
PRONOUNCED ON : 25th OCTOBER, 2013
ORDER
PER HON’BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
This Revision Petition has been filed by the petitioner against impugned order dated
16/01/2012, passed by the State Commission Haryana in First Appeal No. 1965/2006, State Bank of
Patiala vs. Krishna Kaul, by which while dismissing the appeal, order of the District Forum allowing
complaint was upheld.
2.
Brief facts of the case are that Complainant-Respondent is an account holder of Opposite
Party-Petitioner. On 27.09.2005, complainant, after getting Rs. 25,000/- from PNB, went to
Opposite Party Bank for depositing amount in complainant’s account no. 1190012729. After
completing deposit slip, complainant approached the cashier counter then suddenly some unknown
person snatched the amount of Rs. 25,000/- from the complainant’s hand and ran away. Bank
security guard was watching the procession of Dera Sacha Sauda, which was passing through the
road in front of the bank. As Opposite Party could not provide adequate security to the complainant,
alleging deficiency on the part of the Opposite Party, complainant filed complaint before the District
Forum. Opposite Party resisted complaint and submitted that complainant never came in the Bank
on 27.09.2005 to deposit amount of Rs. 25,000/-. Snatching of money from complainant’s hand was
also denied and prayed for dismissal of complaint. Learned District Forum after hearing both the
parties allowed the compliant and directed the Opposite Party to pay Rs. 25,000/- alongwith 9% p.a.
interest. Appeal filed by the Opposite Party was dismissed by the State Commission vide impugned
order, against which this Revision Petition has been filed.
3.
Heard learned counsel for the parties finally at admission stage and perused record.
4.
Learned counsel for the petitioner submitted that respondent does not fall within the purview of
consumer and further submitted that security guard was for the security of bank and if anyone has
snatched money from respondent’s hand, petitioner can not be held responsible and the State
Commission has committed error in dismissing the appeal and the District Forum has committed
error in allowing complaint, hence Revision Petition be allowed and impugned order be set aside. On
the other hand, learned counsel for the respondent submitted that order passed by the State
Commission is in accordance with law, hence Revision Petition be dismissed.
5.
The whole question to be decided in this case is whether petitioner was bound to provide
security to its customers and has failed to provide security.
6.
As per complainant’s averments, money was snatched by third person from complainant’s
hands when he was in bank premises in front of cash counter and security guard was watching the
procession passing through the road. Security guard employed by the petitioner was meant for
protecting properties of petitioner and admittedly money in the hands of respondent was not the
property of the petitioner till it was handed over to cashier of petitioner. Admittedly, money was not
handed over by the respondent to the petitioner and in such circumstances, petitioner’s security
guard was not under any obligation to provide security to the respondent, who was only account
holder of the bank. Learned counsel for the respondent could not substantiate his arguments by any
citation that petitioner was under an obligation to provide security to the customer as soon as
customer entered into premises of petitioner. If a customer is assaulted by another customer in bank
premises, we do not think that bank or its security guard can be held responsible in Civil/Criminal
proceedings. We do not agree with the findings of the State Commission that bank security guard
had to protect the customers from bad elements and bank was duty bound to provide adequate
security to its customers. In such circumstances, order passed by the State Commission is liable to
set aside.
7.
Consequently, Revision Petition filed by the petitioner is allowed and impugned order dated
16.01.2012 passed by the State Commission in First Appeal No. 1965/2006, State Bank of Patiala vs.
Krishna Kaul and order dated 17.07.2006, passed by the District Forum in complaint no. 100/2006,
Smt. Krishna Kaul vs. State Bank of Patiala is set aside and complaint stands dismissed with no
order as to costs.
..……………………………
(K. S. CHAUDHARI)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
PSM
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1327 OF 2007
(From the order dated 19-01-2007 in First Appeal No. 646 of 2003 of the State Consumer
Disputes Redressal Commission, Tamil Nadu)
V. Perumalsamy S/o Veerasamy, 35, East Street, Theni – 626531, Tamil Nadu
… Petitioner/Complainant
Versus
1. The Branch Manager, Life Insurance Corporation of India, Periyakulam Branch,
Vaigaidam Road, Periyakulam – 625601. Tamil Nadu
2. The Divisional Manager, Divisional Office, Life Insurance Corporation of India,
“Jeevan Prakash” Bridge Station Road, P.O. Box No. 16, Sellur, Madurai – 625002 Tamil Nadu
… Respondents /Opposite Parties
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
For the Respondent
: Mr. G.S. Mani, Advocate
: Ms. Pankaj Bala Verma, Advocate
PRONOUNCED ON 25th OCTOBER, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order dated 1901-2007 passed by the learned State Consumer Disputes Redressal Commission, Tamil Nadu (in
short, ‘the State Commission’) in Appeal No. 646 of 2003 – The Branch Manager, Life
Insurance Corporation of India &Anr. Vs Perumalsamy, by which while allowing the appeal,
order of the District Forum allowing the complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner obtained two policies from opposite
party/respondent on 28-11-1995 and 28-09-1998 respectively each for a sum of Rs. One
lakh. As per policies, complainant was eligible to receive medical expenses up to 50% of the
amount of policy with bonus. Complainant was admitted at Apollo Hospital, Chennai and
he underwent bypass surgery on 11-12-2000 and discharged on 18-12-2000. Complainant
requested opposite party to pay medical claim of the aforesaid two policies and the bonus but as
payment was not made, alleging deficiency on the part of the opposite party, complainant filed
complaint before District Forum. Opposite parties resisted complaint and submitted that
complainant failed to disclose vital information about his health condition and complainant was
diabetic for the last eight years, hence complainant was not entitled to receive any claim and
prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed
complaint and directed opposite party to pay Rs. One lakh under the two policies and Rs.20,000/as bonus amount along with 9% p.a. interest and further awarded cost of Rs.1,000/-. Appeal
filed by the opposite party was allowed by learned State Commission vide impugned order
against which this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that as petitioner was not diabetic and has not
suppressed any disease in the Proposal Form, learned District Forum rightly allowed complaint
but learned State Commission has committed error in dismissing the complaint, hence revision
petition be allowed and impugned order be set aside. On the other hand, learned counsel for the
Respondent submitted that order passed by learned State Commission is in accordance with law,
hence revision petition be dismissed.
5.
It is not disputed that complainant obtained two policies from respondent with bonus and as
per Benefit (B), 50% of the sum assured was payable on open heart bypass surgery along with
bonus of 10% of the sum assured. It is also not disputed that in his personal history complainant
submitted that his state of health was good and he was not suffering from any disease.
6.
The basis of diabetes is only discharge summary given by Apollo Hospital, which reads as
under:-“This 46 years old gentleman, hormotensive, diabetic for 8 years, was
admitted with history of class II angina since 2 years for further cardiac
evaluation. He was evaluated by cardiac cath and coronary angio which
revealed single vessel disease with normal LV function. He was advised CABG
surgery.”
7.
Respondent has not placed any documents on record for earlier treatment of diabetes taken
by the petitioner. Learned counsel for the petitioner submitted that petitioner never revealed this
fact that he was diabetic for 8 years as he was not suffering from diabetes. Merely on the basis
of earlier history recorded in the discharge certificate, it cannot be presumed that petitioner was
suffering from diabetes since last 8 years.
8.
Even if discharge summary is taken to be correct, first policy cannot be called in question
on the ground of mis-statement after 2 years as per Section 45 of the Insurance Act. Admittedly,
first policy was issued in the year 1995 and petitioner has undergone surgery in December, 2000
meaning thereby after a period of 5 years and respondent has neither pleaded nor proved that
inaccurate or false statement about his health was made by the petitioner fraudently at the time of
obtaining policy. In such circumstances, petitioner is certainly entitled to get 50% of the sum
assured under the first policy, which was issued almost before 5 years. As second policy was
issued on 19-01-1999 and petitioner has undergone surgery in December, 2000, he may not be
allowed to get 50% of the sum assured under the second policy. Learned State Commission has
committed error in allowing appeal in toto and dismissing the complaint in toto though petitioner
was entitled to receive benefits under the first policy which was issued before 5 years.
9.
Consequently, revision petition filed by the petitioner is partly allowed and impugned order
dated 19-01-2007 passed by learned State Commission in Appeal No. 646 of 2003 – The Branch
Manager, Life Insurance Corporation of India & Anr. Vs Perumalsamy is modified and order of
the District Forum dated 26-03-2003 is also modified and petitioner is held entitled to get
Rs.50,000/- along with Rs.10,000/- as bonus under the first policy with interest @ 9% p.a. from
18-12-2000 till the date of payment. There shall be no order as to costs.
.……………….………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
( DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO.438 of 2011
(From the Order dated 19.08.2011 in Complaint Case No.01/08 of the State
Consumer Disputes Redressal Commission, Andaman & Nicobar Islands)
Jet Airways (India) Ltd. Regd. Office at Sahar Airport Road, Andheri (East), Mumbai-400
099
.. Appellant
Vs.
Vijay Kumar Bamboo Flat Jetty Ferrargunj Tehsil South Andaman
..Respondent
BEFORE: HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant
: Mr. Sunil Attri, Advocate
For the Respondent
:NEMO
(Respondent proceeded exparte
vide order dated 08.03.13)
ORDER
(Pronounced on 25th October, 2013)
D.K. JAIN, J., PRESIDENT
This appeal under section 19 of the Consumer Protection Act, 1986 (for short “the
Act”) is directed against the order dated 19.08.11, passed by the State Consumer Disputes
Redressal Commission, Andaman & Nicobar Islands, Port Blair, (for short “the State
Commission”) in Complaint Case No. 1/2008. By the impugned order, the State
Commission has allowed the complaint filed by the Complainant (Respondent herein) for
delay in the delivery of the remains of his father, booked as cargo with the Appellant
Airlines. The State Commission has awarded a sum of `2,45,000/- as compensation to the
Complainant by the Airlines on account of deficiency in service and mental agony, with
interest @ 12% p.a. from the date of filing the complaint till the recovery of the amount.
2.
The father of the Complainant expired on 27.05.2008 at Bangalore. As the last rites of
the deceased were to be performed at Andaman & Nicobar Islands on 28.05.2008, the
Complainant decided to carry the remains of his father by air from Bangalore to Port Blair.
The human remains were booked on 28.05.2008 as passenger’s luggage by an early morning
flight to Bangalore-Chennai-Port Blair under an airway bill. A sum of `8,230/- was paid by
the Complainant as carriage charges on a chargeable weight of 100 kgs. In the airway bill,
the nature and quantity of goods was shown as “human remains”. The Complainant also
travelled in the same flight. The scheduled time of arrival of the flight at Port Blair was
11.15 A.M. All the relatives were informed that the funeral ceremony would be performed at
12.00 noon on 28.05.2008. However, when the flight reached Port Blair, it was discovered
that the package containing the human remains was not in the aircraft as it was not loaded on
the flight proceeding from Chennai to Port Blair. The package was infact delivered to the
Complainant on the following day i.e. 29.05.2008. Alleging gross negligence and serious
deficiency in service, resulting in attack of Angina Pectoris to his mother who had come to
the airport to receive the body of her husband, mental agony and pain, the Complainant filed
the complaint before the State Commission claiming a compensation of`40 lakhs for
deficiency in service and a further sum of ` 40 lakhs for mental agony.
3.
The complaint was contested by the Airlines. Denying any deficiency in service or
suffering of mental agony by the Complainant, it was pleaded that the cargo was not loaded
in the flight to Port Blair inadvertently due to human error which “do occur sometimes.” It
was stated that realizing the mistake, the cargo was dispatched to Port Blair by the Airlines
on 29.05.2008 without charging any additional amount.
4.
On analysis of the evidence adduced by the Complainant, the State Commission
observed as follows:“
So far as the case is concerned there is no dispute by the opposite
parties about delayed despatch of the human remains of the father of
complainant. Their contention appears that due to human error the cargo
was not despatched in the scheduled flight and there was no negligence on
the part of the opposite parties. In his evidence as PW-1, complainant has
denied the suggestion that due to inadvertence the cargo was not off
loaded at Chennai Airport for its onward journey to Port Blair. In this
connection, if we look into exhibit-6 which is a letter issued on behalf of
the opposite party no.1 wherein it is recorded, “I sincerely apologize for
this erroneous mistake”. So it is evident that the opposite party Jet
Airways tried to brush off the entire matter as error on the part of the
respondent. It may be pointed out that the respondent Jet Airways being a
reputed concern was duty bound and contract bound to send the human
remains of the father of the complainant in the manner and on the date as
agreed. The flight from Chennai to Port Blair reached on schedule on
28.05.08 minus the human cargo. This cannot be avoided by the opposite
party simply by taking the plea that the entire incident took place due to
inadvertence by the men of the opposite party. The opposite party cannot
avoid their responsibilities and from the document itself it is evident that
there was gross negligence on the part of the respondents to send the
cargo in the manner as agreed between the parties.
It is further evident that complainant came from Chennai to Port
Blair in the same flight where the cargo was supposed to be despatched
and complainant has categorically stated that he made repeated inquiries
in order to ensure that the cargo is despatched in the flight. The process
is clear if exhibit-4 in which condolence message of deceased P.Sai
Krishna was published in Daily Telegrams dated 28.05.08. In the
condolence message it is stated that the funeral ceremony will take place
on 28.05.08 at 12.00 noon. So it is evident that in anticipation of the
arrival of the human remains on 28.05.08, necessary arrangement was
made to perform the last rites of the departed soul.
The opposite parties did not adduce any evidence in order to show
as to how the cargo was dealt after the same was off loaded at Chennai. It
is not disputed that the complainant along with the human remains of his
father boarded the flight from Bangalore to Chennai and the flight was
scheduled to come to Port Blair from Chennai. At Chennai complainant
repeatedly reminded the respondent authority that the cargo is to be
loaded in the flight to Port Blair. Respondent has denied that complainant
made any such exercise as claimed. We are unable to agree with the
respondent simply in view of the fact that it was quite natural on the part
of PW-1 to make necessary efforts to ensure that the human remains
arrive at Port Blair so that the last rites of the departed soul could be
performed on 28.05.08 as already announced in the newspaper.”
5.
The State Commission thus held that there was serious deficiency in service on the part
of the Airlines for which, they were solely responsible and as such the Complainant had
succeeded in establishing his case about the deficiency in service. Having held so, the State
Commission, while restricting the amount of compensation for deficiency in service
to `45,000/- (`450 x 100 kgs.), in terms of Section 22 (2) (a) of the Carriage By Air Act, 1972
(in short, “the Air Act”), in exercise of its jurisdiction under Section 3 of the Act, proceeded
to award an additional sum of `1 lakh as compensation on the same count by observing thus:“
Even after failing to despatch the cargo the opposite parties failed
and neglected to take proper care of the cargo which is human remains
and as such we are of the view that the deficiency in service is further
compounded by the negligence on the part of the opposite parties.”
6.
On the question whether the Complainant suffered any mental agony, the State
Commission held as under:“
Loss of father was certainly painful to the complainant. He made
arrangements only to perform last rites of the departed soul but he failed
to perform it on the given date solely due to latches and gross negligence
on the part of the opposite parties. His emotional sufferings is certainly a
ground for awarding compensation for mental agony.”
Following the decision of the Hon’ble Supreme Court in Ghaziabad Development
Authority Vs. Balbir Singh– (2004) 5 SCC 65 wherein it was held that the word compensation is
of wide connotation and may extend to compensation under the Act for mental or even emotional
suffering, the State Commission awarded a sum of `1 lakh as compensation in favour of the
complainant for mental agony. As noted above, interest @ 12% has also been awarded to the
Complainant. Hence, the present appeal by the Airlines.
7.
Ld. Counsel appearing for the Appellant assailed the findings recorded by the State
Commission relating to negligence and deficiency on the part of the Airlines on the ground that
since the Airlines was operating only one flight from Chennai to Port Blair, the cargo could be
dispatched to its destination on the next flight operated by the Appellant Airlines. It was also
pleaded that the compensation awarded to the Complainant is highly excessive, unreasonable and
imaginary and has been determined without any basis, more so, when in terms of Section 22 (2)
(a) {as amended by the Government of India’s Notification No. S.O 242} of the Air Act, an Air
Carrier is not liable for damage caused by delay in the carriage.
8.
We are of the opinion that there is no merit in this appeal. It is manifest from the afore
extracted paragraphs that the findings by the State Commission to the effect that there was
serious deficiency in service on the part of the Airlines in not dispatching the human remains
from Chennai to Port Blair and thus the Complainant had suffered mental agony on account of
the delay in delivery of the cargo, is based on cogent evidence adduced by the Complainant. In
fact, the error in not off loading the coffin containing human remains of the father of the
deceased at Chennai Airport and then loading it on the connected flight to the Port Blair is not
denied by the Airlines. The short plea was that the error was on account of human error “which
do occur sometimes”. We are unable to comprehend as to how a package weighing 100 Kgs. was
left unattended in the cargo section of the aircraft when admittedly the concerned flight from
Bangalore terminated at Chennai and all the passengers travelling to Port Blair were required to
de-plain and board another aircraft for onward journey. As noted above, the human remains were
being carried by the Complainant as checked in baggage and was required to be off loaded at
Chennai. A baggage weighing 100 Kgs. could not remain hidden so as to escape the attention of
the ground staff. We have no hesitation in upholding the finding of the State Commission that it
was a case of gross negligence and deficiency in service on the part of the Airlines. We are of the
view that the facts emanating from record speak for themselves and, therefore, the principle of
res ipsa loquitor is clearly attracted. The tone and the tenor of letter dated 28.05.2008 by some
un-named ground staff tendering apology to the Complainant for the “erroneous mistake”
amounts to adding insult to injury. We also feel that non-removal of the baggage at Chennai was
a serious security lapse indicative of gross negligence on the part of the Airlines. Be that as it
may, we refrain from commenting further on this aspect as no such plea seems to have been
raised before the State Commission.
9.
As regards the plea that an Airlines cannot be made liable for damage caused by delay in
carriage in terms of Government of India’s Notification No. S.O. 242, we are of the view that
there is no substance in the stand of the Airlines. The Notification reads as follows:“
.....
5 (a) The carrier is not liable to the shipper or any other person for any
damage, delay or loss of whatsoever nature (hereinafter collectively
referred to as ‘damage’) arising out of or in connection with the carriage
of goods unless such damage, excluding the delay is proved to have been
caused by the negligence or wilful fault of the carrier and there has been
no contradictory negligence of the shipper, consignee or other
claimant. The carrier will not be liable for damage caused by delay in the
carriage.
..............”
In the light of a clear and categorical finding by the State Commission and affirmed by
us, that the delay in delivery of the cargo was caused because of negligence on the part of the
Airlines, the said notification has no bearing on the facts at hand.
10.
As regards award of an additional sum of `1 lakh over and above `45,000/- , as per Section
3 the provisions of the Act being in addition to and not in derogation of the provisions of any
other law for the time being in force, these have to be interpreted broadly, positively and
purposefully, in the context of the facts of a particular case. { See: Secy. Thirumurugan Coop.
Agricultural Credit Society Vs. Ma. Lalitha - (2004) 1 SCC 305 and Trans Mediterranean
Airways Vs. Universal Exports and Anr.- 2011 (10) SCC 316} In the instant case, as we have
already noticed, undoubtedly, there was negligence and deficiency in service on the part of the
Airlines
in
not
delivering
the
booked
the cargo could not be delivered on time because
cargo
of
on
time. The
non-availability
flight, in our
substance particularly having regard to the nature of the cargo
plea
that
of another
opinion, is without any
i.e. the
human remains. Except for the said bald plea, the Airlines did not lead any evidence to
show that it was not possible, under any circumstances, to make an alternative
arrangement for delivery of the human remains on 28.05.2008. In
that view of the matter, we see no reason to interfere with the award of the said additional
amount by the State Commission.
11.
In so far as the question of quantification of amount of compensation on account of mental
agony is concerned, it is virtually impossible to measure in monetary terms the value of emotions
and sentiments, particularly so when a person is already grieving over the demise of a loved
one. Timely customary cremation is one of the basic rights of an individual. In the light of
observations by the State Commission as to the scene at the Airport on 28.05.2008 on account of
non arrival of the body of the deceased when the relatives, including the mother of the
Complainant, had come to receive the body and the consequent delay in performance of the last
rites, we feel that a cumulative effect of all these circumstances does not warrant any interference
with the decision of the State Commission on the question of determination of compensation for
mental agony.
12.
For aforegoing reasons, the appeal deserves to be dismissed. It is ordered accordingly.
13.
While issuing notice to the Complainant, by way of an interim relief, the operation of the
impugned order was stayed subject to the condition that 50% of the decretal amount shall be
deposited by the Airlines with this Commission within 30 days of the said order. The said
amount shall be remitted to the Complainant forthwith. The balance decretal amount shall be
paid by the Airlines to the Complainant within four weeks from today failing which, the said
amount shall carry an interest @ 15% p.a. from the date of order of the State Commission till the
date of actual payment, instead of @ 12% as directed in the impugned order.
14.
Since the Respondent remains unrepresented, there will be no order as to costs.
…………….. . . . . .
(D.K. JAIN, J.)
PRESIDENT
................
(VINEETA RAI)
MEMBER
................
(VINAY KUMAR)
MEMBER
Yd/*
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2786 OF 2008
(From the order dated 11.04.2008 in First Appeal No. 603/2005 of Tamil Nadu State Consumer
Disputes Redressal Commission)
M/s. Sri Sarbati Steel Tubes Limited, No. 163/1, Broadway IInd Floor, Chennai – 600108.
... Petitioner
Versus
The Oriental Insurance Co. Ltd., Divisional Office VI, Bali Tower, 1st Floor, No. 1, Abdul
Razack Street, Saidapet, Chennai – 600015.
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner
Mr. Sandeep Bisht, Advocate
For the Respondent
Ms. R.B. Shami, Advocate
PRONOUNCED ON : 28th OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 11.04.2008 passed by the Tamil Nadu State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 603 / 2005,
“Oriental Insurance Co. Ltd. versus Sri Sarbati Steel Tubes Ltd.” vide which appeal against the
order dated 12.09.2005 passed by District Consumer Disputes Redressal Forum, Chennai (South)
was allowed, the order of the District Forum was set aside and the consumer complaint no.
295/2003, in question was ordered to be dismissed.
2.
Brief facts of the case are that the M/s. Sri Sarbati Steel Tubes Limited is a manufacturer of
Steel Tubes having its registered office at Chennai and its two factories at Pondicherry. The
complainant / petitioner obtained a fire insurance policy bearing no. 411600/0/0/F/11010/2002
from the respondent / OP, Oriental Insurance Co. Ltd. (hereinafter referred to as ‘Insurance
Company’) covering the risk of building, plant and machinery against the loss / damage caused
by fire, storm, tempest, flood and inundation for its two factories at Pondicherry containing the
product division and tube division respectively for a period of one year from 28.05.2001 to
27.05.2002 and the total sum insured was `7,43,00,000/- at an annual premium of `1,00,055/-. On
10.05.2002, at around 4:00 PM, due to strong winds, coupled with storm and heavy rain in the
factory area, more than 100 asbestos sheets were blown off from the roof and the truss of the mill
section was badly damaged. The Insurance Company was duly intimated and the complainant
filed two claims with the Insurance Company for the loss / damage for ` 50,000/- and `
2,50,000/- respectively. The OP appointed M/s. Crystal Surveyor, Pondicherry, who visited the
factory and submitted his preliminary report to the OP. Subsequently, the OP appointed a
second surveyor, Mr. S. Jagadeeswaran. The said surveyor asked the complainant to furnish
estimated cost of repair to the building, shed etc. The complainant stated that a sum of
`1,81,888/- towards cost of material and `66,746/- towards cost of labour, the total being
`2,48,634/- had been spent on repairs. The bills were furnished to the surveyor. The said
surveyor, in his report estimated the total loss to be `1,10,077/- for the two divisions,
`88,912.50ps. was the estimate for the tube division and `2,11,64.38ps. was the estimate for the
flat division, including the labour charges. The surveyor also estimated that there was underinsurance to the extent of 51.9% in tube division and 76.8% in the flat division. After accounting
for said percentage of under-insurance from the estimated value of loss / damage and after
deducting `10,000/- for excess, the surveyor reported that the net liability for the Insurance
Company was `37,677/- only. The insurance company sent a loss discharge voucher for
`37,624/- by their letter dated 21.03.2003. It is the case of the complainant that the said amount
was accepted under protest, whereas OP/ Insurance Company maintains that the amount was
accepted by the complainant in full and final settlement. The petitioner/complainant filed the
consumer complaint in question before the District Forum, claiming an amount of `2,11,014/along with a sum of `25,000/- as compensation for mental agony and harassment and `5,000/- as
cost of litigation. The District Forum after hearing the parties, passed their order on 12.09.2005,
allowing the complaint and directing the OP to pay a sum of `2,11,014/- alongwith interest @
9% p.a. from 24.03.2003 till realisation with cost of `2,000/- Against this order, an appeal was
filed before the State Commission and vide impugned order dated 11.04.2008, the State
Commission set aside the order passed by the District Forum and dismissed the complaint. It is
against this order that the present revision petition has been made.
3.
The line of argument taken by the learned counsel for petitioner says that the complainant
had received the amount sent to them by the Insurance Company under protest and not as full
and final settlement as stated by the OP. Learned counsel stated that deduction could not be
made for under- insurance and the depreciation could also not be allowed as per the terms and
conditions of the Policy. Moreover, the insurance company should not have appointed the
second surveyor to make report about the loss / damage. The learned counsel stated that the
order passed by the District Forum was passed on sound reasoning and should be upheld,
whereas the State Commission had committed error in passing their judgement on the report of
the surveyor alone.
4.
On the other hand, the learned counsel for the respondent / OP stated that the report of the
surveyor was based on sound reasoning and hence, it could not be brushed aside. The said report
was prepared after checking the quantity of material replaced in the presence of an Assistant
General Manager of the complainant company. The learned counsel has also drawn our attention
to a document issued by Insurance Institute of India, Mumbai entitled, “IC 56 Fire Insurance
Claim”.
5.
We have examined the material on record and given a thoughtful consideration to the
arguments advanced before us. A perusal of the impugned order passed by the State
Commission reveals that they first dealt with the issue, whether the amounts sent by the OP to
the complainant had been accepted as full and final settlement or under protest. The State
Commission reached the conclusion that in the absence of any document saying that the said
amount was accepted as full and final settlement, the version of the OP could not be believed and
the District Forum was right in upholding that the claim amount was not accepted as full and
final settlement.
6.
In so far as the quantum of compensation is concerned, the complainant had themselves
given an estimate of `2,48,634/- including `66,746/- as labour charges. It is born out from the
report of the surveyor however, that he made 5 visits to the premises in question before making
his report, and the physical quantity of ACC sheets etc. replaced was checked in the presence of
Mr. Seshadri, AGM of the company. After taking into account the cost of the material, the
labour charges, etc. the surveyor reached the conclusion that the loss assessed in the tube
division was `88,912.50 and that for the flat division was `21,164.38ps. and hence the total loss
was calculated to be `1,10,077/- against an estimate of `2,48,634/- provided by the
complainant. The surveyor has also brought out the factum of under-insurance in this case and
came out with a figure of 51.9.% under-insurance for tube division and 76.8% of underinsurance for flat division. After accounting for these factors and deducting `10,000/- for excess,
the final amount of `37,677/- was calculated. It is very clear from this report that the same is
based on sound reasoning and the complainant/petitioner has not been able to bring out any
deficiency or inconsistency in the said report. In the document issued by the Insurance Institute
of India, it has been provided that while allowing claims in Fire Insurance Claim, the factum of
under-insurance has to be accounted for on pro-rata average basis.
7.
Based on the discussion above, it is held that the order passed by the State Commission
does not suffer from any illegality, infirmity, irregularity or jurisdictional error and does not call
for any interference. The order passed by the State Commission is, therefore, upheld. The
revision petition is ordered to be dismissed with no order as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3362 OF 2013
(From order dated 07.03.2012 in First Appeal No. 66 of 2002 of the State Consumer Disputes
Redressal Commission, Bihar, Patna)
WITH IA/5979/2013 IA/5980/2013 (STAY, CONDONATION OF DELAY)
1.
The Bihar State Electricity Board (Known as North Bihar Power Distribution Co. Ltd.)
Through the Chief Engineer (Commercial), Vidyut Bhawan, Bailey Road, Patna.
2.
The Executive Engineer (Supply) Bihar State Electricity Board, (Known as North Bihar
Power Distribution Co. Ltd.) Power House, Begusarai, Bihar.
3.
The Assistant Engineer (Supply) Bihar State Electricity Board, (Known as North Bihar
Power Distribution Co. Ltd.) Power House, Begusarai, Bihar.
4.
The Assistant Engineer or Junior Engineer (Supply) Bihar State Electricity Board, (Known
as North Bihar Power Distribution Co. Ltd.) Power House, Begusarai, Bihar.
… Petitioners
Versus
Smt. Gayatri Devi W/o Sitaram Poodar, Mohalla Station Road, Begusarai, Bihar.
… Respondent
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. Mohit Kumar Shah, Advocate
Pronounced on 28th October, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The Petition has been filed by the Petitioner, Bihar state Electricity Board, before this
Commission. The Petition is filed against the impugned order passed by the State Consumer
Disputes Redressal Commission, Bihar, Patna, (in short, ‘State Commission’) in Appeal No.
66/2002. The State Commission dismissed the Appeal and upheld the order of the District
Consumer Disputes Redressal Forum, Begusarai, Bihar (in short, ‘District Forum’) in
Complaint Case No. 29/1999.
2.
Brief facts of this case ; complainant Smt. Gayatri Devi, who was running her flour Mill at
Begusarai, obtained electrical connection from the OP- Bihar State Electricity Board, under
minimum guarantee scheme. Accordingly, it was an obligation of Board to supply electricity
for a particular period of time without any break, but the Board failed to supply continued
electricity and therefore, the Board is not legally authorized to charge electrical consumption
bill on the basis of minimum guarantee tariff. But officials of the OP had issued inflated
amount of the bills, on the basis of minimum guarantee charges, as well as in respect of fuel
charges, which were not permissible under the law. Therefore, alleging deficiency in service
the complainant filed a complaint before District Forum.
3.
The District Forum after recording the evidence and on verification of several documents,
concluded that the transformer was defective which had not been supplying electricity
regularly, the bill was for the energy charge for a period commencing from 1996 to 1998.
The District Forum partly allowed the complaint and directed the OP to provide revised
electric bills to the Complainant for actual consumption and the fuel surcharge is also to be
revised on the basis of Minimum Guarantee Charges. The fuel surcharge is also to be
revised on the basis of actual consumption charges and that as per the revised electric bill,
the line should be restored immediately.
4. Against the order of District Forum, OP preferred an appeal No. 66 of 2002 before State
Commission. The State Commission dismissed the appeal.
5.
Aggrieved by the order of State Commission , OP filed this revision petition.
6.
There is a delay of 92 days, in filling this Revision Petition. The Petitioner filed an
application for condonation of delay and explained the reasons for the delay, as follows:
1.
“The receipt of the copy of the impugned order was not brought to the
knowledge of the official concerned of the Revision Petitioner who on account of
being on leave during the time period when a copy of the impugned order was
received and thereafter, could not bona fide takes necessary action of time.
2.
Subsequently the Counsel for Revision Petitioner in bona fide belief that the
copy of the impugned order was yet to be received by the Revision Petitioner
applied for the same and received the same on 07.05.2013.
3.
Upon receipt of the copy of the impugned order, the Counsel for the Revision
Petitioner came to know that a copy of the Order had already been sent directly
to the office of the Revision Petitioner on 03.04.2013.
We are not satisfied with such vague and evasive reasons for such huge delay in filing this
Revision Petition. It is well settled by various judgments of Hon’ble Supreme Court and this
Commission that the expression ‘sufficient cause’ cannot be erased from Section 5 of the
Limitation Act by adopting excessive liberal approach which would defeat the very purpose
of Section 5 of Limitation Act.
In the Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. and
Anr. 2012 STPL (Web) 132 (SC), Hon’ble Supreme Court was pleased to hold:
“13. 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. 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.
Accordingly, the appeals are liable to be dismissed on the ground of delay.”
We also, place reliance upon the following judgments:Anshul Aggarwal V. New Okhla Industrial Development Authority, IV (2011)
CPJ 63 (SC),
R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)-I (2009)
SLT 701-2009 (2) Scale 108 and
Ram Lal and Others V. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361.
Furthermore, the C.P. Act envisages summary procedure where special period is mentioned
for disposing of appeals and revision petitions. This Commission cannot adopt excessive
liberal approach, which would defeat the very purpose of the C.P. Act.
7.
We now, assess the merits. We have perused the evidence on record and findings of both
fora below. The Complainant approached the Chairman of the electricity board, and the
local officials of the board at Begusarai. But, on 08.12.1999, OP disconnected electricity
line and meter was also taken away by the officials of the Board, on 01.02.2000. There was
consumption of 236 and 584 units for the Month of October and November, 1999,
respectively, but OP supplied bill under minimum guarantee formula for 700 units, for each
month.
8.
We further place reliance on the judgments of the Hon’ble Supreme Court in Civil Appeal
no. 2247 of 2001 in the case of M/S K.D. Industries, etc., v/s Bihar State Electricity Board
and M/S Bajaj Petro Impex (P) Ltd. (2001) 4 SCC 210, which are not applicable to this case.
9.
Reliance is also placed on the judgment of Patna High Court’s Division Bench in similar
case, reported in M/s Pulak Enterprises 2001 (3) PLJR,552, wherein it held;
“Electricity (Supply) Act, 1948-Section 49 Clause 16.10 of tariff
Notification – fixing rate of fuel surcharge under clause 16.10 is different
from fixing the tariff under section 49- even though fuel surcharge do not
stand on part though rates of consumption charges are based on objective
materials, there is enough scope for flexibility in fixing the rates –
fixation of fuel surcharge involves arithmetical accounting and there is
no scope for exercise of any discretion of flexibility.”
10. Therefore, we find no ground to interfere with the concurrent findings of the both fora
below. The instant Revision Petition is devoid of merit and the same is, therefore,
dismissed both on the grounds of delay as well as on merits. No order as to costs.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(Dr. S.M. KANTIKAR)
MEMBER
Mss/12
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 355 OF 2013
(Against the order dated 11.03.2013 in Complainant No. 49/03 of the State Commission, Delhi)
Delhi Development Authority Through its Vice Chairman Vikas Sadan, I.N.A. New Delhi
...... Appellant
Versus
Pramod Pal Singh S/o Shri Lajinder Singh, C-66, Malviya Nagar, New Delhi- 110017
….Respondent
FIRST APPEAL NO. 386 OF 2013
(Against the order dated 11.03.2013 in Complainant No. 49/03 of the State Commission, Delhi)
Shri Pramod Pal Singh S/o Shri Lajinder Singh, C-66, Malviya Nagar, New Delhi- 110017
...... Appellant
Versus
Vice-Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi
….Respondent
BEFORE:
HON’BLE MR. JUSTICE D.K.JAIN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Mr. Pramod Pal Singh
: Mr. Lajinder Singh,
Authorised Representative
For Delhi Development Authority : Ms. Arti Bansal, Advocate
PRONOUNCED ON: 28th October, 2013.
ORDER
PER MR. VINAY KUMAR, MEMBER
These are two cross appeals, one filed by the Complainant/Pramod Pal Singh and the
other by the OP/Delhi Development Authority. The case of the complainant before the State
Commission was that he had purchased a flat from the DDA in 1996. Despite paying
Rs.3,98,100/- as against the total sale consideration of Rs.3,36,840/- during 1996 itself,
possession of the flat, in a habitable condition, was not given to him. As per the Consumer
Complaint filed before the State Commission—
“6. That these units are inhabitable due to the lack of basic amenities and in spite
of the complainant writing to the opposite party for the status of the basic amenities
available on 12.2.96, 25.1.97, 8.3.97, 8.4.97, 2.6.97, 4-10.97, 31.8.2000,
31.10.2000, 7.3.2001, 17.9.2001, 1.10.2001, 20.12.2001 and 25.2.2002 besides
visiting their offices a number of times but the opposite party has indulged in
befooling the complainant that these are available where in none of these is
available at site and all the houses are in a depleted stage devoid of even their
doors, fittings etc. as has been conveyed by the complainant to the opposite party
on 21.1.2002 by paying a visit to the site and the same has not been rebutted by the
opposite party. Complainant has visited the house for the last six years but there is
no development whatsoever for all these years.”
He therefore, sought the following relief—
“1. That the complainant be awarded Rs.10000/- per month towards loss suffered
by him w.e.f. 1.2.96 till the habitable property in question is handed over to him. This
comes to Rs.710000/- on 31.12.2002.
2. That Rs.20000/- be awarded as costs of correspondence and visits to the opposite
party for all these years.
3. That excess amount recovered/paid by opposite party be refunded with 24% p.a.
interest thereon till payment to the complainant.
4. That any excess stamp duty increase w e f 1.2.96 shall be on account of opposite
party as this delay is solely on account of the opposite party.
5. That Rs.1 lakh be awarded towards mental torture and harassment suffered all
these years by the complainant in the hands of the opposite party.
6. Rs 5000 towards the cost of this case.”
2.
The State Commission allowed the complaint and awarded compensation of Rs 3 lakhs,
observing that—
“The defects which have been pointed out by the complainant in the flat
allotted to him are substantial and cannot be said to be minor or
cosmetic. Obviously, by the action of the DDA, the complainant could not take the
possession of the flat in question on account of the callous and inapt attitude of the
officers of the DDA leading to the complainant to reside in the rented house. The
complainant is deprived of possession of the house w.e.f. 1.2.96 and till today, the
property in question, has not been made habitable by the callous attitude of
the DDA.The complainant has claimed a loss of Rs.7,10,000/- upto 31.12.02 and
thereafter Rs.10,000/- p.m. interest thereon and also Rs. One lac as compensation
for the entire relief, we quantify the amount of damages as compensation for all
counts as Rs.Three lacs inclusive of the litigation charges.”
3.
We have carefully considered the records submitted by the two sides in their respective
appeals. Ms. Arti Bansal, Advocate has been heard on behalf of the DDA and Mr Lajinder Singh,
the Authorised Representative, on behalf of the complainant.
4.
The above order is assailed in the appeal filed by the complainant (FA/386/2013) primarily
on the ground that “the impugned order is totally silent with the possession while the same
continued to be main relief prayed in the complaint and reiterated in the interim application
dated 13.9.2005. The appellant has thus been denied the main relief of possession of the property
in “property circumstances” in the right earnest inspite of findings in his favour.” In this
context, a perusal of the impugned order does show that in Para 11 thereof, the State
Commission has given a categorical finding of fact that the defects pointed out by the
complainant in the flat allotted to him are substantial and cannot be said to be minor or cosmetic.
Yet, the direction given to the OP/DDA has been limited to paying a compensation of Rs.3 lakhs
with interest.
5.
Even during the course of arguments before this Commission, photographs of the
concerned structure were presented on behalf of the appellant/complainant showing its present
physical status. We were satisfied that the flat offered to the complainant was, prima facie, not
habitable. However, learned counsel for the DDA stated that the flats are habitable. We were not
satisfied with the statement made by the counsel. Therefore, in order to verify whether the flat is
habitable or not, we appointed Mr. Gauhar Mirza, Advocate to go and inspect the flat in question
as well as the building in which the flat is located and to make his report.
6.
The report received from Mr Gauhar Mirza on 10.10 2013 has been considered. On the
findings, it also contains supporting photographic evidence. The report clearly brings out that the
structure has plaster cracks in the front and some windows have no glasses. The kitchen, the
electricity panel on the staircase, the toilet and the switch box have no wiring. Several doors have
no knobs on them. The photographs show that the tiles are in a highly damaged state and external
plaster is falling apart in several places. Learned counsel for the DDA fairly conceded that the
defects brought out in the report of the Court Commissioner, Mr Gauhar Mirza, will have to be
rectified, before the flat can be considered habitable.
7.
The appeal filed by the complainant also raises certain issues alleging violation of norms of
construction by a neighbouring allottee. It is evident, that these issues fall within the statutory
domain of the concerned authorities. They are not open to consideration in a complaint under the
Consumer Protection Act, 1986 alleging deficiency in the service rendered to the Complainant.
The State Commission has therefore rightly refrained from giving any directions in relation to
them.
8.
In the light of the details considered above, the appeal of the Complainant (FA/386/2013) is
partially allowed. In addition to the relief granted by the State Commission, it is further directed
that—
a. The DDA shall restore the flat/structure allotted to the complainant to the physical
condition it was in when the possession thereof was offered to the complainant in 2004.
In particular, the defects therein, pointed out in the report of the Court Commissioner
appointed by this Commission, shall be rectified. Such rectification/restoration shall be
done by the DDA at its own cost.
b. After rectification/restoration as above, possession of the flat shall be handed over to the
complainant within three months from the date of this order.
c. On other issues raised in the appeal, liberty is reserved for the complainant to seek
appropriate remedy as per law.
9.
The appeal of the DDA (FA/355/2013) is dismissed for want of merit.
…..…………….Sd/-…….……
(D. K. JAIN, J.)
PRESIDENT
…..…………Sd/-….…….……
(VINEETA RAI)
MEMBER
…..…………Sd/-….…….……
(VINAY KUMAR)
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3411 OF 2013
(From order dated 27.02.2013 in First Appeal No. 163 of 2012
of the State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram)
WITH IA/6073/2013 IA/6074/2013 (AD-INTERIM EX-PARTE, CONDONATION OF
DELAY)
1.
Secretary, Kerala State
Thiruvananthapuram, Kerala
Electricity
Board,
Vyudyuthi
Bhavanam,
Pattom,
2.
The Assistant Engineer, Kerala State Electricity Board, Electrical Section, Kasaragod,
Kerala
… Petitioners
Versus
The Manager, M/S Kallarakal Maharani Gold, Super Market, Kasaragod, Kerala
… Respondent
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. M.T. George, Advocate
Pronounced on 30th October, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The present Revision Petition is filed by the Petitioner, under Section 21(b) of the Consumer
Protection Act, 1986 against the Judgment dated 27.02.2013 passed by the Kerala State
Consumer Disputes Redressal Commission, (in short, ‘State Commission’)
Thiruvananthapuram, Kerala, in Appeal No. 163/2012, whereby the Hon’ble State
Commission dismissed the Appeal filed by the Petitioners. The State Commission passed
the order against the judgment dated 26.08.2011 passed by the District Consumer Disputes
Redressal Forum, (in short, ‘District Forum’) Kasargod in Consumer Complaint No.
159/2010, where the District Forum allowed the complaint filed by the Respondent and
cancelled the short assessment bill dated 11.05.2009 for Rs.5,33,954/- for the period from
10/2003 to 2/2009 and directed the Petitioners to issue a revised bill for the period
commencing from 2/2006 to 2/2009.
2.
The Complainant, Manager, M/s Kallarakal, was running a jewellery shop and was a
consumer of Kerala State Electricity Board, (in short, ‘KSEB’) Kasaragod, having consumer
no. 6688012487. He was regularly remitting the consumption charge bill, issued by OP. OP2 issued a letter stating that inspection of Anti-Power Theft Squad (APTS), on 25.03.2009,
revealed that one of the meter was not functioning and the consumption was not correctly
recorded. Hence, on 5/5/2009, OP issued a bill in the sum of Rs.5,33,954/-. The OP also
stated in the letter that there was a deficit recording of 23% of the consumption; hence, the
Complainant was bound to remit 30% of consumption more, with effect from 10/02/2003.
The last date of payment for the bill was on or before, 09.06.2009. Since, it was a huge
amount, the Complainant approached the Minister of Electricity and got installment facility.
The Complainant also approached Consumer Grievances Redressal Forum, (in short,
‘CGRF’) Kozhikode, which rejected his complaint. Complainant contended that OP-2 did
not comply with provisions of Section 126 of Indian Electricity Act, and no provisional
assessment notice was issued by OP to the Complainant and the inspection was not
conducted in the presence of the Complainant. The allegation that one phase of the meter
was not working due to non-removal of insulation from the wire is not correct. Consumer
cannot be penalized for the negligence that occurred on the part of the officials of the OPs.
As per the conditions of supply of Electricity Act, OPs can claim 6 months consumption
charges as an average, after rectifying the defects. But in the impugned bill, the assessment
is from 10/2003, onwards. Moreover, the OPs cannot claim more than 2 years’ arrears.
Hence, the complainant stated that the OPs have violated all the provisions. Since the
Complainant is running a shop he was compelled to remit Rs.2,59,286/- as per the order of
the Minister, to avoid disconnection. By issuing a bill for an exorbitant sum, in violation of
rules, the OPs have committed deficiency in service. Hence, a complaint No.159/2010, was
filed before District Forum seeking cancellation of the bill and for refund of the amount,
already paid.
3.
The District Forum partly allowed the complaint and directed the OPs to issue revised bill
for short assessment from 2/2006 to 2/2009 and further directed OPs to adjust Rs.2,59,286/already paid by the Complainant in that bill. Permission was granted to recover the balance
amount, if any, without interest or surcharge in 10 monthly installments.
4.
Hence, aggrieved by the order of the District Forum, the OP preferred an Appeal before the
State Commission. The State Commission observed that the only question that arises for
consideration is whether the OPs are entitled to issue short assessment bill for the period
from 10/2003 to 2/2009, on the basis of KSEB Terms and Conditions of supply 2005. The
said Terms and Conditions came into force with effect from 01.02.2006. Till that date there
was no provision permitting the KSEB to issue short assessment bill for that portion of the
energy that was not being recorded due to no fault of the consumers. Hence, the provision
has no retrospective effect. Hence, the backdated bill from 10/2003 was wrong.
Accordingly, the State Commission dismissed the Appeal and allowed the Complaint.
5.
Against the order of State Commission, the OP filed this Revision Petition.
6.
We have heard Shri M. T. Gorge, Counsel for petitioner, on the point of delay in filing this
revision and on merit.
7.
There is a delay of 71 days in filling this Revision Petition. The Petitioner filed an
application for condonation of delay and explained the reasons for the delay, as follows:
“ That the delay occurred in the following circumstances. That he certified
copy of the Impugned Order was issued to the Petitioner on 18.04.2013 and
thereafter the Petitioner sent the case papers to its Legal Department for
ascertaining whether it is a fit case to be agitated before this Hon’ble Commission
be filling a Revision Petition. The petitioner received the Legal Opinion certifying
that this is a fit case for filling Revision Petition and thereafter the case papers
were sent to the office of the Secretary for obtaining sanction for filing the Revision
Petition. The necessary sanction could be obtained only on 25th June, 2013.
Thereafter the case papers were sent to the Petitioners Counsel at New Delhi. The
Counsel received the same on 15.07.2013. The case records received by the
Counsel for the Petitioner some of the relevant documents were not available in
the case records. The Counsel requested the Officer in charge to furnish the
documents and the same were received in the second week of September, 2013.
Thereafter, the Counsel for the Petitioner immediately prepared the Revision
Petition and the same is being filed today. However, in this manner there occurred
a delay of 71 days in filing the Revision Petition. The said delay has occurred due
to administrative reasons and not due to any laches or negligence on the part of
the Petitioner.”
We are not satisfied with such vague and evasive reasons for such huge delay, in filing
this revision. It is well settled by various judgments of Hon’ble Supreme Court and this
Commission that condoning such delay will defeat the very purpose of Consumer Protection
Act.
In case of the Chief Post Master General & Ors. Vs. Living Media India Ltd. and Anr.
2012 STPL (Web) 132 (SC), Hon’ble Supreme Court was pleased to hold:
“13.
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. 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.
Accordingly, the appeals are liable to be dismissed on the ground of delay.”
In another judgment Anshul Aggarwal V. New Okhla Industrial Development Authority,
IV (2011) CPJ 63 (SC), where it was held 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”.
The following judgments also support our view,
R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)-I (2009)
SLT 701-2009 (2) Scale 108 and
Ram Lal and Others V. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361.
Furthermore, the C.P. Act envisages summary procedure where special period is
mentioned for disposing of appeals and revision petitions. This Commission cannot adopt
excessive liberal approach, which would defeat the very purpose of the C.P. Act.
8.
We have perused evidence on record. The OP’s Anti-Power Theft Squad did not find any
tampering with the energy meter, OP issued a short assessment bill because the ‘R’ phase of
the CT Meter at the premises of the Complainant was not seen recording energy. It was due
to non-removal of varnish insulation from the wire connecting the current transformer. It
was the duty of the officers of the OPs to remove the varnish insulation before connecting
that wire to the phase of the meter. Therefore, there was deficit recording of energy and no
fault on the part of the Complainants. The OPs resisted the claim of the Complainant on
several grounds. The complainant remitted Rs.2,59,286/- to avoid electricity disconnection.
Also, as per High Court’s directions the Complainant approached CGRF of OP. But, CGRF
rejected his request.
9.
Therefore, we are of considered view that, the OPs have committed deficiency of service
while providing the connection. There is no fault of the Complainant for which he should
suffer unnecessarily. The OPs were not vigilant while providing the connection and for no
fault of the Complainant, one phase of the meter was not recording consumption of energy,
from the very inception.
10. Accordingly, we dismiss, this Revision Petition, both on the ground of delay as well as on
merits.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(Dr. S.M. KANTIKAR)
MEMBER
Mss/19
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1947 OF 2008
(From the order dated 30.7.2007 in Appeal No. 863/2006 of the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur)
1. National Insurance Co. Ltd. Through M.D./Chairman, Regd. Office 3, Middleton Street
Calcutta.
2. National Insurance Co. Ltd. Through the Branch Manager Nagaur (Rajasthan) Through
Manager (Legal), National Insurance Co. Ltd. Regional Office “Jeevan Nidhi”, Bhawani Singh
Road, Jaipur (Rajasthan) Through its Manager National Insurance Co. Ltd. 4th Floor, Jeevan
Bharati Building, 124, Connaught Circus, New Delhi – 110001
…Petitioners/Opp. Parties
Versus
Akhtar Bano W/o Mehboob Khan R/o Sipahiyon-Ka-Mohalla, Merta-City Rajasthan
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. R.C.S. Bhadoria, Advocate
For Ms. Sonia Sharma, Advocate
For the Respondent
:Mr. Arvind Garg, Advocate
with Mehboob Khan, husband of Respondent.
PRONOUNCED ON 28th October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners against the order dated 30.7.2007
passed by the Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the
State Commission’) in Appeal No. 863/2006 – National Insurance Co. Ltd. Vs. Akhtar Bano by
which, while allowing appeal partly, order of District Forum allowing complaint was modified.
2.
Brief facts of the case are that Complainant/Respondent’s Jeep No. RJ-21/T-0884 was
insured with OP/Petitioners for a period commencing from 28.12.2003 to 27.12.2004 for
Rs.4,29,400/-. Vehicle met with an accident on 24.12.2004 and the vehicle was totally
damaged. Claim was submitted by the complainant to the OP which was repudiated. Alleging
deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted
complaint and submitted that driver of the vehicle was not having a valid driving licence at the
time of accident and prayed for dismissal of complaint. Learned District Forum after hearing
both the parties, allowed complaint and directed OP to pay a sum of Rs.4,07,930/- with interest
@ 9% p.a. and further allowed cost of Rs.1,000/- as litigation expenses. Both the parties
preferred appeal before learned State Commission and learned State Commission dismissed
appeal filed by the complainant, but partly allowed appeal filed by the OP/petitioner and amount
of compensation was reduced to Rs.3,67,137/- from Rs.4,07,930/- against which, this revision
petition has been filed along with application for condonation of delay.
3.
Heard learned Counsel for the parties and perused record.
4.
This revision petition has been filed along with application for condonation of
delay. Number of days has not been mentioned in the application, but as per office report, there
was delay of 171 days in filing revision petition.
5.
In the application for condonation of delay, petitioner submitted that copy of impugned
order was received by the petitioner on 8.8.2007 and the matter was referred to the Regional
Office of the Insurance Company at Jaipur, who further referred it to Head Office at Calcutta and
it was decided to file revision petition. Later on, file was sent to the Regional Office at New
Delhi, who marked the case to Counsel for preparation of the revision petition. During
preparation of revision petition, it was observed that certain documents were in Hindi,
which were needed to be translated in English. After receiving documents, revision petition was
prepared and sent for approval. Insurance Company inserted certain changes in the draft and
modified revision petition was sent to Insurance Company for signatures and then this revision
petition was filed. It was further submitted that there had been some delay on the part of
Insurance Company even after exercising due diligence and pursuing the matter with all
seriousness and commitment so, delay may be condoned.
6.
Perusal of application for condontion of delay reveals that no date has been given in the
application that when the file was sent to the Regional Office, then to Head Office, then back to
Regional Office and then to the Counsel for preparation of revision petition and then to
Insurance Company for signing revision petition. In the absence of any date for aforesaid
purposes in the application for condonation of delay, it cannot be ascertained at what level
inordinate delay was caused, but admittedly there is delay of 171 days in filing revision
petition. No reasonable explanation has been given for condonation of inordinate delay of 171
days. Merely by mentioning that file was moved from one office to another office, inordinate
delay of 171 days cannot be condoned.
7.
As there is inordinate delay of 171 days, this delay cannot be condoned in the light of the
following judgment passed by the Hon’ble Apex Court.
8.
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.”
9.
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.”
10.
Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;
“We have considered the respective submissions. The law of
limitation is founded on public policy. The legislature does not
prescribe limitation with the object of destroying the rights of the
parties but to ensure that they do not resort to dilatory tactics
and seek remedy without delay. The idea is that every legal remedy
must be kept alive for a period fixed by the legislature. To put it
differently, the law of limitation prescribes a period within which
legal remedy can be availed for redress of the legal injury. At the
same time, the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the remedy
within the stipulated time.”
11.
Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living
Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government
department and further observed that condonation of delay is an exception and should not be
used as an anticipated benefit for the Government Departments.
12.
Hon’ble Apex
Court
in
2012
(2)
CPC
3
(SC)
–
Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under:
“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.
As there is no justification for condonation of inordinate delay of 171 days, application
for condonation of delay is liable to be dismissed.
14.
As application for condonation of delay has been dismissed and revision petition is barred
by limitation, revision petition is liable to be dismissed on the count of delay alone and we need
not to decide the matter on merits.
15. Consequently, revision petition filed by the petitioner is dismissed as barred by limitation
with no order to costs.
……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3025-3027 OF 2011
(Against the Order dated 23.06.2006 in First Appeal No. 1311, 1312 and 1313 of 2006 of the
State Commission, Karnataka) In Appeal No 1311/2006
N. Manohar Reddy 424,6th Block, 80 Feet Road, Koramangala, Bangalore
...Petitioner
Versus
1. Happy Farm and Resorts, 24/1 Race Course Road, Bangalore- 560001 Rep by its M.D.
Panchalaiah
2. V Panchalaiah, Managing Director, Happy Farms and Resorts, #24/1, Race Course Road,
Bangalore – 560001
3. C.D Verghese, S/o Devsay C, #5,12th Floor, 1 Stage, Indranagar, Bangalore- 560038
.... Respondents
In Appeal No. 1312
N. Manohar Reddy 424,6th Block, 80 Feet Road, Koramangala, Bangalore
...Petitioner
Versus
1. Happy Farm and Resorts, 24/1 Race Course Road, Bangalore- 560001 Rep by its M.D.
Panchalaiah
2. V Panchalaiah, Managing Director, Happy Farms and Resorts, #24/1, Race Course Road,
Bangalore – 560001
3. Latha Radhakrishnan, S/o Radhakrishnan, E-28/7, DRDO Complex, G. Raman Nagar Post,
Bangalore – 560093
… Respondents
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Revision petitions No. 3025-3027 of 2011 arises out of common order dated 23.6.2006,
passed in First Appeals No.1311-1313 of 2006 by State Consumer Disputes Redressal
Commission, Karnataka(for short, ‘State Commission’) whereas, Revision Petition No.3028 of
2011 arise out of order dated 16.8.2007, passed in First Appeal No.1692 of 2007 by the State
Commission. Since, common question of facts and law are involved in these petitions, as such
above noted petitions are being disposed of by this common order.
2. Complainants filed consumer complaints against the Petitioner on the allegations that
attracted by the Housing Scheme launched by the petitioner, they wanted to purchase plots for
which certain amount was paid by way of consideration. However, there was no development of
any of the plots, so they requested the Petitioner/O.P. No.2 to refund the amounts paid by them.
Since, petitioner fails to refund the amount, complainants filed consumer complaints seeking
refund of amounts alongwith interest.
3. Before Bangalore Urban District Consumer Disputes Redressal Forum(for short, ‘District
Forum’), petitioner entered appearance through its counsel and sought time to file its version.
Inspite of various opportunities granted to the petitioner, he did not place his version before the
District Forum and as such District Forum proceeded in the absence of the version of the
petitioner.
4. After considering the evidence produced by the complainants, District Forum, vide order
dated 20.7.2004, allowed the complaint of the complainants.
5. Being aggrieved by the order of District Forum, petitioner filed appeals before the State
Commission. There was delay of 631 days in filing of the Appeals No.1311-1313 of 2006,
whereas there was delay of 40 days in filing of Appeal No.1692 of 2007, before the State
Commission.
6. State Commission, vide impugned orders dated 23.06.2006 and 17.7.2007 respectively,
dismissed all the appeals.
7. Being aggrieved by the impugned order, petitioner has filed present revision petitions.
Alongwith these petitions, applications seeking condonation of delay have also been filed.
However, no period of delay has been mentioned at all.
8. Be that as it may, as per office report there is delay of 1,817 days in filing of the present
revision petitions.
9. Arguments on applications for condonation of delay have been heard. Petitioner has also
placed on record written arguments and has also relied upon certain judgments.
10. We have perused the entire record.
11. It has been contended by learned counsel for the petitioner that after passing of the impugned
order, petitioner filed Writ Petition in Karnataka High Court, which was ultimately withdrawn
on 16.06.2011. Thereafter, present petitions have been filed Under these circumstances, the
period which was spent in the High Court in pursing the Writ Petition,should be condoned in
view of Section 14 of the Limitation Act.
12. Grounds on which condonation of delay in (RPs No.3025-3027 of 2011) has been sought are
reproduced as under;
“3. It is submitted that after the order dated 26.6.2006, passed by the
Hon’ble State Commission, the petitioners were advised to
approach the Hon’ble High Court. In pursuance of this, the
petitioners filed the Writ Petition No. 10192/2006 under Article
226 and Article 227 of the constitution for quashing the order on
24.07.2006. Interim order was granted.
4. It is humbly submitted that the Hon’ble High Court, by its order dated
16.6.2011, disposed of the Writ Petition with liberty to approach the
proper forum and seek alternative remedy under Consumer Protection
Act,1986. The Hon’ble High court in its order dated 16.6.2011 also
observed that it shall be open to the petitioners to seek condonation of
delay for the period during which the instant Writ Petition remained
pending before the Hon’ble High Court.
5. The petitioner submits that the petitioner has filed the Writ Petition
which was pending from 24.07.2006 to 16.06.2011. The Petitioner was
bonafide pursuing his writ petition with due diligence and therefore time
taken for pursuing another remedy in a wrong forum be excluded while
computing the period of limitation.
5. It is therefore humbly submitted that the delay in filing the revision
petition is neither intentional nor deliberate but because of the
reasons as explained above.
PRAYER:-
In the circumstances, it is prayed that this Hon’ble Commission may be
pleased to:-
a) Condone the delay of days in filing revision petition to appeal against
the judgment and order dated 23.06.2006 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore in Appeal No.
131,1312, 1313/2008”.
13. Relevant provision of Section 14 of the Limitation Act, read as under ;
“S.14. Exclusion of time of proceeding bona fide in court without
jurisdiction -- (1) In computing the period of limitation for any suit the
time during which the plaintiff has been prosecuting with due diligence
another civil proceeding, whether in a court of first instance or of appeal
or revision, against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time
during which the applicant has been prosecuting with due diligence
another civil proceeding, whether in a court of first instance or of appeal
or revision, against the same party for the same relief shall be excluded,
where such proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is unable to
entertain it”.
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
14. Apex Court while interpreting Section 14 of the Limitation Act, in Ghasi Ram & Ors. Vs.
Chait Ram Saini & Ors., (1998) 6 SCC 200 has held;
“5. A perusal of the aforesaid provision would show that in order to get the
benefit of sub-section (1) of Section 14 of the Act, the party seeking its
benefit must fulfill the following four conditions :
(1)
(2)
The plaintiff who filed the suit had been prosecuting another civil
proceeding with due diligence.
The earlier proceeding resorted to by the plaintiff was based on the
same cause of action.
(3)
The former proceeding was prosecuted by the plaintiff in good faith in a
court.
(4)
The court, due to the defect of jurisdiction or other cause of a like
nature, was unable to entertain such proceeding.”
15. Thus, it is well settled that the real purpose of Section 14 of the Limitation Act,
is to extend the period of limitation prescribed by adding the period during which the
suit or other proceeding has been prosecuted with due diligence and in good faith in a
Court which either on account of defect of jurisdiction or other cause of a like nature,
was unable to entertain it.
16. This section does not help a person who is guilty of negligence, laches or inaction. The test
of good faith is real and bonafide belief of the plaintiff that he could institute the proceedings in
the Court where he first instituted it.
17. The question material for the purposes of Section 14 of the Limitation Act is, whether given
due care and attention, the plaintiff could have acted otherwise than he did. The burden of
proving his case within the section lies on the plaintiff. Where he fails to satisfy this initial
burden, the burden does not shift to the defendant to show the contrary.
18.
In Suppiah
Chettiar
Vs.
Chinnathurai,
AIR
1957
Madras
216,
where
a
proceeding under the workmen’s Compensation Act was withdrawn voluntarily by an
applicant with the permission of the Commissioner and subsequently a civil suit was brought, it
was held that;
“Section 14 of the Limitation Act could not be invoked to save the suit from
the bar of limitation”.
19. In the present case, petitioner while pursuing his Writ Petition in the High Court for about 5
years, all of a sudden pleaded “that the Petitioner has an efficacious alternative remedy under
the provisions of Consumer Protection Act, 1986. As such, it is submitted that the Petitioner may
be relegated to the alternative remedy”.
20. Petitioner has nowhere pleaded at all that he was pursuing the Writ remedy with due
diligence and how after pursuing the Writ remedy for a long period of 5 years, he suddenly woke
up. There is no explanation to this effect at all. Thus, apparently the petitioner is not entitled to
the benefit of Section 14 of the Limitation Act.
21. In K. Rajiv and M/s. Kamla Builders and others, Civil Appeal No. 11431-11434 of 2011, Apex
Court observed;
“The question whether the High Court can directly entertain the writ petition
under Article 226 of the Constitution against the order passed by the State
Commission ignoring that the aggrieved party is entitled to avail statutory
remedy of appeal under Section 19 of the Act was recently considered in Civil
Appeal No.10706 of 2011 Nivedita Sharma vs. Cellular Operators Association of
India and others decided on 07.12.2011 and answered in negative. The relevant
portions of that order are extracted below:-
There cannot be any dispute that the power of the High Courts to issue
directions, orders or writs including writs in the
nature of habeas
corpus, certiorari, mandamus, quo warranto and prohibition under Article 226
of the Constitution is a basic feature of the Constitution and cannot be curtailed
by parliamentary legislation- L. Chandra Kumar v. Union of India (1997) 3 SCC
261. However, it is one thing to say that
in exercise of the power
vested in it under Article 226 of the Constitution, the High Court can
entertain a writ petition against any order passed by or action taken by the
State
and/or
its
agency/instrumentality or any public authority or order passed by a qua
si-judicial body / authority, and it is an altogether different thing to say that
each and every petition filed under Article 226 of the Constitution must be
entertained by the High Court as a matter of course ignoring the fact that the
aggrieved person has an effective alternative remedy. Rather, it is settled law that
when a statutory forum is created by law for redressal of grievances, a writ
petition should not be entertained ignoring the statutory dispensation.
In Thansingh Nathmal v. Superintendent of Taxes AIR 964 SC 1419, this
Court adverted to the rule of self-imposed restraint that writ petition will not be
entertained if an effective remedy is available to the aggrieved person and
observed:
"The High Court does not therefore act as a court
of appeal against the decision of a court or tribunal,
to correct errors of fact, and does not by assuming
jurisdiction under Article 226 trench upon an alternative
remedy provided by statute for obtaining relief. Where
it is open to the aggrieved petitioner to move another
tribunal, or even itself in another jurisdiction for
obtaining redress in the manner provided by a statute, the
High
Court normally will not permit
by
entertaining a petition under Article 226 of the
Constitution the machinery created under the statute to be
bypassed, and will leave the party applying to it to seek
resort to the machinery so set up."
In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, this court
observed ;
"It is now well recognized that where a right or Liability
is created by a statute which gives a special remedy for
enforcing it, the remedy provided by that statute only must be
availed of.This rule was stated with great clarity by Willes, J.
in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS
336 : 141 ER 486 in the following passage:
'... There are three classes of cases in which a liability may be
established
founded
upon a
statute
............
But
there is a third class,viz.,
where
a liability
not existing at common law is created by statute which at the
same time gives a special and particular remedy for enforcing
it. The remedy provided by the statute must be followed, and it
is not competent to the party to pursue the course applicable to
cases of the second class. The form given by the statute must be
adopted and adhered to.'
The rule laid down in this passage was approved by the House of
Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 :
(1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy
Council in Attorney General of Trinidad and Tobago v. Gordon Grant and
Co. Ltd 1935 AC 532 and Secy. of State v. Mask and Co. (1939-40) 67 IA
222 : AIR 1940 PC 105. It has also been held to be equally applicable to
enforcement
of rights, and has
been followed
by
this
Court throughout.
The High Court
was
therefore justified in
dismissing the writ petitions in limine."
In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, B.P. Jeevan Reddy,
J. (speaking for the majority of the larger Bench) observed:
"So far as the jurisdiction of the High Court under Article 226 or for
that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar
and curtail these remedies. It is, however, equally obvious
that while exercising the power under Article 226/Article 32, the
Court would certainly take note of the legislative intent
manifested in the provisions of the Act and would exercise their
jurisdiction consistent with the provisions of the enactment."
In the judgments relied
upon by Shri Vaidyanathan,
which, by and large, reiterate the proposition laid down in
Baburam Prakash Chandra Maheshwari v. Antarim Zila
Parishadnow Zila Parishad, Muzaffarnagar AIR 1969 SC 556, it
has been held that an alternative remedy is not a bar to the
entertaining of writ petition filed for the enforcement of any of the
fundamental rights or where there has been a violation of the
principles of natural justice or where the order under challenge is
wholly without jurisdiction or the vires of the statute is under
challenge.
It can, thus, be said that this Court has recognised some exceptions to
the rule of alternative remedy. However, the proposition laid down in
Thansingh Nathmal v. Superintendent of Taxes (supra)and other similar
judgments
that
the
High
Court
will not entertain a
petition under Article 226 of the Constitution if an effective alternative
remedy is available to the aggrieved person or the statute
under which the action complained of has been taken itself contains a
mechanism for rederssal of grievance still hold field.
In the light of the above, we shall now consider whether the Division
Bench of the High Court committed an error by entertaining the writ
petition filed by the respondents.
The 1986 Act was enacted for better protection of the interests of
consumers by making provision for the establishment of consumer
councils and other authorities for the settlement of consumer disputes.The
object and purpose of enacting the 1986 Act is to provide for simple,
inexpensive and speedy remedy to the consumers who have grievance
against defective goods and deficient services. This benevolent piece of
legislation intended to protect a large body of consumers from
exploitation. Prior to the 1986 Act, consumers were required to approach
the Civil Court for securing justice for the wrong done to them and it is a
known fact that decision of the litigation instituted in the Civil Court
could take several years. Under the 1986 Act, the consumers are
provided
with
an
alternative,
efficacious
and
speedy remedy before consumer forums at district, state and
national level.
In Fair Air Engineers Pvt. Ltd. v. N.K. Modi (1996) 6 SCC 385,this
Court referred to the judgment in Lucknow Development Authority v.
M.K. Gupta(1994)1 SCC 243 and observed:
"Accordingly, it must be held that the provisions of the Act are
to be construed widely to give effect to the object and purpose of
the Act. It is seen that Section 3 envisages that the provisions of the
Act are in addition to and are not in derogation of any other law
in force. It is true, as rightly contended by Shri Suri, that the words
"in derogation of the Provisions of any other law for the time being
in force" would be given proper meaning and effect and if the
complaint is not stayed and the parties are not relegated to the
arbitration, the Act purports to operate in derogation of the
provisions of the Arbitration Act. Prima facie, the contention
appears to be plausible but on construction and conspectus of the
provisions of the Act we think that the contention is not well
founded. The Parliament is aware of the provisions of the
Arbitration Act and the Contract Act, 1872 and the consequential
remedy available under Section 9 of the Code of Civil Procedure,
i.e., to avail of right of civil action in a competent court of civil
jurisdiction. Nonetheless, the Act provides the additional remedy."
In Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668, this Court
observed:
"Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a
large body of consumers from exploitation. The Act provides for an alternative system of
consumer justice by summary trial. The authorities under the Act exercise quasi-judicial powers
for redressal of consumer disputes and it is one of the postulates of such a body that it should
arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in
support of its conclusion by such a forum, is too obvious to be reiterated and needs no
emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at
any rate minimizes, the chances of arbitrariness and the higher forum can
test the correctness of those reasons. Unfortunately we have not been able to find from the
impugned order any reasons in support of the conclusion that the claim of the appellant is
'unrealistic' or 'exaggerated' or 'excessive'. Loss of salary is not the sole factor which was
required to be taken into consideration.
While quantifying damages, consumer forums are required to make
an attempt to serve ends of justice so that compensation is awarded, in
an established case, which not only serves the purpose of recompensing
the individual, but which also at the same time, aims to bring about a
qualitative change in the attitude of the service provider. Indeed,
calculation of damages depends on the facts and circumstances of each
case. No hard-and-fast rule can be laid down for universal
application. While awarding compensation, a Consumer Forum has to
take into account all relevant factors and assess compensation on the
basis of accepted legal principles, on moderation. It is for the Consumer
Forum to grant compensation to the extent it finds it reasonable, fair
and proper in the facts and circumstances of a given case according
to established judicial standards where the claimant is able to establish
his charge."
Section 17(1)of the 1986 Act which outlines the jurisdiction
of the State Commission and Section 19 which provides for an appeal
against the order of the State Commission read as under:
"Section 17. Jurisdiction of the State Commission-
(1) Subject to the other provisions of this Act,the State Commission
shall have jurisdiction(a) to entertain(i) complaints where the value of the goods or services and compensation, if any, claimed
exceeds rupees twenty lakhs but does not exceed rupees one crore; and
(ii) appeals against the orders of any District Forum within the State;
and
(b) to call for the records and pass appropriate orders in any consumer dispute which is
pending before or has been decided by any District Forum within the State, where it appears
to the Stat Commission that such District Forum has exercised a jurisdiction not vested in it
by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its
jurisdiction illegally or with material irregularity.
(2) A complaint shall be instituted in a State Commission
the limits of whose jurisdiction,-
within
(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 State Commission is given or the
opposite parties who do not resides, or carry on business or have a branch
office or personally works for gain, as the case may be, acquiesce in such
institution; or
c) the cause of action, wholly or in part, arises.
Section 19. Appeals -Any person aggrieved by an order made by the State Commission in
exercise of its powers conferred by sub-clause (i) of clause(a) of section 17
may prefer an appeal against such order to the National Commission
within a period of thirty days from the date of the order in such form and
manner as may be prescribed:
Provided further that no appeal by a person, who is required to pay any amount in terms
of an order of the State Commission, shall be entertained by the National
Commission unless the appellant has deposited in the prescribed manner
fifty per cent, of the amount or rupees thirty-five thousand, whichever is
less."
A reading of the plain language of Section 17 shows that every State
Commission has the jurisdiction to entertain complaints where the value of
the goods or services and compensation, if any, claimed exceeds Rs. 20
lacs but does not exceed Rs. 1 crore. By Section 18 the provisions of Sections
12
to
14 and the Rules made thereunder, for the disposal of
complaints by the District Forum, have been made applicable for deciding
the disputes by the State Commission. 19 provides for remedy of appeal
against an order made by the State commission in exercise of its powers
under sub-clause (i) of Clause (a) of Section 17. If Sections 11, 17 and 21 of
the 1986 Act which relate to the jurisdiction of the District Forum, the State
Commission and the National Commission, there does not appear any
plausible reason to interpret the same in a manner which would frustrate the
object of legislation.
What has surprised us is that the High Court has not even referred to
Sections 17 and 19 of the 1986 Act and the law laid down in various
judgments of this Court and yet it has declared that the directions given
by the State Commission are without jurisdiction and that too by
overlooking the availability of statutory remedy of appeal to the
respondents.
By applying the ratio of the order passed in Nivedita Sharma vs. Cellular
Operators Association of India & others to the case in hand, we hold that
the Division Bench of the High Court committed serious error by
entertaining the writ petitions filed by the respondents ignoring that they
could have availed an equally efficacious remedy of filing an appeal under
Section 19 of the Act.”
22. Further, in this context, it would be pertinent to refer to a 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), in which it has observed interalia 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”.
23. Hence, in view of the above decisions of the Apex Court, the High Court ought not to
have entertained the writ petition, since petitioner had an effective alternate remedy available
under the Consumer Protection Act, 1986.
24. Now question to be seen is as to whether there are sufficient grounds for condonation of
delay.
25. It is well settled that “sufficient cause” for non- appearance in each case, is a question of fact.
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.”
26. 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.”
27. 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.”
28.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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.”
29. Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC) has 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.”
30. Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle
Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed;
“4 This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has
explained the scope of condonation of delay in a matter where the
special Courts/Tribunals have been constituted in order to provide
expeditious remedies to the person aggrieved and Consumer Protection
Act, 1986 is one of them. Therefore, this Court held that while dealing
with the application for condonation of delay in such cases the Court
must keep in mind the special period of limitation prescribed under the
statute (s).
5. In the instant case, condoning such an inordinate delay without any
sufficient cause would amount to substituting the period of limitation by
this Court in place of the period prescribed by the Legislature for filing
the special leave petition. Therefore, we do not see any cogent reason to
condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove,
we are not inclined to entertain these petitions. The same are dismissed
on the ground of delay”.
31. Under these Circumstances, act of petitioner in approaching a wrong forum, will not entitle
him to have the delay condoned. Accordingly, we find no just and sufficient cause to condone
the long delay of 1817 days in filing of the present petitions. Applications for condonation of
delay being without any merit as well having no legal basis are not maintainable.
32. Further, petitioner from day one has been conducting this litigation with sole motive of
delaying the matter. As already stated above, before the District Forum, petitioner entered
appearance through its counsel and sought time to file its version. Inpsite of various
opportunities granted to the petitioner, he did not place its versions. Under these circumstances,
the District Forum had no option but to proceed in the absence of the version of the petitioner.
33. After getting adverse findings form the District Forum, Petitioner took 631 days for filing
the appeals before the State Commission. The State Commission, rightly dismissed the appeals
of the petitioner on the ground of long delay observing as under;
“There is a delay of 631 days in filing these appeals. The reason given
by the appellant for condonation of delay is that he has not been
served with the notice issued by the DF. In order to ascertain the truth
or otherwise of the fact we called for the records. Accordingly,
records have been received.
From the records, it is found the appellant has been served
with the notice. The acknowledgement for having service the notices is
also available in the records. The advocate also filed power on behalf
of OPs 1,2 and 3 and contested the case. If that is so, the reasons
given for condonation of delay do not constitute sufficient cause. In
the result we pass the following;
ORDER
Appeals are dismissed”.
34. Thus, only motive of the petitioner is to delay the proceedings and to deprive the
respondents/complainants of the fruits of the award passed by the District Fora more than 9
years ago.
35. It is well settled that those litigants whose only motive is just to delay the proceedings and
to cause hindrances must be dealt with heavy hands.
36. 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”.
37. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal
Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
“45. We are clearly of the view that unless we ensure that wrong –doers are denied
profit or undue benefit from the frivolous litigation, it would be difficult to
control frivolous and uncalled for litigations. In order to curb uncalled
for and frivolous litigation, the Courts have to ensure that there is no
incentive or motive for uncalled for litigation. It is a matter of common
experience that court’s otherwise scarce and valuable time is consumed or
more appropriately wasted in a large number of uncalled for cases.
46. Usually the court should be cautious and extremely careful while granting exparte ad interim injunctions. The better course for the court is to give a
short notice and in some cases even dasti notice, hear both the parties and
then pass suitable biparte orders. Experience reveals that ex-parte
interim injunction orders in some cases can create havoc and getting them
vacated or modified in our existing judicial system is a
nightmare. Therefore, as a rule, the court should grant interim injunction
or stay order only after hearing the defendants or the respondents and in
case the court has to grant ex-parte injunction in exceptional cases then
while granting injunction it must record in the order that if the suit is
eventually dismissed, the plaintiff or the petitioner will have to pay full
restitution, actual or realistic costs and mesne profits.
47. If an ex-parte injunction order is granted, then in that case an endeavour should
be made to dispose of the application for injunction as expeditiously as
may be possible, preferably as soon as the defendant appears in the court.
48. It is also a matter of common experience that once an ad interim injunction is
granted, the plaintiff or the petitioner would make all efforts to ensure that
injunction continues indefinitely. The other appropriate order can be to
limit the life of the ex-parte injunction or stay order for a week or so
because in such cases the usual tendency of unnecessarily prolonging the
matters by the plaintiffs or the petitioners after obtaining ex-parte
injunction orders or stay orders may not find encouragement. We have to
dispel the common impression that a party by obtaining an injunction
based on even false averments and forged documents will tire out the true
owner and ultimately the true owner will have to give up to the wrongdoer
his legitimate profit. It is also a matter of common experience that to
achieve clandestine objects, false pleas are often taken and forged
documents are filed indiscriminately in our courts because they have
heardly any apprehension of being prosecuted for perjury by the courts or
even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC
668 this court was constrained to observe that perjury has become a way
of life in our courts.
49. It is a typical example how a litigation proceeds and continues and in the end
there is a profit for the wrongdoers.
50. Learned Amicus articulated common man’s genera
litigation in following words :
impression
about
“Make any false averment, conceal any fact, raise any plea, produce any false
document, deny any genuine document, it will successfully stall the
litigation, and in any case, delay the matter endlessly. The other party
will be coerced into a settlement which will be profitable for me and
the probability of the court ordering prosecution for perjury is less
than that of meeting with an accident while crossing the road.”
38. In view of the above discussion we are clearly of the opinion that present petitions are
nothing but gross abuse of the process of law which are required to be dismissed with punitive
costs. Accordingly, we dismiss all the above noted petitions with punitive costs of Rs.50,000/(Rupees Fifty Thousand Only) each.
39. Out of the costs imposed upon the petitioner, Rs.25,000/-(Rupees Twenty Five Thousand
only) each be paid to the each respondent/complainant by way of demand draft in their
respective names. Remaining costs of Rs.25,000/- (Rupees Twenty Five Thousand only) be
deposited by way of demand draft in the name of “Consumer Legal Aid Account” of this
Commission, within one month from today.
40. In case, petitioner fails to deposit the aforesaid costs within the prescribed period, they shall
also be liable to pay interest @ 9% p.a., till realization.
41. Costs awarded to the respondents shall be paid to them, only after expiry of the period of
appeal or revision, preferred if any.
42. List on 6.12.2013 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..………..
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2958 of 2013
(From the order dated 28.05.2012 of the Haryana State Consumer Disputes Redressal
Commission, Panchkula in Appeal no. 298 of 2011)
Smt Bala Devi Widow of Late Hawa Singh Resident of H No. 73 Village Dhandhlan Post Office
Dighal Teshil Beri District Jhajjar, Haryana
Petitioner
Versus
Metlife India Insurance Company Ltd. 1st India Palace, Near Sahara Mall Mehrauli Road,
Gurgaon, India Through its Regional Manager Ajit son of Shri Rati Ram Resident of Panna
Mulyan, Dighal District Jhajjar, Haryana
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
Pronounced on
MEMBER
Mr Rajiv Mangla, Advocate
October 2013
ORDER
REKHA GUPTA
Revision petition no. 2958 of 2013 has been filed under section 21 (b) of the Consumer
Protection Act, 1986 against the order dated 28.05.2012 of the Haryana State Consumer Disputes
Redressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 298 of 2011.
The facts of the case as gleaned from the order of the District Consumer Disputes Redressal
Forum, Jhajjar (‘the District Forum’) are that the complaint has been filed by the petitioner with
the averments that the husband of the petitioner Hawa Singh has purchased a life insurance
policy from the respondent no. 1 – Met Life Insurance Company (in short, ‘the insurance
company’) through respondent no. 2 – Ajit Singh under plan MET GROWTH for a sum of
Rs.1,20,000/- on 29.12.2008 and the petitioner being the nominee is legally entitled for the
benefits qua the policy after death of her husband on 26.03.2009 who had expired due to sudden
cardiac arrest (heart attack). It was averred that the petitioner as per the assurance submitted all
the necessary documents to the insurance company for settlement of her claim but the claim was
repudiated by the insurance company without any legal justification vide letter dated 24.11.2009.
It was averred that the claim was rejected on false grounds of concealment of true state of health
by the assured at the time of agreement and signing the proposal form and also that the insured
was suffering from ‘Pleural Effusion’ since 2007. It is averred that the repudiation is not legally
justified and the petitioner has sought payment of Rs.1,20,000/- along with interest,
compensation and litigation expenses.
The District Forum while allowing the complaint, “ordered the respondent no.1 – insurance
company to pay a sum of Rs.1,20,000/- to the petitioner along with interest @ 9% per annum
from the date of death of life assured i.e., 26.03.2009 till its actual realisation along with
Rs.2,000/- as cost of litigation which the petitioner has to bear for the present unwanted and
unwarranted litigation only due to the deficiency in service on the part of the respondent.
Accordingly, the complaint is allowed”.
Aggrieved by the order of the District Forum, the insurance company filed an appeal before
the State Commission. The State Commission came to the conclusion that “the life assured had
concealed material particular about his health. The life assured was suffering from ‘Pleural
Effusion’ disease before taking the policy. Thus life assured had certainly concealed material
particular with respect to his health. Therefore, the life assured was stated to have given in
correct history by concealing material particulars about this health and consequently secured
the policy.
The District Forum passed the impugned order by ignoring all these aspects and as such
the impugned order being an illegal one cannot be sustained.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside
and the complaint is dismissed”.
Hence, the present revision petition. Along with the present revision petition an application
for condonation of delay has been filed. In the application for condonation of delay the number
of days of delay have not been mentioned. However, as per the office report, there is a delay of
352 days. The reasons given for the delay in the application for condonation of delay are as
under:
The petitioner is an illiterate and very poor lady. She was not aware that the
unfounded impugned order can still be challenged through the revision petition before the
National Commission.
During summer vacations on 25.06.2013, the counsel noticed crying of the petitioner
widow, outside the gate of the Supreme Court. When asked, she told about this case.
Ultimately, she was told to meet with the case file next month after summer vacations.
On 04.07.2013, the petitioner widow showed the concerned file records to the
counsel, who after perusing the case file and seeing the merits, assured her to conduct her
case, for no advocate fee, before this Commission against the erred judgment of the State
Commission. So this is the day when it came to knowledge in reality to the petitioner that
a revision could be filed before the Commission.
We have heard the learned counsel for the petitioner and have gone through the records.
The only reasons given in the application for condonation of delay and also argued by the
counsel for the petitioner is that the petitioner is an illiterate and poor lady and was ignorant of
the fact that she could file the revision petition before the National Commission till the counsel
so advised her on 04.07.2013. He argued that the limitation should be counted from 04.07.2013
and not from the date of the impugned order, i.e., 28.05.2012.
The petitioner have failed to give reasons for the day-to-day delay. The petitioner has
failed to provide ‘sufficient cause’ to condone the delay of 352 days. This view is further
supported by the following authorities:
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha
Aiyar, 3rd Edition, 2005]”.
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.”
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.”
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.”
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 352 days
in filing the present revision petition. The application for condonation of delay is without any
merit as well as having no legal basis and is not maintainable. Consequently, the present revision
petition being time barred by limitation and is dismissed with no order as to cost.
..………………………………
[ V B Gupta, J.]
………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3544 of 2013
(From the order dated 16.01.2012 of the Odisha State Consumer
Disputes Redressal Commission, Cuttack in First Appeal no. 590 of 2009)
Shantilata Das CL 23, V S S Nagar Bhubneshwar – 7 District Khurda Lawful attorney of
Shri Sangram Keshari Das
Petitioner
Versus
ICICI Bank Ltd 184, 3rd Floor, Kedarson Building Janpath Kharvela Nagar Unit 3, Bhubneshwar – 1
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Biraja Mahapatra, Advocate
Pronounced on 29th October 2013
ORDER
REKHA GUPTA
Revision petition no. 3544 of 2013 has been filed under section 21 (b) of the Consumer
Protection Act, 1986 against the order dated 16.01.2012 of theOdisha State Consumer
Disputes Redressal Commission, Cuttack (‘the State Commission’) in First Appeal no. 590 of
2009.
The
facts asgleaned from
the
order
of
the
District
Consumer
Disputes Redressal Forum, Khurda, Bhubneshwar (‘the District Forum’), are that the petitioner
was the legal attorney of Shri Sangram Keshari Das. Shri Das had purchased a car (Travera)
bearing registration no. OR – 02 AD1710 to maintain his livelihood for a sum of Rs.6,80,850/availing finance of Rs.5,47,000/- from the respondent – the Bank. The same had to be repaid in
60 EMIs at the rate of Rs.10,725/-. The loan amount was being repaid regularly and
the loanee could not pay the three EMIs from 01.12.2006 to 01.02.2007. The loan was to be
liquidated by 01.10.2009. On 07.02.2007. A demand was made by the Bank that a sum of
Rs.33,525/- was due to be paid towards the loan amount. The petitioner wanted to deposit this
amount but it was not accepted by the Bank. In the meantime, the vehicle was repossessed by the
Bank on account of outstanding dues payable by the petitioner and the hypothecation agreement
was also terminated. The repossession of the vehicle was made unlawfully by the help of muscle
men without prior notice, hence, the petitioner was entitled to get compensation. It was further
stated in the complaint that the loanee had made the down payment of Rs.1,20,000/- at the time
of taking the loan and paid 14 EMIs from 01.11.2004 to 01.12.2005 at the rate of Rs.10,725/-.
Then the Bank voluntarily granted top up loan of Rs.60,000/- and the entire loan was fixed to be
paid in 10 EMIs at Rs.11,175/- each. Thus after repayment of the loan, the seizure of the vehicle
having been made and the case has been filed.
The case of the Bank according to their written version is that the Bank released the loan
amount of Rs.5,13,500/- with the agreement to repay the same at the rate of Rs.11,175/- in 60
EMIs. The petitioner was defaulter of Rs.44,700/- till 01.02.2007 i.e., four instalments. Hence,
the vehicle was repossessed rightly and subsequently it was sold by the Bank to realise the loan
dues.
The District Forum while allowing the complaint gave the following order:
“The complaint is hereby allowed ex parte against the Bank and dismissed ex parte
against OP no. 2. The Bank is directed to refund the balance sale proceeds to the petitioner in
respect of the vehicle which was sold after taking repossession having adjusted the sum of
Rs.44,700/- towards the loan amount which was said to be due from the petitioner. The Bank is
further directed to pay compensation of Rs.5,000/- to the petitioner for having repossessed the
vehicle with the help of muscle men without any prior notice to the petitioner and detained the
sale proceeds in respect of the vehicle after selling the same for a long time. Litigation cost is
assessed at Rs.1,000/-. The entire sum be paid by the Bank within one month from the date of
communication of this order, failing which they shall pay interest at the rate of 9% per annum
over the entire amount till the date of payment”.
Aggrieved by the order of the District Forum, the respondent – Bank filed an appeal
before the State Commission. The State Commission in their order observed that, “when the
appeal was taken up for hearing nobody appeared on behalf of the petitioner/ complainant.
Learned counsel appearing on behalf of the Bank submitted that the petitioner is in no way
connected with the hirer of the vehicle Sangram Keshari Das. She is the wife of one Sisir Kumar
Das. The relationship of Sangram Keshari Das, who had availed the loan with the present
petitioner Shanti Lata Das is not known, nor has it been disclosed. He submitted that when
admittedly there was default in payment of the EMI as per the agreement entered into between
the loanee and the Bank, the Bank was empowered to repossess the vehicle, and for realisation
of the outstanding loan amount, the Bank being the owner of the vehicle and the person to whom
the finance was made being the hirer, had every right to sell the vehicle. That is what has
happened in the present case.
We entirely agree with Mr Das and in our considered opinion, no deficiency has been
committed by the Bank in the matter of repossession and sale of the hypothecated vehicle, and
the impugned order passed by the District Forum cannot be sustained.
In the result, therefore, we allow the appeal, set aside the impugned judgment and order
dated 19.11.2008 passed by the District Forum, Khurda at Bhubaneswar in CD case no. 124 of
2007 and direct dismissal of the said CD case.
LCR be sent back forthwith”.
Hence, the present revision petition.
The impugned order was passed on 16.01.2012 and the revision petition was filed on
03.10.2012. As per the office report, there is a delay of 536 days. However, no application
for condonation of delay has been filed.
We have heard the learned counsel for the petitioner and have also gone through the records
of the case carefully. Counsel for the petitioner still argues that there is no delay in filing the
revision petition and has drawn our attention to paragraph 9 of the revision petition wherein it
has been stated that “the petitioner’s counsel on 13.08.2013 wanted to ascertain the position of
the case as he had never received any notice from the State Commission. On inquiry if transpired
only on that day that the matter was decided on 16.01.2012 by the State Commission headed by
Justice A K Samantray”.
However, there is an office report on the record. This is based on the report received from
the State Commission, Odisha. Secretary, Odisha State Commission in his letter dated
09.10.2003 has intimated that the free copy of the impugned order dated 16.01.2012 passed in
appeal no. 590 of 2009 was collected by the appellant’s advocate on 20.01.2012 and sent to
the Shantilata Das the petitioner immediately on 01.03.2012. If the limitation is to be calculated
from 01.03.2012, the date on which the certified copy of the order was sent by post by the State
Commission, then also there is a delay of 491 days. Counsel for the petitioner has failed to
explain the delay.
The petitioner has failed to give reasons for the day-to-day delay. The petitioner has
failed to provide ‘sufficient cause’ to condone the delay of 491 days. This view is further
supported by the following authorities:
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil
2006), decided by the Apex Court on 08.07.2010 it was held:
Appeal
no.
1166
of
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon,
P. Ramanatha Aiyar, 3rd Edition, 2005]”.
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.”
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.”
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.”
Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 491
days in filing the present revision petition. Consequently, the present revision petition being time
barred by limitation and is dismissed with a cost of Rs.10,000/- (rupees ten thousand only).
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 four weeks from today. In
case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable
to pay interest @ 9% per annum till realisation.
List on 6th December, 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2717 of 2013
(From the order dated 09.09.2011 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula in Appeal no. 1763 of 2010)
Krishan Singh Son of Shri Inder Singh Resident of House no. 272/ 26 8 Marla Colony Tehsil and
District Panipat Haryana
Petitioner
Versus
Future General Insurance Co. Ltd., Shop No. 15, Jai Mata Market Gohana Road Panipat
Through its Manager
Divisional Manager MD, Future General Insurance Co. Ltd., Dr Gopal Dass Bhavan
8th Floor, Barakhamba Road Connaught Place New Delhi
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Gautam Godara, Advocate along with
Petitioner – IN PERSON
Pronounced on 30th October 2013
ORDER
REKHA GUPTA
Revision petition no. 2717 of 2013 has been filed under section 21 of the Consumer
Protection Act, 1986 against the impugned order dated 09.09.2011 in First Appeal no. 1763 of
2010
passed
by
the
Haryana
State
Consumer
Disputes Redressal Commission, Panchkula (additional bench) (‘the State Commission’).
The
brief
facts
of
the
case
are
that
the
petitioner/complainant
purchased
a Splendor Plus Motorcycle bearing registration no. HR 06 S 6031 from oneParamjeet and got
the same insured with OPs for Rs.38,000/- for the period from 09.09.2009 to 08.09.2009, vide
policy & certificate no. 2008-V 2006 1933 – FTW and cover note no. A 0846506. When the
petitioner parked the above said motorcycle under the flyover, Assandh Road, Panipat after
locking it on 28.11.2008, the same was stolen by some unknown person. The petitioner informed
the policy of PS City Panipat in this regard immediately but the police registered the case on
03.12.2008. The petitioner also informed the respondents/ opposite parties regarding the theft of
the motorcycle on the same day and complete the requisite formalities including submission of
untraceable report dated 10.04.2009 but the respondents have not settled his claim so far despite
repeated requests.
Respondent no. 2 / OP 2 repudiated the claim on the ground of non-insurable interest
of Paramjeet Singh who was insured of OP 2 and had already sold the vehicle to the
petitioner/complainant on 05.09.2008 but the policy still existed in the name of
insured Paramjeet Singh. Thus the insured had violated the terms and conditions of the policy.
Hence, the petitioner was not entitled to any claim. Respondent no. 2/ OP 2 denied any
deficiency in service on their part.
The District Consumer Disputes Redressal Forum, Panipat (‘the District Forum’) while
allowing the complaint ordered as under:
“We hereby allow the present complaint with the direction to the OPs to pay Rs.34,000/to the complainant with interest at the rate of 9% per annum from the date of filing of this
complaint till its realization. Cost of litigation to the sum of Rs.2,200/- is also allowed to
be paid by OPs to the complainant. The order shall be complied with within a period of
30 days from the date of announcement of this order”.
Aggrieved by the order of the District Forum, the respondents / OP 1 and 2 filed an appeal
before the State Commission. The State Commission vide its order dated 09.09.2011 came to the
conclusion that:
“It is an admitted case between the parties that motorcycle bearing registration no. HR
06 S 6031 stolen by some unknown persons on 28.11.2008 when it was parked under the
Flyover, Assandh Road Panipat, Learned counsel for the appellants/ opposite parties has
assailed the validity of the impugned order on the ground that on the date of alleged theft
the registration certificate as well as insurance policy stands in the name of its previous
owner ParamjeetSingh and appellants/ opposite parties are not liable to pay any
insurable benefits to the complainant.
Having considered the facts and circumstances of the case we feel that the learned
District Forum has committed great error while accepting the complaint by ignoring the
actual and factual position on record because on the date of alleged that of motorcycle in
question the complaint was not the owner of the motorcycle and insurance policy also
stands in the name of Paramjeet Singh from whom the said motorcycle was purchased by
the complainant. As such impugned order under challenge is not sustainable in the eyes
of law.
Accordingly, the appeal is accepted, impugned order is set aside and complaint is
dismissed”.
Hence, the present revision petition.
Along with the present revision petition an application for condonation of delay of 26 days
has been filed. However, as per the office report, there is a delay of 531 days. The impugned
order was passed on 09.09.2011 and the revision petition has been filed on 22.07.2013. The
reasons given in the application for condonation of delay are as under:
The impugned order was passed by Hon’ble State Commission on 09.09.2011 and
certified copy was supplied to the counsel on 09.11.2011. It is submitted that counsel for
the petitioner at Chandigarh failed to communicate about the impugned order to the
petitioner and later on when petitioner contacted him to know about the status of appeal,
petitioner was informed of the impugned order. Thereafter, he immediately applied for a
certified copy of the impugned order on 26.03.2013 and was delivered on the same day.
Since First Appeal was allowed 2 years back the counsel for the petitioner failed to
deliver the record of the appeal to the petitioner and accordingly petitioner procured the
record from his District Court Counsel and accordingly, came down to Delhi on
15.07.2013 and met his counsel. After perusing the papers present revision petition was
drafted and filed on today. It is submitted that there is some delay in filing the present
petition which is not intentional and deliberate one on the part of the petitioner and same
is liable to be condoned in the interest of justice otherwise petitioner will suffer
irreparable loss and hardships.
We have heard the learned counsel for the petitioner as well as the petitioner in person
and have also gone through the records of the case.
The petitioner has failed to give reasons for the day-to-day delay. The petitioner has
failed to provide ‘sufficient cause’ to condone the delay of 531 days. This view is further
supported by the following authorities:
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held 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”.
In Banshi vs Lakshmi Narain – 1993 (I) RLR 68 it was held that reasons for delay was
sought to be explained on the ground that the counsel did not inform the appellant in time,
was not accepted since it was primarily the duty of the party himself to have gone to
lawyer’s office and enquired about the case, especially when the case was regarding
deposit of arrears of rent.
In Bhandari Dass vs Sushila, 1997 (2) Raj LW 845, it was held that accusing the
lawyer that he did not inform the client about the progress of the case nor he did send any
letter, was disbelieved while rejecting an application to condone the delay.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil
2006), decided by the Apex Court on 08.07.2010 it was held:
Appeal
no.
1166
of
“The party should show that besides acting bonafide, it had taken all possible steps within
its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. [Advanced Law Lexicon,
P. Ramanatha Aiyar, 3rd Edition, 2005]”.
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.”
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.”
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.”
Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 531
days in filing the present revision petition. The application forcondonation of delay is without
any merit as well as having no legal basis and is not maintainable. Consequently, the present
revision petition being time barred by limitation and is dismissed with a cost of Rs.5,000/(rupees five thousand only).
Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name
of ‘Consumer Legal Aid Account’ of this Commission within four weeks from today. In case the
petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay
interest @ 9% per annum till realisation.
List on 6th December, 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 606 OF 2013
(From the order dated 16.11.2012 in Appeal No. 1769/2011 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
1. ICICI Prudential Life Insurance Co. Ltd. 205-P, Harshit Complex, First Floor, Opp. Minerva
Cinema, Atlas Road, Subhash Chowk, Sonepat Through its Manager
2. ICICI Prudential Life Insurance Co. Ltd. ICICI PruLife Towers, 1089, Appasaheb
Marathe Marg, Prabhadevi, Mumbai – 400025 Through its Manager
…Petitioners/Opp. Parties (OP)
Versus
Sulekh Kumar R/o H. No. 325/C, Sector-15, Sonepat,
Haryana
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
For the Respondent
: Mr. Rakesh K. Rajwania, Advocate
:
Mr. Joginder Ahlawat, Advocate
PRONOUNCED ON 31st October, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners against the order
dated 16.11.2012 passed
by
Haryana
State
Consumer
Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal No.
1769 of 2011 – ICICI Prudential Life Insurance Co. Ltd. & Anr. Vs. Sulekh Kumar by which,
while dismissing appeal, order of District Forum allowing complaint partly was upheld.
2.
Brief facts of the case are that complainant/respondent purchased policy for Rs.90,000/-
from OP No. 1/Petitioner No. 1 on 25.2.2006 and paid first premium of Rs.30,000/-. Even after
completion of 3 years period from the date of issue of policy, OP offered Rs.53,754/- to the
complainant instead of Rs.90,000/- and thus illegally retained Rs.36,246/-. Alleging deficiency
on the part of OP, complainant filed complaint before the District Forum. OP contested
complaint and submitted that complainant had surrendered the policy and sent request form
dated 23.3.2010. As per Clause 5 (i) of the policy, 60% of the value of units subject to the
payment of premium was paid for the three full policy years and Rs.53,735.54 being 60% of
value of units was transferred to the bank account of the complainant. As per terms of policy,
complainant was not entitled for any further payment and OP has not committed any deficiency
and prayed for dismissal of complaint. Learned District Forum after hearing both the parties,
allowed complaint and directed OP to pay Rs.36,246/- along with 9% p.a. interest and further
directed to pay Rs.2,000/- as compensation and Rs.1,000/- as cost of litigation expenses. Appeal
filed by the petitioner was dismissed by learned State Commission vide impugned order against
which, this revision petition has been filed.
3.
Heard learned Counsel for the parties finally at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that petitioner filed surrender request along
with application before the State Commission, but Learned State Commission without
considering that application has dismissed appeal so; revision petition may be allowed and
matter may be remanded back to the State Commission. On the other hand, learned Counsel for
the respondent submitted that order passed by learned State Commission is in accordance with
law; hence, revision petition be dismissed.
5.
Perusal of record clearly reveals that learned District Forum allowed complaint, as
petitioner could not produce on record copy of surrender request dated 23.3.2010. Petitioner
placed that document on record along with application before learned State Commission and
learned State Commission has not considered that application at all and has dismissed the appeal
on the basis of observations of the learned District Forum. It was obligatory on the part of State
Commission to consider application filed by the petitioner and either to allow application or
reject the application and only after that, final order in appeal should have been passed. As
surrender request was the basis of payment of 60% of the value; hence, we deem it proper to set
aside the impugned order and remand the matter back to the learned State Commission to
consider application for taking surrender request on record and decide appeal afresh.
6.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
16.11.2012 passed by learned State Commission in Appeal No. 1769 of 2011 – ICICI Prudential
Life Ins. Co. Ltd. Vs. Sulekh Kumar is set aside and matter is remanded back to the learned State
Commission to decide application filed by the petitioner for taking on record surrender request
and decide appeal afresh after giving opportunity of being heard to both the parties.
7.
Parties are directed to appear before the learned State Commission, Haryana on
16.12.2013.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1946 OF 2012
(From the order dated 23.01.2012 in First Appeal No. 249/2011 of UT Chandigarh Consumer
Disputes Redressal Commission)
Meenakshi, r/o House No. 582, Sector 22 – A, Chandigarh
... Petitioners
Versus
1. Foreign Horizons Overseas Consultants Pvt. Ltd. SCO 126 – 127 (Basement) Sector 8 – C,
Madhya Marg Chandigarh through its Director.
2. Arvind (Authorised Signatory) Foreign Horizons Overseas Consultants Pvt. Ltd. SCO 126 –
127 (Basement) Sector 8 – C, Madhya Marg Chandigarh
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Deepak Aggarwal, Advocate
For Respondents 1 & 2
Mr. Harmandeep Singh Saini, Advocate
PRONOUNCED ON : 31st OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 against the impugned order dated 23.01.2012, passed by the U.T. Chandigarh State
Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.
249/2011, “Meenakshi versus Foreign Horizons Overseas Consultants Private Limited & Ors.”
vide which appeal filed by complainant/present petitioner against the order passed by the District
Forum on 5.08.2011, allowing the said complaint was dismissed. During the course of hearing,
the learned counsel for the petitioner moved application on 11.10.2013 for deletion of respondent
no. 3 from the array of parties. The said application was allowed and the name of respondent no.
3 was deleted.
2.
Brief facts of the case are that the petitioner/complainant submitted the requisite
documents to respondents/OPs for arranging work permit visa for her for Australia and paid
`85,000/-, in all, towards processing, documentation and consultation charges. On the insistence
of the complainant, agreement dated 09.02.2009 was also executed between the parties. It has
been alleged that subsequently the OPs got some blank documents and cheque etc. duly signed
from the complainant. It is further alleged that later on the OPs converted the case of the
complainant unilaterally from work permit visa to study visa and told her to deposit a further
sum of `45,000/- in the name of one Mr. Nareshwho was their associate. The complainant
deposited `25,000/- on 5.5.2009, `20,000/- on 07.05.2009 and `15,700/- on 23.06.2009 with the
OPs. Thereafter, she visited the office of the OPs many times, but when there was no response,
she asked for refund of the money deposited. A sum of `85,000/- was returned to her by the OPs
after lot of alleged harassment. She, however, demanded rest of the money amounting to
`60,700/- and on failure of the OPs to give her the amount, she filed a consumer complaint
against them, requesting refund of `60,700/- and `2,00,000/- as compensation for mental agony
and harassment and `11,000/- as cost of litigation. The District Forum vide their order dated
05.08.2011 allowed the complaint and directed the OPs to pay a sum of `10,000/- for mental
agony and harassment besides `5,000/- as cost of litigation. The complainant filed an appeal
before the State Commission asking for enhancement of compensation, but the same was
dismissed as per impugned order. It is against this order that the present petition has been made.
3.
At the time of hearing before us, the learned counsel for the petitioner pleaded that the
petitioner has suffered lot of harassment at the hands of the OPs and hence, compensation to be
granted to her to the tune of `2,00,000/- on account of mental agony and harassment and punitive
damages of `1 lakh should be awarded in favour of the petitioner as the OPs had played with the
career of the petitioner. Learned counsel invited our attention to copy of the agreement between
the parties, saying that the OPs had failed to discharge their duties as stated in the said
agreement.
4.
On the other hand, learned counsel for the respondent stated that there was no deficiency
in service on the part of the OPs and hence, they were not entitled to compensate the petitioner in
any manner. In fact, they had already returned the amount of `85,000/- to the petitioner which
included the non-refund component of `35,000/- as well. The learned counsel invited our
attention to the written statement filed by them before the District Forum, in which it has been
mentioned that the visa file of the petitioner was rejected by the Australian High Commission on
the ground that the financial documents provided by the petitioner for her visa case were found
to be fake and forged. The Australian High Commission has, therefore, rejected here case
whereas OPs had filed her case before the Australian High Commission with utmost care and as
per Rules and Regulations.
5.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The admitted facts are that the petitioner obtained the
services of the OPs for helping her in obtaining work visa from the Australian High Commission
and for providing her guidance for the same and for this purpose, an agreement was also
executed between the petitioner and the OPs. It has been contended by the OPs in the written
statement before the District Forum that the visa case of the complainant was rejected by the
Australian High Commission, because the documents submitted by her were found to be fake
and forged on inquiry. This fact has not been controverted by the petitioner. It cannot be stated,
therefore, by any stretch of imagination that the OPs were responsible in any manner, if the
petitioner failed to obtain visa for going to Australia. Further, it is also made out that a sum of
`85,000/- has been returned by the OPs to the petitioner. The petitioner did not press the claim of
getting back `15,700/- and only requested for compensation for mental agony, harassment
etc. The District Forum has already allowed a sum of `10,000/- as compensation for mental
agony and harassment and `5,000/- as cost of litigation. This order has been upheld by the State
Commission and the OPs have not preferred any appeal against the same.
6.
In the light of discussion above, we do not find any justification to interfere with the well-
reasoned orders passed by the State Commission and the District Forum. There is no illegality,
irregularity or jurisdictional error in the impugned orders passed by the Fora below. The revision
petition is, therefore, ordered to be dismissed with no order as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1239 OF 2008
(From the order dated 17.12.2007 in First Appeal No. 2236/2006 of Rajasthan State Consumer
Disputes Redressal Commission)
1. Municipal Board, Todaraisingh, Distt. Tonk (Rajasthan) through Chairman
2. Municipal Board, Todaraisingh, Distt. Tonk (Rajasthan) through Executive Officer
... Petitioners
Versus
Gopal Lal Sharma s/o Shree Prasad, r/o Brahm Akhada, Todaraisingh, District Tonk Rajasthan
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Shantanu Bhardwaj, Advocate
Mr. Dinesh Garg, Advocate
For the Respondent
Mr. Ankit R. Kothari, Advocate
PRONOUNCED ON : 31st OCTOBER 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act,
1986 by the petitioner against the impugned order dated 17.12.2007 passed by the Rajasthan
State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.
2236/2006, “Municipal Board, Todarraisingh through Chairman, Municipal Board, Todaraisingh
& Anr. versus Gopal Lal Sharma”, vide which appeal against the order dated 15.11.2006, passed
by District Consumer Disputes Redressal Forum, Tonk (Rajasthan) was dismissed and the said
order of the District Forum, allowing the consumer complaint in question, was upheld.
2.
Brief facts of the case are that the petitioner Municipal Board, Todaraisingh, District Tonk,
Rajasthan is a statutory body created under the Rajasthan Municipalities Act, 1959. The
petitioner issued a public advertisement on 18.06.1968 for auction sale of 19 residential plots,
situated between Bhuda Ka Balaji to Dev Ji Temple in Todaraisingh city, and laid down certain
terms and conditions. One of the conditions was that 1/4th of the auction price of the highest bid
was required to be deposited at the site of auction and the balance 3/4th of the auction price was
to be deposited within one month from the date of the demand raised by the Municipal
Board. The respondent/complainant participated in the auction for plot no. 9, measuring 60ft. X
40ft. on 28.06.1968 and his auction bid @ `1.75/- per sq. yard was accepted as the highest
bid. The respondent / complainant deposited 1/4th amount of the consideration, i.e., `100/- of the
plot on 1.07.1968. It is the case of the petitioners that the respondent did not deposit the said
1/4th amount on the date of auction but deposited it three days later. Further, the
respondent/complainant failed to deposit the balance 3/4th of the bid amount, i.e., `366.67ps.
despite notices sent to him by the petitioners on various dates. The allotment of plot was,
therefore, cancelled accordingly as per condition no. 5 of the auction. Further, the Collector,
Tonk vide his letter no. 4477 dated 17.11.71, allotted the said land to Government School and
stadium in one of the schemes. The auction bidders were given options to have another land in
the vicinity at Subhash Colony. The complainant, however, filed the consumer complaint in
question, but the same was dismissed on 26.05.2005 on grounds of limitation. However, an
appeal filed against this order before the State Commission was allowed by them on 08.09.2006
and the case was remanded to the District Forum with directions to decide the complaint on
merits. The complaint was then allowed by the District Forum on 15.11.2006, directing the
petitioners to allot another plot of equal size on deposit of rest of 3/4th consideration. The
petitioner challenged the said order in appeal before the State Commission and the said
Commission dismissed the appeal vide impugned order dated 17.12.2007. It is against this order
that the present petition has been made.
3.
At the time of hearing before us, the learned counsel for the petitioner stated that the
auction bid in which the complainant got the plot in question was made on 28.06.1968, but
1/4th of the amount was deposited by the complainant on 01.07.68, i.e., 3 days later than the date
prescribed. The balance 3/4th of the amount was to be deposited within one month, but the
complainant failed to deposit that amount, despite notices sent to him. A notice was sent to him
on 19.09.68, stating that the balance amount of `366.67/- should be deposited within a time of
one week, failing which the 1/4th amount already deposited shall stand forfeited and the auction
made in his favour shall stand cancelled. Another notice was sent to him on 22.1.69, stating the
same position, but despite these notices, the complainant did not deposit the amount in
question. On 17.11.71, the plot in question and some other plots were allotted in favour of the
Government school for play-ground. Further, on 2.2.88, one Radhey Shyam and the complainant
made an application before the petitioner saying that they were not willing to accept the plot in
Subhash Colony, but if the plots are allotted to them near the road, they will have no
objection. The petitioner sent another notice dated 25.09.91 in which it was again stated that the
remaining consideration of the plot of `366.67/- and `1020.25/- as interest should be deposited
with them so that the plot could be handed over to him, but still the complainant did not deposit
the amount. The learned counsel then narrated about the consumer complaint filed in 2005 and
the orders passed by the District Forum and State Commission as mentioned above. Learned
counsel maintained that there had been no deficiency in service on their part, as they had been
writing to the complainant from time to time and making efforts for alternate plots on deposit of
the balance amount. The complainant was, however, interested in getting plot at the most prime
location, but at the rates prevalent in 1968, and such request could not be granted. The learned
counsel further argued that the consumer complaint in question was barred by limitation and
although this point had earlier been examined by the State Commission and they held the
complaint to be within limitation, but still the issue of limitation could be considered as there
was no estoppel against question of law. This view had been taken in judgement given by the
Hon’ble Supreme Court as reported in 1965 AIR 1325, “Chittori Subbanna versus Kudapa
Subbana and Ors.”.
4.
Learned counsel for the complainant / respondent submitted that although the plot in
question had been allotted to him by the petitioner, but the said plot along with some other land
was subsequently allotted to a Government School and hence there was injustice with the
complainant and deficiency in service on the part of the OPs. The complainant was always ready
to deposit the balance amount and even now, he was ready to deposit the said amount, provided
plot at suitable location is given to him.
5.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The facts as admitted by the parties are that the complainant
was allotted plot No. 9 measuring 60 ft. X 40 ft. in auction sale held on 28.06.68. The initial
1/4th amount of the total value of the bid was also deposited by the complainant, although late by
three days. However, the complainant has not been able to explain as to why he failed to deposit
the balance 3/4th of the amount in question. The notices were also sent to him by the
petitioner/OP on 19.09.68 and 22.01.69, but still the complainant failed to deposit the balance
amount and the reasons for the same have not been explained anywhere. Later on, the said plot
and some other area was allotted to a Government school but still the petitioner/OP offered to
allot him plot in some other colony and a notice to this fact was also sent on 25.9.91, but still the
complainant failed to deposit the balance 3/4th of the amount. In the year 1991, i.e., 23 years
after the initial allocation, the petitioner asked the complainant to pay the same amount as was
due in the year 1968, but the complainant failed to avail of the said offer.
6.
In the light of these facts, it becomes clear that there has been no deficiency in service on
the part of the petitioners in any manner and they were well within their rights to cancel the
allotment, once the balance amount was not deposited, despite notices sent to the complainant.
7.
In the light of this discussion, it is very clear that the orders passed by the State
Commission as well as by the District Forum do not reflect a correct appreciation of the facts on
record and the said orders are perverse, as there is no justification in allotment of plot to the
complainant at old rates in view of the facts that he failed to deposit the necessary amount
despite notices sent to him. The present revision petition is, therefore, allowed and the impugned
order is set aside. The consumer complaint in question, is ordered to be dismissed with no order
as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 125 OF 2013
(From the order dated 24.09.2012 in First Appeal No. 420/2011 of Haryana State Consumer
Disputes Redressal Commission)
M/s. Vikas Sanitary and Hardware Store, Bhai Kanhaiya Sahib Chowk, Gobindpuri, Yamuna
Nagar, through its Proprietor Shri Vikas Sharma
... Petitioner
Versus
1. The New India Assurance Co. Ltd. Opposite Madhu Cinema Yamuna Nagar through its
Branch Manager
2.
The Punjab National Bank, New Grain Market, Jagadhari, Haryana
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner(s)
Mr. D.P. Sharma, Advocate
For the Respondent–1
Mr. R.B. Shami, Advocate
For the Respondent–2
Mr. Pardeep Walia, Advocate
PRONOUNCED ON : 31st OCTOBER 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order dated
24.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission (for short
‘the State Commission’) in FA No. 420/2011, “The New India Assurance Co. Ltd. versus M/s.
Vikas Sanitary & Hardware Store & Anr.” by which while allowing the appeal, order of District
Forum allowing the complaint was modified and compensation was reduced.
2.
Brief facts of the case are that complainant – petitioner got his shop insured from opposite
party No. 1 / respondent no. 1 from 24.03.2006 to 23.03.2007 for coverage of risk of fire, theft
etc. Complainant had obtained cc limit from opposite party no. 2 / respondent no. 2 for running
his business. In the intervening night of 29/30.09.2006 fire broke-out in the shop. A report was
lodged with the Police and intimation was given to opposite party no. 1. Opposite Party No. 1
was given legal notice, thereafter, opposite party No. 1 sent a cheque of `1,36,547/- to opposite
party No. 2 which was credited in the account of complainant. As amount sent was too less in
comparison to loss of `5,22,000/-, alleging deficiency in service on the part of the opposite
parties, the complainant filed complaint before the District Forum. Opposite parties resisted
claim and submitted that as per assessment made by surveyor, cheque was sent and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties allowed the
complaint and directed opposite party No. 1 to pay `2,84,932.19ps. along with interest @12%
p.a. and further ordered to pay `5,000/- as litigation expenses. Appeal filed by opposite party no.
1 was partly allowed by learned State Commission. It was held that complainant is not entitled
to any relief except `1,36,547/-, against which this revision petition has been filed.
3.
Heard learned counsel for the parties finally at admission stage and perused the record.
4.
Learned counsel for petitioner submitted that impugned order is a non-speaking order,
hence revision petition be allowed and matter may be remanded back to learned State
Commission. Learned counsel for respondent also agreed to this extent that the impugned order
is a non-speaking order.
5.
Learned State Commission after narrating facts in detail in the impugned order observed as
under:“After gone through the case file, I feel that the grant of compensation
is not justified. As per the facts and circumstances of the case and
findings recoded by the District Forum as well as the order passed by
District Consumer Forum needs to be modified to the extent that
compensation of `1,36,547/- instead of `4,21,479.19 - `1,36,547/- will be
justified. The appellant / OP No. 1 is not entitled to any other benefit.”
6.
Perusal of order carefully reveals that no reason has been given by learned State
Commission while reducing compensation awarded by District Forum. Hon’ble Apex Court in
(2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:
“2. We may point out that while dealing with a first appeal, this is not the
way to dispose of the matter. The appellate forum is bound to refer to the
pleadings of the case, the submissions of the counsel, necessary points for
consideration, discuss the evidence and dispose of the matter by giving
valid reasons. It is very easy to dispose of any appeal in this fashion and
the higher courts would not know whether learned State Commission had
applied its mind to the case. We hope that such orders will not be passed
by the State Consumer Disputes Redressal Commission, Haryana at
Chandigarh in future. A copy of this order may be communicated to the
Commission”.
7.
Hon’ble Apex Court in (2005) 10 SCC 243 H.K.N. Swami versus Irshad Basith (Dead)
by LRs. observed as under:“The First appeal has to be decided on facts as well as on law. In the
first appeal parties have the right to be heard both on questions of law as
also on facts and the first appellate court is required to address itself to
all issues and decide the case by giving reasons. Unfortunately, the High
Court, in the present case has not recorded any finding either on facts or
on law. Sitting as the first appellate court it was the duty of the High
Court to deal with all the issues and the evidence led by the parties before
recording the finding regarding title. The order of the High Court is
cryptic and the same is without assigning any reason.”
8.
In the light of aforesaid judgements it becomes clear that it is obligatory on the part of the
first appellate court to pass detailed, speaking order with reasons. In the present case, learned
State Commission has not applied its mind at all and has modified the order of District Forum
without any reason in such circumstances, matter deserves remand.
9.
Consequently, revision petition filed by the petitioner is allowed and the impugned order
dated 24.09.2012 passed by State Commission in FA No. 420/2011, “The New India Assurance
Co. Ltd. versus M/s. Vikas Sanitary & Hardware Store & Anr.” is set aside and matter is
remanded back to the State Commission to pass detailed speaking order after giving an
opportunity of being heard to both the parties.
10.
Parties are directed to appear before the State Commission on 17.02.2014.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3508 OF 2012
(From the order dated 15.05.2012 in First Appeal No. 537 of 2012 the
Rajasthan State Consumer Disputes Redressal Commission, Jaipur)
1.
Country Club (India) Limited, Through its Managing Director, Having its office
at Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad – 63, Andhra
Pradesh
2.
Country Club (India) Limited, Through its General Manager, (Sales and Marketing),
Having its Office at B-7, Bhavani Singh Road, 22 Godam Circle, Behind Neelkant Mall, CScheme, Jaipur
Petitioner/Opposite Party
Versus
Tarun Raut,Flat No. 203, Dadu Marg, Barkat Nagar, Tonk Phatakm Jaipur – Rajasthan
Respondent/Complainant
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B C. GUPTA, MEMBER
For the Petitioners
:
Mr. Mohit Mudgal, Advocate
Mr. Davesh Bhatia, Advocate
Mr. Jasmeet Singh, Advocate
For the Respondent
:
Mr. Amritesh Mishra, Proxy Counsel
PRONOUNCED ON 31st OCTOBER, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order dated
15.05.2012 passed by the learned State Consumer Disputes Redressal Commission, Rajasthan (in
short, ‘the State Commission’) in Appeal No. 537 of 2012 – Country Club (India) Ltd. & Anr.
Vs. Tarun Rawat, by which while dismissing the appeal, order of the District Forum allowing the
complaint was upheld.
2.
The brief facts of the case are that the complainant/respondent under the Mr. Millionaire
Club Parivar Membership
Scheme
paid
Rs. 35,000/- and sought confirmation for tour to Goa. Opposite party-petitioner did not confirm
booking inspite of repeated requests. As tour was not confirmed, complainant family could not
visit Goa and his reputation suffered. Alleging deficiency on the part of the opposite partycomplainant filed complaint before the District Forum. Opposite party did not file written
statement before District Forum. Learned District Forum after hearing both the parties allowed
the complaint and directed opposite party to pay Rs. 1,00,000/- as compensation.
Appeal filed
by the petitioner was dismissed by learned State Commission vide impugned order against which
this revision petition has been filed.
3.
Heard learned Counsel for the parties finally at admission stage and perused record.
4.
Learned counsel for the petitioner submitted that the order passed by the learned State
Commission is not a speaking order and does not contain any reason for dismissal of application
for condonation of delay as well appeal hence, revision petition be allowed and impugned order
be set aside and matter may be remanded back. On the other hand, learned counsel for
respondent submitted that order passed by the learned State Commission is in accordance with
law hence, revision petition be dismissed.
5.
Order passed by the learned State Commission runs as under:
“The appellant has filed this appeal with delay of 117 days. The grounds and
explanations given in the application do not appear to be justified and proper. Hence, in
the interest of justice, it does not appear to be appropriate to condone the delay.
The subordinate Distt. Forum has passed order after examining all the facts of
complaint and evidence in detail. Therefore, we do not find any justifications to reexamine all the facts of complaint and evidence.
In view of facts and circumstances, we do not find any lapses/error in the order
dated 30.11.2011 passed by the ld. Distt. Forum, camp at Jaipur, Jaipur in complaint no.
1154/2011 (2nd, 215/2007). As the Distt. Forum has applied correct judicious mind on
the facts brought out on record, there is no ground of any interference therein,
whatsoever. In addition, the appeal appears to be without any substance on merit also”.
6.
Perusal of order clearly reveals that no reason has been assigned in the order for rejection
of application for condonation of delay as well appeal. Hon’ble Apex Court in (2001) 10 SCC
659 HVPNL Vs. Mahavir observed as under:
“We may point out that while dealing with a first appeal, this is not the way to
dispose of the matter. The appellate forum is bound to refer to the pleadings of the case,
the submissions of the counsel, necessary points for consideration, discuss the evidence
and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal
in this fashion and the higher courts would not know whether learned State Commission
had applied its mind to the case. We hope that such orders will not be passed by the
State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A
copy of this order may be communicated to the Commission”.
7.
Hon’ble Apex Court in (2005) 10 SCC 243 H.K.N. Swami Vs. Irshad Basith observed in
para-3 as under:
“The first appeal has to be decided on facts as well as on law. In the first appeal
parties have the right to be heard both on questions of law as also on facts and the first
appellate court is required to address itself to all issues and decide the case by giving
reasons. Unfortunately, the High Court, in the present case not recorded any finding
either on facts or on law. Sitting as the first appellate court it was the duty of the High
Court to deal with all the issues and the evidence led by the parties before recording the
finding regarding title. The order of the High Court is cryptic and the same is without
assigning any reason”.
8.
In the light of the aforesaid judgments of Hon’ble Apex Court, it becomes clear that it was
obligatory on the part of the State Commission to pass speaking order with reasons while
disposing appeal. In the present case, impugned order does not contain any reason for dismissal
of application for condonation of delay as well appeal and in such circumstances, impugned
order is liable to be set aside and the matter is to be remanded back to the State Commission.
9.
Consequently, revision petition filed by the petitioner is allowed and the impugned order
dated 15.05.2012 passed by the learned State Commission in appeal No. 537 of 2012 – Country
Club (India) Limited & Anr. Vs. Tarun Rawat, is set aside and matter is remanded back to the
learned State Commission to dispose of appeal by a speaking order after giving an opportunity of
being heard to the parties.
10.
Parties are directed to appear before the State Commission on 09.12.2013.
..……………Sd/-……..………J
(K. S. CHAUDHARI)
PRESIDING MEMBER
……………Sd/-….……………
(DR. B. C. GUPTA)
MEMBER
SB/4